Last fall, a grand jury report surfaced detailing alleged acts of child molestation committed by former Penn State assistant football coach Jerry Sandusky. It stunned the nation. Sandusky was employed by Penn State for 23 years as the defensive coordinator of its Division I collegiate football program. While coaching, he started “The Second Mile” charity that was established to “help children who need additional support and would benefit from positive human interaction.” Through The Second Mile, Sandusky had access to hundreds of boys, many of whom were vulnerable due to their social situations. It was within The Second Mile program that he found his victims, although several of them claimed they were molested in Penn State locker rooms where Sandusky retained unrestricted access.
A grand jury was convened to investigate allegations of child molestation by Sandusky involving ten minor boys over a period of years, both while he was a football coach at Penn State and after he retired from coaching. This led to 52 criminal charges brought against Sandusky, including several counts of involuntary deviate sexual intercourse, carrying a penalty of up to 20 years in prison on each count.
Additional criminal charges may be filed against various Penn State officials for failure to report Sandusky’s abuse of children. And, within days of the scandal coming to light, the first of what likely will be several civil lawsuits against Penn State and The Second Mile was filed in the court of common pleas for Philadelphia County, Pennsylvania.
The Penn State scandal contains several lessons of direct relevance to church leaders:
- Recognizing “grooming” behavior
- Recognizing abuse disguised as “horseplay”
- Identifying reportable abuse
- Understanding who mandatory reporters are
- Reporting abuse and to whom
- Understanding the criminal liability for failing to report
- Understanding civil liabilities for perpetrators of child abuse
- Understanding civil liabilities of employers for employees’ failure to report child abuse
- Understanding civil liabilities for employers based on negligent hiring, retention, and supervision
- Implementing the two-adult rule
- Obtaining insurance for intentional acts
- Preventing site access by former employees
- Each of these significant lessons is addressed in this article.
- 1. Recognize “grooming” behavior
- For many years, experts in the field of child abuse prevention have recognized that pedophiles (persons with a sexual preference for prepubescent minors) often use “grooming” techniques to attract and retain victims. Retired FBI special agent Kenneth Lanning, in his profile of child molesters, described grooming as follows:
Acquaintance child molesters … tend by necessity to control their victims primarily through the grooming or seduction process. [They] typically groom and seduce their child victims with the most effective combination of attention, affection, kindness, privileges, recognition, gifts, alcohol, drugs, or money until they have lowered the victims’ inhibitions and gained their cooperation and “consent.” The exact nature of this seduction depends in part on the developmental stages, needs, and vulnerabilities of the targeted child victims and nature of the relationship with the offender. The skilled offender adjusts his methods to fit the targeted child. Offenders who prefer younger child victims are more likely to first “seduce” the victim’s parents/guardians to gain their trust and obtain increased access to the potential victim. The offender then relies more on techniques involving fun, games, and play to manipulate younger children into sex. Those who prefer older child victims are more likely to take advantage of normal time away from their family and then rely more on techniques involving ease of sexual arousal, rebelliousness, inexperience, and curiosity to manipulate the children into sex. Some offenders simultaneously befriend their victim’s parents/guardians (e.g., telling parents/guardians they want to mentor or help their child) and work to alienate the child from the parents/guardians (e.g., telling children their parents/guardians don’t want them to have fun). K. Lanning, Child Molesters: A Behavioral Analysis (2010).
- The Penn State scandal has opened old wounds in the lives of many victims of child abuse. The scandal has prompted many to disclose their abuse, often for the first time after many years of silence, in an attempt to seek justice and, in some cases, compensation for emotional suffering. Church and parachurch leaders need to be prepared to respond to claims of abuse dating back years or even decades.
- An Executive Summary
- The Penn State University child abuse scandal provides several important lessons for church leaders. Consider the following:
- Understand “grooming” behavior, and inform church staff to report any possible examples to church leadership.
- Pedophiles often engage in “horseplay” with children for sexual gratification, and often proceed to more serious acts of molestation if their horseplay isn’t resisted. Church staff should be alert to adults who engage in such behavior with children.
- Be aware of the definition of reportable child abuse in your state.
- Know the definition of “mandatory” child abuse reporters in your state. In some states, church leaders may not be mandatory reporters, but this does not mean that they should not report. They are “permissive” reporters who are encouraged to report, and in virtually all cases, should do so if they know that child abuse has occurred or have reasonable cause to believe that it has occurred.
- Know how to report child abuse. In most states, abuse must be reported to a designated state agency, or in some cases to law enforcement. The reporting obligations in most states are not satisfied by reporting to a pastor or other church leader.
- Be aware that persons designated as mandatory reporters by the applicable child abuse reporting law face criminal charges for failing to report abuse.
- Be aware that persons designated as mandatory reporters by the applicable child abuse reporting law may be exposed to civil liability for failing to report abuse.
- Recognize that a church may be liable on the basis of negligent hiring, retention, and supervision, for the molestation of minors by church employees and volunteers.
- Understand the importance of adopting a “two-adult rule” that prohibits any adult employee or volunteer from having unsupervised access to a child.
- Understand that church insurance policies often exclude coverage for intentional and criminal acts. Check with your insurance agent to see if your general liability policy contains such an exclusion; if it does, find out if it applies to negligence claims against the church. If there are doubts about coverage, ask about a rider or special endorsement that will provide coverage. Remember, churches do not commit acts of child abuse, and so they are not guilty of intentional or criminal acts. Rather, they are sued in such cases for negligence in hiring, retaining, or supervising the perpetrator. The courts have differed on whether policy exclusions for intentional and criminal acts provide coverage.
