Providing churches direct access to FBI criminal records
Article summary
. Congress enacted the National Child Protection Act and the Volunteers for Children Act to allow churches and other charities to obtain nationwide FBI criminal records checks on employees and volunteers who work with minors. Unfortunately, these laws do not allow churches direct access to FBI records. Instead, churches must process requests for criminal records checks through a “designated state agency.” Most church leaders have no idea who the designated state agency is in their state, and so they do not pursue federal criminal records checks even for prospective workers who have lived in more than one state. The National Child Protection Improvement Act, introduced in the United States Senate by Senator Biden, would permit churches and other charities to obtain national criminal records checks directly, without having to go through a state agency. In addition, the proposed legislation would mandate quick responses to requests for national criminal records checks, and requires that such checks be free of charge. This feature article will summarize the background to the National Child Protection Amendment Act, and then review its key provisions.
Key point 10-04.3. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.
A bill introduced in the United States Senate by Senator Joe Biden (D-Dela) on December 20, 2001 would revolutionize the way that churches “screen” volunteers and employees who will work with children. The proposed legislation, called the National Child Protection Improvement Act (or Senate Bill 1838) would allow churches and other charities to directly obtain national criminal records checks using FBI records. Further, these checks would be free of charge, and more importantly, would be fast. Church leaders would not have to wait weeks or months for a response.
Let’s illustrate the importance of this legislation with a few examples.
Example
. John was convicted of molesting a minor in Michigan in 1990. He served time in prison, was released, and later moved to Texas. John begins attending a church, and soon volunteers to work in a youth ministry. The church has implemented a screening system that requires criminal records checks for all persons who will work with minors as volunteers or employees. The church uses a search service that only researches Texas criminal records. No prior criminal record is revealed because John has never been convicted of a crime in Texas, and so church leaders allow him to work in a children’s ministry. This scenario is repeated over and over again in this country. Convicted child molesters often move from the state where they were convicted in order to “conceal” their past.
Example
. Same facts as the previous example, except that the church requires national criminal records checks on all persons who will work with minors. The church submits its request for a criminal records check on John to a designated state agency. Two months later, while awaiting a response, church leaders decide to let John begin working in a youth ministry. They assume that since they have submitted the request for a national criminal records check, and two months have elapsed, they probably will “hear sometime soon” so what difference will it make? John is allowed to participate in an overnight youth activity, where he molests two minors.
Example
. A church would like to conduct national criminal records checks on all current youth workers. This will involve 150 persons. The cost of conducting a national check (both federal and state fees) is $40. The church decides that this is too expensive, and decides not to obtain national criminal records checks.
The National Child Protection Improvement Act (S. 1838), if enacted, would address the problems depicted in each of these examples. In the first example, church leaders would have been able to obtain national criminal records checks directly, without going through a designated state agency. They would have learned about John’s previous criminal conviction in Michigan. In the second example, the church would have received a response within a matter of days, not months, to its request for a national criminal records check. John’s prior conviction would have been disclosed and he would not have been allowed to work with the youth ministry or participate in the overnight activity. In the third example, the church would not have been deterred from obtaining national criminal records checks by the high cost, since under the proposed legislation such checks would be free.
This article will review the background of the National Child Protection Improvement Act, summarize the Act’s key provisions, and then assess the significance of this proposed legislation to churches.
Key point. One congressman has observed, “[Federal legislation allowing national criminal records checks] is no panacea. It cannot help organizations identify child molesters who have not been convicted of an offense; and sadly, that seems to be the case in most instances, because many allegations of child molestation are either not reported or involve someone who is caught for the first time. But [it] can help organizations screen out the known predators—the hardcore ones who have been convicted and who are bent on preying on children again.”
National Child Protection Act (1993)
In 1993, Congress passed the National Child Protection Act as a bold new attack against the molestation of children in “youth serving” organizations. The Act was described by one senator as follows:
[This legislation is designed] to confront what I believe is one of the most threatening dangers confronting the nation—the tragedy of child abuse. The national extent of child abuse and neglect has grown to shocking epidemic proportions-more than 2.5 million reports of child abuse and neglect are made each year. Many abused children are victimized in their homes, but there is a large and growing number of children being victimized outside the home. Today, about 6 million preschool children are in a day care program for some or all of their day. By 1995, at least 8 million preschoolers will be in day care. This rapidly growing rise in children being cared for outside their homes must be met by an expanded national effort to protect these children. This is the goal of the National Child Protection Act …. The idea behind the National Child Protection Act of 1993 is clear: We must do everything we can to detect convicted criminals before they are hired as child care workers, not after another tragedy takes place …. [T]his act will help build state and national systems necessary to prevent convicted criminals from being hired as child care workers. In 1991, similar systems in just six states identified more than 6,200 individuals convicted of serious criminal offenses—such as sex offenses.
