Overview
For many years, I used a five-step checklist for minimizing the risk of child sexual abuse on church property or during church activities:
- a written application
- an interview
- reference checks
- a six-month rule (no one considered for youth or children’s ministry who has not been a member of the church for at least six months)
- a two-adult rule (no child allowed to be alone with one unrelated adult at any time)
In recent years, I added a sixth precaution—a criminal records check (national database and national sex offender registry).
After reviewing numerous recent precedents, developments, and key insights related to public revulsion of child abuse, I now recommend a 14-step set of precautions to manage the risk of child sexual abuse in churches.
Background court case
The Massachusetts Supreme Judicial Court ruled that a Catholic diocese was not liable on the basis of negligent hiring or breach of a fiduciary duty for a priest’s molestation of two young boys, but could be liable on the basis of negligent retention and supervision. Andrews v. Cronin, 34 Mass. L.. Rep. 663 (Mass. Super 2018).
The bishop of a Catholic diocese in Massachusetts was responsible for governing it. In 1977, he appointed a priest to serve as pastor of a church in the diocese. The priest remained at this church until his retirement in 1986. He passed away in 1996. In the 1970s, he appointed two nine-year-old boys (the “plaintiffs”) as altar servers. The boys served for several years. While they were altar servers, the priest took them on numerous trips, primarily to see sporting events in Boston and around the country. The out-of-state trips included yearly two-week trips to Florida, yearly trips to New Hampshire, an extended trip to the west coast, and trips to Canada, Wisconsin, New York, Kansas City, and Hartford. The priest and the plaintiffs would stay at hotels overnight. The plaintiffs claimed that as a matter of routine each morning during these trips the priest would sexually molest them. During this period, the plaintiffs also spent a significant amount of time at the rectory where the priest and another priest resided, and they claimed to have been sexually abused during overnight visits.
The plaintiffs later sued the bishop and diocese, claiming they were responsible for the priest’s misconduct on the basis of negligent hiring, retention, and supervision, and breach of a fiduciary duty. The bishop insisted that he was unaware that the plaintiffs were spending the night in the rectory, or that the priest was taking the plaintiffs on extended overnight road trips. The bishop later testified that if he had known the priest was molesting the plaintiffs he would have taken steps to remove him.
Negligent hiring
The plaintiffs’ lawsuit claimed that the bishop negligently hired, supervised, and retained the priest. The court dismissed the negligent hiring claim, noting that “no evidence has been presented that the bishop knew or should have known about the priest’s propensity to molest children at the time he appointed him as pastor of the church in 1977.”
The court relied on its prior ruling in Petrell v. Shaw, 902 N.E.2d 401 (Mass. 2009). In the prior case, the court rejected an allegation of negligent hiring in a child abuse case. At the time of a pastor’s employment, a regional church, pursuant to its internal policies, arranged for the Oxford Document Management Company to conduct a background investigation, which was accomplished by sending detailed questionnaires to all employers, schools, and church agencies with which the pastor had any prior contact. This investigation did not result in any responses suggesting that he had engaged in any inappropriate sexual conduct. In rejecting a negligent hiring claim against the regional church, the court noted that it was the local church, and not the regional church, that hired the pastor and entered into an employment contract with him. The court concluded:
Even assuming that the regional church’s role in commissioning or conducting a background check on the pastor was sufficient to show that it ‘hired’ him, no rational jury could conclude that it overlooked or ignored any evidence suggesting that he would engage in a sexual relationship with an adult parishioner. The background check, conducted as required by church policy, revealed no such facts. Also in accordance with church policy, the regional church confirmed that the pastor had attended training designed to prevent sexual misconduct, provided by his previous employer. In short, the plaintiff presented no facts even suggesting that, at the time he was hired by the parish, the pastor had a history of sexual misconduct that the regional church could have discovered through reasonable investigation.
