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Selecting Ministers and Negligent Retention

A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct.

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it "retained" them after receiving information indicating that they posed a risk of harm to others.

* A federal appeals court affirmed a sentence of 18 years imprisonment without the possibility of parole on an active church member who pleaded guilty to possession and distribution of child pornography. An adult male (Keith) was arrested for using the internet to collect and trade child pornography. He used his computer to download over 15,000 images from a network that trafficked in child pornography, and he allowed others in the network to obtain images from his computer. At sentencing a federal district court considered evidence about Keith's personal history and characteristics. He submitted letters from friends and family describing his traumatic childhood and his parents' divorce. Some letters described his regular church attendance and membership in his church's youth group when he was a child.

Keith requested a 5-year sentence (the statutory minimum) so that he could have access to a treatment program as soon as possible. The court noted its concern about Keith's recent employment at a carnival, which demonstrated his propensity to work near children, and it concluded that he posed a possible danger to the public "if he were to take the next step of actually acting on his fantasies." The court noted Keith's difficult family situation, but concluded that his situation did not excuse his actions. The court recounted several aggravating factors, such as the seriousness of the offense, the need to promote respect for the law and deter future criminal conduct, the need to "provide just punishment for the offense," and Keith's history and characteristics.

The district court imposed a sentence of 18 years imprisonment without the possibility of parole. The trial judge noted that he reviewed "all of the letters" and believed that Keith was a "Jekyll and Hyde" with his "family and church and friends." On appeal, Keith argued that the district court did not adequately consider his personal characteristics and his need for access to psychiatric counseling. A federal appeals court disagreed, and upheld the sentence.

Application. This case illustrates two important points. First, possession and distribution of child pornography is a serious offense. Despite the fact that Keith pleaded guilty, he was sentenced to 18 years in federal prison without the possibility of parole. Church leaders sometimes discover that a staff member, or congregational member, has accessed child pornography. This must not be viewed as a minor infraction that can be safely ignored. Remember that many persons who access child pornography are pedophiles who pose a grave risk of harm to children, and to the church itself. To illustrate, if church leaders learn that a staff member has accessed child pornography, and fail to act decisively to protect children in the congregation from this person, then the church may be liable on the basis of "negligent retention" for his or her future acts of child molestation.

Second, note that Keith regularly attended his church, and that church members wrote several letters of support for him as he was awaiting sentencing. The district court concluded that he was a "Jekyll and Hyde" who completely deceived members of his church about his true character. This illustrates the importance of screening anyone who wants to work with minors in a church, no matter how "well known" the person may be. U.S. v. Phillipe, 212 Fed.Appx. 574 (7th Cir. 2007).

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 1, 2007

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