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Church Liability for the Sexual Molestation of Minors

A recent case provides helpful guidance.

A recent case provides helpful guidance; Doe v. Liberatore, 478 F.Supp.2d 742 (M.D. Pa. 2007)

Article summary. In 1986 Congress enacted the Child Abuse Victims' Rights Act in order to allow victims of various sexual offenses, including child molestation and exploitation, to sue for money damages in federal court. Does the Act permit minors who are sexually molested by a church employee or volunteer to sue their church? Or, are victims only authorized to sue the person who committed the offense? These are important questions that were addressed for the first time by a federal court in Pennsylvania. The court also addressed a number of other theories of church liability, including the relevance of sexual orientation in selecting a church worker, and its conclusions will be of relevance to every church leader. This article will review the facts of this significant case, summarize the court's ruling, and evaluate the significance of the case to churches and other religious institutions.

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

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.

Key point 10-13.1. A few courts have found churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, the church or agency is found to be vicariously liable for the minister's breach of a fiduciary duty, but in others the church or agency is found to have breached a fiduciary duty that it had with the victim.

Key point 10-17.1. Punitive damages are monetary damages awarded by a jury "in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer." They are awarded when a person's conduct is reprehensible and outrageous. Most church insurance policies exclude punitive damages. This means that a jury award of punitive damages represents an uninsured risk.

Does the Child Abuse Victims' Rights Act, enacted by Congress in 1986, represent a new theory of legal liability that can be asserted against churches in federal court? This question was addressed by a federal court in Pennsylvania in a recent case. A young man who had been sexually molested by his pastor on numerous occasions sued his church and a denominational agency on the basis of several theories of liability including the Child Abuse Victims' Rights Act. Does this Act provide child abuse victims with a new theory of liability that can be asserted against churches in federal court? This was the central question that the court addressed. Every church leader should be familiar with the court's conclusion.

Background

A man (Allen) was ordained as a Catholic priest in 1989. Following several years of study in Europe Allen was assigned to a seminary in Pennsylvania. He also taught classes at a state university where he met a male student (Richard) who expressed an interest in becoming a priest. The two of them began spending a great deal of time together. Allen frequently took Richard out to dinner and to bars, purchased gifts for him, drove him to New York City on multiple occasions, and traveled to Los Angeles with him as a graduation gift following Richard's graduation. During the trip to Los Angeles Allen attempted to have sexual contact with Richard. These efforts continued upon their return to Pennsylvania.

The local bishop, upon being informed of Allen's activities, reassigned him to serve as pastor of a church in another city. Soon after assuming his duties as pastor, Allen met a 14-year-old altar boy (the "plaintiff"). Over the course of the next year Allen "groomed" the plaintiff, meaning that he undertook to establish an intimate friendship with him in preparation for sexual activity. During this time Allen took the plaintiff to movies and restaurants, and gave him expensive gifts such as a Movado watch, a cellular phone and fencing equipment. Allen provided counseling to the plaintiff after his father's death, and became a father figure to him.

Eventually, Allen began to make sexual overtures toward plaintiff. More than two years of sexual abuse followed.

On several occasions the bishop and diocese were informed of some of Allen's behavior. These communications included the following: (1) A female friend of plaintiff's mother informed two priests with whom she had been long-time friends of her suspicions concerning Allen's relationship with the plaintiff. She told them that Allen had given him extravagant gifts, taken him on overnight trips, and spent the night with him on several occasions in the church rectory. (2) A church custodian also shared her concerns about Allen's relationship with the plaintiff to four other priests. (3) A female employee of the diocese told one of her superiors that the plaintiff was "around the rectory more than she thought he should be," and that the relationship between Allen and the plaintiff "just didn't seem right [and] didn't look good." (4) A priest informed a diocesan official that he believed Allen was obsessed with the plaintiff and that Allen spent an inordinate amount of time with him, including wrestling and taking overnight trips together. He also stated that the church staff suspected that Allen was sexually abusing the plaintiff.

The plaintiff informed a Benedictine monk who worked at the church about Allen's behavior, but the monk instructed him "to forgive [Allen], to keep the issue private, and to not let other people know because it would ruin his life and the lives of others."

A year later, a new bishop was appointed. Soon after assuming his new duties, the bishop became aware of the rumors and incidents involving Allen. After reviewing Allen's personnel file the bishop became "alarmed" at the history of inappropriate behavior. A few months later, the plaintiff and another young man came forward and informed the bishop that Allen had sexually abused them. In response, the bishop hired an investigator to investigate the allegations.

Allen was arrested and charged with sexual abuse in the State of New York, as well as multiple counts of indecent assault and corruption of minors in Pennsylvania. He pleaded guilty to those offenses. The bishop thereafter dismissed Allen as a priest.

The lawsuit

The plaintiff sued his church as well as the diocese and bishop in federal court. He claimed that the defendants were responsible for Allen's wrongful acts on the basis of the following theories:

  • The federal Child Abuse Victims' Rights Act of 1986
  • Vicarious liability
  • Aiding and abetting
  • Negligent hiring, supervision and retention
  • Failure to report child abuse
  • Breach of fiduciary duty

The church defendants asked the court to grant a summary judgment in their favor. In ruling on a motion for summary judgment, a court generally construes the evidence in favor of the other party (in this case, the plaintiff), and grants the motion only if it concludes that reasonable jurors would not accept the plaintiff's claims.