The most important provision in the Act specifies:
A state may have in effect procedures (established by state statute or regulation) that require qualified entities designated by the state to contact an authorized agency of the state to request a nationwide [FBI] background check for the purpose of determining whether a provider has been convicted of a crime that bears upon the provider’s fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.
There are a number of important points here for church leaders to understand:
criminal records checks are optional
The Act specifies that a state “may” enact statutes or regulations authorizing qualified entities to obtain nationwide background checks. States are not required to enact legislation giving youth-serving organizations the right to obtain nationwide background checks.
qualified entities
The Act permits “qualified entities” that are designated by the states to obtain nationwide criminal records checks. The Act defines a qualified entity as “a business or organization, whether public, private, for-profit, not-for-profit, or voluntary, that provides child care or child care placement services ….” There is little doubt that this definition includes churches that operate child care or preschool facilities. But does it also include churches that do not operate a school or preschool, but that offer Sunday School, nursery services, and other youth activities and programs involving supervision or instruction of minors? The Act does not address this question directly, but it does define the term “child care” to include “the provision of care, treatment, education, training, instruction, supervision, or recreation to children by persons having unsupervised access to a child.” It is likely that the operation of a Sunday School, nursery, and many if not most kinds of youth and children’s programs would constitute “the provision of education, training, instruction, supervision, or recreation to children.” As a result, it is likely that a church is a “qualified entity” even if it does not operate a school or a formal child care or preschool program. This interpretation is reasonable, and furthers the purposes of the legislation.
providers
It is also important to review the Act’s definition of the term provider, since a qualified entity may request an FBI criminal background check to determine if a provider has been convicted of a crime that bears upon that person’s fitness to have responsibility for the safety and well-being of children. The Act defines the term provider as a person who
(1) is employed by or volunteers with a qualified entity; owns or operates a qualified entity; or has or may have unsupervised access to a child to whom the qualified entity provides child care; and
(2) seeks to be employed by or volunteer with a qualified entity; seeks to own or operate a qualified entity; or seeks to have or may have unsupervised access to a child to whom the qualified entity provides child care
There is no question that this definition will include the vast majority of persons who work with minors in a church. Note also that the law defines a provider as someone who “has or may have unsupervised access to a child to whom the qualified entity provides child care.” This definition is so broad that it undoubtedly includes a much longer list of individuals, including custodians and spouses or friends of child care workers. Indeed, it is so broad that it could be interpreted to include any person who enters church property or attends any church activity. This would include church members and others who attend church services (no matter how infrequently), guests who attend weddings, visitors from out-of-town, and postal workers. Any of these persons “may have unsupervised access to a child to whom the qualified entity provides child care” and accordingly may meet the definition of the term provider. Clearly, this was not the intention of Congress, and it will be up to the courts to clarify the meaning of the term provider.
The Act makes it clear that the states specify which types of child care positions require criminal history checks. As noted above the Act contains a very broad definition of a child care “provider,” but the committee report explaining the Act emphasizes that
[not] all occupations and volunteer positions within that broad definition merit the time and expense of criminal history records checks. There are other means available to protect children from abuse, including the checking of prior employment history and character references and proper training and supervision of employees and volunteers. The committee expects that the states, in deciding which types or categories of positions require criminal history background checks, will consider the degree to which a particular position or child care activity offers opportunities to those who would abuse children. The committee expects that the states will find, for example, that positions involving long-term or ongoing contact with children in one-on-one situations merit criminal history record checks and that positions that involve infrequent direct contact or contact only in group settings do not merit such checks. The bill as amended leaves that decision to the respective states.
This language is critical, for it can be interpreted as establishing two levels of scrutiny in screening youth workers:
level 1—criminal records check
This level is required of those child care workers (providers) designated by state law. The committee report suggests that this level of screening be performed for “positions involving long-term or ongoing contact with children in one-on-one situations.”
level 2—other screening methods
This level, according to the committee report, includes one or more of the following kinds of activities:
• check prior employment history
• check references
• training
• supervision
The committee report suggests that this level of screening be performed for “positions that involve infrequent direct contact or contact only in group settings.”
procedures for checking criminal records
The Act establishes minimum requirements for state procedures for background checks. It clarifies that:
· Such checks must be based on fingerprints.