- Take measures to restrict access to church premises by former employees and volunteers who were terminated for sexual misconduct.
- Gregory Weber, an assistant attorney general for the State of Wisconsin, specializes in the prosecution of crimes committed against children. He defines grooming as follows:
Grooming is a process. It begins when the predator chooses a target area. He may visit places where children are likely to go: schools, shopping malls, playgrounds, parks, and the like. He may work or volunteer at businesses that cater to children. Other predators strike up relationships with adults who have children in the home—single parent families make particularly good targets. Victim selection and recruitment are next …. Not surprisingly, predators often target children with obvious vulnerabilities ….
Predators engage or “recruit” their victims in different ways. Many use a combination of forced teaming and charm. They may offer to play games, give rides, or buy treats and gifts as tokens of friendship. They may offer drugs or alcohol to older children or teenagers. And they almost always offer a sympathetic, understanding ear. Your parents don’t understand or respect you? I do. Other kids make fun of you? I know what that’s like—it was the same way for me when I was your age. They don’t trust you at home? Boy, I know what that’s like—your parents never really want you to grow up. But I trust you. I respect you. I care for you more than anybody else. And I love you. I’m here for you.
- The grand jury report reveals numerous examples of grooming by Sandusky, including the following:
- Victim 1
Sandusky took Victim 1 to professional and college sporting events, such as Philadelphia Eagles games, or pre-season practices at Penn State. When Victim 1 slept at the Sandusky residence, he would sleep in a finished bedroom in the basement. Occasionally, other boys would also stay overnight at Sandusky’s home but usually it was only Victim 1. Sandusky also encouraged Victim 1 to participate in The Second Mile as a volunteer. Sandusky gave Victim 1 a number of gifts, including golf clubs, a computer, gym clothes, dress clothes and cash. Sandusky took the boy to restaurants, swimming at a hotel near Sandusky’s home, and to church.
- “I fought in the [Korean] war … seen people with their guts blowed out, arms dismembered. But I just witnessed something in there I’ll never forget.”
—Penn State custodian, in describing to his superior Sandusky’s molestation of a minor boy in a university locker room, according to a grand jury report
- Victim 4
Victim 4 became a fixture in the Sandusky household, sleeping overnight and accompanying Sandusky to charity functions and Penn State football games. Victim 4 was listed, along with Sandusky’s wife, as a member of Sandusky’s family party for the 1998 Outback Bowl and the 1999 Alamo Bowl. He traveled to and from both bowl games with the football team and other Penn State staff, coaches and their families, sharing the same accommodations. Victim 4 would frequently stay overnight with Sandusky and the football team prior to home games; Sandusky’s wife was never present when Victim 4 stayed with Sandusky …. Victim 4 also accompanied Sandusky to various charity golf outings and would share a hotel room with him on those occasions ….
Usually the persuasion Sandusky employed was accompanied by gifts and opportunities to attend sporting and charity events. He gave Victim 4 dozens of gifts, some purchased and some obtained from various sporting goods vendors such as Nike and Airwalk. Victim 4 received clothes, a snowboard, Nike shoes, golf clubs, ice hockey equipment and lessons, passes for various sporting events, football jerseys, and registration for soccer camp. Sandusky even guaranteed Victim 4 he could be a walk-on player at Penn State. Victim 4 was in a video made about linebackers that featured Sandusky, and he appeared with him in a photo accompanying an article about Sandusky in Sports Illustrated.
- Victim 5
Victim 5 traveled with Sandusky to watch college football games.
- Victim 7
Victim 7 met Sandusky through The Second Mile program, to which he was referred by a school counselor at about the age of 10. When Victim 7 had been in the program for a couple of years, Sandusky contacted Victim 7’s mother and invited Victim 7 to a Penn State football game. Victim 7 enjoyed going on the field at Penn State games, interacting with players and eating in the dining hall with the athletes. Victim 7 would stay overnight at Sandusky’s home on Friday nights before the home games and then go to the games with him. Sometimes they would go out for breakfast and would attend coaches meetings.
- These excerpts from the grand jury report describe how Sandusky groomed boys into sexual encounters. These and similar behaviors are used by pedophiles to attract victims in churches. Church leaders should be aware of the potential risks associated with such behaviors, and take steps to stop them. Note, in particular, the following kinds of high-risk behaviors:
- Unrelated adults providing gifts to minors.
- An unrelated adult takes a child or adolescent on an overnight trip.
- An unrelated adult takes a child or adolescent camping.
- A child or adolescent spends the night in an unrelated adult’s home.
- A child or adolescent is trans-ported to or from church by an unrelated adult.
- An unrelated adult takes a child or adolescent to sporting events.
- An unrelated adult enters into a “mentoring” relationship with a child or adolescent outside the context of a recognized program, such as Big Brothers or Big Sisters, that conducts extensive screening.
- A child or adolescent has a meal with an unrelated adult at a restaurant.
- An unrelated adult takes a child or adolescent shopping.
- An adult communicates with a child or adolescent via a cell phone or the Internet, including emails or social media. Sandusky called some of his victims dozens of times. He called one victim 118 times over the span of a few months.