Negligent retention and supervision
The court noted that the negligent retention and supervision clams were “a much closer call.” It observed:
Negligent retention [and/or supervision] occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge or reassignment. In evaluating a claim for negligent . . . retention or supervision, the court must examine the totality of the circumstances in determining whether it was reasonably foreseeable that an employee would cause harm to a plaintiff.
Applying these principles to the circumstances present here, the critical inquiry is thus whether the bishop, in the absence of notice, “should have known” about the priest’s activities, and, if armed with that knowledge, would have reasonably foreseen that he would cause harm to a plaintiff. Viewing the facts in the light most favorable to the plaintiffs . . . the court answers that question in the affirmative.
The court continued:
An issue remains about whether the bishop . . . should have known that one of his priests spent significant time away from the parish, including being gone for weeks at a time throughout the year on extended road-trips with adolescent boys. If [he] should have known about those absences, a genuine issue also exists about whether sexual misconduct would have been reasonably foreseeable so as to trigger some inquiry or investigation. . . . The relevant inquiry is whether if the bishop had known about the time the priest was spending with the plaintiffs, further investigation would have been appropriate given the reasonable foreseeability of sexual misconduct under those circumstances.
Fiduciary duty
The plaintiffs claimed that the bishop breached his fiduciary duty to them. The court noted that “a fiduciary duty arises out of a unique or intimate one-to-one relationship, where the person owing the duty has reason to know that another is relying on his guidance and/or advice.” In concluding that no fiduciary duty existed between the plaintiffs and bishop, the court concluded:
While a sensitive situation involving children and sexual abuse, the record here discloses no knowing, special, personal, or intimate relationship of confidence or trust between the bishop and the plaintiffs, despite the plaintiffs’ status as altar servers. Rather . . . the only relationship that existed was in a shared, religious affiliation, rooted in religious doctrine inappropriate for the court’s scrutiny.
Public revulsion
The public revulsion at stories of child abuse in churches and other charities has reached a new and increasingly palpable level based on the following three developments among others:
1. Grand Jury Report on Child Abuse by Catholic Priests in Pennsylvania
In 2016, the Pennsylvania Attorney General initiated confidential grand jury proceedings to investigate:
- allegations of child sexual abuse by individuals associated with six of the eight Pennsylvania dioceses of the Roman Catholic Church,
- failure of church officials to make mandatory reports of child abuse,
- acts by Catholic priests endangering the welfare of children, and
- obstruction of justice by church officials, community leaders, and public officials.
In August 2018, just prior to the expiration of its term, the grand jury submitted a 900-page report of its investigation. The report states:
We were given the job of investigating child sex abuse in six dioceses. . . . We heard the testimony of dozens of witnesses concerning clergy sex abuse. We subpoenaed, and reviewed, half a million pages of internal diocesan documents. They contained credible allegations against over three hundred predator priests. Over one thousand child victims were identifiable, from the church’s own records. We believe that the real number—of children whose records were lost, or who were afraid ever to come forward—is in the thousands.
On the heels of grand jury report’s release, the US Department of Justice in October 2018 opened its own investigation into the Pennsylvania dioceses. Separately, as numerous state attorneys general continue opening abuse investigations into Catholic dioceses nationwide, The New York Times reported at least 6,100 Catholic theologians, educators, and lay leaders have signed a petition “calling for all the American bishops to offer the pope their resignations” due to years of inaction and cover-up.
2. Brooklyn settlement
In September 2018, the Brooklyn, New York, diocese of the Roman Catholic Church reached a $28.5 million settlement with four adult males who had been repeatedly abused by a priest in a parochial school. This settlement represents one of the highest “per victim” awards in any child abuse case.
