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California braces for onslaught of child sex assault lawsuits under new law

By Kristina Davis
San Diego Tribune
October 20, 2019

https://www.sandiegouniontribune.com/news/courts/story/2019-10-20/california-braces-for-onslaught-of-child-sex-assault-lawsuits-under-new-law

Matt Smyth, photographed at his Fallbrook home, is preparing to sue the Boy Scouts over claims of sexual abuse he suffered as a child.
Photo by Charlie Neuman

Potentially thousands of plaintiffs are preparing to file against churches, the Boy Scouts, schools, youth sports organizations and other institutions with passing of AB 218

Matt Smyth’s secret was spilled his senior year of high school with a knock on the front door of his family’s Fallbrook home.

Two plainclothes sheriff’s detectives were investigating reports that Smyth’s former assistant scoutmaster — the one who’d driven kids to Boy Scout meetings, chaperoned campouts and hosted fishing outings on his bucolic property — had molested several boys.

To the shock of his parents, Smyth shared that he’d been a victim, too.

But the bombshell stayed close to home for decades. Smyth never heard from the investigators again, and he moved on — or tried to.

More than 40 years later, Smyth is finally ready for his day in court, and a public reckoning.

The 55-year-old, who still lives in Fallbrook, is among the potentially thousands of Californians who are preparing to file sexual abuse lawsuits under a new law that throws aside the statute of limitations for three years beginning Jan. 1, 2020.

The law, signed by Gov. Gavin Newsom last week, is expected to result in an avalanche of litigation aimed at indelible institutions such as the Roman Catholic Church and the Boy Scouts of America, as well as local school districts, foster care agencies, hospitals and youth sports organizations.

“We’re trying to make our clients whole. There’s no amount of money you could pay these guys to make them go through what they went through again,” said Andrew Van Arsdale, a San Diego-based attorney representing hundreds of former Boy Scouts, including Smyth. “This is at least a good faith effort to do everything in our power to heal that wound, close that circle and get them the help they need.

“There’s men in their 70s and 80s who still think about what happened to them as 10-, 11-year-old boys, every day.”

California joins New York and New Jersey, which passed similar laws this year, and other states such as Maine, Delaware and Utah, which have completely abolished civil statutes of limitations in these kinds of cases.

The cumulative effect is increasing the pressure on national organizations that are potentially facing a sustained onslaught of high-figure payouts, as well as prompting questions about how court systems can manage such a large volume of cases fairly and efficiently.

What the law says

Under previous law, victims of child sex abuse had until age 26 to file a lawsuit, or three years from the time of discovery that psychological injury was caused by sexual abuse suffered as a child.

Sponsored by Assemblywoman Lorena Gonzalez, D-San Diego, AB 218 raises the statute of limitations to 40 years of age, or up to five years after discovery.

The law also opens a three-year window, starting Jan. 1, that allows victims of any age to sue on previously expired claims.

State agencies, such as universities and youth detention facilities, cannot be sued, but city and county agencies, as well as private entities, can.

If a court finds that a defendant tried to cover up the conduct, the damages awarded to the plaintiff can be tripled.

The language also has been strengthened, referring to child sexual abuse as child sexual assault.

“The idea that someone who is assaulted as a child can actually run out of time to report that abuse is outrageous,” Gonzalez said in a statement after the bill was signed. “More and more, we’re hearing about people who were victims years ago but were not ready to come forward to tell their story until now.”

Gonzalez had tried to get a similar version of the law passed last year, but then-Gov. Jerry Brown vetoed it, same as he had 2013 and 2014 iterations brought by others.

Brown, a former Jesuit seminarian, had called it a “matter of fundamental fairness.”

“There comes a time when an individual or organization should be secure in the reasonable expectation that past acts are indeed in the past and not subject to further lawsuits,” Brown wrote in a 2013 memo. “With the passage of time, evidence may be lost or disposed of, memories fade and witnesses move away or die.”

A similar one-year window had been allowed in California to file child abuse lawsuits in 2003, when most outrage was aimed at the Catholic Church over decades of abuse and cover-up. The flurry of litigation resulted in state dioceses paying a total of $1.2 billion in settlements.