- Such behaviors do not establish that an adult is a pedophile. Many well-meaning adults engage in these behaviors without any thought of sexual gratification. But it is difficult, if not impossible, for church leaders to ascertain the true motivation of the adult, and for this reason they should stop these kinds of activities, and any others involving unsupervised associations between an adult and a minor, especially those that are in the course of church activities or programs. Even when these activities occur away from church premises, and are not in the course of church activities, church leaders should discourage them, not only to protect against illicit sexual activity, but also to protect well-intentioned adults from false accusations of child abuse.
- Note that high-risk behavior is often ignored, or considered harmless, because the adult has highly developed interpersonal skills and is perceived positively, often as an esteemed role model.
- Pedophiles do not only groom desired victims. They often groom the parents of desired victims by establishing a relationship of friendship and trust that reduces or eliminates the parents’ concerns about the escalating relationship between their child and the pedophile. This leads to behaviors that, in retrospect, seem unbelievable, such as allowing a child to spend the night at the pedophile’s home, or allowing the child to go on camping trips with the pedophile or trips to sporting events.
- “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.”
—From Predators: Pedophiles, Rapists, and Other Sex Offenders: Who They Are, How They Operate, and How We Can Protect Ourselves and Our Children (2003) by Anna Salter.
- Definition of “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 years and at least 5 years older than the child or children in Criterion A.
Note: Do 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 Lanning’s Child Molesters: A Behavioral Analysis:
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.”
- Church leaders 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.”
- 2. Abuse disguised as “horseplay”
- The grand jury report reveals that Jerry Sandusky frequently disguised his attempts at sexual contact with minor boys as “horseplay.” This is a common technique among pedophiles, especially in the case of younger victims who are more easily confused and deceived. The horseplay itself creates opportunities for sexually gratifying superficial contact, and often leads progressively to more intensive contact until the pedophile encounters resistance.
- The grand jury report is replete with references to Sandusky “horsing around” with minor boys in showers in isolated or vacant locker rooms at Penn State. In many cases, the horseplay included wrestling, which also allowed Sandusky to be sexually gratified. To illustrate, the report cites the numerous examples of Sandusky’s sexual molestation of one of the victims, and notes that he “never asked to do these things but would simply see what the victim would permit him to do.”
- 3. The duty to report child abuse—what is reportable abuse?
- All fifty states have enacted child abuse reporting statutes in an effort to protect abused children and prevent future abuse. Child abuse is defined by most statutes to include physical abuse, emotional abuse, neglect, and sexual molestation. A child ordinarily is defined as any person under the age of 18 years. Some states specifically limit the definition of “child abuse” to abuse that is inflicted by a parent, caretaker, or custodian. Such a statute, if interpreted narrowly, might not require ministers and lay church workers who are mandatory reporters of child abuse under state law to report incidents of abuse inflicted by custodians, associate ministers, adolescents, or volunteer youth workers. It is important for church leaders to be familiar with the definition of reportable child abuse under their state’s reporting law.
- Pennsylvania law defines reportable child abuse to include:
An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age [and]
Any recent act, failure to act or series of such acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age. 23 Pa.C.S.A. 6311.
- Note that this definition of reportable child abuse is limited to abuse that is inflicted by a “perpetrator.” This term is defined as “a person who has committed child abuse and is a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child’s parent.” A “person responsible for the welfare of a child” is defined as “a person who provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control. The term does not include a person who is employed by or provides services or programs in any public or private school, intermediate unit or area vocational-technical school.” This language would indicate that no one at Penn State was legally required to report Sandusky’s sexual abuse of minors. However, as noted below, the child abuse reporting statute, in enumerating those persons who are mandatory reporters of child abuse, states:
A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made … when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator. 23 Pa.C.S.A. 6311.
- According to these convoluted provisions, those employees at Penn State who either saw Sandusky molest children, or who otherwise had reasonable cause to suspect that he had engaged in such acts, had a legal duty to report.
• Key point. The convoluted definition of mandatory child abuse reporters under Pennsylvania law illustrates why so many church leaders and others are unaware of their reporting obligations under state law. On an issue of such importance, legislators need to do a better job.
• Key point. The Pennsylvania child abuse reporting law designates anyone who is not a mandatory reporter as a “permissive” reporter, meaning that they are encouraged to report suspected abuse but are not criminally liable for not doing so.
- 4. The duty to report child abuse—mandatory reporters
- All fifty states enumerate categories of persons who are under a legal duty to report child abuse to designated civil authorities. In most states, such “mandatory reporters” must report both actual and reasonably suspected cases of child abuse. Failure to do so is a crime (usually a misdemeanor).
- The Pennsylvania child abuse reporting statute defines mandatory reporters as follows:
(a) General rule.—A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator. Except with respect to confidential communications made to a member of the clergy … the privileged communication between any professional person required to report and the patient or client of that person shall not apply to situations involving child abuse and shall not constitute grounds for failure to report as required by this chapter.
(b) Enumeration of persons required to report.—Persons required to report under subsection (a) include, but are not limited to, any licensed physician, osteopath, medical examiner, coroner, funeral director, dentist, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel engaged in the admission, examination, care or treatment of persons, Christian Science practitioner, member of the clergy, school administrator, school teacher, school nurse, social services worker, daycare center worker or any other childcare or foster-care worker, mental health professional, peace officer or law enforcement official.
(c) Staff members of institutions, etc.—Whenever a person is required to report under subsection (b) in the capacity as a member of the staff of a medical or other public or private institution, school, facility or agency, that person shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge. Upon notification, the person in charge or the designated agent, if any, shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with section 6313. This chapter does not require more than one report from any such institution, school, facility or agency.
