In a development of immense importance to church leaders, a California appellate court ruled that a youth-serving charity had a legal duty to perform criminal background checks on employees and volunteers, and could be liable for the sexual molestation of minors by unscreened workers. Doe v. United States Youth Soccer Association, 8 Cal.App.5th 1118 (Cal. App. 2017). The court's ruling is historic because it represents the first reported case in which a court unequivocally reached this conclusion. As a result, the decision merits careful study by church leaders.
A 12-year-old girl (the "plaintiff") was sexually abused by her soccer coach. She sued national, state, and local youth soccer associations (the "defendants"), claiming that they were responsible for her injuries on the basis of negligence and willful misconduct. She claimed that the defendants had a duty to protect her from her coach's criminal conduct, and that the defendants breached their duties to her by failing to conduct criminal background checks and by failing to warn or educate her about the risk of sexual abuse.
A trial court granted the defendant's motion to dismiss the lawsuit on the ground that they had no duty to protect the plaintiff from criminal conduct by a third party. The plaintiff appealed. A state appeals court reversed the trial court's dismissal of the case, finding that the defendants had a duty to conduct criminal background checks of all adults who would have contact with children involved in their programs.
The KidSafe Program
In 1994, the national soccer association acknowledged that pedophiles were drawn to its youth soccer program to gain access to children, and its program presented an unacceptable risk of harm to children unless appropriate preventative measures were taken. US Youth developed the KidSafe Program, which was designed to educate adult volunteers, coaches, employees, parents, and players participating in its soccer programs regarding the prevention and detection of sexual abuse. The KidSafe Program states that its ultimate objective is "to exclude from participation … all persons who have been convicted of felonies, crimes of violence or crimes against a person."
Sometime in the mid-1990s, the national soccer association distributed hundreds of copies of its KidSafe Program pamphlets to each state association. Thereafter, it sent copies of these educational pamphlets on request. Many of these pamphlets, which could be accessed through links on defendants' websites, emphasized the importance of teaching parents and other adults about the warning signs of sexual abuse in youth sports and how to detect predators. The pamphlets also listed safety guidelines, which set forth appropriate conduct for adults and outlined "red flags" or warning signs of abuse. In addition, the national soccer association presented KidSafe Program materials at annual and regional meetings.
Neither the national nor state defendants required that the local soccer association's coaches, volunteers, trainers, and administrators receive or be trained in the KidSafe Program. The local soccer association never conducted any meetings for parents to discuss the KidSafe Program. Neither it nor the state association emailed links to the KidSafe Program pamphlets to parents of children participating in youth soccer programs.
The coach's conduct
In the spring of 2011, the plaintiff joined a local soccer club. Her coach violated several of the national soccer association's safety guidelines:
he held practices for which he was the only coach present in June 2011 and at the weeklong soccer camp in August 2011; he made excessive and disproportionate physical contact with the plaintiff; he drove the plaintiff to and from practices and games alone; he helped her put away equipment after practices as the other players were leaving or had left and they could not be seen from the field; he singled out the plaintiff for training sessions involving one or two players; he acted "impulsively, immaturely, and in an egocentric manner" by abruptly leaving the field during practices; he used inappropriate and excessive physical discipline as well as foul and offensive language; he spent extensive time alone with the plaintiff on June 11 and 12, 2011; he drove her alone to and from a tournament in another town, even though her parents attended 30 minutes of the final game; during the tournament, he took the plaintiff alone for two walks; he engaged in grooming behavior of the plaintiff and her family when he became friendly with them, visited them at their home, was helpful to them, and offered to drive the plaintiff to games and practices and to pick her up from such events when her parents were unable to do so.
After parents complained about the coach's harsh discipline of the girls, the local soccer club reassigned him to a boys' soccer team. Since the boys' team practiced at the same time as the girls' team, the coach continued to select the plaintiff and sometimes another girl to practice with the boys. In November 2011, the club suspended the coach. Though it became more difficult for the coach to have contact with the plaintiff, he continued to do so. Since the soccer club did not inform the plaintiff's parents that the coach had been suspended due to inappropriate touching of the plaintiff and one-on-one contact with her, the club withheld information that would have put the plaintiff's parents on notice that they needed to be "extra vigilant" in keeping the coach away from their daughter.
