Breaking Down the Boys Scouts Sexual Abuse Settlement Plan: Is it Justice?

Although 86 percent of claimants who voted in the Boys Scouts of America sexual abuse bankruptcy case support the $2.46 Billion settlement—one of the largest sexual abuse settlements in history—many more victims oppose it. Since the settlement was approved in September, over 100 survivors have appealed the decision.

 "We are appealing because we don't think that the settlement is fair for the abuse survivors," said Attorney Gilion Dumas, who’s representing 67 survivors appealing the case.

 According to Dumas, one thing survivors take issue with is that the settlement extends legal protections to local Boy Scouts councils and churches that were responsible for the abuse but that did not file for bankruptcy and did not contribute to the settlement package. 

 "All of those local councils are also going to have their sex abuse claims against them settled and released, so nobody can ever sue them again," said Attorney Dumas.

 The $2.46 Billion bankruptcy settlement plan, approved by a bankruptcy judge in Delaware, will allow the Boys Scout organization to end a two-year Chapter 11 bankruptcy case first filed in 2020 after it was hit with more than 300 claims nationwide, totaling 82,900 victims. Chapter 11 bankruptcy is a type of bankruptcy that allows the organization in debt to maintain control of their business and property. This means the Boy Scouts of America will stay in business while actively settling its debts. 

 Another reason why survivors are appealing is because the settlement stipulates that the amount each survivor receives from the plan depends on the severity of the "alleged abuse" and when and where the abuse occurred. The lowest amount paid out, $3,500, is for survivors who do not wish to prove the severity of their abuse.

 For other survivors, what determines the severity of the abuse? Well, a table system called the Trust Distribution Procedure (TDP). This is a claims matrix designed by the courts that establishes six tiers of abuse types and provides the range of money potential victims might receive. It is a scaling factor that rates the abuser, classifies the kind of abuse, and decides how much each survivor is entitled to. There are six tiers in the TDP, assigned the values 1 to 6, ranging from severe cases to less severe, respectively.

 This claim system does not allow a survivor to claim for more than one tier, no matter how many abuse claims they have. If the survivor has more than one claim that falls into more than one of the tiers, their claims are placed in the highest tier applicable to them. However, if a survivor is not satisfied with the 'Proposed Allowed Claim Amount', they are allowed to apply for a reconsideration within thirty days of the proposed payout.

 Severe cases in Tier 1 are considered cases involving anal or vaginal penetration by an adult or a foreign, inanimate object. Survivors of Tier 1 cases are eligible to receive anywhere from $600,000 to $2.7 Million, the maximum amount allowed per survivor.

 "There's going to be some variables to this Trust Distribution Procedure tier system," said Andrew Van Arsdale, a lawyer who represents over 100 survivors in the original sexual abuse lawsuit against the Boys Scouts.

 "You've got maybe some kid that was smacked on the bottom or something and made to feel uncomfortable one time by this kind of weird dude, right? That's one side of the spectrum. Now on the other side of this spectrum, you've got a kid who, at the age of seven, started to be sodomized by his scoutmaster, and that dragged on till they were sixteen years old and spent nine years living this hell."    

 One such survivor goes by Jason, who served in the Boy Scouts from the ages of 12 to 18, and claims that within a six-to-seven-year period, he was raped, he said, "close to 1000 times" by his pack leader. Jason would fall into Tier 1 and be eligible to receive up to the maximum payout amount.

 But not all survivors are the same. Another survivor named Daniel said he was sexually abused by his troop leader between the ages of 11-15, while serving in the Boy Scouts. According to court documents, while on camping trips, his troop leader fondled his genitals and performed oral sex on him.

 Daniel, however, is only eligible to be in Tier 4, according to the TDP. Because he did not experience penetration, Daniel can only receive somewhere between $150,000 to $675,000.

 "We're in this position because the Boy Scouts of America created an environment that allowed pedophiles to run rampant," said Arsdale. 

 Another reason why survivors are appealing the case, Attorney Dumas said, is that the amount of money that each claimant would get, as set by the rules in the TDP, is not very much when compared to other sexual abuse bankruptcy cases.

 "It is a big amount of money in itself because the total is $2.4 Billion, but it's not a lot of money if you look at the number of survivors that have come forward, which is 82,900 survivors," Dumas said. "So, per claim, it is not historically that big compared to similar settlements in Catholic bankruptcies around the country, or the USA gymnastics bankruptcy, or other bankruptcies involving sex abuse."