- The grand jury report concluded that certain Penn State employees were mandatory child abuse reporters, and that they failed to comply with their reporting obligation. The report concludes:
The grand jury concludes that the sexual assault of a minor male in 2002 should have been reported to the Pennsylvania Department of Public Welfare or a law enforcement agency such as the University Police or the Pennsylvania State Police. The University, by its … Senior Vice President for Finance and Business and … Athletic Director was notified by two different Penn State employees of the alleged sexual exploitation of that youth. Pennsylvania’s mandatory reporting statute for suspected child abuse … provides that when a staff member reports abuse, pursuant to statute, the person in charge of the school or institution has the responsibility and legal obligation to report or cause such a report to be made by telephone and in writing within 48 hours to the Department of Public Welfare of the Commonwealth of Pennsylvania. An oral report should have been made to Centre County Children and Youth Services but none was made. Nor was there any attempt to investigate, to identify Victim 2 or to protect that child or any others from similar conduct …. The failure to report is a violation of the law which was graded a summary offense in 2002.
- Church leaders should be familiar with the definition of “mandatory reporter” under their state’s child abuse reporting law for two compelling reasons. First, mandatory reporters have a legal obligation to report known or reasonably suspected incidents of child abuse to designated civil authorities, and may be subject to criminal penalties (generally a misdemeanor) for not doing so. Second, in some states, mandatory reporters are subject to civil liability for failing to report. Both criminal and civil liability for both the perpetrators of abuse, and their employer, are discussed more fully below.
- Are Ministers Mandatory Child Abuse Reporters?
- Ministers are mandatory child abuse reporters in many states, either because the child abuse reporting law defines mandatory reporters to include “ministers,” or because the law makes “any person” a mandatory reporter of child abuse. In other states, ministers may be mandatory reporters if they perform the duties of one of the specified categories of mandatory reporter. For example, a minister may be a mandatory reporter because he or she is a teacher or administrator at a church-operated school, or serves as a counselor.
- No state clergy-penitent privilege statute or rule specifies that the privileged nature of a communication exempts a minister from complying with child abuse reporting requirements. However, several child abuse reporting laws exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege.
- Several state child abuse reporting laws provide that no child who is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church shall, for that reason alone, be considered to be an “abused” child.
- 5. The duty to report child abuse—report to whom?
- Some Penn State employees, including head football coach Joe Paterno, claimed that they reported Sandusky’s abusive behavior to other university officials. University employees were clearly confused about their reporting obligations, and did not know to whom to report. Consider the following excerpts from the grand jury report regarding “victim 2”:
A Penn State graduate assistant entered a university locker room and witnessed Sandusky raping a 10-yearold boy in the shower area. He immediately went to his office and called his father, reporting to him what he had seen. His father told him to leave the building and come to his home. The graduate assistant and his father decided that the graduate assistant had to promptly report what he had seen to Coach Joe Paterno, head football coach of Penn State. The next morning the graduate assistant went to Paterno’s home, where he reported what he had seen.
Joseph Paterno testified to receiving the graduate assistant’s report at his home. Paterno called … the Penn State Athletic Director and Paterno’s immediate superior, to his home the very next day and reported to him that the graduate assistant had seen Jerry Sandusky doing something of a sexual nature to a young boy.
Approximately one and a half weeks later, the graduate assistant was called to a meeting with Penn State Athletic Director Tim Curley and Senior Vice President for Finance and Business Gary Schultz. The graduate assistant reported to Curley and Schultz that he had witnessed what he believed to be Sandusky having anal sex with a boy in the showers. Curley and Schultz assured the graduate assistant that they would look into it and determine what further action they would take. The graduate assistant heard back from Curley a couple of weeks later. He was told that Sandusky’s keys to the locker room were taken away and that the incident had been reported to The Second Mile. The graduate assistant was never questioned by University Police and no other entity conducted an investigation until he testified before the grand jury ….
Curley testified that he advised Penn State University President Graham Spanier of the information he had received from the graduate assistant and the steps he had taken as a result. Curley … did not report the incident to the University Police, the police agency for the University Park campus or any other police agency.
- The Pennsylvania child abuse reporting law (quoted above) specifies that “whenever a person is required to report … in the capacity as a member of the staff of a medical or other public or private institution, school, facility or agency, that person shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge. Upon notification, the person in charge or the designated agent, if any, shall assume the responsibility and have the legal obligation to report or cause a report to be made ….” According to this language, the graduate assistant, coach Paterno, Curley, and Schultz all should have reported Sandusky’s behavior directly to “the person in charge of the institution” or, if applicable, the designated agent of the person in charge. This was not done.
- Church employees, like the Penn State officials, often do not know how to report abuse. Many believe that they can discharge their duty to report child abuse by informing the senior pastor. In most states, while staff members are free to inform the pastor of known or suspected incidents of child abuse, this does not relieve them from personal liability for failing to report to civil authorities. A few states have adopted statutes similar to the Pennsylvania child abuse reporting law, allowing churches to designate a person to receive reports of child abuse from staff members. For example, the Missouri child abuse reporting law states:
A religious organization may designate an agent or agents required to report … in an official capacity on behalf of the religious organization. In the event a minister, official or staff member of a religious organization has probable cause to believe that the child has been subjected to abuse or neglect under circumstances required to be reported … and the minister, official or staff member of the religious organization does not personally make a report … the designated agent of the religious organization shall be notified. The designated agent shall then become responsible for making or causing the report to be made …. This section shall not preclude any person from reporting abuse or neglect as otherwise provided by law. RSMo. 352.400.