· A qualified entity may not request a background check of a provider unless the provider first provides a set of fingerprints and completes and signs a statement that (1) contains the name, address, and date of birth of the provider; (2) represents that the provider has not been convicted of a crime or, if the provider has been convicted of a crime, contains a description of the crime and the particulars of the conviction; (3) notifies the provider that the qualified entity may request a background check; (4) notifies the provider of the provider’s “due process” rights (described below); and (5) notifies the provider that prior to the completion of the background check the qualified entity may choose to deny the provider unsupervised access to a child to whom the qualified entity provides child care.
· Providers must be informed by qualified entities that they have the right: (1) to obtain a copy of any background check report; and (2) to challenge the accuracy and completeness of any information contained in any such report and obtain a prompt determination as to the validity of such challenge before a final determination is made by the state agency regarding the provider’s suitability for working with children.
· The designated state agency, upon receipt of a background check report lacking final disposition data (that is, no indication of how a criminal charge was resolved) shall conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data.
· The designated state agency shall make a determination whether the provider has been convicted of a crime that bears upon his or her fitness to have responsibility for the safety and well-being of children and shall convey that determination to the qualified entity.
· The actual criminal record on a provider will not be conveyed to the qualified entity, but only an indication from the designated state agency whether the individual has been convicted of or is under pending indictment for a crime that bears upon his or her fitness to have responsibility for the safety and well-being of children.
Key point. The Act requires that states submit child abuse crime information to the national criminal history background check system maintained by the FBI. Previously, the states submitted criminal history information to the national system voluntarily. This provision will make national criminal records checks much more accurate as to “child abuse crime information.”
liability
The Act specifies that a child care provider “shall not be liable in an action for damages solely for failure to conduct a criminal background check on a [worker].” This is a very important provision. It means that a church cannot be sued solely as a result of its failure to conduct a criminal records check on a prospective youth worker. However, it is important to recognize that this provision does not insulate churches and other child care providers from all liability. For example, it is possible that churches could be sued for failing to use criminal records information properly, for disseminating such information to persons with no legitimate need to know about it, or for failing to screen those workers for whom you are not required by state law to obtain criminal records checks.
fees
The Act simply states that “in the case of a background check conducted with fingerprints on a person who volunteers with a qualified entity, the fees collected by authorized state agencies and the FBI may not exceed the fees otherwise established and collected for name checks.”
Volunteers for Children Act (1998)
The National Child Protection Act had two flaws that prevented it from accomplishing its noble objective. First, it required states to enact implementing legislation giving nonprofit youth-serving organizations access to FBI criminal records checks. Second, it did not require the states to enact such legislation. Unfortunately, only a few states did so. As a result, churches and other youth-serving organizations (Red Cross, Boy/Girl Scouts, Boys/Girls Clubs, Big Brother/Sister, Little League, Salvation Army, etc.) were unable to obtain FBI criminal records checks. They were left with the options of (1) doing no criminal records checks, (2) doing criminal records checks using county courthouse records, or, in some state (3) doing criminal records checks using state criminal records. The benefits of doing a national criminal records check were unavailable. This is the reason that the Volunteers for Children Act was enacted—to enable youth-serving organizations in all states to conduct FBI criminal records checks.
The Volunteers for Children Act remedies the flaws in the National Child Protection Act by amending it to read:
In the absence of state [implementing legislation] a qualified entity [designated by the state] may contact an authorized agency of the state to request nationwide criminal fingerprint background checks.
Key point. A 1997 General Accounting Office (GAO) report concluded that “national fingerprint-based background checks may be the only effective way to readily identify the potentially worst abusers of children, that is the pedophiles who change their names and move from state to state to continue their sexually perverse patterns of behavior.”
In summary, it no longer matters that your state has failed to enact enabling legislation allowing churches to obtain FBI criminal records checks. The Volunteers for Children Act allows churches to obtain such checks if they meet the definition of a “qualified entity” under state law. However, churches may not contact the FBI directly to obtain criminal records checks. They must proceed through a designated state agency.
The Volunteers for Children Act did not help significantly because it did not address three key limitations on the use of national criminal records checks by churches: (1) checks are available only through a designated state agency; (2) high cost; and (3) lengthy response times. Clearly, there is a need for additional legislation in order for the National Child Protection Act to fulfill its lofty objectives.
National Child Protection Improvement Act (2001)
“In order to protect children, volunteer agencies must currently depend on a convoluted, disconnected, and sometimes duplicative series of checks that leave children at risk.” (from the introduction to S. 1838)
introduction
The National Child Protection Improvement Act (Senate Bill 1838) was introduced in the United States Senate on December 20, 2001, by Senator Joe Biden (D-Dela). Senator Biden made the following comments regarding the purpose of his bill:
I have watched as the Boys and Girls Clubs and other non-profits have worked to make certain that kids have a safe place to go after school. I have been supportive of countless crime prevention initiatives to protect our children, our parents and those unable to protect themselves. And guess what, these programs have worked to prevent crime. But even those programs whose single purpose is to do good, have seen some bad times. And that is why today, I am introducing the National Child Protection Improvement Act.
