Church leaders are increasingly confronted with a challenging and novel question: How do we respond to the presence of registered sex offenders at church? It is a difficult question because it pits two competing biblical principles against each other—showing mercy to the offender, and protecting children from harm.
This issue has taken on greater significance, if not urgency, in recent years due to two developments: First, media focus on cases of child abuse in churches has increased awareness on the part of both clergy and lay members of the risk of child molestation and the need to take affirmative steps to protect children; and second, the number of registered sex offenders in America is a staggering 550,000 and rising. There are millions more offenders who are not on an official registry for several reasons, including the following:
- Many sex offenders are never reported or apprehended, and as a result have no criminal record and are not on any registry.
- Persons who engage in sex crimes when they are minors ordinarily will not show up on a sex offender registry.
- Not all sex crimes result in inclusion on a registry.
- Many registered sex offenders are on a registry for a specified number of years, and for some this period has expired (see Table 1).
- any sex offenders committed their crimes prior to the implementation of a sex offender registry in their state.
- Some sex offenders “plea bargain” to a lesser charge that will not require their names to appear on a sex offender registry.
- Some sex offenders are acquitted by a jury due to a failure by the prosecutor to prove their guilt beyond a reasonable doubt.
- Some undocumented immigrants have engaged in sex offenses in their native country, but they are not on any sex offender registry in this country.
Table 1: Tier I, II, and III Sex Offenders
TierDefinedRegistration and verification
|I||A sex offender other than a tier II or tier III sex offender.||Registration for 15 years and annual verification.|
|II||A sex offender other than a tier III sex offender whose offense is punishable by imprisonment for more than 1 year and
A. Is comparable to or more severe than the following federal offenses, when committed against a minor, or an attempt or conspiracy to commit such an offense against a minor:
|Registration for 25 years and semiannual verification.|
|III||Sex offenses punishable by imprisonment for more than one year and that are comparable or more severe than the following federal crimes:
||Lifetime registration and quarterly verification.|
The growing number of registered and unregistered sex offenders includes many who want to attend church. In some cases this is due to a genuine desire to meet spiritual needs. But in others the motivation is a desire to have access to potential victims.
• Key point. In most states, sex offender registries include the names of persons who have been convicted of a specified sexual offense involving a minor.
A church’s response to the presence of a sex offender is critical, since a decision to allow such persons to attend church without restriction (“erring on the side of mercy”) may expose a church to liability for any incidents of molestation that may occur. Church liability is addressed later in this article.
How do church leaders find out that a sex offender is in the church? This can happen in many ways, including the following:
- A church member has personal knowledge that a person is a sex offender, and shares this information with church leadership.
- A church member, out of curiosity, checks to see if any members of the church are on a sex offender registry.
- A registered sex offender has been released from prison on parole, and one of the conditions of his parole is that he inform the pastor of any church that he attends that he is on a sex offender registry.
- A registered sex offender applies for a volunteer or paid position working with minors in a church. The church finds out that he is on sex offender registry when it conducts a background check.
- A person applies for a volunteer position in a church’s youth ministry. The church conducts a background check that includes references. One reference informs the church that the applicant engaged in inappropriate sexual contact with a minor in another church.
- A person begins attending a church and voluntarily informs the pastor that he had inappropriate sexual contact with a minor in the past.
- Church leaders have actual knowledge that someone who has engaged in inappropriate sexual contact with another person in the past, but who is not on a sex offender registry, is attending church services or activities.
- A pastor receives an anonymous tip that a person who attends the church, or who is a church employee, is a sex offender.
2. Who Are Registered Sex Offenders?
Congress enacted the Adam Walsh Child Protection and Safety Act (CPOSA) in 2006. This historic legislation contains the following provisions:
- Establishes a comprehensive national system for the registration of sex offenders and offenders against children.
- Establishes three “tiers” of offenses, depending on the severity of the crime. However, the Act allows states to decide the crimes under each tier based on state offenses that are “comparable or more severe than” specified federal crimes. The three tiers are described in Table 1.
- Requires each state to maintain a sex offender registry.
- Requires a sex offender to: (1) register in each jurisdiction where the offender resides, is an employee, and is a student; (2) keep the registration current; and (3) for initial registrations, register in the jurisdiction where convicted if different than jurisdiction of residence. Requires jurisdictions to impose a maximum criminal penalty greater than one year for sex offenders who fail to comply with registration requirements.
- Sets forth the information required in a sex offender’s registration, including all addresses and places of employment and license plate numbers of all owned vehicles.
- Requires states to include in a sex offender registry: (1) a physical description, current photograph, criminal history, fingerprints, palm prints, and a DNA sample of the sex offender; (2) the offender’s criminal offense; and (3) a photocopy of the offender’s driver’s license or government-issued identification card.
- Specifies the duration of registration periods for sex offenders based on tier classifications. See Table 1.
- Requires sex offenders to appear in person periodically to verify information in a sex offender registry. See Table 1.
- Requires states to provide public access to sex offender information through the Internet. Exempts from disclosure the identity of any victim of a sex offense, the Social Security number of the sex offender, and any reference to arrests of the sex offender not resulting in conviction.