- Most state child abuse reporting laws do not contain such a provision, and so staff members who are mandatory reporters cannot satisfy their obligation to report known or suspected incidents of abuse to the senior pastor or some other church leader. This demonstrates the importance of church staff being familiar with their reporting requirements under state law.
Resource. The child abuse reporting laws of all 50 states are summarized and updated in the The 2012 Child Abuse Reporting Laws for Churches, a Feature Report published by Church Law & Tax Report (ChurchLawAndTaxStore.com). The report focuses on four provisions in each state child abuse reporting law of most importance to church leaders: (1) what is reportable child abuse; (2) who are mandatory child abuse reporters; (3) how is child abuse reported; and (4) does the clergy-penitent privilege excuse ministers from reporting child abuse? This resource addresses the application of the child abuse reporting laws of all 50 states to ministers and lay church staff, and provides church leaders with the most up-to-date provisions of their own state’s child abuse reporting law.
- 6. Criminal liability for failing to report
- Penn State officials who failed to comply with the child abuse reporting requirement under state law are subject to criminal penalties. Pennsylvania law specifies that “a person or official required to report a case of suspected child abuse or to make a referral to the appropriate authorities who willfully fails to do so commits a misdemeanor of the third degree for the first violation and a misdemeanor of the second degree for a second or subsequent violation.”
- While persons who are legally required to report child abuse are subject to criminal prosecution for failure to do so, instances of actual criminal prosecution are rare. However, some clergy have been prosecuted for failing to file a report when they were in a mandatory reporting classification and they had reasonable cause to believe that abuse had occurred. Criminal penalties for failing to file a report vary, but they typically involve a misdemeanor classification that may involve a short prison sentence or small fine.
- 7. Civil liability for perpetrators of child abuse
- The first civil lawsuit to be filed against Penn State as a result of Sandusky’s acts of molestation also names Sandusky as a defendant. He faces multiple civil claims including, but not limited to, assault and battery, intentional infliction of emotional distress, and false imprisonment.
- As noted below, Penn State’s liability insurance policy may contain an exclusion for intentional or criminal acts that will preclude any coverage for Sandusky. This means that Sandusky may have to retain, and compensate, his own attorneys in the defense of both civil and criminal claims against him.
- Most church insurance policies similarly exclude coverage for intentional or criminal acts, meaning that church employees and volunteers who molest children will be responsible for hiring and compensating their own attorneys in the defense of criminal and civil claims brought against them by their victims.
- There is one additional basis of civil liability that should be noted. Seven states have enacted statutes that create civil liability for mandatory child abuse reporters who fail to report abuse. In these states, victims of child abuse can sue mandatory reporters who failed to report the abuse. Not only are adults who fail to report abuse subject to possible criminal liability (if they are mandatory reporters), but they also can be sued for money damages by the victims of abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law. A summary of these seven state laws is set forth below:
- (1) Arkansas
- Arkansas Code § 12-18-206 specifies that “a person required by this chapter to make a report of child maltreatment or suspected child maltreatment to the Child Abuse Hotline who purposely fails to do so is civilly liable for damages proximately caused by that failure.”
- (2) Colorado
- Colorado Statutes § 19-3-304(4)(b) specifies that any person who is a mandatory reporter of child abuse and who willfully fails to report known or reasonably suspected incidents of abuse “shall be liable for damages proximately caused thereby.”
- (3) Iowa
- Iowa Code § 232.75 specifies that “any person, official, agency or institution, required … to report a suspected case of child abuse who knowingly fails to do so or who knowingly interferes with the making of such a report … is civilly liable for the damages proximately caused by such failure or interference.”
- (4) Michigan
- Michigan Compiled Laws § 722.633 specifies that “a person who is required by this act to report an instance of suspected child abuse or neglect and who fails to do so is civilly liable for the damages proximately caused by the failure.”
- (5) Montana
- Montana Code § 41-3-207 specifies that “any person, official, or institution required by law to report known or suspected child abuse or neglect who fails to do so or who prevents another person from reasonably doing so is civilly liable for the damages proximately caused by such failure or prevention.”
- (6) New York
- Section 420 of the New York Social Services Law specifies that “any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure.”
- (7) Rhode Island
- Section 40-11-6.1 of the Rhode Island General Laws specifies that “any person, official, physician, or institution who knowingly fails to perform any act required by this chapter or who knowingly prevents another person from performing a required act shall be civilly liable for the damages proximately caused by that failure.”
Key point. Persons who are mandatory child abuse reporters in Arkansas, Colorado, Iowa, Michigan, Montana, New York, and Rhode Island can be sued by victims of child abuse for failure to comply with state child abuse reporting requirements. These lawsuits may be brought in some states many years after the failure to report. It is possible that other state legislatures will enact laws giving victims of child abuse the legal right to sue mandatory reporters who failed to comply with their reporting obligations. It is also possible that the courts in some states will allow victims to sue mandatory reporters (and perhaps those who are not mandatory reporters) for failing to report child abuse even if no state law grants them the specific right to do so. These potential risks must be considered when evaluating whether or not to report known or suspected incidents of child abuse.
- While only seven states have enacted legislation exposing mandatory reporters to civil liability for failing to report child abuse, some courts have ruled that mandatory reporters can be personally liable for failing to report even if no statute imposes liability. A few courts have reached the opposite conclusion.