The court's ruling

The court's response to each of the plaintiff's theories of liability are summarized below.

(1) Child Abuse Victims' Rights Act of 1986

Congress enacted the Child Abuse Victims' Rights Act in 1986 to expand the scope of the Protection of Children Against Sexual Exploitation Act of 1977 by providing a civil remedy for personal injuries suffered by victims of child sexual exploitation.

The Act specifies that any person who, while a minor, was a victim of sexual abuse, aggravated sexual abuse, sexual abuse of a minor, sexual exploitation of children, selling or buying of children, child pornography, or child prostitution, and who "suffered personal injury as a result of such violation, regardless of whether the injury occurred while such a person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the costs of the suit, including a reasonable attorney's fee." 18 U.S.C. 2255.

In summary, the Child Abuse Victims' Rights Act provides child victims of sexual abuse, molestation and exploitation with a federal cause of action for money damages. The court noted that the issue in this case was "against whom may that federal cause of action be brought?" The Act simply states that the victim "may sue in any appropriate United States District Court." It does not say against whom the lawsuit may be brought. The church defendants insisted that the Act only permitted a civil lawsuit against the perpetrator (Allen), and not them. The plaintiff argued that the church defendants could be sued under the Act on the ground that Allen was acting as their "agent."

The court noted that in the 20 years since its enactment, the Act has been addressed by only one other court. Smith v. Husband, 376 F.Supp.2d 603 (E.D. Va. 2005). In the Smith case, a federal district court in Virginia ruled that a criminal conviction for child molestation or exploitation, or child pornography, was not a prerequisite to bringing a lawsuit under the Act. Rather, Congress' intent was "to make the civil remedies provision available to any victim able to show by a preponderance of the evidence that the defendant committed the acts described in any of the listed offenses."

The Pennsylvania court agreed with this conclusion, noting that "in order to be subject to liability under [the Child Abuse Victims' Rights Act] a defendant must be proven to have violated at least one of the criminal statutes listed in [the Act] by a preponderance of the evidence." No criminal conviction is required.

The court concluded that there was sufficient evidence to persuade a jury that such violations occurred since plaintiff "offered evidence that Allen knowingly transported him, while a minor … in interstate and foreign commerce, with the intent of engaging in illegal sexual activity with him." Therefore, the plaintiff could sue Allen for money damages and attorneys fees under the Child Abuse Victims' Act. But did the Act authorize the plaintiff to sue the church and diocese for monetary damages and attorneys fees? The church defendants insisted that it did not, since they did not take part in Allen's criminal activities.

In resolving this question, the court relied on the following section in the federal criminal statutes: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal." 18 U.S.C. § 2(a). In other words, "one who criminally aids or abets a listed offense is punishable as though he himself committed the offense." As a result, "if one has aided or abetted another in violating one of the statutes listed in [the Child Abuse Victims' Rights Act] then he himself has committed an act indictable under that listed statute. As the aider or abettor has himself committed an indictable act, he is liable to the plaintiff under [the Act]." Therefore, "if the church defendants criminally aided or abetted Allen in the commission of his sexual offenses, they may be held liable under [the Act]."

In order to establish the offense of criminal aiding and abetting, it must be shown that: (1) the underlying offense has been committed; (2) the defendant knew the offense was being committed; and (3) the defendant acted with the intent to facilitate it. Unknowing participation is not sufficient to constitute an offense under the aiding and abetting statute. Acting with intent to facilitate an offense requires that one acted with the "intent to help those involved with a certain crime …. Indeed, the state of mind required for conviction as an aider and abettor is the same state of mind as required for the principal offense."

Since there was sufficient evidence that multiple offenses were committed by Allen, the first element of criminal aiding and abetting was met. However, the court concluded:

No reasonable jury could find that the second and third elements of the aiding and abetting offense are satisfied. While plaintiff's evidence demonstrates that the church defendants had reason to suspect that Allen was sexually abusing the plaintiff, there is nothing in the record demonstrating that the defendants consciously shared his knowledge of the underlying offenses, as well as the specific criminal intent to commit them. Indeed, a general suspicion that an unlawful act may occur is not enough. While it is possible to infer knowledge from a combination of suspicion and indifference to the truth … there still remains no evidence even remotely suggesting that the church defendants shared Allen's specific intent to commit the sexual offenses. While the defendants may have avoided learning of his offenses, there is no evidence that they desired that his crimes be accomplished. Also absent from the record is any evidence showing that the defendants actively participated in some manner to assist Allen in the commission of his offenses.

As a result, the church defendants could not be liable under the Child Abuse Victims' Act, and this portion of the plaintiff's lawsuit had to be dismissed.

(2) Vicarious liability

The plaintiff claimed that the church defendants were "vicariously liable" for Allen's acts of sexual molestation since these acts were committed during the course of and within the scope of his duties as a priest. The church defendants asked the court to dismiss this theory of liability on the ground that Allen's acts were committed outside the scope of his employment.

