Many ministers have received anonymous letters. Some, such as those expressing criticism of a sermon or music, have little legal significance. But some accuse a staff member or volunteer of misconduct, and these messages may be legally significant depending on what they communicate and how they are handled.
Church leaders should consider the following points when deciding how to respond to anonymous letters that accuse someone of misconduct:
1. Ignoring anonymous letters
Some pastors adopt a policy of never reading anonymous letters, and some periodically inform the congregation of this policy. For some, this is a way of avoiding criticism. But for others it stems from a conviction that the views of persons who are unwilling to identify themselves are not worthy of consideration. But as noted below, such a response to anonymous letters may expose a pastor and church to liability.
Zimmerman, 2012 WL 2049493 (E.D.N.Y. 2012)
Several adult males (the "plaintiffs") sued a private high school and members of the school board of trustees (the "defendants"), claiming they had been sexually molested by the school's football coach, and that the defendants were legally responsible for these wrongful acts as a result of their inadequate and negligent response to numerous complaints of inappropriate sexual behavior by the coach.
The coach was employed by the school from 1966 through 1991. The plaintiffs alleged that in the 1970s the school's principal received several anonymous letters accusing the coach of "doing terrible things to your students." The principal threw out the letters and later testified that "unsigned complaints just should be tossed."
The principal also received an anonymous phone call in which the caller reiterated language similar to that found in the letters, accusing the coach of "doing terrible things to our kids." But, as in the case of the anonymous letters, he did nothing with this information and did not keep records of either the phone call or the letters in any way. The parties reached an out-of-court settlement in 2012 under which the school agreed to pay an undisclosed amount of damages.
This case illustrates the potential civil liability that churches face if pastors adopt a policy of ignoring all anonymous letters, including anonymous letters that contain serious accusations of misconduct by a church employee or volunteer that exposes others to potential harm.
Bernard v. East Stroudsburg University, 2014 WL 1454913 (M.D. Pa. 2014)
A state university was sued by several former students who alleged that they had been sexually harassed by a university administrator. In support of their claim, the students claimed that the university president had received several anonymous letters asserting sexually inappropriate behavior by the administrator with students, but failed to fully investigate these accusations or terminate his employment.
One letter made reference to the administrator's sexual liaisons with students. Another noted that "people are disgusted with those that use their position to gain sexual favors from young people." Another referred to the administrator as a "full fledged predator."
The university had a policy of not accepting or acting on accusations "made solely through anonymous letters." Nevertheless, because some of the anonymous letters alleged that the administrator had previously been arrested, the university asked campus police to check on prior arrests. No prior arrests or convictions were found. Nevertheless, some of the letters were turned over to the municipal police department and to the FBI.
The court concluded that the university's response to the anonymous letters was adequate, and dismissed the students' claim of sexual harassment. This case suggests that recipients of anonymous letters containing allegations of serious misconduct by a staff member may subject their employer to liability if they fail to respond to the allegations with a thorough investigation.
Melzer v. Board of Education, 196 F.Supp.2d 229 (E.D.N.Y. 2002)
Public school officials received an anonymous letter stating that a science teacher (whose identity was provided) was a member of the North American Man-Boy Love Association (NAMBLA). NAMBLA advocates the release of all convicted pedophiles, decriminalization of child pornography, and opposition to all attempts by the state to interfere with "consensual and non-coercive" sexual activity between men and minor boys. Upon receipt of this letter, school officials immediately launched an investigation which ultimately led to the teacher's termination.
This case involved school officials who chose to investigate, rather than ignore, a serious accusation against a teacher. A duty to investigate accusations of misconduct in an anonymous letter is strongest when a failure to respond immediately with an investigation would place minors at risk of harm.
Pastors who refuse to read anonymous letters containing accusations of misconduct may be guilty of negligence. Negligence is a legal term that simply means carelessness or failing to act with reasonable care under the circumstances. Negligence is more likely if a pastor ignores an anonymous letter that:
- contains verifiable information; or
- contains evidence of reliability, such as information demonstrating that the writer is familiar with facts that support his or her accusation.
The critical question is what kinds of evidence are sufficient to trigger a duty to investigate anonymous accusations of misconduct? Consider the following examples:
Example. A pastor receives an anonymous letter from a person who attended worship services the previous Sunday. Part of the letter includes: "I attended your church on Sunday for the first time, and was shocked to discover that your music pastor is a convicted child molester." The pastor was not aware of any prior criminal behavior by the music pastor. He is not sure what to do. He considers discarding the letter. A better response would be to verify the letter's central accusation—that the music pastor was previously convicted of child molestation. He accesses a state criminal records database and discovers that the music pastor was incarcerated for ten years for a prior incident of child molestation. The music pastor is terminated immediately.