- Establishes the National Sex Offender Registry. Directs the Attorney General to maintain the registry at the Federal Bureau of Investigation (FBI) and to ensure that updated information about sex offenders is immediately transmitted to all relevant jurisdictions.
- Establishes the Dru Sjodin National Sex Offender Public Website (nsopw.gov) to be maintained by the Attorney General.
- Requires the Website to include relevant information about sex offenders in each jurisdiction.
United States Supreme Court Upholds Sex Offender Registries
The importance of conducting criminal records checks on volunteers and employees who have unsupervised access to minors is reinforced by two 2003 United States Supreme Court rulings upholding the constitutionality of sex offender registries.
In the first case, the Court concluded that the Alaska sex offender registry did not violate the ex post facto clause, because its registration and public notification provisions were not “punitive” and therefore did not represent additional punishment for convicted sex offenders. It noted that the law’s “nonpunitive” purpose was “public safety, which is advanced by alerting the public to the risk of sex offenders in their community.” The Court further explained that “Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is frightening and high.” The Court quoted from a U.S. Department of Justice study: “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997).
In the second case, the Court upheld the Connecticut sex offender registry. The Court concluded that “the fact that the offender seeks to prove—that he is not currently dangerous—is of no consequence under Connecticut’s Megan’s Law. As the state’s website explains, the law’s requirements turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. No other fact is relevant to the disclosure of registrants’ information. Indeed, the disclaimer on the website explicitly states that a sex offender’s alleged nondangerousness simply does not matter. In short, even if the offender could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders—currently dangerous or not—must be publicly disclosed ….[A]ny hearing on current dangerousness is a bootless exercise.”
• Key point. In a 2003 ruling upholding the constitutionality of the Connecticut sex offender registry, the United States Supreme Court observed: “Sex offenders are a serious threat in this Nation. In 1995, an estimated 355,000 rapes and sexual assaults occurred nationwide. Between 1980 and 1994, the population of imprisoned sex offenders increased at a faster rate than for any other category of violent crime. As in the present case, the victims of sexual assault are most often juveniles. In 1995, for instance, a majority of reported forcible sexual offenses were committed against persons under 18 years of age. Nearly 4 in 10 imprisoned violent sex offenders said their victims were 12 or younger. When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.”
3. The Legal Risk for the Church
One of the most serious risks that a church faces is the molestation of a child by a registered sex offender who the church selected for its children’s or youth ministry. Consider the following points:
- Juries are incredulous that a church would use a registered sex offender in an official capacity involving ministry to minors.
- Juries often express their outrage in such cases by assessing not only substantial compensatory damages against the church, but also punitive damages.
- Church insurance policies may exclude coverage for sexual misconduct, or may cap damages at an amount well below what a jury decides to award as compensatory damages. And, punitive damages, which a jury can award for gross negligence, are not covered under a church’s general liability insurance policy.
- The electronic and print media often give prominent coverage to such cases, which can have the effect of negatively stigmatizing the church in the community. Many persons conclude that it is not a church that they want their children or grandchildren to attend.
Tragically, several churches have been sued because a minor was sexually molested on church property or during an off-site church activity by a person whose background and fitness for working with minors was not thoroughly examined. Following are several summaries of illustrative cases.
Case study. A California court ruled that a church was responsible on the basis of “negligent hiring” for the sexual molestation of a 13-year-old boy by his pastor. The pastor was hired after being suspended from the ministry for a number of years because of allegations that he had molested a child. He later molested a 13-year-old boy who attended the church. The court noted that “in California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him.” The court noted that the local church’s pastoral search committee was aware that the pastor previously had “stepped down” from the ministry for some reason. Yet, the church did not “investigate or make any inquiry” regarding the pastor’s fitness to serve. The court observed that the local church’s pastoral selection committee was aware of “some difficulty with [the pastor’s] reappointment to the active ministry and understood he had been on a sabbatical of some kind …. Nevertheless, [the church] did not investigate or make any inquiry regarding [the pastor’s] fitness to serve as pastor.” Evan F. v. Hughson United Methodist Church, 10 Cal. Rptr.2d 748 (Cal. App. 3 Dist. 1992).
Case study. A Florida court ruled that the First Amendment religion clauses did not prevent it from resolving a lawsuit claiming that a church and denominational agency were legally responsible on the basis of negligent hiring for a minister’s acts of child molestation. The court noted that “most of the courts which have rejected these types of claims have done so based on the belief that to determine liability they would be required to interpret church doctrine.” On the other hand, those courts that have accepted these claims “see their role as simply applying neutral principles of law to nonreligious conduct.” The court concluded: “In their complaint, the plaintiffs alleged that they were both employees and parishioners of the defendant church, that they were sexually assaulted and battered by [the priest] while working at the defendant church, and that, despite knowing that [the priest] had committed several sexual assaults and batteries, he was retained by the defendants as a priest and given the task of supervising the plaintiffs. The issue to be determined by the court, therefore, is whether the defendants had reason to know of [the priest’s] misconduct and did nothing to prevent reasonably foreseeable harm from being inflicted upon the plaintiffs. This determination is one governed by tort law and does not require inquiry into the religious doctrines and practices of the Catholic church.” Doe v. Malicki, 771 So.2d 545 (Fla. App. 2000).
