• Key point. A church may be legally responsible for a pastor's acts of child molestation on the basis of a breach of a "fiduciary duty," negligent hiring and supervision, and "ratification" of the pastor's conduct as a result of its failure to investigate and address known irregularities.
• Key point. Church leaders that ignore credible evidence of misconduct by a minister or lay worker may be deemed to have "ratified" future similar acts of misconduct by the same person. As a result, it is imperative that church leaders not ignore such incidents.
The Colorado Supreme Court ruled that a church whose pastor molested a young boy could be sued on the basis of a breach of a fiduciary duty, outrageous conduct, negligent hiring and supervision of the pastor, and ratification of the pastor's conduct. The court's ruling addressed a number of issues that will be helpful to church leaders in reducing the risk of such incidents, and in reducing the potential for church liability. The circumstances of this case are tragic and unusual. A 7—year—old boy (the "victim"), who was experiencing emotional trauma, was encouraged by his pastor to enter into a counseling relationship with him. The boy's mother approved, and the counseling sessions lasted for a number of years. From the very first counseling session the victim claimed that the pastor engaged in sexual contact with him, including having him sit on the pastor's lap while the pastor massaged his thighs and genitals. While these "massages" were occurring the pastor would tell the victim that "your father loves you, your mother loves you, God loves you, and I love you." Two other adult males claimed that the pastor had engaged in similar behavior with them when they were minors, including a physical inspection of their genitals to see if they had been "properly circumcised." The parents of two other boys complained to the church board about the pastor's counseling methods, and in particular his practice of inspecting genitals to check for proper circumcision. Nearly a year later the board responded by directing the pastor to discontinue his counseling of minors. A few months later the pastor was dismissed.
The victim and his mother sued the church and pastor. He claimed that the church board were made aware of the pastor's massaging techniques and his alleged improprieties with other counselees, but made no investigation and took no steps to put a stop to his activities. A jury ruled in favor of the victim, finding that (1) both the pastor and church breached a fiduciary to the victim; (2) both the pastor and church were guilty of "outrageous conduct"; (3) the church was guilty of negligent hiring of the pastor; and (4) the church was guilty of negligent supervision of the pastor. The jury awarded damages totaling nearly $500,000. The pastor and church appealed, and a state appeals court overturned the jury's verdict in favor of the victim. The victim appealed to the state supreme court. The supreme court concluded that the pastor and church could be sued. The key portions of the court's decision are reviewed below.
freedom of religion defense of the pastor
The court began its opinion by rejecting the argument of the pastor that the first amendment guaranty of religious freedom prevented him from being found liable. The pastor had argued that any touching of the victim that might have occurred was not designed to satisfy any sexual desires, but was intended to facilitate the minor's communication with God. The court concluded that the pastor's massage technique was not entitled to constitutional protection as an exercise of religion: "Although his ultimate goal … was for counselees to receive help from God in resolving their problems … his choice to use massage with children had no biblical, doctrinal, or spiritual basis …. Despite the religious setting, the described massage technique simply reflects [the pastor's] choice of a relaxation and communication method between himself and his counselees."
freedom of religion defense of the church
The church, like the pastor, claimed that the first amendment prevented it from being found liable for the pastor's conduct. It did not rely upon the "religious basis" for the pastor's actions. Rather, it asserted that allowing civil judgments against pastoral counselors and their churches based upon conduct occurring during counseling sessions could so "entangle" the government with religious practices as to violate the first amendment's prohibition of an "establishment" of religion. The court disagreed. It acknowledged that "the decision to hire or discharge a minister is itself inextricable from religious doctrine." However, a court must "distinguish internal hiring disputes within religious organizations from general negligence claims filed by injured third parties." It quoted from one of its prior decisions:
[w]hile claims for illegal hiring or discharge of a minister inevitably involve religious doctrine, that is not the case for a claim of negligent hiring of a minister. The claim of negligent hiring is brought after an employee has harmed a third party through his or her office of employment. An employer is found liable for negligent hiring if, at the time of hiring, the employer had reason to believe that hiring this person would create an undue risk of harm to others. Hence, the court does not inquire into the employer's broad reasons for choosing this particular employee for the position, but instead looks to whether the specific danger which ultimately manifested itself could have reasonably been foreseen at the time of hiring. This inquiry, even when applied to a minister employee, is so limited and factually based that it can be accomplished with no inquiry into religious beliefs. Van Osdol v. Vogt, 908 P.2d 402 (Colo. 1996).
the church's liability for "ratifying" the pastor's behavior
The jury found the church liable for the pastor's misconduct on the ground that it "ratified" his actions by inadequately responding to the parents' complaints of misbehavior. The church insisted that (1) intentional misconduct by a pastor cannot be ratified; (2) it could not ratify actions of the pastor that were outside the scope of his employment; and (3) there was insufficient evidence that it ratified the pastor's actions. The court disagreed with all three objections.
Application. What is the relevance of this ruling to other churches and ministers? First, the case illustrates some of the theories of liability that may be asserted against a church and pastor in the event the pastor molests a minor. These include (1) outrageous conduct; (2) breach of fiduciary duty by the pastor and church; (3) negligent hiring; (4) negligent supervision; (5) ratification; and (6) punitive damages. Perhaps the most significant aspect of the court's ruling was its conclusion that the church was liable for the minor's injuries on the ground that it "ratified" the pastor's acts of molestation by not responding adequately to parents' complaints of misconduct. Ignoring such complaints can expose the church to significant liability. Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo. 1996). [Clergy Malpractice, Seduction of Counselees and Church Members, Negligent Selection as a Basis for Liability, Negligent Supervision as a Basis for Liability]
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