3. Protecting Young Victims from Sexual Abuse Act of 2017
During the past year the public was stunned by revelations of sexual molestation of young athletes by coaches, trainers, and others associated with USA Gymnastics, USA Swimming, and USA Taekwondo. As public scrutiny focused on this scandal, it was soon learned that over the past 20 years, hundreds of young athletes were subjected to sexual abuse by coaches, doctors, or other adults affiliated with youth sports programs. Victims claimed that youth sports organizations did nothing in response to their cries for help. These and other revelations of the sexual molestation of minors engaged in athletic training and performance led to the near-unanimous enactment by Congress, in February 2018, of the Protecting Young Victims from Sexual Abuse Act of 2017.
Passage of this historic legislation was preceded by days of heart-wrenching testimony by current and former victims, and public statements by members of Congress. This testimony reflects the universal public abhorrence at child abuse, and any attempt by charitable organizations to “cover up” or not vigorously pursue allegations of abuse. Church leaders should keep this in mind when making decisions regarding the selection and supervision of children’s and youth workers, and when making a decision regarding whether to report child abuse to civil authorities.
The public (your potential “jury pool”) is increasingly intolerant of the inadequate response by churches and other youth-serving charities to incidents of child sexual abuse. Church leaders need to review current policies and be prepared to take additional steps to protect minors.
A 14-step plan to reduce risk
There are many steps that churches can take to reduce the risk of child molestation on church premises and during church activities. Here are 14 of them based on a comprehensive examination of all relevant court rulings:
Key Point. Look at these steps as ways to protect children rather than as a risk management tool. If your goal is risk reduction, compliance is more likely to be less vigilant and inconsistent. Compliance is higher and of longer duration when leaders are motivated primarily by a desire to protect children.
1. Interview. Interview all applicants for youth and children’s ministry positions. This applies to both paid employee and unpaid volunteer positions. Interviews provide the church with an opportunity to inquire into each applicant’s background and assess each applicant’s suitability for the position under consideration.
2. A written application. Every applicant for youth and children’s ministry positions (volunteer or compensated) should complete an application. At a minimum, the application should ask for the applicant’s name and address, the names of other youth-serving organizations in which the applicant has worked as an employee or volunteer, a full explanation of any prior criminal convictions, and the names of two or more personal references.
3. Institutional references. The best reference is an institutional reference. This is a reference from another institution where the applicant has worked with minors either as a paid employee or an unpaid volunteer. The key question to ask is whether the institution is aware of any information indicating that the applicant poses a risk of harm to minors or is in any other respect not suitable for youth or children’s ministry. Obviously, obtaining a positive reference from one or more other institutions that have actually observed the applicant interact with minors is the gold standard in screening prospective youth and children’s workers. Some applicants have not worked with other youth-serving institutions in the past, and so no institutional reference is available. In such cases, a church’s only option is to obtain personal references. However, risk can be reduced by limiting personal references to members of the church, or to members of other churches that are well known to church leadership.
For pastoral applicants, the best reference will be from a denominational office with which the church is affiliated. If the church is not affiliated with a denomination, then the best reference will be from board members in other churches in which the applicant has served.
For nonministerial employees and volunteers, the best references will be from other churches or charities in which the applicant has worked with minors. Examples include Boy Scouts of America, Girl Scouts of the United States of America, Big Brothers Big Sisters of America, Boys & Girls Clubs of America, YMCA of the USA, youth sports organizations (such as Little League Baseball and Softball), Catholic Charities USA, public or private schools, youth sports, or other churches or religious organizations. Seek a reference from every such organization in which the applicant has served. Your application form should ask applicants to list all such organizations, including contact information.
For persons seeking a position as a youth or children’s pastor, institutional references include other churches in which the applicant has worked in youth or children’s ministry, and the denominational office through which the applicant is credentialed.
Often, a church will not receive a response to a request for a written reference. In such a case, contact the reference by phone and prepare a written memorandum noting the reference’s identity, the date and method of contact, the person making the contact, the questions asked, and a summary of the reference’s remarks. Ideally, have a second person litening in on the conversation who can sign the memorandum as a witness. Such forms, when completed, should be kept with an applicant’s original application. They should be kept permanently.
