• Key point 10-07.2. Many courts have ruled that the first amendment prevents churches from being legally responsible on the basis of negligent retention for the misconduct of ministers.

• Key point 10-10.2. Many courts have rejected negligent supervision as a basis for church liability in cases of sexual misconduct, either on first amendment grounds or because the harmful conduct was not foreseeable because the church was not aware of prior similar incidents by the same person.

• Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of first amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.
Negligence as a Basis for Liability

* A Texas court ruled that a church and regional denominational agency were not liable for the sexual assault of a church secretary by a pastor because they had no knowledge of prior acts of sexual misconduct by the pastor. A regional agency of the Church of God (the District) hires pastors and assigns them to local churches. Pastor Randy was assigned to a local church in 1998, and shortly after arriving he sexually assaulted a volunteer secretary and treasurer (Jane). She became pregnant, and Pastor Randy suggested she have an abortion. Jane later miscarried. Jane later informed the District of the incident, and the District investigated the matter and later dismissed Pastor Randy as a minister. Jane sued the church and District on several grounds, including negligent retention and supervision and violation of a Texas statute making employers liable for the “sexual exploitation” of employees.

the Texas statute

A Texas statute makes the employer of a “mental health services provider” liable for sexual exploitation that causes injury if it fails to inquire within five years after disclosure of a possible occurrence of exploitation or knows or has reason to know the provider engaged in sexual exploitation and fails to report as required or take necessary action to prevent or stop the sexual exploitation. Tex. Civ. Prac. & Rem. Code 81.003. A “mental health services provider” is an individual that “assesses, diagnoses, treats, or counsels in a professional relationship to assist an individual in (A) alleviating mental or emotional illness, symptoms, conditions, or disorders, including alcohol or drug addiction; (B) understanding conscious or subconscious motivations; (C) resolving emotional, attitudinal, or relationship conflicts; or (D) modifying feelings, attitudes, or behaviors that interfere with effective emotional, social, or intellectual functioning.” However, “mental health services” excludes “religious, moral, and spiritual counseling, teaching, and instruction.”

The court noted that “a member of the clergy providing religious, moral and spiritual counseling, teaching and instruction is not part of the definition of mental health services.” The church defendants offered an affidavit of the District overseer, who stated that the District never authorized any counseling by Pastor Randy other than to provide religious, moral, or spiritual counseling and had no knowledge he was allegedly providing any counseling other than religious, moral, or spiritual. The District also produced an affidavit signed by a member of the church’s board of elders stating that at no time had the church authorized Pastor Randy to provide any counseling, teaching, and instruction other than religious, moral, and spiritual.

The court concluded that Jane had produced no evidence to rebut the church defendants’ claim that Pastor Randy only provided religious, moral, or spiritual counseling. Therefore, the church defendants could not be liable on the basis of the sexual exploitation statute.

negligent retention

The court noted that an employer is liable for negligent retention only if it retains in its employ an incompetent worker “whom the employer knows was incompetent or unfit, thereby creating an unreasonable risk of harm to others.” A plaintiff’s injury “must be the result of the employer’s continued employment of a knowingly unfit employee.

The District overseer’s affidavit stated that prior to Pastor Randy’s sexually improper conduct with Jane, there was nothing in his file revealing similar conduct. Further, the church elder’s affidavit stated that no information came to the attention of the board of elders suggesting that Pastor Randy had engaged in sexual misconduct in the past. The court conceded that several complaints had been made against Pastor Randy in the past, but none involved sexual misconduct.

negligent supervision

The court noted that “an employer has a duty to adequately hire, train, and supervise employees, and the negligent performance of those duties may impose liability on an employer if injuries result from the employer’s failure to take reasonable precautions to protect others from the misconduct of its employees.” However, the court stressed that “absent a showing of foreseeability, a defendant cannot be liable as a matter of law for negligent hiring, supervision, or retention.” The church defendant’s evidence established that they “could not have known of the sexual assault of Jane or any sexual misconduct” prior to the time of the assault. Jane failed to produce evidence of such knowledge, and since “there was no evidence that the church defendants failed to take reasonable precautions to protect Jane from Pastor Randy’s misconduct” the case had to be dismissed.

Application. This case is important for one reason. It demonstrates the vital importance of acting upon known or suspected cases of sexual misconduct involving clergy, lay employees, or volunteers. The court noted that “absent a showing of foreseeability, a defendant cannot be liable as a matter of law for negligent hiring, supervision, or retention.” Since Jane could not prove that the church or District was aware of any prior sexual misconduct on the part of Pastor Randy, they could not be liable on the basis of negligence for his wrongful acts. On the other hand, had the church and District been aware of prior incidents of sexual misconduct, but failed to take appropriate steps to protect others from harm, they would have been exposed to liability in this case based on negligent retention or supervision. In summary, this case illustrates the importance of taking every allegation of misconduct seriously, and taking steps to protect others from future acts. Doe v. South Central Spanish District of the Church of God, 2002 WL 31296620 (Tex. App. 2002).

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