Case study. A New York appeals court ruled that a Catholic church and diocese could be sued as a result of the sexual molestation of an 11-year-old boy by a Catholic priest. The victim and his sister were both enrolled in a parochial school operated by the church. An associate pastor at the church (who also served as director of religious education for the school) obtained permission from the victim’s mother to take him to an athletic facility at a local college to play racquetball and basketball and go swimming. While in the shower room prior to entering the pool, the pastor allegedly removed all his clothing and made the victim do the same. He then kissed and fondled the victim against his will. The boy’s mother later filed a lawsuit on behalf of her son naming the church and diocese as defendants. She alleged that her son had suffered substantial emotional, mental, and physical injuries, and that she had incurred substantial expenses in providing therapy for him. Specifically, she alleged that the church and diocese were liable for the misconduct of the pastor on the basis of their own negligence in hiring and placing the pastor in contact with boys with inadequate investigation of his background and with actual or “constructive” knowledge of his propensities, and in failing periodically to evaluate his activities.
The court rejected the argument of the church and diocese that permitting the civil courts to find religious organizations liable on the basis of negligent hiring or supervision of clergy would constitute excessive governmental interference with church autonomy in violation of the First Amendment guaranty of religious freedom. The court observed, “[If the mother is] successful in establishing that, with knowledge that the priest was likely to commit sexual abuse on youths with whom he was put in contact, his employers placed or continued him in a setting in which such abuse occurred, the fact that the placement occurred in the course of internal administration of the religious units does not preclude holding the institutions accountable to the victim of their neglect in administration. Indeed, a contrary holding—that a religious body must be held free from any responsibility for wholly predictable and foreseeable injurious consequences of personnel decisions, although such decisions incorporate no theological or dogmatic tenets—would go beyond First Amendment protection and cloak such bodies with an exclusive immunity greater than that required for the preservation of the principles constitutionally safeguarded.” Jones by Jones v. Trane, 591 N.Y.S.2d 927 (Sup. 1992).
A church does not eliminate its legal risk for sex offenders’ acts of child molestation simply because they are not allowed to work in children’s or youth ministry.
Case study. A federal court in Rhode Island ruled that the First Amendment did not prevent it from resolving a lawsuit brought by victims of clergy sexual misconduct against church officials. Three adult males sued diocesan officials for injuries they allegedly sustained when they were molested by two priests several years before. The victims claimed that prior to the acts of molestation, the diocese knew that the priests were pedophiles and not only failed to take appropriate preventative action, but also actively concealed the priests’ sexual misconduct. The court rejected the diocese’s argument that the First Amendment guaranty of religious freedom prevents the civil courts from imposing liability on religious organizations for failing to properly screen or supervise clergy: “[T]here is no indication that the reasonably prudent person standard established by tort law and the requirements of Roman Catholic doctrine are incompatible. The [diocese does] not claim that the Roman Catholic Church either condones or tolerates sexual abuse of children. On the contrary, they have made it clear that the Catholic Church considers such conduct to be opprobrious …. Briefly stated, there is no indication that, by taking the kind of preventative action required by tort law, the [diocese] would have violated any ‘doctrine, practice or law’ of the Roman Catholic Church. In the absence of such a conflict, subjecting the [diocese] to potential tort liability does not violate [its] right to the free exercise of religion.” Smith v. O’Connell, 986 F. Supp. 73 (D.R.I. 1997).
Case study. The Virginia Supreme Court ruled that a church and its pastor could be sued by a mother whose child was sexually assaulted by a church employee. A mother sued a church and its pastor, alleging that her 10-year-old daughter had been repeatedly raped and assaulted by a church employee. She asserted that the church and minister were legally responsible on the basis of several grounds, including “negligent hiring” (referred to as negligent selection in this article). Specifically, she alleged that when the employee was hired, the church and minister either knew or should have known that he had recently been convicted of aggravated sexual assault on a young girl, that he was on probation for the offense, and that a condition of his probation was that he not be involved or associated with children. Despite these circumstances, the individual was hired and entrusted with duties that encouraged him to come freely into contact with children, and in addition was given keys to all of the church’s doors. The mother alleged that the employee in fact came into contact with her daughter on the church’s premises, and had sexual intercourse with her on numerous occasions. The court ruled that the church could be sued on the basis of negligent selection. It rejected the church’s contention that it could not be responsible for criminal acts of employees: “To say that a negligently hired employee who acts willfully or criminally thus relieves his employer of liability for negligent selection when willful or criminal conduct is precisely what the employer should have foreseen would rob the tort of vitality.” J. v. Victory Baptist Church, 372 S.E.2d 391 (Va. 1988).
As these cases illustrate, the most likely basis for church liability in such cases is negligent selection. That is, the church failed to exercise reasonable care in evaluating the fitness and suitability of the perpetrator to work with minors.