Example. Same facts as the previous example, except the pastor elects to disregard the letter based on his policy of never reading anonymous letters. This response may expose the pastor, and church, to liability based on "negligent retention" should the music pastor sexually molest a minor on the church premises or during a church activity. Liability would be based on the church's retention of the music pastor despite the anonymous letter's allegation of a criminal record that easily could have been verified. This example demonstrates the potential legal risks associated with a policy of disregarding all anonymous letters.
Example. A pastor receives an anonymous letter claiming that the church's youth pastor "engaged in inappropriate contact with a minor in a prior church." Assume that this prior incident did not result in a criminal record that would be searchable and verifiable. Given the seriousness of an accusation of child abuse by a youth pastor, the church should investigate. While the prior incident did not result in a criminal conviction that would be verifiable by searching public records, the church could take the following steps that would help negate an allegation of negligence should the youth pastor engage in similar conduct in the future: (1) Interview the youth pastor and have him respond to the accusation. (2) If this was not done previously, obtain references from each church where the youth pastor previously worked in youth ministry as an employee or volunteer. (3) Conduct a criminal records check, and sex offender registry search, to uncover prior incidents that did result in criminal prosecution. Other precautions are summarized at the end of this article.
Example. A pastor receives an anonymous letter complaining about the music performed during worship services. Disregarding anonymous letters like this, that are critical of music and sermons, do not expose a church to any material risk since the pastor's disregard of such letters does not expose anyone to a risk of injury.
Example. A pastor receives an anonymous letter claiming that "a registered child molester is attending the church's worship services." According to some courts, no duty to investigate arises when an anonymous letter is received containing no verifiable information (such as the identity of the sex offender), and no extrinsic evidence of reliability. If the identity of the sex offender had been revealed, the church could mitigate its risk by verifying the conviction using the national sex offender online registry, and instituting a conditional attendance agreement allowing the offender to attend under strict, specified conditions.
Example. A pastor receives an anonymous letter accusing the church's bookkeeper of embezzling church funds. The alleged misconduct is not of such a nature as would place persons attending church services and activities at risk of injury. As a result, there probably are no adverse legal consequences should the letter be ignored. However, many would consider the investigation of such an accusation to be a moral imperative.
Example. A pastor receives an anonymous letter containing an accusation that a staff member has had her driver's license revoked for reckless driving. The staff member often drives church vehicles on church business. This allegation involves behavior that could expose others to harm. A person's driver's license status can be easily verified by checking with the department of motor vehicles, a step a church should take. Based on my recommendations at the end of this article, the accusation should be investigated. If validated, the staff member must immediately be suspended from driving her own, or the church's, vehicles on church business.
3. A child abuse reporting analogy
Every state has enacted a child abuse reporting law that requires persons designated as "mandatory reporters" to report abuse to civil authorities if they have actual knowledge or reasonable suspicion or belief that it has occurred.
Child abuse reporting laws can be helpful to church leaders in deciding how to respond to anonymous letters because the laws use the standard of reasonable suspicion or belief in triggering a duty to report. This is similar to my recommendations at the end of this article, which suggest that pastors have a duty to investigate anonymous accusations of misconduct if there is reliable and relevant evidence that creates a reasonable basis for the accusation.
State legislatures have struggled to define the threshold requirement of "reasonable suspicion or belief." To illustrate, the California child abuse reporting law requires mandatory reporters to report abuse if they have "reasonable suspicion" that child abuse has occurred, and it defines reasonable suspicion as follows:
Reasonable suspicion means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. "Reasonable suspicion" does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any "reasonable suspicion" is sufficient.
Such definitions provide little clarification, and this has left to the courts the task of defining reasonable suspicion or belief. This is a vital task since it will determine whether a mandatory reporter has a legal duty to report child abuse to the agency designated by the reporting statute.
"Reasonable suspicion or belief" that a child has been abused not only imposes upon mandatory reporters a legal duty to report, but it also serves as a potentially useful analogy for pastors to consider in deciding whether to respond to anonymous letters accusing an employee or volunteer of misconduct. As noted above, pastors who elect to ignore an anonymous letter accusing a staff member of misconduct may be liable on the basis of negligence or negligent retention if the staff member injures another person and, in the exercise of reasonable care, the allegation should have been investigated. This makes legislative and judicial clarification of "reasonable suspicion or belief" relevant in assessing an appropriate response to anonymous accusations.