Criminal records checks
The national youth soccer's bylaws require that its state associations and each affiliate league collect and screen criminal conviction information on its coaches, trainers, volunteers, and administrators who will be in contact with youth members.
The national youth soccer negotiated a discounted rate with an online vendor to permit state associations, leagues, or teams to obtain nationwide criminal background checks on an applicant for $2.50 per search. National youth soccer kept records regarding which state associations did and did not conduct these background checks and distributed monthly reports indicating which individuals had been disqualified from participation in soccer programs due to prior convictions.
In 2009, the founder of the local soccer club and a member of the state soccer association's Hall of Fame was charged with multiple felony child molestation offenses arising from incidents with two 11-year-old boys. The perpetrator had been a coach, volunteer, and referee for local soccer activities until at least 1998. The local club was unaware of his prior misdemeanor convictions of child sexual abuse from the mid-1990s, because it did not conduct criminal background checks.
When the defendant coach applied for a coaching position with the local club in 2010, he was required to fill out a form that asked whether he had been convicted of a felony, a crime of violence, or a crime against a person. The disclosure form stated that the national soccer association might deny certification to any person who has been convicted of these types of offenses. Though the coach had been convicted in 2007 of battery against his spouse, he answered "no" to each of these categories and authorized the state and local associations to confirm this information. Neither conducted a criminal background check.
Though the national soccer association knew that voluntary disclosure by an applicant of his or her criminal convictions was ineffective, it did not require its affiliates to conduct criminal background checks. The risk management committee of the national association recommended that mandatory criminal background checks be required. A memorandum to the association stated: From a risk management standpoint it certainly makes good sense to conduct criminal background checks of all volunteer and paid adults that have contact with minor players. But, from a negligence standpoint, regularly conducting criminal background checks of volunteers and paid adults creates a self-imposed duty to do the same for all that serve in a similar capacity. The failure to conduct such a check would be considered as a breach of duty, which, in turn could mean liability.
The local club also knew that a criminal background check would identify applicants who lied about their background on the self-disclosure form, but it failed to conduct criminal background checks. The local club also chose not to interview the plaintiff and her parents, because it did not want a scandal or lawsuit.
The Court's Ruling
The plaintiff's negligence claim against the defendants rested on their failure to require or conduct criminal background checks and to warn or educate her about the risks of sexual abuse. The court noted that "as a general matter, there is no duty to act to protect others from the conduct of third parties." However, "a defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a special relationship with the other person." A special relationship exists when "the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare." The court continued: Generally, a greater degree of care is owed to children because of their lack of capacity to appreciate risks and avoid danger. Consequently, California courts have frequently recognized special relationships between children and their adult caregivers that give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties. Recognized special relationships include an operator of a preschool or day care center to the children in attendance; a school district to a mother whose child was sexually molested by another student because the school stood in loco parentis while the child was in attendance; and the wife of a sexual offender to children she invited to play in her home because being of tender years they were particularly vulnerable to this sort of misconduct and not fully able to protect themselves against it.
The court referred to an earlier ruling by the California Supreme Court finding a special relationship between scout leaders and scouts "based on the vulnerability of children and the insidious methods of sexual offenders." Juarez v. Boy Scouts of America, 81 Cal. App.4th 377 (Cal. App. 2000).
The court concluded that there was a special relationship between the defendants and the plaintiff: the plaintiff was a member of national youth soccer and played on a local team that was the local affiliate of national and state youth soccer associations. In addition, the local club was required to comply with the policies and rules of the national association. And, since the national association established the standards under which coaches were hired, it determined which individuals, including the defendant coach, had custody and supervision of children involved in its programs.