Today, more than 87 million kids are involved each year in activities provided by child and youth organizations which depend heavily on volunteers to deliver their services. Millions more adults are also served by public and private voluntary organizations. Places like the Boys and Girls Clubs rely on volunteers to make these safe havens for kids a place where they can learn. But, while these non-profit organizations are doing God’s work, there are some volunteers who have a different agenda—and there are abuses that occur.
The National Mentoring Partnership reports that incidents of child sexual abuse in child care settings, foster homes and schools ranges from 1 to 7 percent. This is basic stuff—these organizations can not function effectively without a safe infrastructure in place.
Currently most child-service organizations do background checks on volunteers, but they may have to wait weeks or months for the result of a state or national criminal background check. Conducting these checks is also costly and therefore many organizations conduct only a limited check of their volunteers. And some organizations don’t have access to national fingerprint databases which means that while a volunteer may pass a name-check in one state, he may have been convicted of atrocities in another. Our children, our parents and the disadvantaged are at risk and they need help.
That is why my bill authorizes $180 million over five years for the FBI to establish a national center to conduct national criminal history fingerprint checks. Their checks will be provided to volunteer organizations at no cost and to all other organizations that serve children at minimal cost. This national center would screen 10 million volunteers each year and will make these volunteer-oriented organizations a safer place for all. My bill also authorizes $5 million to provide states with funds to hire personnel and improve fingerprint technology so that they can update information in national databases.
This should be an easy one for all of us. Most of us already understand the positive impact that these non-profits are having. Now, we have a duty to make these places safe for those most at-risk.
statement of purpose
The introduction to the National Child Protection Improvement Act recites the following “findings”:
· Congress has acted to address concerns about this type of abuse through the National Child Protection Act of 1993 … to set forth a framework for screening through criminal records checks of care providers, including volunteers who work with children, the elderly, and individuals with disabilities. Unfortunately, problems regarding the safety of these vulnerable groups still remain.
· While state screening is sometimes adequate to conduct volunteer background checks, more extensive national criminal history checks using fingerprints or other means of positive identification are often advisable, as a prospective volunteer or nonvolunteer provider may have lived in more than one state.
· The high cost of fingerprint background checks is unaffordable for organizations that use a large number of volunteers and, if passed on to volunteers, often discourages their participation.
· The current system of retrieving national criminal background information on volunteers through an authorized agency of the state is cumbersome and often requires months before vital results are returned.
· In order to protect children, volunteer agencies must currently depend on a convoluted, disconnected, and sometimes duplicative series of checks that leave children at risk.
· A national volunteer and provider screening center is needed to protect vulnerable groups by providing effective, efficient national criminal history background checks of volunteer providers at no-cost, and at minimal-cost for employed care providers.
National Center for Volunteer Screening
The Act would create a National Center on Volunteer and Provider Screening. Note that the term “provider” is defined above. The Center would have the following purposes:
(1) serve as a point of contact for qualified entities to request a nationwide background check for the purpose of determining whether a volunteer or employee “provider” has been arrested for or convicted of a crime that renders the provider unfit to have responsibilities for the safety and well-being of children, the elderly, or individuals with disabilities
(2) promptly access and review federal and state criminal history records and registries through the national criminal history background check system (i) at no cost to a qualified entity for checks on volunteer “providers”; and (ii) at minimal cost to qualified entities for checks on non-volunteer “providers” (the cost to be determined by a national task force)
(3) provide the determination of the criminal background check to the qualified entity requesting a nationwide background check after not more than 15 business days after the request
(4) serve as a national resource center and clearinghouse to provide state and local governments, public and private nonprofit agencies and individuals with information regarding volunteer screening
Key point. The National Center for Volunteer Screening must provide a response to a request for a national criminal records check within 15 days of the date of the request.
national background checks
The main objective of the Act is to allow churches and other private charities to conduct national criminal records checks cheaply and quickly, without having to act through a state agency. To accomplish this purpose, the Act specifies that “requests for national background checks shall be submitted to the National Center for Volunteer Screening which shall conduct a search using the Integrated Automated Fingerprint Identification System, or other criminal records checks using reliable means of positive identification” subject to the following conditions:
(1) A qualified entity requesting a national criminal history background check shall forward to the National Center the provider’s fingerprints or other identifying information, and shall obtain a statement completed and signed by the provider that—(A) sets out the provider or volunteer’s name, address, date of birth appearing on a valid identification document … and a photocopy of the valid identifying document; (B) states whether the provider or volunteer has a criminal record, and, if so, sets out the particulars of such record; (C) notifies the provider or volunteer that the National Center for Volunteer Screening may perform a criminal history background check and that the provider’s signature to the statement constitutes an acknowledgement that such a check may be conducted; (D) notifies the provider or volunteer that prior to and after the completion of the background check, the qualified entity may choose to deny the provider access to children or elderly or persons with disabilities; and (E) notifies the provider or volunteer of his right to correct an erroneous record held by the FBI or the National Center.