- Liability recognized
Example. A California appeals court upheld the conviction of two pastors for failing to report an incident of child abuse. A girl was sexually molested by her stepfather and informed two pastors of her church who also served as president and principal of the church-operated school that she attended. The pastors did not report the abuse to civil authorities, even though as school administrators they were mandatory child abuse reporters, because they wanted to handle the matter within the church. They viewed the matter as “a pastoral one” involving the girl’s inability to forgive her stepfather. The pastors also insisted that they considered the stepfather’s actions to be a sin rather than child abuse, and that as pastors they were required to follow the Scriptures concerning the discipline of a fellow Christian. A jury found the pastors guilty of violating the state child abuse reporting law, and a state appeals court upheld the convictions. The court rejected the pastors’ claim that their conviction amounted to a violation of the First Amendment guaranty of religious freedom by forcing them to report incidents of abuse rather than “handling problems within the church.” The court concluded, “The mere fact that a [minister’s] religious practice is burdened by a governmental program does not mean an exception accommodating that practice must be granted. The state may justify an inroad on religious liberty by showing it is the least restrictive means of achieving some compelling state interest. Here, if [the pastors] are held to be exempt from the mandatory requirements of the [child abuse reporting law] the act’s purpose would be severely undermined. There is no indication teachers and administrators of religious schools would voluntarily report known or suspected child abuse. Children in those schools would not be protected. The protection of all children cannot be achieved in any other way.” People v. Hodges, 13 Cal. Rptr.2d 412 (Cal. Super. 1992).
Example. An Indiana appeals court ruled that an adult who had been abused as a minor could sue his pastor on the basis of negligence for failing to report the abuse. A minor (the “victim”) was sexually abused by his foster father and a number of other adults. When he was an adult, the victim sued a minister who had knowledge of the abuse but failed to report it to the authorities. He claimed that the minister was legally responsible for his injuries on the basis of a negligent failure to report. The court noted that negligence consists of the following elements: a duty to exercise reasonable care with respect to another, a breach of that duty, and injury to the other. In determining whether or not one has a duty to exercise reasonable care with respect to another, the court considered three factors—the existence of a “special relationship,” the foreseeability of injury, and public policy. The court concluded that it often will be foreseeable that a victim of child abuse will suffer further injury if the abuse is not reported. It also conceded that public policy does not support the imposition of legal liability on adults who fail to report incidents of child abuse absent a state law creating such liability. In short, the second factor often supports the recognition of a duty, while the third factor often does not. This makes the first factor (the existence of a special relationship) determinative. The court acknowledged that no satisfactory definition of a “special relationship” exists. However, it concluded that such a relationship may have existed between the victim and the pastor as a result of the following allegations made by the victim: (1) he met the pastor when he was fourteen years of age; (2) over the next four years he spoke with the pastor more than fifty times; (3) he sought help from the pastor concerning the sexual abuse he was suffering from his foster father and others; and (4) the pastor did provide some counsel to him regarding his abuse. The court concluded, “[The pastor] knew of the alleged abuse and could have reasonably foreseen that it would continue absent adult intervention. In addition, there is a genuine issue of material fact as to whether [he] enjoyed a special relationship with [the victim]. When the level of interaction or dependency between an abused child and an adult results in a special relationship, the adult necessarily assumes a greater responsibility for that child. The special relationship imbues to the child a sense of security and trust. For the child, the stakes are high. For the adult, making a good faith report to a local child protection service is neither burdensome nor risky. In such circumstances, the adult is committing an even greater disservice to the child when the adult fails to make a report of the alleged abuse.” J.A.W. v. Roberts, 627 N.E.2d 802 (Ind. App. 5 Dist. 1994).
Example. A federal court in Pennsylvania ruled that a local church and denominational agency could be sued on the basis of the legal principle of “negligence per se” by a victim of child abuse as a result of their failure to report the abuse. Under the principle of negligence per se, a person who violates a statute can be sued for monetary damages if (1) the purpose of the statute is to protect the interest of the plaintiff, individually, as opposed to the public; (2) the statute must clearly apply to the conduct of the defendant; (3) the defendant must violate the statute; and (4) the violation of the statute must cause the plaintiff’s injury. The court concluded that the church defendants were liable on this basis for their failure to comply with a state child abuse reporting statute. The significance of a finding of negligence per se is that actual negligence is presumed. There is no need to show any culpability on a defendant’s part other than a violation of the underlying statute. This means that a mandatory child abuse reporter’s failure to comply with a state child abuse reporting law’s requirement to report a known or reasonably suspected incident of child abuse would render that person automatically liable for monetary damages without a need for the victim to prove actual negligence. In other words, the mere failure to comply with the reporting requirement constitutes negligence per se. This sweeping conclusion has not been reached by any other court. Doe v. Liberatore, 478 F.Supp.2d 742 (M.D. Pa. 2007).
Example. The Maine Supreme Court ruled that a religious organization could be sued by a victim of child molestation on the ground that it knew of the molestation but failed to report it to civil authorities. The court concluded, “If a religious organization knows or has reason to know that a member of its clergy has a propensity to sexually abuse children, the First Amendment is not necessarily violated if the civil law imposes on the organization a duty to exercise due care to protect children with whom the organization has a fiduciary relationship …. [The victim’s] claim that the diocese learned of the priest’s propensity to sexually exploit and abuse young boys, but failed to report him to law enforcement officials and then concealed the information from the parishioners, and the public, stated a claim upon which relief can be granted.” Fortin v. Roman Catholic Bishop of Portland, 871 A.2d 1208 (Me. 2005).