But what about sex offenders who attend the church without working with minors in any official capacity as either an employee or volunteer? If a registered sex offender merely wants to attend worship service, the church ordinarily will not be liable on the basis of negligent selection should the offender molest a minor at church or during an off-site church activity. However, the church may be liable in such cases on the basis of negligent supervision, meaning that it failed to exercise reasonable care in the supervision of its property and activities. It is important for church leaders to understand the significance of this: A church does not eliminate its legal risk for sex offenders’ acts of child molestation simply because they are not allowed to work in children’s or youth ministry. Liability may arise if church leaders are aware that a known sex offender is attending church services or activities and fail to institute appropriate safeguards.
The risk to minors associated with the presence of a sex offender on church premises is increased substantially if the offender is a pedophile. 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-IV-TR) identifies the following “diagnostic criteria” for pedophilia:
- Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger).
- The person has acted on these urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty.
- The person is at least age 16 and at least 5 years older than the child or children in Criterion A.
Note: Does not include an individual in late adolescence involved in an ongoing sexual relationship with a 12- or 13-year-old.
This definition implies that pedophiles are both promiscuous and predatory. These characteristics were noted in Child Molesters: A Behavioral Analysis For Law-Enforcement Officers Investigating the Sexual Exploitation of Children by Acquaintance Molesters (4th ed. 2001), 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.”
“The dry research figures only confirm what I have seen over and over in this field: there are a lot of sexual offenses out there and the people who commit them don’t get caught very often. When an offender is caught and has a thorough evaluation with a polygraph backup, he will reveal dozens, sometimes hundreds of offenses he was never apprehended for. In an unpublished study by Pamela Van Wyk, 26 offenders in her incarcerated treatment program entered the program admitting an average of 3 victims each. Faced with a polygraph and the necessity of passing it to stay in the treatment program, the next group of 23 men revealed an average of 175 victims each.” Anna Salter, Predators: Pedophiles, Rapists, an Other Sex Offenders: Who They Are, How They Operate, and How We Can Protect Ourselves and Our Children (2003).
Church leaders also should also 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.”
• 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.
4. Legal Risk for Church Board Members
Most states have enacted laws limiting the liability of church officers and directors. In some states, these laws protect all church volunteers. Some laws only protect officers and directors of churches that are incorporated under the state’s general nonprofit corporation law. The most common type of statute immunizes uncompensated directors and officers from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for “willful and wanton” conduct or “gross negligence.”
In 1997 Congress enacted the Volunteer Protection Act. The Act clarifies that it “preempts the laws of any state to the extent that such laws are inconsistent with this [Act] except that this [Act] shall not preempt any state law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity.” The Act specifies that no volunteer of a nonprofit organization is liable for harm caused by any act or omission on behalf of the organization if:
- the volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity at the time of the act or omission;
- the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and
- the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or the owner of the vehicle, craft, or vessel to possess an operator’s license or obtain insurance.
In summary, the limited immunity from personal liability that is available to uncompensated church board members under both state law and the federal Volunteer Protection Act may not protect them from being sued personally by persons who are molested by known sex offenders who were allowed to attend church services and activities without restriction if their failure to implement reasonable safeguards is deemed to amount to gross negligence or willful or wanton conduct by a jury.
• Example. Bob is a registered sex offender who previously was convicted of molesting a child. He served time in prison, but was released a few years ago. He has started attending a church, and the church board learns of his background. Some members of the board are concerned about having Bob attend the church. He assures them that he was “rehabilitated” while in prison, and no longer poses a risk of harm to anyone. Nothing is done to monitor Bob. Several months later, he is charged with the molestation of a child on church property. The board is distressed by this development, but takes comfort in the fact that they are immunized from personal liability by state law. Their comfort may be misplaced. Laws conferring limited immunity from liability for the acts of uncompensated church board members do not apply to willful and wanton misconduct, and it is possible that a court would conclude that the board was guilty of such behavior by allowing Bob unrestricted and unsupervised access to church property despite its knowledge that he is a registered sex offender.
5. Managing the Risk
Church leaders should be aware of the following risks that are associated with the unrestricted access by known sex offenders to church services and activities:
- The risk of harm to vulnerable minors, and the emotional damages that an act of molestation may inflict upon them as well as their families.
- The risk of legal liability to the church if a minor is sexually molested by a known sex offender who was allowed unrestricted access to a church’s services and activities because of the decision by church leadership to “err on the side of mercy.”
- The predatory and promiscuous nature of pedophiles, together with their high recidivism rate, makes them a unique and significant risk to churches that allow them to attend worship services and other activities without restriction.
- The risk of punitive damages, which are monetary damages that a jury can award when a defendant’s conduct is particularly reprehensible and outrageous. This does not necessarily mean intentional misconduct. Punitive damages often are associated with reckless conduct or conduct creating a high risk of harm. Church leaders must understand that reckless inattention to risks can lead to punitive damages, and that such damages ordinarily are not covered by a church’s liability insurance policy. This means that a jury award of punitive damages represents a potentially uninsured risk. Accordingly, it is critical for church leaders to understand the basis for punitive damages, and to avoid behavior which might be viewed as grossly negligent. Mercy is certainly a biblical principle. But there are other biblical principles that are implicated when deciding how to respond to the risks associated with the presence of known sex offenders, including justice and protection of the innocent.
- The risk of personal liability for church board members if their failure to implement reasonable restrictions to monitor known sex offenders is deemed to be willful or wanton conduct or gross negligence.
