Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.
Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker's acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.
Key point 10-14. Churches may be liable on the basis of "ratification" for the unauthorized act of a minister or other church worker if it is aware of the act and voluntarily affirms it.
Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.
* An Ohio court rejected the assertion of two individuals, who had been sexually molested by an associate pastor when they were minors, that their church and senior pastor were liable for the associate pastor's acts as a result of their failure to implement a child abuse policy forbidding staff members to be alone with children. A church used its senior pastor's son (the "defendant") in various volunteer positions, including music director. The defendant also was appointed associate pastor so that he could perform pastoral duties if his father, for health reasons, was unable to do so. However, the defendant was never ordained as a pastor, and was not an employee of the church and consequently received no salary or wages.
The defendant raped a minor on church premises, and molested another minor over the course of several months with some of these acts occurring on church premises. He was charged with various felony counts, and pled guilty. The parents of the two victims (the "plaintiffs") sued the church, claiming that it was responsible for the defendant's acts on the basis of negligence since it failed to have a church policy in place to protect children against sexual misconduct. The plaintiffs also claimed that the senior pastor and church were responsible for the defendant's acts on the basis of negligent supervision and retention, and that a state denominational agency was liable on the basis of negligence. The trial court dismissed all claims against the defendants, and the plaintiffs appealed.
failure to have a sexual misconduct policy
On appeal, the plaintiffs argued that the senior pastor and church were negligent in failing to have a church policy in place to protect children against misconduct of adult church officials such as the defendant. They claimed that the pastor and church owed the victims a duty to protect them from the criminal acts and that they breached that duty by failing to have in place a policy regarding the protection of children from sexual misconduct of church officials. Such policy, the plaintiffs alleged, should have prohibited adults from being alone with children.
In support of their claim that the pastor and church had a duty to have a policy or protective measures in place to protect the church's youth members, the plaintiffs cited five items of evidence:
First, a church deacon testified that a few years prior to the defendant's sexual assaults, the church received notice from its insurance company that it wanted the church to implement "something to safeguard the children from inappropriate behavior."
Second, a pastor of another church testified that his church had a policy regarding contact between adults and children in his church, that one of the purposes of the policy was to protect the children, and that he believed that it was "common practice" to have such a policy in place. The policy stated, in part, that "two adults should be present during any activity involving youth or children."
Third, the minutes of a church membership meeting contained a comment by an officer of a state denominational agency to the effect that no person should ever drive an underage child or young person home and that no one person should ever be in the home of another person alone.
Fourth, an officer of a state denominational agency testified that churches should have in place a policy addressing the danger of contact between minor children and members of the church.
Fifth, the church and its senior pastor were "put on notice" of the need for a policy designed to protect young church members several years before, when the defendant informed his father that he was being investigated by the state Department of Youth Services, his employer, based on an allegation that pornography was found on his work computer.
Despite this evidence, the court concluded that the plaintiffs had failed to cite any authority for the proposition that the church and its senior pastor had a duty to have a policy in place to protect the children of the church. The court concluded:
While it may well be advisable to have such a policy in place, the plaintiffs have not provided this court with any authority mandating that churches adopt such a policy or that it was a common standard of care and practice among churches to have such a policy. Nor is this court aware of any such authority. While the plaintiffs note that some churches have implemented such a policy, there is no evidence that such churches are not the exceptions rather than the rule. There is no evidence in the record as to the percentage of churches that have this type of policy. Moreover, there was no testimony from anyone in this case that such a policy was required by law.
With regard to the previous investigation by the defendant's employer resulting from the discovery of pornography on his work computer, the court noted that he was never disciplined and continued working until right before his arrest related to this case. Further, the court concluded that "even if the defendant did possess pornography on his work computer, it is not reasonably foreseeable that he would sexually abuse a child."
The court concluded:
We find that plaintiffs have not presented any evidence that the church and its senior pastor either knew or should have anticipated the defendant's sexual misconduct. We concur with the trial court that a reasonably prudent person would not anticipate that a child would be sexually assaulted whenever left alone with an adult. There is no evidence that any similar acts were committed by the defendant in the past. Moreover … [the plaintiffs] testified that they believed the defendant was a good person and had no reason to believe that he was a threat to their daughters. During the time while they were members of the church they never complained to anyone at the church about the defendant or alleged to anyone at the church that he had engaged in inappropriate conduct with their daughters. During their depositions, both plaintiffs testified that prior to leaving the church, they thought the defendant was a trustworthy person. In short, we find that the plaintiffs failed to present evidence that the church and its senior pastor should have foreseen that the defendant would sexually assault anyone.
negligent supervision and retention
The court rejected the plaintiffs' claim that the church and senior pastor were liable on the basis of negligent supervision and retention, since they had no prior knowledge of any sexual misconduct by the defendant. It pointed out that the plaintiffs themselves testified that they never voiced any complaints about the defendant and that they believed that he was a good person who would not hurt children. The plaintiffs further testified that (1) they were not aware of anyone who questioned the defendant's reputation or character; (2) that they never told the defendant not to spend time with their children or be alone with them; and (3) up until the disclosure of the abuse they had no reason not to trust the defendant.
The plaintiffs claimed that the church "ratified" the defendant's conduct by conducting a candlelight vigil at the jail where the defendant was incarcerated, by using a church bus to transport members to the vigil, and by permitting the defendant to preach a sermon from his cell on the power of forgiveness and love.
