• Key point 10-04.A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.
Negligence as a Basis for Liability

* An Ohio court ruled that a youth pastor qualified as a “sexual predator” as a result of his molestation of three minors. A junior high school teacher (“Ron”) also worked part time as a youth pastor. He molested two girls in his church youth group, and one girl at school, and was later charged with 25 counts of sexual battery. Ron pleaded guilty to several of these counts. The court ruled that Ron was a “sexual predator” under state law, and as such he had to register as a sex offender and verify his address four times annually until his death. Ron challenged his classification as a sexual predator. He argued that he should have been classified only as a “sexually oriented” offender. A state appeals court disagreed. Under state law, a sexual predator is defined as a person who has been convicted of or pleaded guilty to committing a sexually oriented offense, and is likely to engage in the future in one or more sexually oriented offenses. The state has the burden of proving by clear and convincing evidence that a convicted offender qualifies as a sexual predator. State law sets forth a number of factors which a court must consider in deciding when an offender qualifies as a sexual predator, including: (1) the offender’s age; (2) the offender’s prior criminal record regarding all offenses, including, but not limited to, all sexual offenses; (3) the age of the victim of the sexually oriented offense for which sentence is to be imposed; (4) whether the sexually oriented offense for which sentence is to be imposed involved multiple victims; (5) whether the offender used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting; (6) if the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders; (7) any mental illness or mental disability of the offender; (8) the nature of the offender’s sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; (9) whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made one or more threats of cruelty; (10) any additional behavioral characteristics that contribute to the offender’s conduct.

In classifying Ron as a sexual predator, the trial court considered each of these factors and made the following conclusions on the record: Ron engaged in a pattern of conduct involving multiple victims; his conduct was a pattern of behavior that occurred over a period of five years; the victims were all minors; Ron was 26 years old when the offenses began and 32 years old when they ended; Ron’s relationship with the victims was that of track coach, former teacher, or youth minister; descriptions by all three victims as to the sexual nature of the relationship involved numerous incidents of sexual intercourse occurring in the homes of the victims’ parents, as well as in Ron’s home, the church, and local cemeteries. The appeals court noted that “determining recidivism is at best imperfect science, and while the guidelines may set forth potentially relevant factors, some may not be applicable in every case.” It concluded, however, that the trial court correctly concluded that Ron was a sexual predator who is likely to engage in sexually oriented offenses in the future.

Application. Church leaders often ask if a child molester can ever again be allowed to work with minors in a church. Any church that allows a child molester to work with (or have access to) minors, no matter how long ago the molestation occurred and no matter how exemplary a life the molester has lived since the offense occurred, is (1) exposing itself to astronomical liability; (2) exposing its governing board members to personal liability for gross negligence; and (3) exposing innocent children to potential molestation. This is true for persons who have committed only one previous act of child molestation, and whose names are not on a sex offender registry. But for a church to use a registered sex offender (or someone who has committed acts that could have led to being registered as a sex offender) in any position involving access to minors, the risk is unimaginable. Before giving a child molester a “second chance” after many years of exemplary behavior, church leaders should consider the analogy to sex offender registration laws such as the one in Ohio. These laws are based on the conviction that certain persons are so likely to commit future sexual offenses that their names must be placed on a sex offender registry for the rest of their lives. Church leaders should not even consider using a registered sex offender to work with minors, no matter how long ago the sexual offenses occurred. State v. Cook, 2002 WL 1270900 (Ohio App. 2002).

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