- Adverse media publicity depicting the church in a negative light should a child be molested by a known sex offender who was allowed unrestricted access to church services and activities because of the decision by church leadership to “err on the side of mercy.”
- The possibility of an insured risk should a church’s liability insurance policy not cover sexual misconduct, or imposes a cap on the amount of coverage available under the policy.
Despite these and other risks, many church leaders are repulsed by the notion that certain people should be excluded or closely monitored, preferring instead to “err on the side of mercy.” Mercy is certainly a biblical principle. But there are other biblical principles that are implicated when deciding how to respond to the risks associated with the presence of known sex offenders, including justice and protection of the innocent. Balancing these principles can be a difficult task, and church leaders have come down on both sides of the issue. It is imperative, however, that church leaders make an informed decision, and this requires an awareness of the nature of pedophilia and of the unique and significant risk that pedophiles pose to minors.
How, then, should church leaders respond to this risk? Summarized below are several factors for church leaders to consider in reaching an informed decision:
(1) pedophilia—the greatest risk
According to the FBI profile on “preferential molesters,” pedophiles who molest pre-adolescent children (generally, under the age of 13) should be considered “incurable,” predatory, and promiscuous. Such persons present churches, and young children in a congregation, with one of the highest known risks.
(2) sexual offenses that occurred long ago
Some church leaders are inclined to “err on the side of mercy” in dealing with a sex offender who committed one or more offenses many years ago and who has had an impeccable reputation ever since, and allow the person to attend church with little if any supervision or limitations. Some may even allow such a person to work with minors in an official capacity. A common sentiment is, “The offense occurred so long ago that it is no longer relevant.” Church leaders must recognize that if the person is a pedophile, the passage of time will have little relevance to his or her propensity to molest minors today since pedophilia is incurable and is at best controllable with varying degrees of success.
• Example. Don is a 50-year-old male who has applied for a volunteer position in a church as a fourth grade Sunday school teacher. He is asked to complete a written application which includes a question asking about any prior convictions for sexual offenses. He discloses that he was convicted of felony child abuse 25 years ago in an incident involving two eight-year-old girls, and served a short prison sentence followed by a few years of probation. Don has attended the church for many years, and is widely respected. Few know of his previous criminal conviction. The church board is asked to decide if Don can be used as a fourth grade teacher in light of his prior conviction. Some board members believe that a 25-year-old conviction, with no subsequent criminal offenses, is so long ago that it is not relevant. Such a view is potentially dangerous. Since Don engaged in the molestation of two eight-year-old girls it is possible if not likely that he is a pedophile. This is significant since pedophilia is incurable. At best it can be “controlled.” Church leaders should not expose Don to the temptation of being in close proximity, on an ongoing basis, to children in a Sunday school class, since such intimacy may erode whatever internal controls that he has been able to construct.
Key point. “Tier III” sex offenders (see Table 1) are on a sex offender registry for life, no matter how long ago their crimes occurred. As a result they will always pose an elevated risk to a church that elects to allow them to have unrestricted access to church services and activities, since if such a person molests a child in the church and the church is sued, a jury would be incredulous that church leaders allowed such a person to attend church without meaningful restrictions. Some church leaders take the position that tier I and tier II offenders who no longer are on a sex offender registry because of the passage of time pose a slightly lower risk to the church than persons who remain on a registry. Tier I and tier II offenders remain on the sex offender registry for 15 and 25 years, respectively. However, it cannot be safely assumed that a jury will recognize this distinction, and subject a church to a lesser standard of care in the case of a tier I or II offender whose name is no longer on a sex offender registry than for tier III offenders whose names appear on a registry for life.
(3) prior sex offenses involving “superficial” contact
Some church leaders are willing to use a known sex offender in a children’s or youth ministry position if the offender’s prior acts did not involve sexual intercourse. The rationale is that anything less than intercourse is less serious and does not act as a permanent disqualifier. Many courts have refused to make such a distinction, and have treated all forms of sexual contact with a minor as serious. In addition, church employees and volunteers have received lengthy prison sentences in some cases for what some might consider “superficial” sexual contacts.
Case study. A California court ruled that a school was legally responsible for a teacher’s sexual contact with two teenage girls. The jury awarded one girl $1.5 million in damages are a result of a 30-second incident of fondling. The second girl was awarded nearly $3 million for repeated acts of kissing and hugging by the same teacher. Ortega v. Pajaro Valley Unified School District, 75 Cal.Rptr.2d 777 (Cal. App. 1998).
