Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor 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 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.
An Illinois appeals court reversed a trial court’s dismissal of a lawsuit claiming that a church was liable on the basis of negligent hiring and negligent supervision for the rape of a 14-year-old girl by the church’s youth pastor.
A married couple (the “plaintiffs”) sued their church and its lead pastor for monetary damages resulting from the rape of their minor daughter (the “victim”) by the church’s youth pastor. The plaintiffs’ lawsuit, over 70 pages in length, claimed that from 2011 through 2013 the youth pastor abused his position through various forms of sexual misconduct toward female minors who were members of the church’s youth and confirmation groups. The lawsuit claimed that the youth pastor subjected the victim to persistent sexual advances before raping her in June 2013.
The church had adopted a “Safe Church Policy” (SCP) endorsed by its denomination. The SCP required that (1) all employees and volunteers undergo a background check prior to working with minors, (2) “at least two adults be present to supervise any minor youth or child activities,” and (3) “incidents of child abuse observed by employees or volunteers be reported to the Illinois Department of Children and Family Services.”
The plaintiffs alleged that when the youth pastor was hired his father held a senior position within the denomination, and that in hiring the youth pastor the church relied on the recommendation of his father and performed no further investigation into his background or fitness for the position. The plaintiffs’ lawsuit alleged that the church “failed to conduct even a basic, cursory Google search, or any investigation into the background and fitness of [the youth pastor] in violation of church policy.” They further alleged that “a basic, cursory Google search into the online public presence of the youth pastor” would have revealed his inappropriate activities which included posting sexually explicit images of his anatomy (“sexting”).
The plaintiffs cited several examples of misconduct directed toward multiple female minors who were members of the youth or confirmation groups at the church. For example, the youth pastor is alleged to have used his cellphone and a church computer to (1) store pornographic images of underage female members of the youth group, (2) store pornographic images of himself and send them to underage female members, and (3) “friend” underage female members on social media sites and “discuss their romantic relationship or sexual relationships,” in violation of the Safe Church Policy.
The plaintiffs alleged that the youth pastor’s misconduct toward underage female members of the youth and confirmation groups also included in-person misconduct. The plaintiffs alleged the following examples of misconduct “commonly” or “habitually” engaged in with underage female members: “(1) making inappropriate physical contact, (2) making sexually suggestive remarks and engaging the members in sexually-charged banter and games, and (3) showing the groups videos with inappropriate sexual content, including pornographic content.”
The plaintiffs alleged that the victim was the target of a campaign of “grooming” by the youth pastor. According to the plaintiffs, the grooming “escalated” during the summer of 2012, when the victim was 14 years old and the youth pastor was 30 years old. He psychologically manipulated the victim to increase her trust and emotional dependence on him. He “encouraged her to spend large amounts of time telling him about intimate details of her life.” He “stressed to her the importance of and necessity for secrecy and cautioned her repeatedly against telling anyone about the ‘relationship’ between them.”
The plaintiffs alleged that the youth pastor used the church’s computer equipment to communicate with the victim. He sent her sexually explicit pictures and videos, including some of himself. He also “gradually encouraged and convinced the victim to do the same.”
Ultimately, the youth pastor began making inappropriate physical contact with the victim in isolated areas of the church building, including areas of the basement, vacant classrooms, the sacristy, and the audio-visual booth. These incidents culminated in the youth pastor raping the victim.
The lawsuit claimed that the church and its pastor were responsible for the youth pastor’s acts on the basis of negligent hiring of the youth pastor, and negligent supervision. In support of their allegation of negligent hiring the plaintiffs claimed that had the church searched the youth pastor’s online activity prior to hiring him, it would have discovered that he maintained profiles on several websites that featured adult or child pornography. In support of their negligent supervision claim, the plaintiffs claimed that the church and its lead pastor failed to properly supervise the youth pastor, and “knew or should have known” of his history of misconduct prior to his rape of the victim.
