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Church Not Liable in Suit for Failing to Inform Parents of Child Pornography on Pastor’s Laptop

Key point 10-04. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.

A Missouri court ruled that a church was not liable for failing to inform parents that large amounts of child pornography was found on the pastor's laptop computer. A minor female (the "victim") was born in 2001. She and her parents (the "Doe Family") joined a Catholic church in the summer of 2009. A priest (the "defendant") became the pastor of the church at about the same time. In December 2010, a computer technician who worked for the church was asked to look at the priest's laptop because it was running slow. The technician determined that the hard drive was full, and in the process of deleting files, saw pictures of young girls stored on the hard drive with numbers assigned, indicating the pictures had been taken by a camera. The technician reported his discovery to the church's office manager, and thereafter brought the laptop to the church office to meet with a church deacon. The technician assisted the deacon in navigating to one particular picture he had found of a young girl with her pants pulled down. The deacon immediately contacted an official of the Diocese. On December 16, 2010, the deacon delivered the laptop to the official who asked the Diocese's Director of Management Information Systems to look at the laptop. On December 17, 2010, this person copied photographs she found on the laptop to a flash drive. On the same day, she and her supervisor prepared a memorandum to the Diocese regarding their findings and attached copies of some of the images found on the laptop. On the same day, the bishop of the Diocese contacted its outside legal counsel for an opinion about whether the images found on the priest's laptop constituted child pornography. A few days later, outside legal counsel advised the bishop that in his legal opinion, the images on the priest's laptop were not child pornography.

On December 17, 2010, the priest failed to report to work at the church. The church contacted the police, who discovered the priest unconscious in his garage with his motorcycle running. During Mass on the following Sunday, someone announced that the priest had an "accident" while working on his motorcycle, that those attending Mass should pray for his recovery, and that cards could be placed in a basket at the back of the church. In January 2011, the Diocese sent the priest to a doctor for a psychiatric evaluation.

In February 2011, the bishop assigned the priest to a limited ministry as chaplain for the Sisters of St. Francis. The bishop imposed written restrictions on the priest with which he agreed to comply. The restrictions included that the priest would avoid contact with children, would not use a computer, would use a camera only in limited circumstances, and would not take any photos of children. Neither the bishop nor any other representative of the Diocese told the church's deacon about the restrictions.

Between March 2011 and April 2011, the Doe Family had three interactions with the priest. In March 2011, the Doe Family arranged to meet with him at a park where the Doe Family was playing softball. The parents saw the priest take a picture of their 10-year-old daughter with his cell phone while she was sitting in the "V" between two branches of a tree. Later that same day, the Doe Family and the priest ate together at a pizza restaurant. The priest sat on the opposite side of the table from the child. The parents observed that the priest had his phone in his lap. On Easter Sunday in April 2011, the Doe Family attended Easter Mass at the priest's invitation, and spoke briefly with him before and after Mass. He did not take pictures of the child on this date.

In May 2011, the priest was arrested and charged with possession of child pornography. None of the charges related to the victim. The arrest occurred within days of the delivery to the police of a CD and a flash drive containing photographs that had been copied from the priest's laptop. At about the same time, the priest's brother gave the police CDs and other media he had found in his brother's residence around the time the priest attempted suicide.

After the priest's arrest, the Doe Family began to worry that the priest had taken pictures of their 10-year-old daughter. Investigators could find no pictures on the priest's laptop computer depicting the victim, but the parents insisted that they did exist but had been erased from the laptop's hard drive by the priest's brother.

On November 16, 2011, the Doe Family filed a lawsuit naming the priest, the Diocese, and bishop as defendants. A trial court dismissed the lawsuit, and the parents appealed.

The appellate court agreed with the trial court's dismissal of all claims against the church defendants, noting that, even though the Diocese failed to tell the parents about potentially pornographic images of children found on the pastor's laptop, there was no evidence that the pastor would have had the opportunity to allegedly take obscene photos of the victim, as would be required to support the parents' fraudulent misrepresentation claim.

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