Caution. Be sure you are aware of any additional legal requirements that apply in your state. For example, a number of states have enacted laws requiring childcare facilities to check with the state before hiring any applicant for employment to ensure that each applicant does not have a criminal record involving certain types of crimes. You will need to check with an attorney for guidance.
4. A six-month rule. Churches can reduce the risk of sexual molestation of minors by adopting a policy 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 a better opportunity to evaluate applicants, and will help to repel persons seeking immediate access to potential victims.
5. “Benchmark” church policies by comparing them with the policies of other charities and the public schools. Check with other churches and youth-serving charities (i.e., the American Red Cross, YMCA, Boy Scouts and Girl Scouts, Big Brothers Big Sisters) to see how your procedures compare. Most importantly, check with your public school district. Public schools are agencies of the state, and therefore by aligning your procedures to those of public schools you are going a long way toward demonstrating that your procedures are reasonable and not negligent.
6. Periodic review of your policies by legal counsel. Like benchmarking, having an attorney periodically review your worker selection procedures will help to establish the exercise of reasonable care, which will reduce the risk of both harm and a finding of negligence.
7. Adopt a two-adult policy prohibiting a child from being alone with an unrelated adult. Such a policy simply says that no minor is ever allowed to be alone with an unrelated adult during any church activity. This policy reduces the risk of child molestation, and also reduces the risk of false accusations of molestation.
Key point. Some churches make an exception to the two-adult policy for on-site teaching activities conducted during regular church hours, allowing multiple children to be in a classroom with only one adult. Such churches often use the public schools as their comparators. It is common for public school teachers to be alone in a classrom with several children, but this arrangement has not led to any known legal liability on the basis of negligence for public schools, probably because of the implausibility that a teacher could molest a child in a classroom with several students present without being detected and reported. As noted above, public schools are agencies of the state, and therefore, by aligning your church’s procedures to those of public schools, your church is demonstrating that its procedures are reasonable and not negligent.
Example. A church sponsors a campout for young boys. Some of the boys are accompanied by their fathers, but several are not. One tent is occupied by an adult volunteer worker and three boys. This arrangement violates the two-adult rule.
Example. A youth pastor takes home a group of five teenagers following an activity at church. After taking four of the teenagers to their homes, he is left in his car with a 15-year-old female. This arrangement violates the two-adult rule.
8. A criminal background check consisting of a nationwide search of sex offender registries, and a national criminal file search. Criminal records checks are inexpensive and convenient, and they are an essential component of risk management. Preferential pricing often is available from your insurance company or a denominational office.
Never hire anyone in a youth or children’s ministry position, as either an employee or volunteer, who was or is on a sex offender registry in any state. Other crimes are disqualifying as well if they suggest that a person poses a risk of harm to minors.
Key point. If in doubt about the relevance of a particular crime, a good practice is to bar persons from youth or children’s ministry who would not be eligible to work as a public school employee. Your local public school district offices should be able to provide you with a list of disqualifying crimes.
9. Prompt reporting of child abuse (known and suspected). It is imperative for church leaders to comply with their state’s child abuse reporting law. Promptly report all known and reasonably suspected cases of child sexual abuse to the designated state agency. In some states, a report must be filed within 24 hours. Know the reporting requirement in your state. Be sure to make a telephone memorandum of your call, and ideally have a second person listening in on the conversation who can sign the memorandum as a witness. Resolve any and all doubts in favor of reporting. Prompt reporting has several advantages:
- It is required by law (for mandatory reporters).
- You avoid misdemeanor liability for failure to report.
- You avoid civil liability in many states for not reporting.
- Reporters are given immunity from liability in every state (except for malicious behavior).
- You protect the current victim from further harm.
- You are placing the abuser’s identity in the criminal justice system, making it more likely that this information will be flagged to other churches and youth-serving charities evaluating an applicant for youth or children’s ministry.