The trial court dismissed the lawsuit. As to the negligent-hiring claim, the court reasoned that an online search of the youth pastor’s name would not necessarily have disclosed his activity on pornographic websites since he conducted that activity under a pseudonym. As to the negligent supervision claim, the court found nothing in the lawsuit to indicate that either the church or its lead pastor was or should have been aware of the youth pastor’s malfeasance prior to his sexual assault of the victim. The plaintiffs appealed.
The appeals court began its ruling by observing:
To state a cause of action for negligent hiring, the plaintiff must plead facts establishing that (1) the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons, (2) this particular unfitness was known or should have been known at the time of the hiring, and (3) this particular unfitness caused the plaintiff’s injury.
The court noted that there was no dispute that the church “should have conducted a reasonable background check on the youth pastor before hiring him. There is also no dispute that a reasonable background check would have included a reasonable search of his activity as it bore upon his fitness for the position of youth director. The dispute on appeal concerns what was feasible for the church to learn about him from an online search of the kind that the plaintiffs alleged the church should have done prior to hiring him.”
The court noted that the plaintiffs alleged that “a basic, cursory Google search into the online presence of the youth pastor would have revealed his activity, which included posting public photos of his own genitalia on numerous pornographic websites.
But the church insisted that there were two problems with the plaintiffs’ negligent hiring claim: First, the plaintiffs did not “explicitly allege that the youth pastor was visiting the [pornographic] websites before he was hired.” A negligent-hiring claim “implies, indeed depends on, the fact that the youth pastor maintained such objectionable online profiles before his hire.”
Second, the church claimed that even if the youth pastor engaged in inappropriate online behavior prior to his hire, the plaintiffs “have failed to establish how the church could have become aware of such behavior before hiring him. The church notes that the youth pastor is alleged to have engaged in inappropriate online behavior under the pseudonym ‘BluesGod88,’ and the church questions how it could have become aware of the activity prior to his hire when it did not know his pseudonym.” The plaintiffs alleged, however, that a basic, cursory Google search” would have revealed the youth pastor’s profiles on pornographic websites.” The court concluded: “From this allegation we draw the reasonable inference that a search under the youth pastor’s given name would have revealed his pseudonym (which in turn would have led the church to the profiles on pornographic websites). Whether the search would indeed have revealed that information is a question of fact” that should have been answered by the jury, and therefore the trial court erred in dismissing the negligent hiring claim.
In dismissing the plaintiffs’ negligent supervision claim, the trial court stressed that there was no evidence that either the church or its lead pastor “was or should have been aware of the youth pastor’s malfeasance prior to his sexual assault of the victim.” In reversing this ruling the appeals court observed: “Negligent supervision claims are not premised on notice of a worker’s misconduct or the potential for it. Liability is based on a duty to supervise that . . . exists independently of what was known or should have been known about the worker himself.” As a result, under Illinois law, negligent supervision “does not have as an essential element that the defendant have notice of the unfitness of the party that caused the harm.”
The plaintiffs claimed that when the youth pastor exploited youth group members in the absence of another adult, the church violated its Safe Church Policy that mandated that “at least two adults be present to supervise any minor youth or child activities.” The plaintiffs alleged that the church violated the two-adult policy by allowing the youth pastor to conduct youth activities with no other adult present and that he used that unsupervised access to abuse the victim and other youth. The court concluded that the church’s adoption of the SCP imposed on it a duty of supervision to ensure that the policy was being implemented, and that the church violated this duty. The court observed:
It is, in our view, generally foreseeable that abuse will occur in programs providing adults with unsupervised access to children, for it is well known that pedophiles are drawn to such opportunities, in churches and elsewhere. . . . Public policy in Illinois favors the protection of children. The statutes of this state also manifest “a specific policy which favors, in particular, the protection of children from sex offenders.” In deference to this policy, we hold that the church had a duty of care requiring it to enforce the SCP’s two-adult policy, regardless of its actual or constructive knowledge of its youth pastor’s predatory potential. . . . The church obviously fashioned the two-adult policy in the belief that even the most apparently virtuous adult should not be left alone with children, because it is generally foreseeable that abuse will occur in such a setting. . . . We hold that the common law of this state, whose public policy strongly favors the protection of children, required the church to enforce the two-adult policy. For these reasons we reverse the trial court’s dismissal of the negligent supervision claim.
