A 14-year-old boy sexually molested his 3-year-old cousin. This incident did not take place at our church. However, the 14-year-old has been attending our church and wants to continue. How should our church respond?
Let me make seven observations in response to this question.
First, extraordinary risks require extraordinary precautions. Allowing a known child molester to have unrestricted access to your church property and church activities exposes the church to an extraordinary risk of liability.
Second, a jury would be incredulous that the church took no steps to protect minors in such a case. It is possible that a jury would find the church liable on the basis of negligent supervision or negligent retention.
Third, if a jury concludes that the church was reckless in not adequately supervising or restricting the offender, it may assess punitive damages. Such damages generally are not covered by a church’s general liability policy since it is considered a violation of public policy to allow churches and other organizations to insure against their reckless conduct.
Fourth, if a jury concludes that the church was not merely negligent, but grossly negligent, in supervising or retaining the offender, then the members of the church board may be exposed to personal liability. Every state has enacted legislation providing limited immunity from liability for uncompensated board members of churches and other nonprofit organizations. Congress has enacted similar legislation at the federal level. The immunity from liability that is conferred by such laws does not extend to gross negligence, and so uncompensated church board members are exposed to personal liability for decisions they make that are grossly negligent. This is a significant risk that should be understood by every church board member.
Fifth, it is always a good idea to check with other charities in your community regarding their practice in similar circumstances. Contact the public school district, the YMCA, and a scouting organization, and find out how they would deal with an adolescent who previously had sexually molested a younger child. Aligning your church’s practice to the “community standard” can help to demonstrate the exercise of reasonable care, and thereby reduce the risk of being found liable on the basis of negligence.
Sixth, in similar cases some churches have allowed the offender to attend church services and activities, but only in the presence of a parent or other designated person. The key point here is that there must be a “chain of custody” to ensure that the offender is never alone on church property or any church-sponsored event that is off campus.
Seventh, some church leaders may feel compelled to extend mercy to the offender. That’s fine, but this should not be an excuse for allowing the offender to have unrestricted access to church property. Any compulsion to show mercy must be balanced against the overriding need to protect innocent children from victimization, and the church (and church board members) from a potentially significant level of liability.