Case study. A Missouri court upheld a sentence of 60 years in a state penitentiary for an adult leader of a church youth group who fondled a 10-year-old boy. The adult leader was in charge of a church youth group consisting of young boys. The church operated an overnight summer camp for children, and the leader invited several boys to spend two nights at his apartment before camp started, and a third night after camp ended. The boys slept in the living room together. Some slept on couches, but the 10-year-old victim slept on the floor next to the leader. The victim wore underwear and pajamas and slept in a sleeping bag. The victim was awakened the first night when he became aware that someone’s hand was touching his penis under his pajamas and underwear. The hand remained on the victim’s penis for 10 minutes. During this time, the victim heard heavy breathing. He did not look or move, he later testified, because he was afraid. He noticed that the hand was large, and that is was an adult’s rather than a child’s hand. The victim concluded that the leader had touched him, since he was the only adult in the room and he was sleeping directly next to him. The same scenario occurred the second night, and the night after camp ended. The leader was later found guilty of three counts of violating a state sodomy statute, and was sentenced to three consecutive 20-year sentences for a total term of 60 years. An appeals court affirmed the leader’s conviction and sentence, and rejected his claim that the lengthy sentence was illegal because it amounted to “cruel and unusual punishment.” State v. Graham, 906 S.W.2d 771 (Mo. App. 1995).
Four Important Points
1. Not all registered sex offenders are pedophiles. Some have had sexual contact with a pubescent minor. But, the stigma associated with the unrestricted presence of a registered sex offender on church premises is equally repugnant to most juries regardless of the offenses that placed the individual on a registry. All that matters is that a church allowed a registered sex offender to have unrestricted access to the church and its activities.
2. Pedophiles may be child molesters, but not all child molesters are pedophiles. To illustrate, an adult who works with a church’s youth group, and who has sexual contact with an adolescent in the group, is not a pedophile according to the prevailing definition in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). But, he or she would be a child molester. The unique characteristics of pedophilia (incurability, promiscuity, predatory behavior, high recidivism rate) may not apply to such a person. As a result, some would argue that there is more room for mercy in dealing with child molesters who are not pedophiles. But again, this distinction often is lost on juries that tend to focus entirely on the person’s status as a sex offender, irrespective of the ages of his or her victims, and that express incredulity at the decision of church leaders to allow such a person to have unrestricted access to church property.
3. Some claim that persons on a sex offender registry because of a lower level offense (i.e., a tier I misdemeanor) should be treated more leniently than those who are on a registry because of a more serious offense. Some go so far as to claim that persons guilty of lower level offenses should be allowed unrestricted access to church property and activities, and should be allowed to work in any capacity in the church including the youth and children’s programs. Such a position exposes a church to several risks, including the following: (1) Many sex offenders are classified as “tier I” on a sex offender registry not because they committed a lesser offense, but because they committed more serious offense but “plea bargained” down to a tier I offense. (2) No court has exonerated a church from liability for the molestation of a child on the ground that the offender was merely a tier I offender who did not impose a duty on the church to implement reasonable restrictions.
4. The mere inclusion of a person on a sex offender registry is likely to be viewed by most juries as a serious risk warranting reasonable precautions and restrictions. Church leaders should not assume that juries will tolerate less vigilance by churches in handling tier I offenders.
(4) criminal records check
Before allowing a known sex offender to attend worship services and other church activities, church leaders should obtain a record of all prior criminal convictions using a competent search service. This will assist church leadership in making an informed decision.
• Key point. Do not confuse a criminal records check with a sex offender registry search. A criminal records check is far more expansive than a sex offender registry search and may disclose prior criminal activity that is relevant in a hiring decision even though the person’s name does not appear on a sex offender registry.
(5) probation and parole agreements
Many convicted sex offenders are not in prison because of a parole or probation agreement. Church leaders should be familiar with these terms. Probation generally is part of the sentence that a judge imposes upon a defendant for the commission of a crime. For example, some judges will impose a prison sentence of a specified number of years, followed by another term of years on probation. Some judges, for minor crimes or first offenders, may sentence a defendant to a term of probation with no prison time.
Parole refers to the release of a person from prison prior to the completion of a sentence. Usually, paroles are administered by a parole board. Parole is often possible for prisoners on the basis of “good behavior,” especially for those who are imprisoned for property or other crimes involving little if any risk of harm to others.
Most probation and parole agreements are subject to many conditions. In the case of child molesters, a probation or parole agreement may prohibit the defendant from attending church or other places where minors congregate (either permanently or for a specified period) or may permit church attendance subject to strict conditions.
Before allowing a known sex offender to attend worship services and other church activities, church leaders should obtain and review the terms of any unexpired probation or parole agreement. Track down the person’s probation officer or parole board and ask for a copy of the probation or parole agreement, or if this is not available, a summary of its terms. If a person who is on probation or parole is not permitted to attend church, this is certainly a condition with which church leaders should be (but often are not) aware. A failure to obtain this information may be viewed by a jury as gross negligence, thereby exposing church board members to the possibility of personal liability.
Defendants who violate the terms of a probation or parole agreement can be sent back to prison to complete the term of their original sentence. This risk is illustrated by the following cases.
Case study. The North Dakota Supreme Court ruled that a convicted child molester violated the terms of his probation by attending a church service and sitting with a minor child. An adult male (the “defendant”) was charged with sexually molesting a four-year-old child. He was sentenced to seven years in a state penitentiary, but the sentence was reduced to seven years of supervised probation in exchange for his confession. The conditions of probation included the following: “You shall not initiate, establish or maintain contact directly or indirectly, with any child under the age of 18, or attempt to do so, except under circumstances approved in advance and in writing by your probation officer. You may not go to or loiter near schoolyards, parks, playgrounds, arcades, or other places primarily used or visited by minors. You may not obtain employment with any agency or place of business that provides services for the care or custody of minors. You may not date or socialize with anybody who has children under the age of 18 years besides your wife, unless pre-authorized by your parole/probation officer.”