The court clarified, however, that "a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated." That is, was "the degree of foreseeability … high enough to charge the defendant with the duty to act on it"? The defendants had no knowledge that the defendant coach had previously sexually abused anyone or had a propensity to do so. But, it added: National youth soccer was "aware of incidents of physical and sexual abuse of its members by its coaches at a steady yearly rate of between 2 and 5 per year. More importantly, in recognition of the risks of sexual abuse to its players, it had developed the KidSafe Program, which included a pamphlet that stated: "One out of every 4 girls and one out of every 6 boys will be sexually abused before the age of 18. Fact: Pedophiles are drawn to places where there are children. All youth sports, including youth soccer, are such places." Though these statements did not establish the rate of sexual abuse in youth soccer programs, they were an acknowledgement by the national youth soccer association that children playing soccer were at risk for sexual abuse. As to the state and local defendants, there is no indication of the frequency of sexual abuse incidents affecting players in their leagues. However, both adopted the KidSafe Program, which acknowledged that their soccer programs attracted those who might sexually abuse their players and that there had been incidents of sexual abuse. Moreover, the year before the defendant coach submitted his application, both the state and local defendants were aware of multiple sexual abuse incidents involving [a former prominent coach]. It is not clear whether these incidents occurred as a result of his participation as a coach, volunteer, or referee for youth soccer activities, but these incidents demonstrated that pedophiles were drawn to activities involving children. Thus … we conclude that it was reasonably foreseeable to defendants that a child participating in their soccer program would be sexually abused by a coach.
The national, state, and local defendants argued that it would impose a tremendous burden to mandate criminal background checks for employees and volunteers in their programs, because the availability of criminal background checks varies among the states. The defendants also claimed that volunteers working with children in the majority of states are not required to undergo criminal background checks and private entities are not allowed to obtain national criminal background checks on volunteers in many states. The court rejected this argument, noting that another national youth soccer organization has required criminal background checks for its volunteers and coaches in these jurisdictions. Moreover, the national soccer defendant "has required criminal background checks for all coaches and referees participating in its youth Olympic Development Program in the state associations since 2008. Further, the national soccer defendant kept records of which state associations did and did not obtain these criminal background checks, and distributed reports of individuals who had been disqualified from participation in its youth programs. The court concluded, "Since US Youth had demonstrated the administrative ability to ensure compliance with mandatory criminal background checks, the burden would not have been significant." Further, "nearly all of the state associations have been conducting criminal background checks on all volunteers, coaches, and trainers since 2010, thus showing that it would not have been overly burdensome" for the state and local defendants to do so.
The national soccer defendant also argued that the cost of mandating criminal background checks would be substantial: "US Youth registers over 900,000 administrators, coaches and volunteers annually and … if criminal background checks cost $2.50 per check, this would amount to $2.25 million." If members of a team or the applicant had paid for the criminal background check, defendants would not have born the cost. More importantly, there was and continues to be no cost for criminal background checks in California pursuant to [a] statute providing that no fee shall be charged to nonprofit organizations for criminal background checks."
In finding the defendants guilty of negligence for not mandating criminal records checks of volunteers and others who work with minors in youth soccer, the court observed: The connection between plaintiff's harm and defendants' failure to conduct a criminal background check was close. If defendants had conducted a criminal background check of the defendant coach, his prior conviction for domestic violence would have been discovered and it would have been highly unlikely that he would have been hired. Thus, he would have had far fewer, if any, opportunities to sexually abuse plaintiff. As to the policy of preventing future harm, our society recognizes that the protection of children from sexual abuse is a paramount goal. Imposition of a duty to conduct criminal background checks on defendants would assist in the achievement of this goal… . Here, balancing the degree of foreseeability of harm to children in defendants' soccer programs against their minimal burden, we conclude that defendants had a duty to require and conduct criminal background checks of defendants' employees and volunteers who had contact with children in their programs. [The following] factors support our conclusion: plaintiff suffered injury, the connection between her injury and defendants' failure to conduct a criminal background check was close, and preventing harm to children is a paramount goal of our society. Since we have found that defendants had a duty to plaintiff, the [plaintiff's] complaint states sufficient facts to constitute a cause of action for negligence.
Child abuse training
But the court rejected the plaintiff's claim that defendants had a duty to protect her from her coach's conduct by "warning, training, or educating her (either directly or through her parent or adult employees or team volunteers) about the risk of sex abuse in their programs from their coaches and of its guidelines to protect her and best practices for youth to avoid abuse."