The court noted that "an employer is held vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment." The conduct of an employee is considered within the scope of employment if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is prompted, at least in part, by a desire to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer."

The court concluded that Allen's sexual molestation of the plaintiff was not within the scope of his employment as a priest since it was "wholly inconsistent with the role of one who is received into the Holy Orders as an ordained priest of the Roman Catholic Church. Moreover, the acts of sexual abuse perpetrated by Allen were … certainly not actuated by any purpose of serving the church or diocese."

As a result, the court dismissed this theory of liability against the church defendants.

(3) Aiding and abetting

The plaintiff sued the Benedictine monk to whom he shared the details of Allen's wrongful acts, claiming that he had aided and abetted in those acts by not divulging them to church officials and by instructing the plaintiff to forgive Allen and not report the misconduct to civil authorities.

The court noted that the monk could be liable for Allen's wrongful acts if he gave "substantial assistance" to Allen in committing those acts. It concluded that this standard could not be met in this case since "there is simply no evidence that [the monk] aided the efforts of Allen or encouraged or incited him to commit his abusive acts. There is no evidence that [the monk] was present during the commission of the abuse. Moreover, despite [the monk's] advice, plaintiff and his mother were entirely free to ignore him and contact the authorities on their own accord. As such, his efforts to dissuade plaintiff and his mother from contacting the authorities cannot be viewed as substantial assistance."

(4) Negligent hiring

The plaintiff's lawsuit alleged that the church defendants were responsible for Allen's wrongful acts on the basis of negligent hiring. The word "negligence" means carelessness, and so the plaintiff was claiming that the church defendants had been careless in selecting and employing Allen.

The court concluded that a reasonable jury would not conclude that the church defendants were negligent in hiring Allen because there was no evidence suggesting that he "was or would become a child sex predator when he was hired."

(5) Negligent supervision and retention

The plaintiff's lawsuit alleged that the church defendants were responsible for Allen's wrongful acts on the grounds that they were negligent or careless in supervising and retaining him. The court concluded that "viewing the evidence in the light most favorable to plaintiff, a reasonable jury could find that the church defendants were negligent or reckless in retaining Allen because the jury could conclude that he … posed a risk of sexual abuse to minor males."

The court pointed out that the previous bishop had been informed that the plaintiff was sleeping in Allen's bedroom at the church rectory and that Allen had taken the plaintiff on several overnight trips. He later acknowledged that he would characterize this activity as "grooming" behavior. The previous bishop also had been informed of Allen's inappropriate behavior with the plaintiff and another young man. On the basis of these accusations he removed Allen from his position at the seminary, but rather than dismiss him as a priest he assigned him to another parish within the diocese. Based on this evidence, the court concluded that "a reasonable jury could infer that this provided Allen the opportunity to befriend plaintiff and then sexually abuse him."

The court noted that Allen was both a homosexual and a pedophile, but stressed that "it does not follow that a homosexual is more likely than a heterosexual to prey on minors of the same sex. As such, standing alone, Allen's homosexual behavior with adults would be irrelevant as to the issue of whether the church defendants had notice that he had a propensity to sexually abuse a minor male."

The court did find Allen's homosexual behavior with Richard (the seminary student) relevant as to the issue of the church defendants' notice of his propensity to molest minors because his grooming behavior with Richard was so "strikingly similar" to his behavior with the minor plaintiff. It noted that Allen was in Richard's company a great deal, bought him expensive gifts, took him on overnight trips and had him sleep in his room at the seminary. This behavior was noticed by colleagues, who, in turn, made their observations and concerns known to the church defendants. At the church, Allen counseled plaintiff regarding the death of his father, hired him to perform various duties at the church, was in his company an inordinate amount of time, purchased expensive gifts for him, took him on overnight trips and had him sleep in his room at the rectory. Like his relationship with Richard, Allen's relationship with the plaintiff drew comment from people who were in a position to view, on a daily basis, much of what occurred between them. These people, in turn, informed the church defendants of their observations and concerns.

As a result, the court concluded that "Allen's homosexual behavior with regard to Richard is legally relevant as to the issue of whether the church defendants had notice that he was, at the very least, grooming the plaintiff for a homosexual relationship, if not already involving him in one."

But even ignoring Allen's prior relationship with Richard, the court concluded that "a reasonable jury could conclude that there was adequate warning to the church defendants that Allen was grooming the plaintiff for a homosexual relationship, and that it may well have already begun. The notice of the plaintiff's sleepovers in the rectory, the gifts given to him and the overnight trips is sufficient to allow a reasonable jury to conclude that the church defendants were negligent or reckless in retaining Allen as a priest." A reasonable jury also could conclude that the church defendants "were negligent or reckless in permitting, or failing to prevent, Allen's conduct upon church premises, given the plaintiff's statement that Allen routinely sexually abused him while they slept in his bedroom in the church rectory."

As a result, the court refused to grant the church defendant's motion for summary judgment on this basis of liability.