The court disagreed that these acts amounted to a ratification of the defendant's wrongful acts by the church. It pointed out that at the time of the vigil the defendant had not been convicted and his father and some other members of the congregation believed that he was innocent. Moreover, "there is no evidence that sexual assault and battery was condoned at this event."
negligence by the state denominational agency
The plaintiffs asserted that the state denominational agency with which the church was affiliated was negligent in "failing to mandate and provide policies and procedures regarding contact between adults and children." The court disagreed, noting that the plaintiffs had failed to cite any authority for the proposition that the denominational agency had a duty to require churches to implement such a policy.
In addition, the plaintiffs had failed to present any evidence that the denominational agency either knew of, or should have known of, or anticipated that the defendant would engage in the intentional sexual acts that he did, since "there is no evidence in the record that the defendant committed any similar acts in the past."
Plaintiffs insisted that based on occurrences of sexual misconduct between a church official and young congregation members that have been reported in the media since the 1980s, the denominational agency could have foreseen that such misconduct could occur in this case. The court disagreed since such anecdotal reports "are not evidence." Further, "there is no evidence that the denominational agency had any reason to foresee the sexual misconduct that occurred in this case. There is no evidence that the defendant committed similar acts in the past."
Application. This case is instructive for the following reasons:
1. It demonstrates the risks that are sometimes associated with the selection of a senior pastor's child as a pastoral staff member. The problem that sometimes arises in such cases is that church staff may feel awkward in conducting background checks on the pastor's child, which can lead to a relaxation of the screening procedures that would apply to anyone else. Of course, this can lead to the selection of a person whose undisclosed background makes him or her a risk of harm to others. And, to the extent that the church relaxed its screening procedures in the selection of such a person, this will help establish that the church was negligent in selecting the person. The takeaway point is that churches should apply the same screening standards to everyone, regardless of position or relationship.
2. The court acknowledged that it would have been desirable for the church in this case to have adopted a child protection policy prohibiting adult workers from being alone with a minor, but it concluded that the church's failure to do so was not negligent since the plaintiff had failed to prove that such a policy was a common and prevailing church practice. Research conducted by Church Law & Tax Report demonstrates that such a policy is increasingly common among churches, but the plaintiffs were unaware of this evidence. Future plaintiffs may be more thorough in their research, and come across the results of surveys conducted by Church Law & Tax Report and others indicating that such policies are common. If so, this will help establish the "community standard of care." This is significant, since negligence generally is defined as a failure to comply with the community standard of care. As more and more churches adopt child protection policies, this will make it easier for plaintiffs to demonstrate that churches failing to adopt such a policy are negligent.
The bottom line is that it is important for church leaders to be familiar with trends in the risk management practices of churches, since a failure to comply with, or exceed, those practices may constitute evidence of negligence. These trends are regularly reported in this newsletter.
3. The court concluded that the discovery of pornography on the defendant's work computer at his place of secular employment did not make the church negligent in hiring him since "even if the defendant did possess pornography on his work computer, it is not reasonably foreseeable that he would sexually abuse a child."
4. The court concluded that the church was not negligent in hiring, supervising, or retaining the defendant since it was aware of no information suggesting that he was a risk to minors. This demonstrates the importance of taking seriously all allegations of sexual misconduct involving church volunteers and employees who work with minors. Failure to take these allegations seriously, and to respond appropriately to them, greatly increases a church's risk of liability based on negligent hiring, supervision or retention should the person who is the subject of the allegations injure others by engaging in similar acts of misconduct.
5. The court concluded that the state denominational agency with which the church was affiliated had no legal duty to require churches in its jurisdiction to "mandate and provide policies and procedures regarding contact between adults and children." The court based this conclusion on three considerations: (1) The plaintiffs had failed to cite any authority for the proposition that the agency had a duty to require churches to implement such a policy; and (2) the plaintiffs had failed to present any evidence that the denominational agency either knew of, or should have known of, or anticipated that the defendant would engage in the intentional sexual acts that he did.
6. The court concluded that media reports on the sexual molestation of minors by clergy did not impose a duty on all denominational agencies to mandate that affiliated churches adopt child protection policies based on the foreseeability of harm, since such anecdotal accounts did not amount to admissible evidence. Further, there was no evidence that the denominational agency in this case "had any reason to foresee the sexual misconduct that occurred in this case. There is no evidence that the defendant committed similar acts in the past."
7. A dissenting judge observed:
While there may be no record evidence as to the percentage of churches that have such a policy in place, [a pastor of another church testified that] not only did his church have such a policy, but also that having a policy was common practice. The fact that the church received notice from its own insurance company requesting it implement a policy to safeguard children from inappropriate behavior is itself recognition of the foreseeability of harm. The advisability of having such a policy in effect was specifically communicated to the church during its church business meeting by [a denominational officer].
It is difficult to ignore the numerous reported admitted instances of sexual child abuse committed by members of the clergy toward members of their congregation. I suspect, indeed do not doubt, many other instances go unreported. Those members of the clergy and others the church place in positions of authority or supervision over the children in their church can easily and naturally develop a unique relationship of trust and dependency. In that sense, they are not unlike the intimate relationship that can develop between a teacher and student, or a coach and athlete. The record does reflect several members of the clergy and the church's insurance company have recognized the inherent risk. I believe this court should also. 2010 WL 1254632 (Ohio App. 2010).
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