The defendant’s probation officer composed a “safety plan” that allowed him to attend church under the following conditions:
1. I will either ride with my parents or drive myself to church.
2. During this time I will always be in the presence of at least one adult and will never be in a room alone with a minor.
3. If I do have to leave the room, I let an adult know where I am going (i.e. bathroom).
1. I will sit with my parents.
2. If I have to leave the sanctuary, I let my parents know where I am going (i.e. bathroom).
see the “Arrival/Pre-Church”
1. I will not go into the nursery or classrooms.
2. If I do have contact with a minor, I will politely excuse myself and either leave the building or find a group of adults.
Three years later a court revoked the defendant’s probation when it was disclosed that he had engaged in contact at church with his previous victim. This contact consisted of the defendant sitting with the victim during a church service. The court re-imposed the seven-year prison sentence. The defendant’s probation officer testified that he had allowed the defendant to attend church, but warned him, “No contact with kids, so you don’t sit by one. If one initiates contact with you, you get up and excuse yourself politely. You leave. I made clear that he’s not to have any contact with kids, so that if he did go to church, he would make sure that he didn’t have contact with other people’s kids.”
On appeal, the defendant argued that the revocation of his probation was an unwarranted and excessive response to the harmless act of sitting with a child during a church service. The state supreme court disagreed, and affirmed the seven-year prison sentence. State v. Wardner, 725 N.W.2d 215 (N.D. 2006).
Case study. The Washington Supreme Court affirmed the revocation of a child molester’s probation as a result of his repeated violations of the terms of the probation which, among other things, barred him from attending church or other places frequented by minors. State v. Mc- Cormick, 213 P.3d 32 (Wash. 2009).
Case study. The Oklahoma Supreme Court ruled that a youth pastor’s prison sentence for molesting three minors was properly reinstated due to his continuing attempts to contact another minor in his church in violation of the terms of his probation. A church’s youth pastor (the “defendant”) was convicted of three separate second degree sexual assault offenses involving three different minor victims in his church. Pursuant to the jury’s verdict, he was sentenced to three separate tenyear terms of confinement in prison. On the jury’s recommendation, the trial court suspended the imposition of each sentence and placed the defendant on community supervision for ten years for each offense, subject to several conditions.
A few years later the state filed a motion to revoke community supervision, alleging ten violations of the conditions. After the hearing, the trial court announced that it found that the defendant had committed the ten violations, revoked his community supervision, and entered judgment sentencing him to ten years confinement in each case. One of the conditions that the defendant violated specified:
No unsupervised contact with children under the age of 17. Do not frequent, remain about, or enter any place where children under the age of 17 congregate, excepting [a specified church] for regularly scheduled services only on Sundays from 11 a.m. to 12 p.m., and 6 p.m. to 7 p.m. and Wednesdays from 7:30 p.m. to 8:30 p.m. In addition, defendant is to only attend when at least one of his approved chaperones is present and gives a signed statement to the supervision officer stating whether or not defendant had any contact with children under the age of 17 years and providing the details of that contact. Further, defendant is restricted to the main auditorium or sanctuary and is prohibited from youth groups, Sunday school rooms, or any other part of the church buildings or property where children under the age of 17 years congregate.
The defendant violated this condition through his repeated “grooming” of another 15-year-old girl in his church, including two personal contacts. The defendant appealed the reinstatement of his prison sentence, claiming that the conditions were invalid since they constituted a violation of his right to freely exercise his religious beliefs. The court dismissed this argument, noting that the defendant “did not give a written statement to his community supervision officer about the two contacts he had with the 15-year-old girl in the church as required by [the conditions]. Instigating the conversation with the girl was also a violation that was not disputed. His only defense was that these contacts did not appear to be inappropriate. Those conditions had nothing to do with his freedom to worship.” Hart v. State, 264 S.W.3d 364 (Tex. App. 2008).
The Significance of Probation and Parole Agreements
Allowing known sex offenders to attend church exposes a church to a high level of risk. Some church leaders seek to manage the risk by totally excluding such persons from church property. Others prefer to allow them to attend church, but under specified conditions. The substance of these conditions will vary depending on the circumstances of each case. In drafting the conditions, church leaders may benefit from reviewing probation agreements used by government agencies.
Church leaders also should consider speaking with probation officers in their community regarding the kinds of conditions that would be appropriate in allowing a sex offender to attend church. Often, these persons will provide helpful information. Basing your decisions on this kind of information will help to demonstrate the exercise of reasonable care, and reduce the risk of negligence.
In some cases, the nature of the prior offenses may make such “conditional attendance” arrangements inappropriate. Once again, your local probation officers can assist you in knowing how to decide whether to completely exclude a person or to allow him or her to attend church under specified conditions. Any decision to allow a known sex offender to attend church, even with conditions, should not be made without the assistance of legal counsel.
(6) three options
Churches have several options in dealing with a registered sex offender.
First, they can do nothing. This option is common, but not advisable, for the reasons mentioned in this article.
