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Article summary. The twentieth century witnessed the emergence of a church activity without precedent in either scripture or church history—the all-night lock-in. Most lock-ins involve the detention of children or adolescents on church property for an entire night. Churches that conduct lock-ins face a number of significant legal risks. This article will document the key risks, and address several risk management principles that can help reduce these risks.
Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.
Key point 10-11.1. Churches can reduce the risk of liability based on negligent supervision for injuries not involving sexual misconduct by adopting risk management policies and procedures.

The all-night "lock-in" has emerged as a common activity for church youth groups. Children or youth are "locked in" their church, often all night, and are over-stimulated with nonstop activities designed to keep them awake as long as possible, all the while partaking of unlimited amounts of soda and junk food. In some cases, the activities are suspended occasionally for religious instruction. This unusual practice is common to most youth-serving charities, including scouts, YMCA/YWCAs, and even public schools.

It is important for church leaders to recognize that lock-ins expose a church to potentially significant legal liability. This article will review several recent cases involving lock-ins, review the main theories of church liability for injuries occurring at such events, and address ways that those risks can be managed.

Illustrative Cases

Summarized below are four recent cases illustrating some of the risks associated with lock-ins.

Case 1. Gomez ex rel. Gomez, 858 N.E.2d 1072 (Ind. App.,2006)

Two minor boys (the "victims") attended a "Youth Bash New Years Eve Lock-in" at their church. The event was sponsored, planned, and promoted by the church's youth pastor. More than one hundred children attended this event. Several "competitions" occurred throughout the evening, in which participants could win prizes donated by local businesses.

One such competition was a "food testing" game. The youth pastor asked some of the children to volunteer for the game, and offered a $50 gift certificate to the children who volunteered to play. The youth pastor picked four adolescents, including both victims, to come up on stage. The four contestants were all invited to taste something good like chocolate milk. Then the youth pastor brought an adult volunteer on stage, and poured various foods into his mouth that he chewed up and spit into a cup. Some of the foods were dog food, cauliflower, cottage cheese, salsa, sauerkraut, and pickle juice. The ingredients were all stirred together, and then the youth pastor offered each of the contestants a gift card if he or she would drink the mixture. Two girls who had volunteered left the stage. Then the youth pastor handed the cup to each of the victims who reluctantly drank the mixture despite their revulsion.

The victims threw up several times that evening and again the next day, and remained ill for three days with headaches and a sore throat. Each boy's parents took him to see a physician who conducted several tests to determine if the boys had contacted any diseases from the adult volunteer.

The victims' parents sued the church, youth pastor, and the adult volunteer for battery, negligence, and emotional distress. A jury found in favor of the victims and awarded each boy a total of $10,000 in compensatory damages. The jury also found against the church in the amount of $45,000 in punitive damages for each boy. The church appealed the award of punitive damages.

A state appeals court noted that punitive damages "are imposed to deter and punish wrongful activity," and require proof of "conscious and intentional misconduct, which the actor knew would probably result in injury." Punitive damages may be awarded "only if there is clear and convincing evidence that the defendant acted with malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake, honest error or judgment, over zealousness, mere negligence, or other human failing." In other words, the defendant must have "subjected other persons to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences."

The victims' parents insisted that since the youth pastor had planned the game before the lock-in, his actions were intentional and therefore warranted punitive damages. The court disagreed. It concluded that the youth pastor's planning of the event did not prove that he subjected the two boys "to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences." In fact, the court found no evidence that the youth pastor intended in any way to endanger the victims' well-being. In support of its conclusion the court quoted from the youth pastor's description of another game that was conducted during the lock-in: "It was a quiz show, but it was a quiz show with a Nickelodeon emphasis. Well, we're not going to bodily harm them. That wasn't our goal that night. But we might dump flour on their heads, put shaving cream on them for the wrong answers. There was a funny, messy consequence. But that's what teenagers enjoy."