The California Civil Liberties Advocacy and California School Boards Association were among those who opposed the latest bill.

The law places school districts around the state, particularly small or rural ones, in potential financial jeopardy, said Troy Flint, the school boards association’s spokesperson.

“While we certainly believe in and support redress for victims of sexual misconduct, we want to ensure that we can provide a measure of compensation without imperiling our ability to educate today’s students and tomorrow’s students.”

He added that insurers have signaled the possibility of withdrawing from the state or declining to insure for these types of situations.

“That puts schools in a very precarious state,” Flint said.

Auxiliary Bishop John Dolan said in a statement that the Roman Catholic Diocese of San Diego did not oppose Gonzalez’s bill, but it questioned the exception that protects state agencies from liability and sought “changes that would have made sure no victim was left out and that any person who was the victim of sexual abuse as a minor could have their day in court.”

The diocese, along with five others in the state, have given victims of Catholic abuse another option: to take a confidential settlement as part of the newly launched Victim’s Compensation Fund. If accepted, the victim cannot sue.

#MeToo for men

Thousands of Californians appear to be lining up in anticipation of the chance to go to court.

“Our phones have been ringing pretty much off the hook,” said San Diego-based attorney Irwin Zalkin, who represents victims in sex abuse cases.

His firm already has about 150 to 200 cases that are being prepared to file over the next couple years, he said. Most involve the Catholic Church and Jehovah’s Witnesses.

“It’s extremely meaningful for these survivors,” Zalkin said. “It’s cathartic for them to know they have the opportunity now to be heard, to seek some sort of vindication and have a voice.”

The law comes as claims of sexual abuse within the ranks of the Boy Scouts of America intensifies.

Van Arsdale’s firm, AVA Law Group, has teamed up with two others — Eisenberg Rothweiler in Philadelphia and Tim Kosnoff in Houston — to create Abused in Scouting, a network that is focused specifically on allegations that the Boy Scouts of America has failed to protect generations of boys.

The alliance has just over 1,200 clients nationwide so far — about 300 of them in California, with 25 in San Diego County — many who see this as a men’s #MeToo moment.

The team is building on prior litigation by others as well as investigative reporting by the Los Angeles Times that resulted in the 2012 release of the Boy Scouts’ so-called “perversion files,” a database of about 5,000 Scout leaders who’d been blacklisted due to reports of molestation from 1947 to 2005.

Of the new clients preparing to sue, Van Arsdale said only 100 name alleged abusers who are in the public database. The rest — 1,100 — accuse previously unnamed suspects, with very little overlap.

“The numbers are overwhelmingly horrifying,” he said.

In a statement, the Boy Scouts of America acknowledged past abuse and apologized to victims.

“We are outraged that there have been times when individuals took advantage of our programs to abuse innocent children,” the statement read. “We believe victims, we support them, we pay for unlimited counseling by a provider of their choice, and we encourage them to come forward.”

The organization said it has taken significant steps over the years to prevent abuse and responded “aggressively” to suspected abuse, including mandated reporting to law enforcement.

“Safeguards like mandatory youth protection training, mandatory background checks, a ban on one-on-one interactions between adults and youth, mandatory law enforcement reporting, and a volunteer screening database are key parts of our multi-layered approach to help keep kids safe,” the organization said.

The Abused in Scouting attorneys have handed over about 1,000 redacted client case files to the Boy Scouts in recent months containing the names of accused leaders, troop designations and timelines.

“They’re in the process of going through that data and reporting that to local police,” Van Arsdale said.

What happens next remains to be seen.

Speculation that the Boy Scouts of America may file for bankruptcy as a way to compensate victims and still keep the organization alive has attorneys preparing for multiple options.

The organization said it is still “exploring all options available” regarding potential financial restructuring.

Filing for Chapter 11 protection would significantly alter the course of litigation, putting a federal bankruptcy court in charge of assessing and holding in trust all of the organization’s assets.

The court would appoint a creditor’s committee made of individual creditors — likely five to nine alleged victims of abuse — who would then help set deadlines and criteria for other creditors to file claims. If there are ongoing lawsuits in other courts, those would be stayed and plaintiffs transferred to the bankruptcy action.