(2) Statements obtained pursuant to paragraph (1) and forwarded to the National Center shall be retained by the qualified entity or the National Center for at least 2 years.
(3) Each provider or volunteer who is the subject of a criminal history background check under this section is entitled to contact the National Center to initiate procedures to—(A) obtain a copy of their criminal history record report; and (B) challenge the accuracy and completeness of the criminal history record information in the report.
(4) The National Center receiving a criminal history record information that lacks disposition information shall, to the extent possible, contact state and local recordkeeping systems to obtain complete information.
(5) The National Center shall make a determination whether the criminal history record information received in response to the national background check indicates that the provider has a criminal history record that renders the provider unfit to provide care to children, the elderly, or individuals with disabilities based upon criteria established by the National Task Force on Volunteer Screening, and will convey that determination to the qualified entity. The National Task Force, chaired by the Attorney General shall—(1) encourage the use, to the maximum extent possible, of the best technology available in conducting criminal background checks; and (2) provide guidelines concerning standards to guide the National Center in making fitness determinations concerning care providers based upon criminal history record information.
Key point. The importance of the previous paragraph cannot be overstated. Churches that request a national criminal records check are not going to be sent a sheet of legalese without any direction. Instead, the National Center for Volunteer Screening will provide the church with an opinion concerning the suitability of the worker based on the results of the criminal records check.
limitation on liability
The Act provides that “a qualified entity shall not be liable in an action for damages solely for failure to request a criminal history background check on a provider, nor shall a state or political subdivision thereof nor any agency, officer or employee thereof, be liable in an action for damages for the failure of a qualified entity (other than itself) to take action adverse to a provider who was the subject of a criminal background check …. The National Center or a qualified entity that reasonably relies on criminal history record information received in response to a background check pursuant to this section shall not be liable in an action for damages based upon the inaccuracy or incompleteness of the information.”
definitions
A “qualified entity” is “a business or organization, whether public, private, for-profit, not-for-profit, or voluntary, that provides care or care placement services, including a business or organization that licenses or certifies others to provide care or care placement services designated by the National Task Force.”
A “volunteer provider'” is “a person who volunteers or seeks to volunteer with a qualified entity.”
A “provider” is “a person who is employed by or volunteers or who seeks to be employed by or volunteer with a qualified entity, who owns or operates a qualified entity, or who has or may have unsupervised access to a child to whom the qualified entity provides care.”
The “national criminal background check system” means “the criminal history record system maintained by the Federal Bureau of Investigation based on fingerprint identification or any other method of positive identification.”
The term “child” means “a person who is under the age of 18.”
The term “care” means “the provision of care, treatment, education, training, instruction, supervision, or recreation to children, the elderly, or individuals with disabilities.”
Relevance to church leaders
What is the relevance of the National Child Protection Improvement Act to churches and other religious organizations? Consider the following points:
1. Proposed legislation. Remember that the National Child Protection Improvement Act is proposed legislation. Nothing has been enacted, yet. If your church would like to obtain free and quick national criminal records checks, consider contacting your United States Senators and asking them to co-sponsor Senate Bill 1838, The National Child Protection Improvement Act.
2. National criminal records checks. What makes the proposed legislation attractive to churches is that for the first time they would be allowed to directly obtain national criminal records checks by contacting a new “National Center for Volunteer Screening.” What’s more, the records checks would be free (for volunteers) and issued within 15 days of the date of a request.
Keep in mind, however, that only “qualified entities” will be allowed to obtain the national criminal records checks. Are churches qualified entities? Probably. The Act defines a “qualified entity” as “a business or organization, whether public, private, for-profit, not-for-profit, or voluntary, that provides care or care placement services, including a business or organization that licenses or certifies others to provide care or care placement services designated by the National Task Force.” The term “care” is defined by the Act as “the provision of care, treatment, education, training, instruction, supervision, or recreation to children, the elderly, or individuals with disabilities.” It is likely that churches will meet this definition, since they provide “education, training, instruction, supervision, or recreation to children.” After all, few charities provide more “care” to children than churches. If the Act is enacted into law, the National Center for Volunteer Screening will no doubt provide a definitive answer to this question, which we in turn will report promptly in this newsletter.