- You minimize the risk of public outrage that can be unleashed if your church failed to report abuse to the state and the offender later molests other minors.
Key point. Child abuse reporting laws do not require churches to conduct investigations into allegations or suspicions of abuse. The only requirement for church leaders is to determine if reasonable cause exists that child abuse has occurred.
10. Promptly address and halt high-risk behaviors. Often, those who molest minors in churches or church activities have openly engaged in high-risk behaviors, including:
- Minors spending time in the home of a youth or children’s ministry leader.
- Minors spending the night in a leader’s home.
- An adult leader drives a vehicle with one or more unrelated minors on board, and no other adults.
- An adult goes on day trips with an unrelated minor.
- An adult goes on overnight trips with an unrelated minor.
- A leader spends the night in a hotel with one or more unrelated minors.
- A leader meets one or more minors in malls or other places where minors congregate.
- An adult leader sleeps in a tent with an unrelated minor during a camp out.
- An adult provides unrelated minors with gifts.
These and similar “grooming” behaviors are associated with many incidents of sexual abuse involving youth and children’s ministry leaders in churches. It is imperative that they be promptly confronted and stopped.
11. Social media. As a “best practice,” churches should prohibit any private messaging on any social media platform by a youth or children’s pastor or lay volunteer with unrelated minors. For support, contact your local public school district and find out what if any restrictions they place on communications between teachers and students. Often, such communications are prohibited.
12. Video technology. The installation of video cameras in strategic locations can serve as a powerful deterrent to child molesters, and can reduce a church’s risk of negligent supervision. Video technology has become affordable for most churches, and should be considered by all churches as both a powerful deterrent and as a means of proving or disproving alleged misconduct. Consider the following uses:
- Video cameras are especially helpful in a church’s nursery since infants and very young children are present who are incapable of explaining symptoms of abuse. In such cases, innocent nursery workers may be suspected who lack the ability to conclusively prove their innocence. Video cameras can be helpful in documenting how symptoms of abuse may have occurred, and in proving the innocence or guilt of nursery workers.
- Church restrooms present a unique risk of molestation for both infants and older children. After all, they are frequented by children, they are easily accessible, and they often are in remote locations or are not adequately supervised. A video camera installed in a hallway outside a restroom frequented by minors can be a powerful deterrent to child molesters. It also will provide church leaders and local authorities with evidence in the event that a minor is molested in a church restroom.
13. Training. Churches should conduct periodic training of employees and volunteers on recognizing and reporting child abuse, the identification of abused minors, and the importance of becoming familiar with the 14 recommendations summarized in this article. It is a “best practice” to incorporate employees of your child abuse hotline office, and employees of your prosecuting attorney’s office, in your training.
14. Negligent supervision. Churches can use reasonable care in selecting workers, but still be liable for injuries sustained during church activities on the basis of negligent supervision. The term negligence means carelessness or a failure to exercise reasonable care. Negligent supervision, then, refers to a failure to exercise reasonable care in the supervision of church workers and church activities. Churches have been sued on the basis of negligent supervision in a variety of contexts, but most often in child abuse cases. Adequate supervision involves a number of safeguards, including:
- Lock rooms and hallways that are not being used;
- Use video technology (see above);
- Have an adequate number of adults present during youth and children’s activities to monitor workers and activities;
- Enforce a two-adult policy prohibiting one adult worker from being alone with one minor;
- No “early releases” of minors;
- Only release minors to the parent or other adult who brought them;
- Be especially vigilant with off-site activities such as field trips and camping since they present potential opportunities for sexual abuse due to the difficulty of adequate supervision.
- Exclude known or registered sex offenders from any youth or children’s activity;
- In formulating polices, “benchmark” by examining the policies of other charities and the public schools.
Key point. Look at these 14 steps as ways to protect minors rather than as a risk management tool. If your goal is risk reduction, compliance is likely to suffer. Compliance is higher and of longer duration when leaders are motivated primarily by a desire to protect minors.