(6) Failure to report child abuse (negligence "per se")

Under the doctrine of "negligence per se" a person who violates a statute can be sued for monetary damages if:

(1) The purpose of the statute must be, at least in part, to protect the interest of the plaintiff, individually, as opposed to the public; (2) the statute must clearly apply to the conduct of the defendant; (3) the defendant must violate the statute; and (4) the violation of the statute must cause the plaintiff's injury.

The plaintiff claimed that the church defendants were liable on the basis of negligence per se for Allen's acts of sexual molestation as a result of their failure to comply with the following provision in the Pennsylvania child abuse reporting law: "Persons who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made [to the state] when they have reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child." The reporting law specifies that "persons required to report … include, but are not limited to, any member of the clergy."

The court concluded that a reasonable jury could conclude that all four requirements for establishing liability on the basis of negligence per se were satisfied, and therefore it denied the church defendants' motion to dismiss this basis of liability. The court noted:

The first element of plaintiff's negligence per se action is easily met [since the child abuse reporting law] was clearly promulgated so as to protect abused children such as plaintiff. Second, clergy are expressly included within the list of individuals who have a duty to report suspected child abuse. As such, the statute clearly applies to the church defendants …. Third, a reasonable jury could find that the defendants violated the statute. Viewing the record in the light most favorable to the plaintiff, there is evidence which supports the conclusion that the defendants had "reasonable cause to suspect" that Allen was sexually abusing the plaintiff. The defendants were informed of Allen's past incidents involving Richard. They had also been informed of the fact that the plaintiff was sleeping in Allen's bedroom in the rectory. In addition, several people had voiced their own concerns and suspicions regarding the relationship between Allen and the plaintiff, and supported these suspicions with their own personal observations of Allen's behavior towards the plaintiff. As plaintiff was a parishioner, altar server and sacristan at the church, and the reports concerned a priest's abuse, the church defendants were in sufficient "contact" with the plaintiff to bring them within the reporting requirements of the law …. Accordingly, there was sufficient evidence within the knowledge of defendants to create "reasonable cause to suspect" that Allen was sexually abusing the plaintiff. As … the defendants did not report Allen's suspected abuse of the plaintiff to law enforcement authorities, a reasonable jury could conclude that they violated [the child abuse reporting law]. Fourth, when viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could find that the defendants' failure to report Allen's sexual abuse of the plaintiff, in violation of [the child abuse reporting law] caused the injuries plaintiff suffered. Allen was convicted of sexual abuse, indecent assault and corruption of minors based on his assaults upon the plaintiff [occurring after the church defendants had notice of his propensity to engage in such acts]. As such, a reasonable jury could find that, had the defendants reported Allen to law enforcement authorities, he would not have had the opportunity to sexually abuse the plaintiff.

(7) Breach of a fiduciary duty

The plaintiff claimed that the church defendants were liable for Allen's acts of sexual molestation on the basis of a breach of a fiduciary duty. Specifically, he argued that the defendants breached their fiduciary duty by (1) placing Allen in a position to serve as the plaintiff's priest and counselor; (2) by failing to remove him from that position; and (3) by failing to report him to law enforcement authorities after having ample reason to believe that he had committed acts of sexual abuse.

The court noted that under Pennsylvania law "a fiduciary relationship will be found to exist when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible." The court concluded:

This definition fits the relationship of a priest and a parishioner once the priest accepts the parishioner's trust and accepts the role of counselor. In such a case, the parishioner has justifiably placed his trust in the priest. In order to receive and make use of a priest's advice and counsel, a parishioner must necessarily depend upon the priest's knowledge and expertise, resulting in the priest's superiority and influence over the parishioner. Thus, once a counseling relationship has commenced, the parishioner and priest no longer deal on equal terms. This unequal relationship affords the priest opportunity to abuse the trust and confidence reposed in him or prey on a weak and dependent parishioner to his own benefit. The relationship therefore becomes fiduciary in nature and the recognition of a breach of fiduciary duty claim is necessary to protect a beholden parishioner from a self-serving priest.

The court also concluded that a fiduciary relationship existed between the church defendants and the plaintiff:

As to a diocese and its officials, a diocese exerts an overmastering influence over a plaintiff, or a plaintiff exhibits weakness, dependence on or justifiable trust in the diocese and its officials when, as here, the plaintiff is a minor and is involved in the church beyond that of a mere parishioner, whether by virtue of his serving the church, participating in church-sponsored activities, or receiving counseling from a priest. When the plaintiff is a minor, the power differential between the plaintiff and priest is magnified. This power differential makes it difficult for a minor who is involved in the church to refuse the unwelcome sexual advances of a priest or report such an advance to his parents or the authorities. Minors participating in church activities are therefore dependent on the diocese for protection, and the diocese is responsible to provide it. This vulnerability requires the diocese to be vigilant so that minors who are serving the church, participating in church activities, or receiving counseling from a diocesan priest are doing so in an environment free from the threat of sexual abuse.