What this means for churches
This case contains a number of important lessons, including the following:
- This case demonstrates the importance of following a church’s employee and volunteer screening policies even for persons well-known to church leaders. The church did not think it was necessary to screen the youth pastor because his father was a respected employee of a denominational agency. That was a big mistake.
- This is one of a few cases that has addressed the need to research applicants’ social media and internet profiles. The court concluded that the church “should have conducted a reasonable background check on the youth pastor before hiring him. There is also no dispute that a reasonable background check would have included a reasonable search of his activity as it bore upon his fitness for the position of youth director.” Such a search should have included a search of the youth pastor’s social media and internet profile if doing so was feasible given the fact that the youth pastor used a pseudonym.
- The court affirmed the fundamental principle that a negligent hiring claim requires evidence of an applicant’s misconduct prior to the date of hire. A negligent-hiring claim “implies, indeed depends on, the fact that the youth pastor maintained such objectionable online profiles before his hire.”
- The church’s Safe Church Policy mandated that “at least two adults be present to supervise any minor youth or child activities.” The plaintiffs alleged that the church violated the two-adult policy by allowing the youth pastor to conduct youth activities with no other adult present. The church’s policy illustrates an important point. While two-adult policies are essential, churches need to be careful in drafting them so that they do not impose unrealistic and unattainable burdens on the church. The two-adult policy in this case required that “at least two adults be present to supervise any minor youth or child activities.” But did this go too far? Every public elementary and secondary school has one teacher in a room with dozens of minors (in some cases a second adult, such as a teacher’s aide, may be present some of time). Note that public schools are agencies of the state, and so their policies and practices reflect the authority of the state. The point is that if the state deems one adult to be adequate in a classroom with dozens of minors, then is it necessary for churches to adopt a more stringent standard requiring two or more adults to be present at all times in the presence of one or more minors?
- The court perpetuated the confusion over the term “pedophile.” It observed, with reference to the youth pastor, that it is “generally foreseeable that abuse will occur in programs providing adults with unsupervised access to children, for it is well known that pedophiles are drawn to such opportunities, in churches and elsewhere.” But the youth pastor was not a pedophile, a term that is limited to persons having a sexual preference for prepubescent minors. The victim in this case was not such a person. The distinction is important, since pedophiles represent a significant risk to churches. The FBI profile on pedophiles indicates that this condition is associated with several characteristics including (1) promiscuity; (2) predatory behavior; (3) incurability; and (4) high recidivism rates.
- The court concluded that the church had a duty to implement and enforce its policies, including the two-adult rule, and that a failure to do so constituted negligent supervision. This aspect of the court’s ruling underscores the importance of church leaders being familiar with church policies and taking steps to ensure that they are being followed.
- This case is noteworthy for one additional reason. The trial court dismissed the plaintiff’s allegation that the church’s failure to monitor and enforce its two-adult policy amounted to “willful and wanton conduct.” But the appeals court reversed this ruling and allowed the plaintiff to proceed with this theory of liability. Church leaders should be familiar with the concept of willful or wanton conduct, and its corollary gross negligence, because of the following possible consequences: (1) the assessment of punitive damages which are not covered under any insurance policy; (2) the possible exclusion of insurance coverage for willful and wanton acts; and (3) board members lose their limited immunity from liability under state and federal law.
Doe v. Coe, 103 N.E.3d 436 (Ill. App. 2018).