If bankruptcy is approved, the court would then slice up the available assets to pay eligible creditors.

The national organization has an estimated $1 billion in cash and land, and $100 million in artwork in Pennsylvania, according to preliminary investigation, Van Arsdale said.

Local councils, which have separate holdings, can also be sued as separate entities. For instance, the San Diego-Imperial Council has the camp in Balboa Park.

Lasting trauma

Smyth doesn’t want to see the Boy Scouts go under. But he does want them held accountable for the harm he says the organization inflicted on him and others well into adulthood.

“I think they should come forward and be the organization they intended to be and could be and make right on all this,” he said.

It was around seventh grade, in the mid-1970s, when Troop 737 out of Fallbrook’s VFW hall got a new assistant scoutmaster.

“I’ll always remember him, he had a yellow Toyota Land Cruiser,” Smyth said. “At first he seemed like a good guy, he seemed to know a lot about the outdoors. Every time I’d see him driving around he’d be with kids, even outside of Scouting events.”

The Union-Tribune is not identifying the accused volunteer leader at this time because he has not yet been publicly named in a lawsuit.

The leader bunked with a group of boys in a tent during a campout on Camp Pendleton one night.

“I woke up he was basically inside my sleeping bag,” Smyth recalled. “He was fondling me, just all over me.” Smyth said he told him to stop, pulling the drawstrings tight on his new mummy bag, but the assault happened a few more times that night.

The same thing happened during a camping trip off the Colorado River in Yuma, Smyth said.

The leader would sometimes invite the troop to a sprawling rural property with bass-filled lakes, Smyth said. He remembered resisting the leader’s invitations to go into the big house but saw other boys go inside.

Smyth soon lost his motivation for Scouting, fell into the wrong crowd and began abusing drugs.

The trauma resurfaced when the detectives showed up at his house a few years later, and again during counseling sessions and conversations with his wife over the years.

He was watching TV recently when he saw a commercial for Abused in Scouting. He figured it was time to do something.

“They just haven’t followed proper procedures to protect people, and it sounds like tried to bury this,” Smyth said of the Boy Scouts.

Smyth said he never found out what happened to the leader. But court records pick up the trail.

The leader, who managed an avocado and citrus grove for his father, also volunteered as a Pop Warner football coach, according to records in San Diego Superior Court. He was convicted of molestation charges and was believed to have abused the 14-year-old son of a family friend, a 7-year-old neighbor boy and at least three others, according to a mental health evaluation.

He was diagnosed as a mentally disordered sex offender in 1980 and sentenced to Patton State Hospital for nine years.

The leader’s name does not show up on the previously released database of Scout offenders.

But the name of the leader who another former Scout said abused him in the mid-1980s does. The Union-Tribune is not naming that leader at this point either.

Keith, 48, who didn’t want his last name used, said he was 13 or 14 when he went to a camp and met a Scoutmaster who was involved in the Junior Leadership Training program.

The teen was offered a mentorship, and after several one-on-one outings the leader eventually took Keith to his home in Pacific Beach, where the abuse began.

His recall is spotty, a result of the trauma, he said. The contact with the leader ended somehow, but he doesn’t remember. He said he began to experience severe emotional problems around age 16 and by 17 realization of the abuse bubbled up. He later went to the police.

“Police had me hook up a suction cup tape recorder to a phone and I had to call him,” Keith said. “They got enough of a taped confession.” But the leader was released from custody and it is unclear whatever came of the case. There are no felony criminal charges in the public record.

Detectives called Keith a few years later when complaints began to surface against the leader, a bus driver for San Diego Unified School District.

Boy Scout documents show the leader was placed on the ineligible volunteer list following reports of molestation in 1991.

Keith sees the upcoming litigation window as a second chance to get the justice he was seeking earlier. He is one of about 30 Scouting clients in California — and 200 nationwide — being represented by the law firms PCVA and Panish Shea & Boyle, said PCVA attorney Vincent Nappo. About 100 other clients nationwide expect to sue other entities, including the Catholic Church.

“Over the years I’d brushed it off and was told to go home and forget about it,” Keith said. “But you don’t. You can’t.”

Contact: kristina.davis@sduniontribune.com




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