Example. A federal court in Washington ruled that a mandatory child abuse reporter’s failure to report the abuse of a minor by a church worker could result not only in criminal liability for the reporter, but also civil liability for the reporter and his employing church. A minor (the “plaintiff”) who was sexually molested by a church worker sued the church, claiming that it was liable for the worker’s acts on the basis of its failure to comply with the state child abuse reporting statute. The church insisted that the state child abuse reporting law imposes criminal liability on mandatory reporters who fail to report abuse, but does not explicitly impose civil liability, and therefore the plaintiff could not sue the church for monetary damages in a civil lawsuit. The court disagreed. It conceded that the reporting statute did not explicitly authorize civil lawsuits for failure to report, but ruled that such a right could be “implied” from the statute. It pointed to a Washington Supreme Court case that articulated three factors for the courts to consider in deciding if a statute creates a civil remedy: “First, whether the plaintiff is within the class for whose benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.” The court concluded that these factors supported a finding that the state child abuse reporting law created a civil remedy in favor of abused minors and against mandatory reporters who fail to report abuse. Fleming v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 2006 WL 753234 (W.D. Wash. 2006).
- Liability rejected
Example. The Iowa Supreme Court ruled that a priest was not legally responsible for damages suffered by a victim of child abuse as a result of his decision not to report the abuse to civil authorities. A child (the victim) and her parents met with their parish priest on a number of occasions for family counseling. The priest was not a licensed counselor. The victim did not tell the priest that her father had sexually abused her but did tell him that he had “hurt” her. The physical and sexual abuse of the victim stopped when her father left home when she was in eighth grade. The victim attempted suicide a month later. The victim later sued her former priest and church. She claimed that the priest failed to report her abuse to the civil authorities, and that, as a result, the abuse continued, and her injuries were aggravated. She conceded that the priest was not aware that abuse had occurred, but she insisted that he should have been aware of the abuse based on her statement to him that her father had “hurt her.” A trial court dismissed the claim against the priest on the ground that he was not a mandatory child abuse reporter under state law and, as a result, had no duty to report the abuse even if he suspected it. The state supreme court affirmed the trial court’s decision. This case demonstrates that members of the clergy are not necessarily mandatory child abuse reporters under a state law that makes “counselors” mandatory reporters. Also, it illustrates that clergy who are not mandatory reporters, and who fail to report an incident of child abuse, will not necessarily be liable for the victim’s injuries. Wilson v. Darr, 553 N.W.2d 579 (Iowa 1996).
Example. A Mississippi court ruled that a school was not liable for the molestation of a minor student by a teacher as a result of its failure to comply with a child abuse reporting law. The court noted that the reporting duty only arose when a mandatory reporter had reasonable cause to suspect that abuse had occurred, and school officials did not have sufficient evidence of wrongdoing to have reasonable cause to suspect that the abuse had occurred. Further, the court noted that the reporting duty only applied to an “abused child,” and the victim in this case did not meet the statute’s definition of an abused child since she was not abused by someone “responsible for her care or support.” Doe ex rel. Brown v. Pontotoc County School District, 957 So.2d 410 (Miss. App. 2007).
Example. The New Hampshire Supreme Court ruled that church leaders who failed to report allegations of child abuse could not be sued by the victims on the basis of their failure to report. The court conceded that the reporting law specifies that “any priest, minister, or rabbi or any other person having reason to suspect that a child has been abused or neglected shall report the same in accordance with this chapter.” However, the court concluded: “[The reporting law] did not give rise to a civil remedy for its violation. Failure to comply with the statute is a crime and anyone who knowingly violates any provision is guilty of a misdemeanor. The reporting statute does not, however, support a private right of action for its violation. Even assuming, without deciding, that the elders had an obligation to report suspected child abuse to law enforcement authorities, the plaintiffs have no cause of action for damages based on the elders’ failure to do so. Accordingly, we need not decide whether the church elders qualify as clergy for purposes of the religious privilege.” Berry v. Watchtower Bible and Tract Society, 879 A.2d 1124 (N.H. 2005).
Example. A Texas court ruled that ministers who are mandatory child abuse reporters under state law cannot be sued by child abuse victims on account of their failure to report. A 12-year-old boy was sexually molested by the children’s music director at his church. At first, the victim told no one. However, over the next few years the victim told five pastors in his church about the molestation. Although pastors are “mandatory reporters” of child abuse under Texas law, none of them reported the allegations to civil authorities or to the victim’s parents. The victim sued his church when he was an adult. He claimed that the church was responsible for his injuries because of its “inadequate response” to his “cries for help,” and because of the failure by the five pastors to report the abuse to civil authorities. The court concluded that the church was not liable for the victim’s injuries on account of the five pastors’ failure to comply with the state child abuse reporting law. The five pastors in this case were mandatory reporters under Texas law, and the victim claimed that their failure to report his allegations of abuse made them and the church legally responsible for his injuries. The court disagreed, noting that the state child abuse reporting law is a criminal statute and that “nothing in the statute indicates that it was intended to create a private cause of action.” Marshall v. First Baptist Church, 949 S.W.2d 504 (Tex. App. 1997).