Regarding the food testing game, the youth pastor conceded that it was a "gross-out game," but he insisted that "if I believed at any point that having anybody ingest that stuff would be harmful to them in any way, I would not have allowed the game to go on."

The court concluded that the youth pastor's behavior "at most, demonstrated an extreme lack of good judgment and perhaps an overzealous attempt at entertaining the adolescents with gross games." It pointed out that "today there are numerous reality television programs featuring gross competitions. The youth pastor clearly wanted to emulate this trend to appeal to the adolescents who attended the lock-in."

Case 2. Commonwealth, 197 S.W.3d 66 (Ky. 2006)

A church's youth pastor was convicted on two counts of first degree sexual abuse of a minor and was sentenced to 10 years in a state penitentiary. The first incident occurred at the youth pastor's home and involved a 15-year-old girl. Members of the youth group had gathered at the youth pastor's home for a sleepover since the group was leaving the next day on a youth trip. That night, several members of the group were in the living room watching a movie. The victim claimed that the youth pastor repeatedly touched and fondled her under her clothing. He later informed the victim that he mistakenly believed that she was his wife. He begged her not to tell anyone about the incident because it would "ruin his life."

The second incident involved the 12-year-old daughter of the church's senior pastor. This victim participated in a Friday-night "lock-in" activity at the church with other members of the youth group. As part of the event, youth group members stayed in the church overnight, participated in meetings, played basketball, and watched movies. At some point in the night, several of the children attending the event gathered in a church classroom to watch a movie. The youth pastor invited the victim to lie next to him during the movie. The victim claimed that the youth pastor repeatedly kissed her and touched her under her clothes, including beneath her underwear. She also alleged that she tried to stop him from touching her, but she was unable to do so.

Case 3. Hamm v. State, 2006 WL 649999 (Ark. 2006).

An adult male (Jerry) often worked with children at his church, serving at times as a Sunday school teacher and as an adult supervisor at church functions. Through that association he met a nine-year-old girl (the "victim"), and often invited her, her brother, and other children to his home. At times the victim's mother asked Jerry to babysit for her. He entertained the victim while she was at his home by providing various recreational activities, including video games, television, movies, four-wheeler rides, and fishing. The victim and a friend later reported that Jerry had initiated sexual contact with them during their visits.

Jerry was prosecuted for rape, and convicted. At his trial, a woman testified about her concerns over Jerry's behavior at a church lock-in. She observed him lying on his back with an unidentified little girl straddling his pelvic area. She pointed this out to the church's youth pastor, telling him that it wasn't appropriate and that she was very concerned.

In her interview with a state police investigator, the victim said that Jerry often encouraged children from the church to visit him at his home. There he entertained them in various ways, such as video games and fishing, four-wheeling, and other outdoor activities. The prosecutor argued that these recreational activities served to lure children into his home, to keep them coming back, and were thus used to cultivate their friendship and trust, culminating in incidents of sexual abuse. Similarly, Jerry came to the church lock-in, which was an activity for children. He brought his air mattress, a "magnet" for children who had brought their sleeping bags. There he held the little girl on the mattress in an inappropriate position, straddling his pelvic area.

Jerry insisted that what occurred at the lock-in between him and the little girl was non-sexual conduct. The state insisted that the conduct in question could constitute the sexual act of "frottage." Frottage is defined as "the act of rubbing against the body of another person to attain sexual gratification." A state appeals court agreed: "What she saw could be interpreted as a rubbing against the body of another to attain sexual gratification, and thus it could be defined as frottage, which is a sexual act …. There is nothing innocent about an adult male lying on his back and having a young girl straddle him, even when they are fully clothed, so that their pelvic regions are in contact."

