• 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 10-18.2. 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 federal district court in New York ruled that various church agencies and officers could not be liable on the basis of negligence for the sexual molestation of an adolescent boy by a pastor. An adult male (the plaintiff) alleged that in 1994 and 1995 when he was a minor he was sexually molested on a number of occasions by a pastor (Pastor Fred) who was serving as a “pastor emeritus” in a church in Massachusetts affiliated with the Lutheran Church-Missouri Synod (LCMS). In 1997 Pastor Fred was prosecuted and convicted of various criminal charges relating to his molestation of the plaintiff.
The plaintiff sued various LCMS agencies and officers (the church defendants) on the ground that they employed or supervised or retained Pastor Fred in a position of trust with the knowledge that he had a history of sexually assaulting minors. Plaintiff alleged that in 1977, while serving as a pastor in New York, Pastor Fred was forced to leave his post because of “inappropriate behavior” towards female members including minors. The plaintiff further alleged that an LCMC officer having jurisdiction over churches in New York had personal knowledge of Pastor Fred’s misconduct. However, in 1980 when Pastor Fred transferred to Massachusetts, this officer failed to inform church officials in Massachusetts of the prior misconduct knowing that during his ministry in that state he would have unsupervised access to children. Plaintiff claims that this failure constituted negligent retention and negligent supervision, and was the cause of his injuries. The court disagreed. It observed,
The court is prevented by the first amendment to the United States Constitution from determining, after the fact, that the ecclesiastical authorities of the Lutheran Church negligently supervised or retained a clergyman, as plaintiff contends. It is constitutionally dubious for a court or jury to set a standard of reasonable care for religious bodies which maintain rosters of clergy eligible for employment by congregations. New York courts have ruled that ‘any attempt to define the duty of care owed by a member of the clergy to a parishioner fosters excessive entanglement with religion.’ The same is true with regard to the duty of care in determining the continued eligibility of a person to serve as a pastor. As this court has previously held … ‘any inquiry into the policies and practices of the church defendants in hiring or supervising their clergy raises the same kind of first amendment problems of entanglement … which might involve the court in making sensitive judgments about the propriety of the church defendants’ supervision in light of their religious beliefs. Insofar as concerns retention or supervision, the pastor of a church is not analogous to a common law employee. He may not demit his charge nor be removed by the session, without the consent of the presbytery, functioning essentially as an ecclesiastical court. The traditional denominations each have their own intricate principles of governance, as to which the state has no rights of visitation. Church governance is founded in scripture, modified by reformers over almost two millennia. As the Supreme Court stated long [ago] ‘it is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so.’
The court stressed that any attempt, on its part, to “instruct the trial jury as to the duty of care by which a denomination keeps its roster of those clergy (and others) authorized to accept canonical employment by a parish church would of necessity require the court and jury to consider the fundamental perspective and approach to ordination and supervision of clergy and constituent churches inherent in the beliefs and practices of the particular denomination.” Further, “the selection and deployment of clergy is about as central to the life and purpose of a group of affiliated churches as anything we can imagine.” The court concluded,
The mainstream denominations differ greatly in their rules and policies for “calling” and removing clergy. For a court to intervene to set standards of care for the performance of this work, which is founded in scripture and in history, implicating apostolic succession in some denominations, is as unconstitutional as it is impossible. When such intervention is directed to retention, the problem becomes worse and such claims become a pleading substitute for the doctrine of respondent superior, inapplicable in New York to crimes committed by clergy, and not alleged by plaintiff in this case. Any award of damages would have a chilling effect, leading indirectly to state control over the future conduct of affairs of a religious denomination, a result violative of the text and history of the establishment clause. Because it would be inappropriate and unconstitutional for this court to determine after the fact that the ecclesiastical authorities negligently supervised or retained Pastor Fred, this case must be dismissed.
The court concluded that the church defendants would not be liable even if the first amendment was not a bar to the plaintiff’s claims because there was no proof that they were guilty of negligence. The court observed, “The church defendants claimed that there was no proof of prior notice to them that Pastor Fred would commit a sexual assault against a young man sixteen years after he left New York and moved to Massachusetts, simply by reason of a prior history of misconduct of an unspecified sexual nature years earlier with women.” In responding to the plaintiff’s assertion that the church defendants “knew” of Pastor Fred’s “pedophilic activities” because of his criminal conviction in 1997, the court simply noted that the conviction occurred after the alleged assaults in 1994 and 1995, and so it would be “illogical” for this conviction to “create a foreseeable duty of care on the part of the church defendants” dating back to prior years. The court concluded that that there was no admissible evidence that any church defendant “had requisite notice of Pastor Fred’s alleged proclivities to commit sexual assault.”
The court made a couple of other important observations concerning negligence. First, it noted that to prove negligent hiring, supervision, and retention, a plaintiff must show that “the employer knew or should have known of the employee’s propensity for the conduct which caused the injury.” In this case, this means that the plaintiff had to prove that the church defendants knew or should have known of any alleged propensity on Pastor Fred’s part to commit sexual assault both prior to hiring him and throughout the period of his employment.” The court emphasized that “there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.” Second, the court pointed out that since the church defendants in this case lacked the authority to remove a pastor from a congregation, there could be no claim for negligent retention.
Application. This case is important for the following reasons.
1. It is a precedent that can be used to defend against claims of negligence in the hiring, retention, or supervision of ministers by churches and denominational agencies. While not every court will agree with this court’s conclusions, the case stands as a forceful and persuasive precedent.
2. The case underscores the significance of knowledge of prior misconduct. When church leaders learn of information suggesting that a minister (or lay employee or volunteer) poses a risk of harm to others, this may serve as the basis for liability based on negligent selection or retention if the person commits foreseeable harm to one or more persons. In such a case, the issue will be whether the church acted reasonably in response to the information that it received.
3. The court suggested that a 16-year-old incident of misconduct of “an unspecified sexual nature” does not necessarily constitute notice that the person will commit an act of child molestation. Other courts may disagree with this conclusion, but this case suggests that a person’s unspecified acts of misconduct occurring many years ago may not make a church liable for that person’s future acts of child molestation.
4. In order to prove negligent hiring, supervision, and retention, a plaintiff must show that “the employer knew or should have known of the employee’s propensity for the conduct which caused the injury.” There is no “common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.”
5. Denominational agencies that lack the authority to remove a pastor from a congregation cannot be liable for the pastor’s misconduct based on negligent retention.
Ehrens v. The Lutheran Church-Missouri Synod, 269 F.Supp.2d 328 (S.D.N.Y. 2003).
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