On the whole, we believe most churches will benefit from being designated as a qualified entity. Why? For several reasons, including the following:
an effective screening tool
As a qualified entity, a church would be authorized to submit requests for national criminal records checks to the National Center for Volunteer Screening. By submitting such requests a church would reduce significantly its risk of being sued for “negligence” if a worker molests a child on church premises or in the course of a church activity. Here’s why. In many cases, a church’s legal liability for acts of child molestation is based on the church’s alleged failure to adequately screen the offender. Lawyers refer to this as “negligent selection.” The church failed to exercise reasonable care in selecting those persons (whether compensated or volunteer) who will work with minors. Conducting adequate background checks on church workers can be a cumbersome and time-consuming process. Further, local law enforcement agencies often refuse to accommodate a church’s request to conduct a background check on church workers. Even when law enforcement agencies are willing to conduct a criminal records search, they generally will search only state or local records. An individual may have been convicted for child molestation on several occasions in another state but a criminal records check of your state or local records will turn up nothing. The person appears to be “safe.” On the other hand, if churches are qualified entities they will have the right to request a nationwide criminal records search. In time, these searches will be conducted by computer and will take very little time. Further, they will include the entire FBI national criminal history record system, so you will know if an applicant was convicted of a crime in another state.
the National Center for Volunteer Screening determines a worker’s suitability
As a qualified entity, churches could transfer to the National Center for Volunteer Screening the sometimes difficult task of determining a worker’s suitability for working with minors. The Act states that the National Center shall “make a determination whether the criminal history record information received in response to the national background check indicates that the provider has a criminal history record that renders the provider unfit to provide care to children, the elderly, or individuals with disabilities based upon criteria established by the National Task Force on Volunteer Screening, and will convey that determination to the qualified entity.” This is a very important provision. There are many cases in which the criminal record of an applicant for youth work is ambiguous or inconclusive. Consider the following examples.
Example 1
. B applies for a position as a volunteer youth worker at a church. The church conducts a criminal records check using state records, and discovers that B was arrested and charged with child molestation three years ago, but the charges were dropped.
Example 2
. Same facts as the previous example, except that B was acquitted by a jury.
Example 3
. Same facts as example 1, except that B pled guilty to a lesser charge (disorderly conduct) and was given two years probation.
Example 4
. G applies for a position as a volunteer youth worker at a church. The church conducts a criminal records check using state records, and discovers that G was convicted of child molestation 25 years ago, and served one year in prison. Does one conviction occurring 25 years ago render G unsuitable for working with minors today?
Example 5
. Same facts as example 4, except that G was convicted two times for molesting children—the first occurred 25 years ago, and the second 10 years ago.
Example 6
. Same facts as example 4, except that G insists that “they convicted an innocent man.”
Example 7
. Same facts as example 4, except that G claims that he “got religion” while in prison, and no longer poses a risk of harm to children.
Example 8
. J applies for a position as a volunteer youth worker at a church. The church conducts a criminal records check using county courthouse records, and discovers convictions for burglary and a drug crime. Do these convictions render J unfit for working with children?
Example 9
. Same facts as example 6, except that J had an additional conviction for assault and battery.
Deciding whether or not any of these applicants should be used as volunteers in a church’s youth or children’s ministry can present church leaders with an agonizing decision, for it is not clear in many of these examples whether the applicant’s criminal background renders him or her unsuitable for working with children. Here is the good news—if a church is designated as a qualified entity under the proposed National Child Protection Improvement Act, it will not have to make these decisions! The National Center for Volunteer Screening will make them for you. This provision obviously will decrease a church’s legal risk, and insulate church leaders from the responsibility for deciding whether a particular criminal record renders an applicant unsuitable.
dealing with incomplete criminal records
Many churches have requested a criminal records check on a prospective youth worker only to be told that the record shows an arrest or prosecution for a criminal offense but does not show the final disposition of the case. This can be very frustrating. How should church leaders respond to this information? Does it disqualify the individual from working with minors in the church? What if there was no conviction? Isn’t everyone presumed to be innocent unless proven guilty? Could the church be sued for disqualifying someone who was never convicted of a crime? Again, many churches have agonized over these questions. The committee report accompanying the new law observes:
Many of the records currently in the national criminal history record system are incomplete in that they indicate that a person was arrested for a particular crime but do not indicate the disposition of the charge. This poses a dilemma. On the one hand, it is grossly unfair to deny a person a job based on a mere arrest, since the accusation may have been false and the charges may have been dropped. On the other hand, an arrest may well have resulted in a conviction. To ignore incomplete records altogether would create a risk that persons who had been convicted would be allowed to assume positions from which they should be disqualified.