The court stressed that recognition of the plaintiff's breach of fiduciary duty claim against the priest and church defendants did not offend the First Amendment since the claim "only raises the issues of whether the parties did not deal on equal terms, but, rather, on the one side there was an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible, whether that unfair advantage was exploited by Allen, and whether the church defendants failed to provide and maintain a safe environment for the plaintiff to participate in church activities. No inquiry need be made into church doctrine or other ecclesiastical matters. No professional standard of care need be set for clergy. There is no risk of excessive governmental entanglement with religion."

(8) Punitive damages

In his lawsuit, the plaintiff asked the court to award him punitive damages. The court noted that under Pennsylvania law, "punitive damages may be awarded for conduct that is outrageous, because of the defendant's reckless indifference to the rights of others," and that "as the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant's actions are so outrageous as to demonstrate willful, wanton or reckless conduct."

In determining whether punitive damages are warranted in a particular case, "the state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious …. As such, a showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed. However, notwithstanding this heightened standard, punitive damages may be awarded based on a cause of action sounding in negligence if the plaintiff is able to show that the defendant's conduct not only was negligent but that the conduct was also outrageous."

The court concluded that a reasonable jury would assess punitive damages against the church defendants, and so it rejected the defendants' request to dismiss the plaintiff's request for such damages. It pointed out that the defendants "knew that the plaintiff was routinely sleeping in Allen's bedroom and that he had taken the plaintiff on several overnight trips. The church defendants also knew about Allen's past involvement with Richard …. A reasonable jury could conclude that a minor's sleeping in a priest's bedroom and a priest's taking a minor alone on overnight trips are facts which create a high degree of risk of physical harm to the minor. The failure to end this conduct, with its high degree of risk of physical harm to the plaintiff, could reasonably be viewed by a jury as reckless. As such, the court will deny the defendants' motion for summary judgment as to the plaintiff's claim for punitive damages."

Relevance to church leaders

What is the relevance of this case to church leaders? Consider the following points:

1. In general. A decision by a federal district court in Pennsylvania is not binding in any other state, and is not binding on other federal courts in Pennsylvania. However, there are some aspects to the court's decision that are instructive for all churches.

2. Child Abuse Victims' Rights Act of 1986. The case addressed in this article is the first to address the application of the Child Abuse Victims' Rights Act in the context of incidents of child molestation occurring on church property. Here are the main points to note about the court's ruling:

  • The Act provides a civil remedy for personal injuries suffered by victims of various federal laws pertaining to child sexual molestation and exploitation, and child pornography.
  • The Act allows not only the recovery of monetary damages, but also attorneys fees.
  • A person need not be convicted of child molestation or exploitation, or child pornography. All that is required is that a victim be able to show by a preponderance of the evidence that the defendant committed one or more of these offenses.
  • A church cannot be sued for monetary damages and attorneys fees under the Act as a result of acts of child molestation or exploitation committed by a church employee or volunteer unless it "aided or abetted" in the commission of the offense. In order to establish the offense of criminal aiding and abetting, it must be shown that: (1) the underlying offense has been committed; (2) the church knew the offense was being committed; and (3) the church acted with the intent to facilitate it. Unknowing participation is not sufficient to constitute aiding or abetting. Acting with intent to facilitate an offense requires that one acted with the "intent to help those involved with a certain crime …. Indeed, the state of mind required for conviction as an aider and abettor is the same state of mind as required for the principal offense." In this case, the court concluded that the church defendants did not satisfy the second and third requirements since there was no evidence "demonstrating that the defendants consciously shared [Allen's] knowledge of the underlying offenses, as well as the specific criminal intent to commit them. Indeed, a general suspicion that an unlawful act may occur is not enough. While it is possible to infer knowledge from a combination of suspicion and indifference to the truth … there still remains no evidence even remotely suggesting that the church defendants shared Allen's specific intent to commit the sexual offenses."
Example. A church volunteer molests a child at church. The victim's family sues both the volunteer and the church on several grounds, including the Child Abuse Victims' Rights Act. Assuming that the offender's acts violate one of the federal crimes pertaining to child abuse and exploitation specified in the Act, the family will be able to sue the offender for money damages in federal court. They also can sue the offender for their attorneys fees. The church is not liable under the Act, however, unless it aided or abetted in the commission of the offense. The church may be liable on other grounds, including negligent selection and negligent supervision.

3. Advising the victim not to report the abuse. The plaintiff claimed that he shared the details of Allen's wrongful acts with a Benedictine monk who aided and abetted in those acts by not divulging them to church officials and by instructing the plaintiff and his mother to forgive Allen and not report the misconduct to civil authorities. The court rejected this basis of liability since the monk's acts fell below the "substantial assistance" required for aiding and abetting. Further, the court noted that the plaintiff and his mother were free to ignore the monk's advice and contact the authorities on their own initiative.

4. Negligent supervision and retention. The court found the church defendants liable for Allen's wrongful acts on the basis of negligent retention. It concluded: "A reasonable jury could find that the church defendants were negligent or reckless in retaining Allen because the jury could conclude that he … posed a risk of sexual abuse to minor males," and, "rather than dismiss him as a priest [Allen] was assigned to another parish within the diocese."

The takeaway point is this. Church leaders assume a significant risk of liability in retaining an employee or volunteer after becoming aware of credible evidence of misconduct. Such evidence should be promptly evaluated, and appropriate actions taken based on the strength of the evidence and the nature and severity of the wrongdoing.