The court noted: The plaintiff does not discuss the training or educating that defendants should have done. Instead, she argues that a "warning could have been as simple as handing out an existing KidSafe Brochure, or going over KidSafe guidelines at the pre-season parent meeting," and thus the burden would have been minimal. We disagree. The subject of sexual abuse of children is a complicated one, and plaintiff's attempt to minimize the burden on defendants is not persuasive. Defendants are sports organizations. Children participate in these organizations to develop their athletic skills and to learn sportsmanship. These organizations are not designed to educate children, their parents, and others regarding the risk of sexual abuse. As the defendants point out, "there are no uniform standards for educating parents and children about the dangers of child predation in youth sports organizations. As such, it would be a daunting task to know at what age children should first be educated about sexual molestation, and to what extent." Moreover, many parents would consider the education of their children about the risk of sexual abuse to be their responsibility, not that of a youth sports organization. Plaintiff does not address these concerns. In our view, the burden imposed on defendants of implementing a sexual abuse education program for millions of players, their parents, adult employees, and team volunteers would be substantial.
The court conceded that the Boy Scouts have implemented a comprehensive program, including written materials and videotapes, to educate adult volunteers, parents, and boy scouts of the danger of child molestation. All paid employees are required to participate in a training program which set forth guidelines and training for volunteers, staff, and parents regarding protection against sexual molestation. The Boy Scout Handbook, which is distributed to every boy scout, includes a 24-page pamphlet for parents on how to protect children from child and drug abuse. But the court concluded that youth soccer presents a very different case than Boy Scouts: First, "millions of American parents partner with the Scouts collectively for the development of their children's core values." No such relationship exists between parents of soccer players and defendants. Second, boy scouts are required to engage in a range of activities that are "designed to teach the moral principles to which the organization subscribes." Defendants' activities for soccer players are not similarly designed. Third, the program developed and implemented by the Scouts was far more extensive than the KidSafe Program. Accordingly [we are not] persuaded that the burden on defendants would be slight. Here, the creation and implementation of a sexual abuse education program to protect children in defendants' programs would be extraordinarily burdensome. Balancing this burden against the level of foreseeability of sexual abuse in the present case, we decline to impose a duty on defendants to protect children by these means.
The plaintiff also contends that the defendants engaged in willful misconduct. The court explained that "willful misconduct is not a separate tort from negligence, but rather an aggravated form of negligence." In order to establish willful misconduct, "a plaintiff must prove (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril." Willful misconduct "is not marked by a mere absence of care. Rather, it involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences."
The plaintiff claimed that the national youth soccer defendant "engaged in willful misconduct when it chose not to require criminal background checks for the harm it knew was occurring." The court disagreed: Though the defendant knew that children participating in its programs were at risk of sexual abuse, they did not have actual or constructive knowledge that injury to children like plaintiff was probable. More importantly, since it took some steps to avoid harm to plaintiff and others by requiring a voluntary disclosure form, their conduct did not involve a positive intent to harm children in their soccer programs or act with complete disregard of the consequences. Thus, plaintiff's allegations against national youth soccer failed to support a cause of action for willful misconduct for their failure to require criminal background checks.
The plaintiff cited several instances where the defendants failed to intervene when confronted with the defendant coach's inappropriate behavior with the plaintiff. The court concluded that this evidence did not establish willful misconduct "because none of his conduct provided the defendants with actual or constructive knowledge that his sexual abuse of plaintiff was probable," and "his conduct did not indicate to a reasonable person at that time that plaintiff was at risk of sexual abuse."
Relevance to church leaders
A decision by a California appeals court is not binding in any other state, and is not binding on trial courts in California in counties over which the court has no jurisdiction (there are six courts of appeals in California). Further, a decision by a California appeals court is not binding on any other California appeals court, or the California Supreme Court. However, there are some aspects to the court's decision that are instructive for all churches.