Key point. If the circumstances surrounding an allegation of child abuse in an anonymous letter create a reasonable belief that it occurred, then: (1) the allegation should not be ignored on the ground that it was contained in an anonymous letter, and (2) it must be reported to the child abuse hotline by the recipient if the recipient is a mandatory reporter under state law.
Some of the leading cases interpreting "reasonable suspicion or belief" are summarized below:
In re O.K., 2015 WL 655106 (Ill. App. 2015). A state social services agency received several anonymous letters alleging incidents of abuse against children while in their foster parents' care. The court noted that "as the allegations in these letters had not been verified, the state sought more time to determine the safety of the children while in the parents' care." This case suggests that an anonymous letter by itself, without any corroborating evidence, does not constitute reasonable suspicion or belief that child abuse has occurred, and so no duty to report arises.
Croft v. Westmoreland County, 103 F.3d 1123 (3d Cir. 1997).A federal appeals court ruled that a child welfare agency must independently corroborate reports of child abuse from an anonymous informant in order to separate a child and parent. In other words, an allegation of child abuse in an anonymous letter does not, by itself and without any additional corroborating evidence, constitute reasonable suspicion or belief triggering a duty to report.
Kraynak v. Youngstown City School District, 889 N.E.2d 528 (Ohio 2008). A fourth-grade teacher asked her students to keep a creative-writing journal. Once or twice a week, the teacher instructed students to make entries in their journal. The journals were not turned in, and were only spot-read by the teacher because they were used only to practice writing. One student wrote entries in her journal that mentioned physical abuse by her mother. The teacher read this entry, but did not report the abuse to the child abuse hotline because the student "didn't take this journal entry very seriously. He wasn't crying. He wasn't upset. He wasn't scared. He wasn't emotionally upset about it." The student's father later sued the school as a result of the teacher's failure to report the abuse. A jury returned a verdict in favor of the school, concluding that the preponderance of the evidence did not establish that the teacher knew or suspected that the student had suffered or faced abuse, and therefore she had no duty to report.
On appeal, the Ohio Supreme Court agreed that the school was not liable. It noted that the child abuse reporting law requires mandatory reporters who "know or suspect that a child under eighteen years of age … has suffered or faces a threat of suffering any physical or mental [abuse] that reasonably indicates abuse or neglect of the child, shall immediately report that knowledge or suspicion to the public children services agency or a municipal or county peace officer in the county in which the child resides or in which the abuse or neglect is occurring or has occurred."
The Court concluded that the reporting statute established a "subjective standard" in deciding whether a person was required to report:The statute asks whether the school employee knows of child abuse or suspects child abuse. The statute does not ask whether the school employee "knew or should have known" or "suspected or should have suspected" or "knew or had reasonable cause to suspect" that a child had been abused. Rather [it] simply asks whether the school employee "knows or suspects" that there has been child abuse.
The Court noted that the reporting statute had been amended following the filing of the lawsuit in this case: "The new version of the statute changes the standard from 'knows or suspects' (a subjective standard) to 'knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect,' a clearly objective standard. Accordingly, we hold that pursuant to [the prior statute] in determining whether a person knows of or suspects child abuse for purposes of reporting it to the proper authorities, the standard is subjective."
Keisling v. Keisling, 196 S.W.3d 703 (Tenn. App. 2005). Following a divorce, the former wife filed a petition to restrict the former husband's visitation rights with the couple's minor child on the ground that the father had sexually molested the child. A Tennessee appeals court observed:Accusations of child sexual abuse by one parent against the other parent presents one of the most difficult issues faced by a trial court. Suspicion of such abuse must be taken seriously and [was] investigated thoroughly, for the consequences to the child of allowing any abuse to continue are grave. However, mistakenly concluding that a parent has abused his child, when in fact there has been no abuse, has serious consequences as well, including the almost-certain destruction of the parent-child relationship and disgrace to the accused parent. In addition, determining whether abuse has occurred can be enormously difficult; there is frequently a paucity of physical evidence, and the alleged child victim may be unable to accurately relate pertinent events. Finally, even investigating the accusation is delicate; the suggestibility of the alleged victim is almost invariably an issue, and heavy-handed or repetitive interrogation or physical examination can itself inflict long-lasting trauma on a child. In this case, it is clear that the accusations of sexual abuse of the parties' daughters were taken seriously and investigated thoroughly.
But the court cautioned that "in a case such as this, any concern about reporting allegations of child sexual abuse must be balanced with the awareness that false accusations of such abuse can be a reprehensible tool against an ex-spouse."