The court concluded:

The contact between Jerry and the little girl involved a fifty-year-old man who was a Sunday school teacher and a church worker. It occurred at a lock-in, a church function where there were sure to be children. There he held a little girl of unspecified age in an inappropriate manner, straddling his pelvic area …. The contact occurred at church, viewed by children and their parents as a safe place where there were safe adults. As a supervisor of children at the church function, Jerry stood in a fiduciary relationship to the little girls, vested with a presumption of trust and confidence by virtue of that association. He babysat the victim and was often the sole adult responsible for her care, and he was also acting in a supervisory capacity when he encountered the little girl at the lock-in. He was an adult who was there to supervise the children, thus he stood in a position of authority or control vis-a-vis the unidentified little girl …. Jerry's conduct in frequently inviting young girls to his home while he was there alone, and his conduct at the lock-in, first in the incident on the air mattress, then sitting beside the little girls watching them, is also evidence that he was attracted to the physical characteristics of young girls …. Based on the facts of this case we cannot conclude that the trial court abused its discretion in holding that the act [that occurred at the lock-in] was relevant to show that Jerry was possessed of a depraved sexual instinct and had a proclivity for molesting young girls.

Case 4. Frith v. Fairview Baptist Church, 2002 WL 1565664 (Tex. App.-Dallas 2002)

A mother alleged that a Sunday School teacher ("John") sexually molested her minor daughter, Katie, on two occasions. One of the incidents allegedly happened during a lock-in on church property. During the lock-in John and the members of his Sunday School class stayed at church all night, watching movies and playing games. Katie claimed that while she was sleeping in the middle of the room, John began fondling her under her blanket. When Katie's mother arrived in the morning to pick her up, she found John sleeping next to Katie, sharing her blanket. John was later arrested for molesting Katie and another child. He pled guilty and was sentenced to twenty years in a state penitentiary.

At the time John began teaching Sunday School at the church, he had a criminal history that included three felony convictions (two for burglary of a building and one for possession of a controlled substance) and five misdemeanors (public intoxication, possession of marijuana, unlawful carrying of a weapon, and two for evading arrest or detention). There was also a protective order issued against him pursuant to allegations by his ex-wife that he had physically abused their child. The church did not perform a criminal background check on John before allowing him to teach Sunday School, although one pastor testified that they routinely performed such checks on volunteers.

Based on the fact that the church failed to perform both a criminal and civil background check on John, Katie's mother sued the church. She claimed that the church was liable for John's acts of molestation on the basis of negligent hiring. That is, the church was negligent in not conducting a criminal records check on John before using him to teach a children's Sunday School class, and the church's negligence resulted in Katie's injuries. A trial court dismissed the lawsuit, and Katie's mother appealed.

On appeal, Katie's mother claimed that, under the doctrine of negligent hiring, the church's duty to exercise reasonable care in the selection of its Sunday School teachers included the duty to perform a criminal background check. She insisted that if the church had fulfilled this duty, it would have known John was unfit and created an unreasonable risk of harm to the children in the Sunday School class. She also noted that the church had a policy of conducting criminal background checks on volunteers and employees who would be alone with children, but that it failed to conduct such a background check on John.

The court concluded that the church had a "self-imposed duty" to check the criminal background of children's workers because it adopted a policy requiring such checks. Since it failed to check John's criminal background, it breached this duty. However, the fact that the church had a duty to conduct a criminal records check on John before selecting him as a Sunday School teacher, and it breached this duty, did not necessarily mean that the church was responsible for John's molestation of Katie. Rather, the church's duty to inquire into John's criminal background "was but one component of the duty to protect Katie from John's conduct. The existence of a duty to protect is dependent on the type of knowledge the church would have gained from John's criminal record. The issue is whether, if the church had used reasonable care in discovering John's criminal background, it should have foreseen that hiring John could result in his molesting Katie." The court concluded that even if the church had checked John's criminal record, the crimes it would have discovered would not have suggested that he might molest minors. It observed:

while we agree that John's criminal background probably should have called into question his moral fitness as a Sunday School teacher, we cannot conclude John's background would have put the church on notice that he might sexually assault a child. While true that "it is not required that the particular accident complained of should have been foreseen," the injury must be "of such a general character as might reasonably have been anticipated," and "the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen." Here, none of John's convictions were for violent or sexual crimes, and nothing in his background indicated that he might sexually assault a child …. We conclude there is no evidence in this record that the harm that befell Katie was reasonably foreseeable to the church when it hired John.