5. Reckless behavior. It should be noted that the court concluded that "a reasonable jury could find that the church defendants were negligent or reckless in retaining Allen because the jury could conclude that he … posed a risk of sexual abuse to minor males." A finding of recklessness would have two important consequences for the church defendants.

Elimination of limited immunity

It would result in a loss of "limited immunity" for the defendants' directors and officers. Most states have enacted laws limiting the liability of church officers and directors. The most common type of statute immunizes uncompensated directors and officers from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for "willful and wanton" conduct, intentional or criminal acts, or "gross negligence."

Church officers and directors who are guilty of recklessness or gross negligence are more likely to be sued personally than if their behavior is merely negligent. Indifference by church leaders to information that clearly demonstrates improper behavior by a staff member or volunteer worker might be viewed by a court as gross negligence, and this would make it more likely that church leaders will be sued personally.

Why have states enacted such laws? The primary reason is to encourage persons to serve as directors of nonprofit organizations. In the past, many qualified individuals have declined to serve as directors of such organizations out of a fear of legal liability. The immunity statutes respond directly to this concern by providing directors of nonprofit organizations with limited immunity from legal liability.

Statutes immunizing the directors and officers of nonprofit organizations from liability do not prevent the organization itself from being sued on the basis of the negligence of an officer or director. The immunity statutes only protect the officers or directors themselves. Many of the immunity statutes apply only to the directors and officers of organizations exempt from federal income tax under section 501(c) of the Internal Revenue Code.

Example. A New York court ruled that a charitable immunity law granting limited legal immunity to the uncompensated directors of a nonprofit organization did not protect a church's trustees from liability for the sexual misconduct of their minister. An unincorporated church and its trustees were sued as a result of their minister's alleged rape of a number of minor females in the church. Among other things, the lawsuit alleged that the church and trustees were responsible for the victims' suffering as a result of their "negligent supervision" of the minister's actions. In their defense, the trustees relied on a state law granting uncompensated directors of nonprofit organizations limited immunity from liability for their actions. The court rejected this defense for two reasons: "The [trustees] did not present presumptive evidence of uncompensated status in that they did not present an affidavit of a chief financial officer of the [church]. Further, there is a reasonable probability that the specific conduct of such [trustees] constitutes gross negligence. If the [trustees] did act as the [victims] allege, they may be found to have proceeded in reckless disregard of the consequences of their acts." Karen S. v. Streitferdt, 568 N.Y.S.2d 946 (A.D. 1 Dept. 1991).

The federal Volunteer Protection Act provides limited immunity to uncompensated officers and directors of nonprofit organizations. It applies only to conduct that is negligent. Officers and directors who engage in gross negligence or reckless misconduct are not protected. The Act "preempts the laws of any state to the extent that such laws are inconsistent with this [Act] except that this [Act] shall not preempt any state law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity."

Punitive damages

Courts can award "punitive damages" for conduct that is especially reprehensible. The purpose of such damages is to deter such behavior by punishing those who engage in it. The basis for punitive damages varies from state to state, but typically includes reckless behavior or gross negligence.

Church leaders should understand that any conduct that might be perceived by a jury as reckless, or grossly negligent, may expose a church to punitive damages, and that such damages may not be covered by the church's liability insurance policy. It is critical to note that many church insurance policies exclude punitive damages. This means that a jury award of punitive damages represents a potentially uninsured risk. As a result, it is critical for church leaders to understand the basis for punitive damages, and to avoid behavior which might be viewed as reckless or grossly negligent.

6. The relevance of Allen's homosexual orientation. The court concluded that "a homosexual is [no] more likely than a heterosexual to prey on minors of the same sex. As such, standing alone, Allen's homosexual behavior with adults would be irrelevant as to the issue of whether the church defendants had notice that he had a propensity to sexually abuse a minor male."

The court's conclusion that homosexual adults are no more likely to molest children than heterosexuals, and therefore pose no elevated risk of harm to minors, has been reached by several other courts. A few illustrative cases are summarized below.

(1) Doe v. British Universities N.A. Club, 788 F. Supp. 1286 (D. Conn. 1992)

A federal district court in Connecticut rejected the argument that child molestation was a "foreseeable consequence of sexual orientation," noting that there was not "one scintilla of credible evidence to suggest that homosexuals pose a greater risk of committing sexual molestation, assault, or criminal conduct than heterosexuals" and that "to find otherwise would be to hold that homosexuals are predisposed towards molesting or sexually assaulting minor males simply by virtue of their sexual orientation. The court cannot and will not adopt such a position absent sufficient evidentiary support."

(2) Kendrick v. East Delavan Baptist Church, 886 F. Supp. 1465 (E.D. Wis. 1995)

A church hired a full-time teacher at its private school. The teacher removed a young boy (the victim) from class and disciplined him on at least ten occasions. On four of these occasions, the teacher engaged in sexual contact with the victim. The victim never informed either his parents or any church or school officials about the teacher's behavior. Two months before the end of the teacher's tenure at the school, the school administrator received complaints from the parents of another boy regarding inappropriate behavior by the same teacher. The administrator immediately launched an investigation of these charges under the direction of the church board. He interviewed the teacher and the boy whose parents made the accusations, held a number of meetings with the parents and the church board, and ultimately concluded that the allegations involving the teacher could not be "proved or disproved."