This case suggests that anonymous accusations of misconduct should be investigated rather than ignored if the alleged misconduct is serious in nature and exposes others to possible harm. However, a duty to report must be balanced against facts suggesting a motive to lie.
O'Heron v. Blaney, 583 S.E.2d 834 (Ga. 2003). The Georgia Supreme Court explained the "reasonable cause" standard as follows:Once a reporter has reasonable cause to suspect child abuse has occurred, she must report it or face criminal penalties. The trigger for the duty to report is "reasonable cause to believe," which requires an objective analysis. The relevant question is whether the information available at the time would lead a reasonable person in the position of the reporter to suspect abuse.
4. A "probable cause" analogy
The Fourth Amendment to the United States Constitution protects "the people" from "unreasonable searches and seizures," also providing that "no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing … the persons or things to be seized."
The courts frequently are called upon to determine if law enforcement personnel have probable cause of criminal behavior to justify the issuance of a warrant. In general, probable cause to arrest exists "when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant v. Okst, 101 F.3d 845 (2d Cir.1996).
Several courts have addressed the question of whether anonymous letters and tips can constitute probable cause. The United States Supreme Court has ruled that an anonymous letter can provide the probable cause needed for a search warrant. Illinois v. Gates, 462 U.S. 213 (1983). The Court noted:
[Anonymous] tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise "perfect crimes." While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.
Part of the Court's reasoning was that the anonymous letter contained a range of details relating "not just to easily obtained facts and conditions existing at the time of the letter, but to future actions of third parties ordinarily not easily predicted." In other words, there were "indicia of reliability" that strengthened the value of the anonymous letter.
How is this relevant to a pastor's response to an anonymous letter? The argument could be made that just as anonymous letters, when combined with "indicia of reliability," can constitute probable cause supporting an arrest or search warrant, so too may the credibility of an anonymous letter received by a pastor be enhanced by additional information in the letter—information that may create a reasonable basis for an accusation warranting further investigation.
Example. A pastor receives an anonymous letter accusing a staff member of misconduct. The letter also contains references to facts that are not widely known. The pastor has a policy of never reading anonymous letters, and so the letter is ignored. The letter, along with the "indicia of reliability," would likely constitute probable cause supporting a search or arrest. The staff member engages in future misconduct that injures a member of the congregation. The victim sues the church, claiming that it is responsible for her injuries on the basis of negligent retention of the staff member. To bolster her claim, she asserts that the anonymous letter, together with the "indicia of reliability," would constitute probable cause supporting a warrant to arrest. If the evidence constitutes probable cause to arrest, then it may suggest that the pastor had a duty to investigate the anonymous letter's accusation. While certainly not conclusive, this argument may support the victim's negligent retention claim.
Anonymous letters containing accusations of misconduct by staff members or volunteers present pastors with a difficult decision. This is especially true for anonymous letters containing no verifiable information supporting an accusation. Few, if any, courts have found churches liable on the basis of a pastor's disregard of anonymous accusations of misconduct, but, as noted in this article, it is possible that a church could be found liable in such cases based on negligent retention.
The best practice, which will reduce legal risk and potential future harm to innocent victims, is to investigate anonymous accusations of misconduct that:
(1) are verifiable by available public records (i.e., criminal records, sex offender registry); or
(2) contain "indicia of reliability" based on:
information provided by references; information provided by the victim identified in the anonymous letter, or by other persons identified in the letter who may have information about the accusation; information provided by former churches where the accused previously served as an employee or volunteer; information provided by law enforcement officers who may have investigated the individual in the past; information provided by potential witnesses having relevant information regarding the accusation; other relevant evidence, such as the writer's knowledge of facts suggesting personal knowledge of the information shared in the anonymous letter; or
(3) involve misconduct of such a nature as would place persons attending church services and activities at risk of injury. The duty to investigate is greatest when an anonymous letter accuses an employee or volunteer of behavior making him or her a risk of harm to minors.
Key point. Anonymous letters containing unverifiable allegations of misconduct by named individuals are the most troublesome. As we have seen, such accusations generally are insufficient to trigger a duty to report child abuse, or serve as probable cause for an arrest, and these analogies suggest that pastors have no legal duty to independently investigate such accusations and therefore they, and their church, cannot be liable on the basis of negligent retention for future harm caused by the accused. That may be true in a legal sense, but there is also a moral dimension to be considered. Jesus' harshest words were directed at those who "cause one of these little ones who believe in me to stumble." These words will persuade many pastors to investigate anonymous accusations of sexual misconduct by an employee or volunteer involving a minor victim, whether the accusations are verifiable or not.