As a result, Katie's mother failed to establish that the church owed a duty to Katie to protect her from John's criminal acts, and since there was no duty there could be no negligence.

Case #5. M.L. v. Civil Air Patrol, 806 F.Supp. 845 (E.D. Mo. 1992)

While this case did not involve a church, the facts and the court's ruling are relevant to church leaders.

Tim was an adult volunteer with a dually chartered Boy Scouts and Civil Air Patrol (CAP) post. He became actively involved with his CAP post, and especially with the adolescent participants. He was the post's recruiting officer, public affairs officer, and in charge of the color guard. He also was a convicted felon. In, 1987 he had been convicted in another state for molesting three boys at a church youth camp. He was on probation for those offenses when he became a CAP volunteer. One of the conditions of his probation was that he would have no unsupervised contact with children. Neither CAP nor the Boy Scouts had any knowledge of Tim's past convictions or that he was in anyway "unfit." Tim recruited a 12-year-old boy (the "victim") to attend CAP meetings and activities. Since the boy was too young to be a member of the program, Tim recognized him as a "guest." On one occasion, Tim took the victim to his home and had him undress in order to measure him for a uniform. While the victim was undressed, Tim attempted to molest him. The victim screamed and resisted, causing Tim to back off. Tim drove the victim home, warning him that "if you tell anyone what happened today, I'll blow up your house because I have people that have dynamite."

The victim did not tell anyone about Tim for several months. During those months he tried to avoid Tim, but could not avoid him entirely because of Tim's active involvement in the CAP post. During an all night lock-in Tim again attempted to molest the victim. Eventually, the victim learned of other boys Tim had molested, and for the first time he informed his parents. The parents informed the police, and Tim was arrested and prosecuted for several counts of molestation. He is presently serving a 54-year sentence.

Relevance to Church Leaders

The cases summarized above demonstrate some of the risks associated with lock-ins. Two of the most significant risks are sexual molestation and personal injuries. Here are some steps that church leaders can take to reduce these risks:

1. Board approval of all activities. All games and activities that will be conducted during a lock-in should be preapproved by the senior pastor and church board. Youth leaders should not have the unilateral authority to expose minors to games or contests involving an excessive risk of personal injury.

2. Prohibit games and competitions that are unsafe. Games and activities that create an unreasonable risk of personal injury should not be tolerated, no matter how appealing they may be to minors participating in the lock-in.

3. Parental permission. Have parents sign permission slips that describe the activities that will be conducted. Permission slips also should contain parents' contact information (home and cell phone numbers, etc.), as well as the designation of a staff member to make emergency medical decisions in the event a parent cannot be located.

4. Gender segregation. Churches that conduct lock-ins for both male and female high school students run the additional risk of sexual contacts among the students themselves. This risk can only be managed by strict segregation of male and female students, and continuous supervision by an adequate number of adult leaders. Consideration should be given to conducting same sex lock-ins.

5. Lowest risk. Some lock-ins are inherently safer than others. For example, lock-ins that restrict participants to young girls, and limit supervisors or chaperones to adult females (including several mothers), in most cases would be safer than lock-ins with male and female adolescent participants.

6. Adequate supervision. It is essential for a church to provide adequate supervision during a lock-in. If the event lasts all night, then adults must supervise the group all night. They can divide the responsibility by assigning adults to different "shifts." But, a minimum of two adults must be awake and "on duty" at all times. Anything less will expose participants and the church to an unacceptable level of risk. If young children are present, the area where the lock-in will occur should be thoroughly inspected to remove any toxic or dangerous substances or devices.