The court acknowledged that as a general rule there is no duty to protect others from the criminal activity of third persons. One court stated the general rule as follows: "One human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other fellow drown. Such decisions have been condemned by legal writers as revolting to any moral sense, but thus far they remain the law." Mackey v. U.S., 2007 WL 2228663 (6th Cir. 2007). But there are exceptions to this rule, and one of them was at issue in the California case. The court concluded that a duty to intervene to protect another from harm may arise if the victim (1) has a "special relationship" with another, and (2) harm to the victim is reasonably foreseeable. The court concluded that a special relationship exists between a minor child and a youth-serving organization (such as a soccer club or church). It also concluded that "it was reasonably foreseeable to defendants that a child participating in their soccer program would be sexually abused by a coach." In support of its finding of foreseeability, the court noted: National youth soccer was "aware of incidents of physical and sexual abuse of its members by its coaches at a steady yearly rate of between 2 and 5 per year. More importantly, in recognition of the risks of sexual abuse to its players, it had developed the KidSafe Program, which included a pamphlet that stated: "One out of every 4 girls and one out of every 6 boys will be sexually abused before the age of 18. Fact: Pedophiles are drawn to places where there are children. All youth sports, including youth soccer, are such places." Though these statements did not establish the rate of sexual abuse in youth soccer programs, they were an acknowledgement by the national youth soccer association that children playing soccer were at risk for sexual abuse… . We conclude that it was reasonably foreseeable to defendants that a child participating in their soccer program would be sexually abused by a coach. The court concluded that the soccer defendants were liable for the plaintiff's injuries based on their negligence in failing to perform a criminal background check. It noted that "defendants had a duty to require and conduct criminal background checks of defendants' employees and volunteers who had contact with children in their programs… . Since we have found that defendants had a duty to plaintiff, the [plaintiff's] complaint states sufficient facts to constitute a cause of action for negligence."
2. The risk of pedophilia
This case demonstrates the risk pedophiles represent in any program or activity involving minors. The defendant coach saw coaching as a way to recruit, groom, and molest potential victims. Church leaders must be aware of this risk, and take steps to reduce or eliminate it.
The term pedophile is widely used but poorly understood. Often, it is used synonymously with child molester. The American Psychiatric Association's current Diagnostic and Statistical Manual of Mental Disorders (DSM-5 2013) identifies the following "diagnostic criteria" for pedophilia: A. Over a period of at least 6 months, an equal or greater sexual arousal from prepubescent or early pubescent children than from physically mature persons, as manifested by fantasies, urges, or behaviors. B. The individual has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or impairment in social, occupational, or other important areas of functioning. C. The individual must be at least 18 years of age and at least 5 years older than the children in Criterion A.
This definition implies that pedophiles are both promiscuous and predatory. These characteristics were noted in Child Molesters: A Behavioral Analysis (2010), by former FBI agent Kenneth Lanning. He notes: Although a variety of individuals sexually abuse children, preferential-type sex offenders, and especially pedophiles, are the primary acquaintance sexual exploiters of children. A preferential-acquaintance child molester might molest 10, 50, hundreds, or even thousands of children in a lifetime, depending on the offender and how broadly or narrowly child molestation is defined. Although pedophiles vary greatly, their sexual behavior is repetitive and highly predictable… . Those with a definite preference for children (i.e., pedophiles) have sexual fantasies and erotic imagery that focus on children. They have sex with children not because of some situational stress or insecurity but because they are sexually attracted to and prefer children. They have the potential to molest large numbers of child victims. For many of them their problem is not only the nature of the sex drive (attraction to children), but also the quantity (need for frequent and repeated sex with children). They usually have age and gender preferences for their victims.
The Association for the Treatment of Sexual Abusers website states: Offenders who seek out children to victimize by placing themselves in positions of trust, authority, and easy access to youngsters can have hundreds of victims over the course of their lifetimes. One study found that the average number of victims for non-incestuous pedophiles who molest girls is 20; for pedophiles who prefer boys, over 100. Church leaders also should be aware that pedophilia generally is considered to be incurable, and very difficult to control. In addition, pedophiles have a high recidivism rate, meaning that those who are convicted and sentenced to prison are likely to revert to such behavior upon their release. The Association for the Treatment of Sexual Abusers website states that "predatory pedophiles, especially those who molest boys, are the sex offenders who have the highest recidivism rates. Over long follow-up periods, more than half of convicted pedophiles are rearrested for a new offense." As this case illustrates, youth-serving charities are a magnet for pedophiles, and as a result these charities must exercise constant vigilance in selecting and screening workers. In summary, it is important for church leaders to understand the definition of pedophilia, since this condition is associated with several characteristics including promiscuity predatory behavior incurability, and high recidivism rates.