The Act addresses these questions directly by specifying that if the National Center uncovers criminal history record information that lacks “disposition information,” it shall, to the extent possible, “contact state and local recordkeeping systems to obtain complete information.” What does this mean? If a criminal record is incomplete, it is the duty of the National Center to find out what happened. This is not your responsibility. Once again, this provision decreases the potential liability of a qualified entity, and it is another reason why churches will benefit from such a designation.
church workers as “providers”
If the term “qualified entity” includes churches, this means that your church can request a national criminal background check to determine if any “provider” has been convicted of a crime that bears upon that person’s fitness to have responsibility for the safety and well-being of children. Obviously, it is essential to know what workers within a church will be deemed providers. As noted above, the Act defines the term provider as a person who “is employed by or volunteers or who seeks to be employed by or volunteer with a qualified entity, who owns or operates a qualified entity, or who has or may have unsupervised access to a child to whom the qualified entity provides care.”
There is no question that this definition will include the vast majority of persons who work with minors in most churches. The list includes Sunday School teachers, nursery workers, children’s choir directors, counselors, youth ministers, child care or preschool workers, parents’ day out workers, camp workers, and scouting leaders. It does not matter whether the individual is compensated or not. Note also that the law defines a provider as someone who “has or may have unsupervised access to a child to whom the qualified entity provides child care.” This could include a much longer list of individuals, including custodians, spouses or friends of child care workers, and virtually anyone who sets foot on church property or attends church activities.
church liability issues
The Act specifies that a qualified entity “shall not be liable in an action for damages solely for failure to conduct a criminal background check on a provider.” This presumably means that if your church is a qualified entity it cannot be liable for not obtaining a national criminal records check on a youth worker or other provider. Failure to obtain such checks could be due to a church’s unfamiliarity with the law, or to neglect or inadvertence. Perhaps someone was hired before a criminal records check could be obtained. Or the person in charge of requesting criminal records checks was away temporarily on vacation or business and there was a need to hire a youth worker immediately. There are many reasons why a church might fail to request a criminal records check. The important point is this—a church cannot be legally liable for a youth worker’s acts of sexual molestation solely on the basis of the church’s failure to request a criminal records check. This of course assumes that the church is a qualified entity and that the worker was a provider for whom a criminal records check could have been obtained.
In addition, the Act specifies that “a qualified entity that reasonably relies on criminal history record information received in response to a background check pursuant to this section shall not be liable in an action for damages based upon the inaccuracy or incompleteness of the information.”
Example
. A church meets the definition of a qualified entity. It requests a national criminal records check form the National Center for Volunteer Screening on Rob (a prospective youth worker). The Center informs the church that Rob has been convicted of a crime that bears upon his fitness to have responsibility for the safety and well-being of children. However, the church goes ahead and uses Rob as a youth worker because of a lack of other volunteers. A few months later the church receives an allegation that Rob has molested a child. Can the church be sued? Absolutely. The fact that the new law specifies that qualified entities “shall not be liable in an action for damages solely for failure to conduct a criminal background check on a provider” does not insulate them from liability for negligently using criminal record information that is shared with them.
Example
. First Church (a qualified entity under state law) needs several workers in its nursery and children’s programs. The church is not aware that it is a qualified entity under state law or that it has the right to request background checks on designated providers. The church begins using Tim as a youth worker, but does not seek a national criminal records check on him. A few months later the church receives an allegation that Tim has molested a child. Can the church be sued? Not on the ground that it failed to request a criminal records check, since the new law specifies that qualified entities “shall not be liable in an action for damages solely for failure to conduct a criminal background check on a provider.” However, it is possible that the church could be legally responsible for Tim’s acts on the basis of negligent selection or negligent supervision.
should churches that obtain national checks use other screening procedures?
If the proposed Act is enacted, many church leaders soon will be asking, “If our church is covered by the new law, do we need to do any additional screening of youth workers or is the national criminal records search enough”? It is our opinion that all churches should conduct additional screening procedures for anyone who will have access to minors on church premises or during church activities. These procedures include the following: (1) a “6-month rule” (don’t use a person who has not been a member of your church for at least 6 months); (2) application forms; (3) reference checks; (4) interviews; (5) an educational program for church staff; and (6) adequate supervision of personnel and activities.
We base this conclusion on the following factors:
• Not all of the persons who have contact with minors in your church will meet the definition of a “provider” for whom a criminal records check may be obtained.
• Many child molesters have no history of criminal convictions.
• Many child molesters plead guilty to lesser charges giving little if any indication of their risk to children in your church.