The boy's parents were not satisfied with this result, and they continued to demand the teacher's removal. It was at this time that the administrator heard a rumor that the teacher had "had some problem with homosexuality" prior to his employment by the church. In response to this rumor, the administrator contacted the church-affiliated college the teacher had attended, and was informed that the teacher had been temporarily dismissed from the college for a brief period after confessing that he had engaged in homosexual activity on a weekend retreat. Another round of meetings occurred involving the teacher, the administrator, and the president of the college. The three agreed that, even though no wrongdoing by the teacher had been proven, the best way to resolve the controversy was for the teacher to resign. He immediately did so—both as a teacher and as a member of the church.

When the victim was twenty years old, he sued the church claiming that it was legally responsible for the teacher's misconduct. The victim claimed that the church was responsible for his injuries on the following grounds, including negligent selection. The victim insisted that the administrator's failure to more adequately screen the teacher prior to hiring him was the cause of his injuries since the administrator would not have hired the teacher had he more thoroughly checked his academic and work history and discovered that he had been temporarily suspended from college for "homosexual activity." The court disagreed:

[T]here is a complete lack of evidence in the record regarding any connection between engaging in homosexual activity (whether or not one identifies himself as a homosexual) and pedophilic behavior. There is no evidence in the record to indicate that the incident at [college] involved children. Based on this, it seems clear that, had [the administrator] learned of this information prior to [the time he hired the teacher] he would not have breached a duty of care to protect students had he hired [the teacher]. And if hiring [the teacher] under such circumstances would not have constituted a breach of duty, then hiring him without the benefit of such information cannot … be considered a cause in fact of the [victim's] harm. Even assuming, then, that a more thorough background check would have uncovered this information, a [jury] would have no logical basis for concluding that, based on issues relating to sexual orientation, [the administrator] would have found [the teacher] to be unfit to teach, or an increased risk to children.

(3) Porter v. Harshfield, 948 S.W.2d 83 (Ark. 1997)

The Arkansas Supreme Court ruled that homosexuality "in no way" indicates that a person is a higher risk of committing a sexual assault. While this case involved an employee of a medical clinic, the court's ruling is relevant to all employers including churches and other religious organizations. A radiologist hired a male medical technician to work in his clinic. The technician sexually assaulted a male patient while performing an ultrasound examination for possible gallbladder problems. The patient sued the doctor, claiming that he was responsible for the technician's actions on the basis of negligent hiring since he (1) failed to contact the hospital where the technician previously had worked to find out why he left; and (2) was aware that the technician was a homosexual. The court repeatedly rejected the victim's assertion that homosexual orientation renders a person a higher risk of committing sexual assaults. It concluded that evidence of the technician's homosexuality was not enough to make the doctor guilty of negligent hiring. It noted that "we know of no" connection "between sexual orientation and a predisposition to commit sexual assault."

(4) Dale v. Boy Scouts of America, 734 A.2d 1196 (N.J. 1999)

The New Jersey Supreme Court ruled that the Boy Scouts of America violated a state public accommodations law by barring homosexuals from serving as scout leaders. This ruling was later reversed by the United States Supreme Court (see next case). However, the case is relevant because it represents a unanimous decision by a state supreme court that homosexuals pose no greater risk of molestation or harm to minors than heterosexuals. To illustrate, one of the court's justices, in a concurring opinion, observed:

[A] lesbian or gay person, merely because he or she is a homosexual, is no more or less likely to be moral than a person who is a heterosexual. Accordingly … there is no reason to view a gay scoutmaster, solely because he is a homosexual, as lacking the strength of character necessary to properly care for and impart BSA humanitarian ideals to the young boys in his charge …. Another particularly pernicious stereotype about homosexuals is implicit in Boy Scouts' arguments: the sinister and unspoken fear that gay scout leaders will somehow cause physical or emotional injury to scouts. The myth that a homosexual male is more likely than a heterosexual male to molest children has been demolished.

The concurring justice cited the following articles in support of his conclusion:

  • Carole Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 Pediatrics 41 (1994) (concluding that most child abuse appears to be committed by situational child abusers who present themselves as heterosexuals)
  • Nicholas Groth & H. Jean Birnbaum, Adult Sexual Orientation and Attraction to Underage Persons, 7 Archives Sexual Behav. 175 (1978) (concluding that "homosexuality and homosexual pedophilia are not synonymous [and] that the adult heterosexual male constitutes a greater sexual risk to underage children than does the adult homosexual male")
  • Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 L. & Sexuality 133 (1991) (citing studies and concluding that "it appears from these studies that gay men are no more likely than heterosexual men to molest children")
  • David Newton, Homosexual Behavior and Child Molestation: A Review of the Evidence, 13 Adolescence 29 (1978) (surveying data concerning male homosexuality and child molestation and concluding that "there is no reason to believe that anything other than a random connection exists between homosexual behavior and child molestation").