Key point. According to the FBI and other knowledgeable sources, pedophiles are characterized by the following four characteristics: (1) predatory behavior; (2) promiscuity; (3) incurability; and (4) high recidivism rate.
3. Risk management
The California case addressed in this article is the first reported case in which a court ruled that youth-serving charities have a legal duty to perform criminal background checks on employees and volunteers who work with minors. It is likely that this conclusion will be followed by some, perhaps many, courts in other jurisdictions. Church leaders should view criminal background checks on all persons, both employees and volunteers, who work with minors, as a best practice. This is so for two reasons.
First, many youth-serving national charities have been mandating criminal background checks for years, and the same is true for public schools. This makes it increasingly difficult for churches to explain why they fail to require such checks. By failing to follow the practice of public schools (a state agency) and an increasing number of youth-serving charities, a church is exposing itself to a greater risk of being found liable on the basis of negligence for the sexual abuse of children because of its failure to follow the "community standard."
Second, it is likely that an increasing number of courts in multiple jurisdictions will follow the California court's lead, and impose a legal duty on youth-serving charities to conduct criminal background checks.
4. Criminal background checks are one component of a risk management strategy
Church leaders should not view criminal background checks as the only risk management technique to be used. Instead, risk management should be viewed as a basket of precautionary measures that include:
An interview. A written application. Obtain "institutional references" from other institutions (i.e., churches, schools, youth sports teams) with which an applicant has worked with minors. Rule restricting eligibility for any volunteer position involving the custody or supervision of minors to those persons who have been members in good standing of the church for a minimum period of time, such as six months. Such a policy gives the church an additional opportunity to evaluate applicants, and will help to repel persons seeking immediate access to potential victims. "Benchmark" church policies by comparing them with the policies of other charities and public schools.
Adopt a two-adult policy prohibiting a child from being alone with an unrelated adult. A criminal background check consisting of a nationwide search of sex offender registries, and a national criminal file search. Many denominations and insurance companies offer special pricing for such checks.
Note that performing criminal background checks on youth and children's workers does not, without more, protect a church from liability for acts of child molestation. To illustrate, a state denominational agency hired a pastor for a new church. It performed a criminal background check and sex offender registry check, neither of which revealed a criminal history. As a result, the pastor was hired. A few months later he sexually abused a minor in the church, and it was later revealed that he had molested minors in two prior churches where he was employed, but neither church reported the abuse to the authorities and so the pastor did not have a criminal record. The trial court, in awarding $12.5 million in damages, noted that the pastors of the two prior church testified that they would have revealed the prior incidents of abuse in response to a request from the defendant church, but it was never asked. In summary, the failure to obtain references rendered the church negligent despite the fact that it had obtained a criminal records check.
5. Self-reporting on youth worker applications
The court dismissed the relevance of the soccer defendants' volunteer application form's question about prior convictions. Such self-disclosures are of little if any value, the court concluded.
6. Child abuse training
The court rejected the plaintiff's argument that the soccer defendants were negligent in not providing educational resources on child abuse to minors and their parents. It observed: The subject of sexual abuse of children is a complicated one, and plaintiff's attempt to minimize the burden on defendants is not persuasive. Defendants are sports organizations. Children participate in these organizations to develop their athletic skills and to learn sportsmanship. These organizations are not designed to educate children, their parents, and others regarding the risk of sexual abuse. As the defendants point out, "there are no uniform standards for educating parents and children about the dangers of child predation in youth sports organizations. As such, it would be a daunting task to know at what age children should first be educated about sexual molestation, and to what extent." Moreover, many parents would consider the education of their children about the risk of sexual abuse to be their responsibility not that of a youth sports organization. Plaintiff does not address these concerns. In our view, the burden imposed on defendants of implementing a sexual abuse education program for millions of players, their parents, adult employees, and team volunteers would be substantial.