7. Restrict isolated areas. If possible, remote and isolated areas of the church should be locked.

8. Check with other local charities. It is a good practice to check with other charities in your community to see what precautions they use when conducting lock-ins. For example consider contacting the Boy Scouts and Girl Scouts, and the YMCA and YWCA. Make a written summary of the precautions that these other groups follow, and align your practices with the "community standard." Note the adult to minor ratios that they follow, as well as procedures to manage risk.

Key point. Remember, a church is not a guarantor of the safety of minors. But, it must exercise reasonable care when conducting activities involving minors. Reasonable care simply means complying with a community standard of care as evidenced by the practice of several charities in the area. Using local affiliates of national youth-serving charities is the best option, since in some states the standard of care is defined with reference to a "national" standard.

9. Videos. As the cases summarized above demonstrate, acts of sexual molestation during lock-ins often occur when the group is watching videos in the dark. This risk is easily remedied by leaving lights on when showing videos, and prohibiting adults from lying next to minors. Be alert to the use of blankets to conceal acts of molestation.

Key point. It is difficult if not impossible to adequately supervise a group with the lights turned off. A church can reduce the risk of molestation, and other injuries, by leaving lights on during the showing of videos. This will also reduce the risk of children wandering away from the group in the dark, either intentionally or accidentally.

10. Unauthorized departures. It is essential for supervisors to know if a minor has left the church building during a lock-in. The church is legally responsible for the care and supervision of minors until custody is returned to a parent or guardian at the end of the event. If a teenager sneaks away during a lock-in for a rendezvous with a friend, the church is responsible for whatever injuries may occur. Steps must be taken to prevent such unauthorized departures from happening. These may include some or all of the following:

  • Conduct periodic "roll calls." Read each name on the roster of participants and make sure they are all present.
  • Keep the group together at all times, with constant monitoring by at least two adults.
  • Monitor exterior doors.
  • Pay special attention to use of restrooms. This excuse provides minors with an opportunity to leave the group, and the church.

11. Avoid power imbalances. It is unwise to have minors of significantly different ages at the same lock-in. Power imbalances can lead to acts of sexual victimization of younger children, as well as a greater risk of injuries caused by "roughhousing."

12. Encourage disclosures of misconduct. Participants should be encouraged to report any inappropriate behavior that occurs during the lock-in to the senior pastor or any other staff member, as well as parents.

Key point. As the cases summarized at the beginning of this article illustrate, personal injuries and incidents of sexual molestation can occur during church-sponsored lock-ins. These are risks that church leaders must take seriously. Adequate safeguards should not be viewed as nuisances to be ignored, but rather as essential measures to ensure the safety and well-being of minors who have been entrusted by their parents to the church's care. If meaningful and effective precautions cannot be implemented, then the church has no alternative but to discontinue lock-ins.

13. Restroom breaks. Restroom breaks present a significant risk. Appropriate safeguards will depend on the layout of the church and the age of the minors. Children must not be allowed to wander off to a restroom alone, or with one or more older children.

14. Screen workers. All adult workers should be screened. Hopefully, the church already has implemented a screening program for persons who will be working with minors. Every person who assists as a supervisor or chaperone at a church-sponsored lock-in should be prescreened according to the church's policy. At a minimum, such screening should include the following components:

Written Application

Churches can significantly reduce their risk of legal liability for negligent selection (and the likelihood that an incident of abuse or molestation will occur) by having every applicant for youth work (volunteer or compensated) complete a "screening application." At a minimum, the application should ask for the applicant's name and address, the names of other youth-serving organizations in which the applicant has worked as an employee or volunteer, a full explanation of any prior criminal convictions, and the names of two or more references. The application should be completed by every applicant for any position involving the custody or supervision of minors. The application should also be completed by current employees or volunteers having custody or supervision over minors.