The concurring justice concluded: "In light of this evidence, the belief that a gay scoutmaster poses a risk to young boys because of his sexual orientation is patently false, and cannot in any way bolster Boy Scouts' First Amendment defense. Accordingly, it must be rejected as an unfounded stereotype."

(5) Boy Scouts of America v. Dale, 530 U.S. 640 (2000)

The United States Supreme Court ruled, by a vote of 5-4, that a New Jersey civil rights law requiring the Boy Scouts to use a gay activist as a scout leader violated the Boy Scouts' First Amendment right of association. When scouting officials learned from a newspaper article that one of their scoutmasters was a homosexual activist, they terminated his services, explaining that the Boy Scouts "specifically forbid membership to homosexuals." The former scoutmaster sued the Boy Scouts claiming that it had violated a New Jersey "public accommodations" law by dismissing him. The New Jersey law prohibits, among other things, discrimination on the basis of sexual orientation in places of public accommodation.

The Supreme Court conceded that the public perception of homosexuality in this country has changed, and that homosexuality "has gained greater societal acceptance." However, "this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not …. [T]he fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view."

This case is significant because four of the Court's nine justices saw no reason why homosexual men should not be allowed to oversee adolescent males in scouting programs, and the other five justices did not specifically address the issue.

Key point. These cases do not suggest that churches are legally required to employ homosexuals as volunteer or compensated youth workers. Rather, they suggest that churches that choose to utilize homosexuals as children's and youth workers are not exposing minors or themselves to an elevated risk so long as they do a proper background check that discloses no information suggesting that the person poses a risk of harm to minors.

Key point. While the court concluded that Allen's homosexuality did not make the church defendants liable on the basis of negligent selection, it did conclude that his "grooming" behavior with an adult homosexual was relevant in assessing the church defendants' response to similar behavior involving a minor, since such behavior (which included gifts, overnight trips, and spending the night at the church rectory) indicated the likelihood of sexual contact.

Resource. Are churches subject to state employment discrimination laws barring discrimination in employment on the basis of sexual orientation? This issue is addressed fully in section 8-21.2 in Pastor, Church & Law, Volume 3 (4th ed. 2007)

7. Failure to report child abuse (negligence "per se"). One of the most significant aspects of the court's decision is its conclusion regarding negligence per se. Under the doctrine of "negligence per se," a person who violates a statute can be sued for monetary damages if (1) the purpose of the statute is to protect the interest of the plaintiff, individually, as opposed to the public; (2) the statute must clearly apply to the conduct of the defendant; (3) the defendant must violate the statute; and (4) the violation of the statute must cause the plaintiff's injury.

The court concluded that the church defendants were liable on this basis for their failure to comply with a state child abuse reporting statute. The significance of a finding of negligence per se is that actual negligence is presumed. There is no need to show any culpability on a defendant's part other than a violation of the underlying statute. This means that a mandatory child abuse reporter's failure to comply with a state child abuse reporting law's requirement to report a known or reasonably suspected incident of child abuse would render that person automatically liable for monetary damages without a need for the victim to prove actual negligence. In other words, the mere failure to comply with the reporting requirement constitutes negligence per se. This sweeping conclusion has not been reached by any other court.

8. Breach of a fiduciary duty. The court concluded that the church defendants could be liable for Allen's molestation of the plaintiff on the basis of their breach of a fiduciary duty. While the court acknowledged that a mere "church-parishioner" relationship was not enough to create a fiduciary duty, "when, as here, the plaintiff is a minor and is involved in the church beyond that of a mere parishioner, whether by virtue of his serving the church, participating in church-sponsored activities, or receiving counseling from a priest," a fiduciary duty arises to act in the best interests of the minor. This duty, the court concluded, "required the church defendants to be vigilant so that minors who are serving the church, participating in church activities, or receiving counseling from a diocesan priest are doing so in an environment free from the threat of sexual abuse."

9. Punitive damages. Punitive damages may be assessed by a court for actions that are so outrageous as to demonstrate willful, wanton or reckless conduct. The court concluded that a reasonable jury would assess punitive damages against the church defendants, and so it rejected the defendants' request to dismiss the plaintiff's request for such damages. It pointed out that the defendants "knew that the plaintiff was routinely sleeping in Allen's bedroom and that he had taken the plaintiff on several overnight trips. The church defendants also knew about Allen's past involvement with Richard …. A reasonable jury could conclude that a minor's sleeping in a priest's bedroom and a priest's taking a minor alone on overnight trips are facts which create a high degree of risk of physical harm to the minor. The failure to end this conduct, with its high degree of risk of physical harm to the plaintiff, could reasonably be viewed by a jury as reckless. As such, the court will deny the defendants' motion for summary judgment as to the plaintiff's claim for punitive damages."

A finding of punitive damages is significant because most insurance policies do not insure against such damages, and many courts have ruled that it violates public policy to do so. This means that a finding of punitive damages represents a potentially uninsured risk. This court concluded that a church may be liable for such damages if it ignores evidence that an employee or volunteer poses a risk of molesting a minor.

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