Second, a church can adopt a policy of total exclusion, meaning that known sex offenders are not permitted to attend church services or activities. This option is advisable if:
- For any reason the conditional attendance option (see below) is not feasible or enforceable.
- The offender’s crimes are so heinous that exclusion is the only appropriate option. Factors to consider include the seriousness of the prior sex offenses (i.e., a “tier III” offense as defined in Table 1) the number of victims, and how long ago the offenses occurred. Also relevant will be the age of the victim or victims at the time of the offenses since this may demonstrate if the offender is a pedophile in which case the strictest safeguards are in order due to the predatory behavior, promiscuity, incurability, and high recidivism rate associated with this status.
- One or more of the offender’s victims attends the church. Many church leaders do not want to repeatedly “re-victimize” victims by exposing them to their molester.
• Key point. Some churches prefer to exclude anyone who is currently a registered sex offender. Note that “tier I” and “tier II” offenders are on a sex offender registry for 15 and 25 years, respectively, while “tier III” offenders are permanently on a registry. Some church leaders take the position that tier I and tier II offenders who no longer are on a sex offender registry because of the passage of time pose a slightly lower risk for the church than persons who remain on a registry, and therefore the third option of a conditional attendance agreement may be more appropriate in such cases than the option of complete exclusion. There is no guaranty that a jury would recognize this distinction, and hold a church to a lower duty of care when responding to sex offenders whose names are no longer listed on a registry. Church leaders should not treat such persons more leniently than offenders still listed on a registry without an opinion by legal counsel.
Third, a church can condition the sex offender’s church attendance on signing a “conditional attendance agreement” that imposes several conditions, such as the following:
- The offender cannot work with minors in any capacity in the church.
- The offender cannot transport minors to or from church, or any church activity. An exception may be appropriate for the offender’s own biological children, depending on the circumstances.
- The offender must always be in the presence of a designated chaperone while on church property for any reason, including but not limited to religious services, educational classes, activities, and restroom breaks. The chaperone will meet the offender at the entrance of the church, and accompany him or her on church premises until returned to his or her vehicle.
- The offender cannot attend any youth or children’s functions while on church property only if in the presence of a chaperone.
- A single violation of these conditions will result in an immediate termination of the offender’s privilege to attend the church.
- The conditional attendance agreement option will not be available unless the church’s insurer is informed and confirms that coverage will not be affected.
- The conditional attendance option will not be available unless the offender’s probation officer or parole board (if any) approves it.
• Key point. Any conditional attendance agreement should be drafted by, or reviewed by, an attorney.
The selection of one of these three options will depend on the circumstances of each case. It is advisable to have an attorney assist the church in choosing the most appropriate option.
(7) informing the congregation
A question that often arises is whether church leaders should inform the congregation that a registered sex offender is attending church services and activities.
This will not be an issue if a church elects the “exclusion” option, since the offender will not be allowed to attend church.
One of a shepherd’s greatest responsibilities is to safeguard and protect the innocent and defenseless …. this duty transcends any duty of “mercy” owed to a convicted child molester.
If the “conditional attendance” option is selected, or if a church chooses to impose no restrictions on such persons, then the issue of congregational notification should be considered. There are various approaches that a church can take. One approach is for the church board to appoint a committee to draft a sex offender policy that details conditions that will apply to known sex offenders who desire to attend the church. This policy is then presented to the church membership at an annual or specially called meeting for consideration, modification, and approval. This approach has several advantages:
- The policy becomes the property of the membership.
- Members have the opportunity to make their views known prior to adoption of the policy.
- Members are apprised of the terms of the policy, and as a result are less likely to react emotionally and irrationally when they learn that a known sex offender is attending the church.
Of course, a church’s membership may elect to adopt a policy of total exclusion, but this is unlikely if the committee is broadly based and includes persons who are widely respected for their judgment and spiritual maturity.
• Key point. One psychiatrist who has worked extensively with pedophiles has recommended that a pedophile never be allowed to attend a church unless he first discloses his orientation (and criminal record, if applicable) to the entire church congregation. In so doing, he places everyone on notice of the potential risk, and becomes accountable to the entire membership.
In making a final decision, there will always be those in church leadership who will urge mercy and restoration. That’s fine. These are biblical principles. But the Bible also speaks to issues of accountability and protection of the innocent. Jesus’ harshest words were directed at those who would “cause one of these little ones who believe in me to stumble.” He also said that the “second great commandment” is to love one’s neighbor as oneself. How can church leaders even begin to think they are taking this commandment seriously if they allow a convicted sex offender to have unrestricted access to the church? The bottom line here is that churches are held to a far greater standard than YMCA day camps or Wal-Marts. Their standard, coming directly from God, is to love others as ourselves.
There is one additional point to consider. The very concept of a “pastor” is a powerful image. A pastor, most fundamentally, is the shepherd of the congregation. One of a shepherd’s greatest responsibilities is to safeguard and protect the innocent and defenseless. To many, this duty transcends any duty of “mercy” owed to a convicted child molester.
For more information on how to handle sex offenders who want to be part of your congregation, purchase the downloadable resource, “Sex Offenders in the Church” on ChurchLawAndTaxStore.com.