Contact References

Having volunteers complete an application form does not significantly reduce a church's risk of negligent selection. Significant risk reduction occurs if the church takes the following additional steps:

  • If an applicant is unknown to you, confirm his or her identity by requiring photographic identification (such as a state driver's license). Child molesters often use pseudonyms.
  • The best references will be other churches or youth-serving charities where the applicant has worked with minors. If a person has no prior experience working with minors, then personal references are the only option. However, in such a case it is advisable to limit personal references to members of your church.
  • Contact each person and organization listed as a reference in the application, and request a written reference. If you do not receive back the written reference forms, then contact the references by telephone and prepare a written memorandum noting the questions asked and the reference's responses. Sample reference forms (for use by mail or telephone) are contained in the resources mentioned above. Show the date and method of the contact, the person making the contact as well as the person contacted, and a summary of the reference's remarks. Such forms, when completed, should be kept with an applicant's original application. They should be kept permanently.

Criminal Records Checks

Criminal records checks will further reduce the risk of children being molested at lock-ins and other church-sponsored activities. They also reduce a church's risk of being found liable for the negligent selection of persons who molest children. At a minimum, churches should check out the sex offender registry maintained by the United States Department of Justice on its website, www.nsopr.gov. You can instantly check the sex offender registries of every state simultaneously by simply inserting a person's name. You do not need a Social Security number, or written permission, to perform these checks. And, they are virtually instantaneous. These checks are somewhat limited, since they only reveal convictions for certain sex crimes after a specified date in states that make their records available. But, it is a simple, fast and no-cost option that can be performed by any church. Be sure to make and date a copy of each search that you perform so that you can later prove that you conducted this check.

Many churches will want to do more thorough criminal records searches, and there are many options to choose from. But how do you select a screening provider from the thousands of options? One approach is to use the same screening provider that is used by other national youth-serving charities such as Boy Scouts and Girl Scouts, Boys and Girls Clubs, Big Brothers and Big Sisters, YMCA/YWCA, and the Salvation Army. Call a few of the local offices for these charities and find out which screening provider they are using. By aligning your church's practice with what other prominent charities are doing, you help to minimize the risk of negligent selection.

Criminal records checks must not be viewed as the only screening procedure that a church should implement. Such checks should be viewed as simply one component of an overall risk management policy that includes many of the precautions mentioned in this article.

What Crimes Disqualify an Applicant?

Not all crimes disqualify a person for a position involving contact with minors. A criminal conviction for a sexual offense involving a minor would certainly disqualify an applicant. In the case of pedophilic behavior (molestation of a pre-adolescent child) such a conviction should disqualify an individual no matter how long ago it occurred (because of the improbability that such a condition can be "cured"). Other automatic disqualifiers would include incest, rape, assaults involving minors, murder, kidnapping, child pornography, sodomy, and the physical abuse of a minor. Other crimes would strongly indicate that a person should not be considered for work with minors in a church. Some crimes would not be automatic disqualifiers, because they would not necessarily suggest a risk of child abuse or molestation. Some property offenses would be included in this list, particularly if the offense occurred long ago and the individual has a long history of impeccable behavior.

Most states have specified those crimes that will disqualify persons from working in licensed child care facilities. Church leaders can reduce the risk of negligent selection by using the same list of disqualifying crimes.

Interviews

Interviews provide the church with an opportunity to inquire into each applicant's background and make a determination as to each person's suitability for the position under consideration. The "selection and screening kits" described above contain sample interview questions.

Six Month Rule

Churches can reduce the risk of incidents of sexual molestation by adopting a policy restricting eligibility for any volunteer position involving the custody or supervision of minors to those persons who have been members in good standing of the church for a minimum period of time, such as six months. Such a policy gives the church an additional opportunity to evaluate applicants, and will help to repel persons seeking immediate access to potential victims.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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  • July 2, 2007

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