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National Church Not Liable for Missionary's Molestation of a Minor

Churches liable for employees' misdeeds if they were negligent in selecting, retaining or supervising staff members.

Key Point 10-05. A church may be liable on the basis of negligent selection for a worker's molestation of an adult 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 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

A federal court in Kentucky ruled that a national church was not liable on the basis of negligent hiring or supervision for the sexual molestation of a minor by one of its missionaries since it exercised sufficient care in evaluating the missionary's fitness for service when he was selected. An adult male (the "defendant") was selected by a national church as a missionary following a rigorous vetting process that included: (1) a detailed application form; (2) an initial interview with his local pastor regarding his worthiness to serve, qualifications, and physical and emotional capability to serve; (3) a second, more detailed interview with his local pastor that included questions about his sexual history and any attraction to or improper conduct with children; (4) a third interview with a regional church official to determine his fitness to serve, sexual history, and attraction to children; (5) an evaluation of all the evidence by the national church's missions department; (6) a missionary training school that lasted for two months that covered numerous topics including the importance of avoiding any form of sexual conduct outside of marriage; (7) periodic interviews following his appointment as a missionary with missions officials regarding his continuing fitness to serve. No evidence surfaced during any of these interviews that gave missions officials the slightest concern regarding the defendant's fitness to serve, or any propensity to molest children.

The girl's mother sued the national church … on the basis of negligent hiring and supervision.

Despite all of these precautions, the defendant sexually molested a teenage girl. The girl's mother sued the national church, alleging that it was responsible for the defendant's behavior on the basis of negligent hiring and supervision. The court noted that "an employer can be held liable when its failure to exercise ordinary care in hiring or retaining an employee creates a foreseeable risk of harm to a third person." Was the defendant's behavior foreseeable? No, the court concluded:

The evidence of record of this matter demonstrates that the [national church] required candidates for its missionary program to complete an involved application process and undergo multiple levels of screening by various church officers. The evidence further reveals that missionaries, once selected, continued to meet regularly for interviews with church officers during their tenure in the missionary program. Finally, the unrefuted evidence shows that [the national church] did not receive information at any time during the application or training process or prior to [the defendant's misconduct] that would lead them to believe that he had ever or would ever commit a sexual act with a child. Plaintiff has marshaled no evidence to suggest that the [national church] knew or should reasonably have known that he was somehow unfit to serve as a missionary or that his placement or retention of a missionary created an unreasonable risk of harm to [the victim] or that any such information came to light prior to the [church] learning of the events alleged [in this case] at which time the church terminated his service as a missionary

Application. This case illustrates an important point. Churches are not guarantors of the conduct of their employees and volunteers. Rather, they are liable to the misdeeds of such persons only if they were negligent in selecting, retaining, or supervising them. In this case, the extensive screening conducted by the church resulted in the court's denial of the victim's allegation of negligence. Olinger v. Corporation of the President of the Church of Jesus Christ of Latter- Day Saints, 521 F.Supp.2d 577 (E.D. Ky. 2007).

* See also "Sexual harassment," 2007 WL 3170999 (D. Or. 2007), in the recent developments section of this newsletter. Despite all of these precautions, the defendant sexually molested a teenage girl.

This Recent Development first appeared in Church Law & Tax Report, November/December 2008.

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Posted:
  • November 1, 2008

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