• Few churches will be able to request a criminal records check on every provider. The person responsible for requesting these checks may be temporarily absent (away on vacation or business) at a time when new youth workers are needed. Or, in larger churches, there may be so many workers that some are inadvertently omitted from a request for criminal records checks. Other workers may refuse to provide you with their fingerprints (this will be required in order for your to request a criminal records search).
• Adopting additional screening procedures imposes minimal inconvenience on a church, and reduces substantially the possibility that a church will be sued as a result of an incident of sexual molestation. Many attorneys would consider suing a church for negligence if a church worker molests a child—even if the church conducted a criminal records search and was advised by a state agency that the worker had no history of criminal convictions that would render him or her unfit for working with minors. The argument in such a case would be that there are so many limitations on the effectiveness of criminal records searches (as summarized above) that it is negligent for a church to do nothing more. Churches that conduct screening procedures in addition to the criminal records check reduce substantially the likelihood of a lawsuit. This protects the church from potential financial liability and negative publicity in your local media. Churches whose liability insurance policies exclude any coverage for sexual misconduct, or reduce the policy limits, definitely should adopt additional screening procedures.
• Applying the same screening procedures to all persons who will have contact with minors will avoid apparent “discriminatory” treatment. If you only require application forms and other screening procedures for those workers for whom you are not required to obtain a criminal records check under state law, then these persons may object to being singled out for intrusive procedures that are not applied to the very persons who present the highest risk (those for whom criminal records checks are required). Applying your screening procedures to all workers will avoid such apparent “double standards” and will be perceived by your workers to be more fair.
A related question is whether a church avoids legal liability for negligent selection simply by requesting a national criminal records check and being informed that there is no apparent reason why a prospective worker cannot be used. To illustrate, assume that a church requests a national criminal records check on a prospective youth worker, and is informed that the worker has not been convicted of a crime that bears upon his fitness to have responsibility for the safety and well-being of children. Can the church safely assume that it can use the worker without conducting any additional screening? The new law does not address this question. Obviously, the mere fact that someone does not have a record of criminal convictions does not mean that he or she poses no risk of harm to minors. Many child molesters have never been convicted of a crime, and so a “clean record” is no guarantee of safety. It is possible that a court could find a church legally liable for a worker’s act of child molestation even though a criminal records search revealed no criminal history, if the church did nothing else to determine the person’s suitability for working with minors. For this reason, we recommend that churches continue to screen workers even if they are qualified entities under state law and are permitted to request criminal background checks on youth workers.
Also note that even if the courts of your state determine that churches cannot be liable on the basis of negligent selection for using a worker with no history of criminal convictions, it is possible for churches to be liable for a worker’s act of child molestation on the basis of “negligent supervision.” Negligent supervision is a legal theory that imposes liability on an institution or employer for failing to exercise reasonable care in the supervision of its workers (whether volunteer or paid).
Example
. A church requests a national criminal records check on Don (a prospective youth worker) and is advised that Don has never been convicted of a crime that bears upon his fitness to have responsibility for the safety and well-being of children. Based entirely on this information, the church decides to use Don as a youth worker. A few months later the church receives an allegation that Don has molested a child. Can the church be sued? The proposed law does not answer this question. It is possible that a civil court would conclude that the church exercised “reasonable care” by requesting a criminal records check on Don and therefore is not guilty of “negligent selection.” However, it is also possible that a civil court may conclude that a church must do more than request a criminal records check and be informed that a worker has no history of criminal convictions. Until the courts clarify this issue in your state the safest course is to use additional screening procedures in addition to requesting a criminal records check (such as an application form and reference checks). Remember, the fact that a person has no history of criminal convictions for sex offenses does not mean that he or she is “safe.” Many child molesters have never been convicted of a crime. Also, remember that your church will be accused of “negligence” in selecting Don. There will be many plaintiffs’ attorneys who will allege that a church is negligent for not conducting screening procedures in addition to the criminal records check (for the reasons summarized above). To avoid this accusation, and to decrease significantly the likelihood that an attorney would sue your church, additional screening procedures are recommended.
Example
. Same facts as the previous example. Even if the state courts determine that the church is not guilty of negligent selection for using a worker without any screening other than the criminal records check, it is possible for the church to be liable for a child’s injuries on the basis of negligent supervision. Negligent supervision is a legal theory that imposes liability on organizations for injuries caused by their failure to adequately supervise workers.
It is also important to review the potential liability of churches if they are not designated as qualified entities. If the term “qualified entity” does not include churches, then you will not be able to request a national criminal records check on youth workers and you will need to implement an effective screening program to reduce the likelihood of child molestation and to reduce your legal risks and potential liability. This is especially true if your church liability insurance policy excludes any coverage for sexual misconduct, or reduces the policy limits in such cases.