 According to Dumas, the highest amount a victim can claim, which is 2.7 million, is more than one percent of the total settlement amount, which is 2.4 billion. Considering that there are over 80,000 claimants, it's easy to see that there is not enough money for each person to claim appropriately.

 A review of the 281-page court opinion for the Settlement Trust agreement, which declares the outcome of the case, finds that the Boy Scouts will contribute cash, real property and personal property valued at $219 million. Buried deep on page 365 of the 581-page case docket is the list of the 276 local councils named in the bankruptcy case. Of these, any two local councils, as stated in the court opinion, will collectively contribute cash and real property in the amount of $500 million.

 The Church of Jesus Christ of the Latter-Day Saints, which is also a Boy Scouts local council, will contribute $250 million. Chartered organizations, which are places of worship, schools, or other community groups that have the same interests as the BSA, like the United Methodist Entities, will contribute $30 million to the Settlement Trust. United Methodist Entities has also agreed to lead a fundraising effort to raise an additional $100 million for the Settlement Trust from other chartered organizations.

 The rest of the money for the plan will come from the insurers of the Boy Scouts listed as debtors on the settlement plan and from other local organizations. Out of the 481 insurers listed as debtors, Hartford Insurance is set to pay one of the largest amounts among the four major settling insurers, in the amount of $787 Million.

 "This bankruptcy settlement is not justice. It's just business," said Douglas Kennedy, another survivor.

 Kennedy also serves as the co-chair of the Tort Claimant Committee in this settlement case, the committee that represents the interests of the survivors. While he was a minor in his local Boy Scouts chapter, he was raped on more than one occasion by his camp director over a period of several years. According to the rules of the TDP, Kennedy is considered a Tier 1 survivor.

 Another factor in how much money a survivor can claim, in addition to the tier system, is how knowledgeable the Boy Scouts Association was about the abuse that took place. The Boy Scouts is known for keeping records of sexual abuse happening within the organization. These records are known as the "perversion files" and were first recorded in 1910.

 The organization started the “perversion files” as a way to keep track of men who had been kicked out of scouting for sexual abuse so that they couldn't join another chapter. Unfortunately, this record-keeping did not work out well for the organization as many sexual abuse perpetrators slipped through the cracks and were able to rejoin in a different chapter. These perversion files were made public in a 2012 sexual abuse case against the Boys Scouts. 

 "So, if you got a perversion file case, then the organization certainly would have increased liability because they clearly knew about the guy,” said Arsdale. “They knew they were worried enough about it to start a record and not worried about it enough to kick him out of the Boy Scouts."

 Arsdale, Dumas, and other lawyers stated they believe The Boy Scouts were forced into bankruptcy not because they wanted justice for survivors but because different states around the country started to change their child sexual abuse laws and abolish their statute of limitations for childhood abuse. 

In 2019, New York was one of the first states to change its child sexual abuse laws. Governor Andrew M. Cuomo signed into law a new act that reformed the statute of limitations for child sexual abusers.

 According to the new Child Victims Act (A2683 and S2440), child survivors can now bring a criminal or civil lawsuit against abusers and institutions that protect the abusers until the survivor reaches age 55. Previously, victims were not able to sue after the age of 23.

 After New York changed its laws, states like New Jersey, Maine, California, North Carolina, and Vermont followed suit and made it possible for child sexual abuse victims to come forward and get justice. 

 According to lawyers representing survivors, these new sexual abuse laws put pressure on the Boy Scouts, and rather than fight all 82,900 individual cases across the country, they filed for bankruptcy to consolidate all the actions. This makes it harder for survivors to sue local chapters of the Boy Scouts.

 Although the settlement plan also aims to impose new youth protection measures for current and future Scouts, survivor Douglas Kennedy believes it’s not enough. Although Kennedy is not appealing the case, he takes issue with the settlement because there is no criminal investigation alongside it. He feels as though the Justice Department abandoned the survivors. Although the United States Justice Department helped set up the Tort Claimant Committee for the settlement plan, they have not responded to repeated inquiries for this story.

 "Really, you know, what's missing here is, at what point is the Department of Justice going to say, 'Hey, what happened? Why did it happen?'" said Kennedy.

 According to Kennedy, he would like to see the Justice Department take a stance and investigate all 82,900 claims to fully understand how such widespread sexual abuse happened so they could prevent such things in the future. 

 "There's a great saying by the philosopher Santayana: 'If we don't study the mistakes of our past, we are condemned to repeat them.'"