Example. The Washington state supreme court ruled that an ordained minister could not be prosecuted criminally for failing to file a report despite his knowledge that a child was being abused. The minister was informed by a female counselee that her husband had sexually abused their minor child. The minister discussed the matter with both the husband and daughter in an attempt to reconcile the family, but filed no report with civil authorities within 48 hours, as required by state law. The minister was prosecuted and convicted for violating the state child abuse reporting statute. He received a deferred sentence coupled with one year’s probation and a $500 fine, and in addition was required to complete a “professional education program” addressing the ramifications of sexual abuse. The minister appealed his conviction. The state supreme court reversed the conviction and ruled that the state child abuse reporting statute could not apply to clergy acting in their professional capacity as spiritual advisers. The court noted that the state legislature’s 1975 amendment of the Washington child abuse reporting statute deleting a reference to “clergy” among the persons under a mandatory duty to report known or reasonably suspected cases of child abuse “relieved clerics from the reporting mandate. Logically, clergy would not have been removed from the reporting class if the legislature still intended to include them.” The court further observed, “Announcing a rule that requires clergy to report under all circumstances could serve to dissuade parishioners from acknowledging in consultation with their ministers the existence of abuse and seeking a solution to it …. [But] simply establishing one’s status as clergy is not enough to trigger the exemption in all circumstances. One must also be functioning in that capacity for the exemption to apply …. Thus we hold as a matter of statutory interpretation that members of the clergy counseling their parishioners in the religious context are not subject to the reporting requirement [under the state child abuse reporting law].” However, the court concluded that two “religious counselors” who were not ordained or licensed ministers could be prosecuted criminally for failure to report incidents of abuse that had been disclosed to them. The court concluded that the criminal conviction of the non-clergy “religious counselors” did not violate the First Amendment guaranty of religious freedom. State v. Motherwell, 788 P.2d 1066 (Wash. 1990).
Example. A Washington state court ruled that the state child abuse reporting law did not give victims of abuse a right to sue a church for monetary damages as a result of a minister’s failure to report abuse, but victims in some cases may be able to sue a church on the basis of emotional distress as a result of how church leaders handled the case. The court quoted the trial judge: “If the jury finds that [the minister] basically discouraged the plaintiff from pursuing anything further because the family would break up, they’d be out on the streets, basically, everybody would be talking about her, if that’s true, then it seems to me that there’s plenty of room for a jury to find outrage, and that would be the basis of the outrage. This is a 13- or 14-year-old girl. This is sexual abuse. Someone who gets the courage up to go talk to an adult, a male adult at that, I believe that there’s plenty of evidence there for a jury to find that the tort of outrage was indeed committed if they believe that occurred.” Doe v. Corporation, 167 P.3d 1193 (Wash. App. 2007).
Example. A federal district court in Wisconsin ruled that a church was not legally responsible for the molestation of a young boy by a teacher at the church’s school. It rejected the victim’s claim that the church was responsible on the basis of a failure to report the abuse to civil authorities as required by state law. The court conceded that the school administrator had “reasonable cause to suspect” that one of his teachers had committed child sexual abuse and was obligated to alert the authorities under the state child abuse reporting law. However, the court emphasized that the church’s breach of its duty to report the suspected abuse to civil authorities could not have been the cause of the victim’s injuries since the victim could not prove that any of the acts of molestation occurred after the time a child abuse report should have been filed. Kendrick v. East Delavan Baptist Church, 886 F. Supp. 1465 (E.D. Wis. 1995).
- 8. Civil liability of employers for employees’ failure to report child abuse
- Penn State has been named in the first of what likely will be several civil lawsuits seeking damages for the acts of Sandusky. One of the theories of liability may be based on its failure to comply with the child abuse reporting obligations.
- “An employer has a duty to refrain from retaining employees with known dangerous proclivities” and may be liable on the basis of negligent retention when “during the course of employment, it becomes aware or should have become aware of problems with an employee that indicated his unfitness, and fails to take further action such as investigating, discharge or reassignment.”
—Olson v. First Church of Nazarene, 661 N.W.2d 254 (Minn. App. 2003).
- A few churches have been sued by child abuse victims as a result of a pastor’s failure to report child abuse. This basis of liability generally has been rejected by the courts, as illustrated by the following cases.
Example. A federal appeals court ruled that a church was not liable for a minister’s acts of child molestation on the basis of a failure to comply with the state child abuse reporting law since ministers were not mandatory reporters at the time of the abuse and the church had no reason to suspect that the minister was engaging in such acts. An adult male (Randy) sued a church and diocese, claiming that he had been sexually molested by a priest when he was a 16-year-old student attending a church school. Randy claimed that the priest sexually abused him on multiple occasions, often after serving him alcohol, and that he repressed the shame associated with the abuse and discovered the link between the abuse and his psychological injuries only years later, when a psychologist explained that his emotional problems stemmed from the experiences with the priest. Randy asserted that the diocese had a legal duty to report child abuse, and that its failure to do so constituted negligence. A state appeals court disagreed. It acknowledged that “clergy” have been mandatory reporters under the Pennsylvania child abuse reporting law since 1995, but concluded that clergy were not mandatory reporters prior to 1995. The diocese had no reason to suspect that the priest had molested Randy and so there was nothing to report even if a duty did exist, the court said. As a result, the court dismissed Randy’s claim. Hartz v. Diocese of Greensburg, 94 Fed.Appx. 52 (3rd Cir. 2004).
Example. A Minnesota court ruled that a failure by church leaders to report known cases of child abuse as required by a state child abuse reporting law did not expose the church to liability. The court concluded that a state child abuse reporting law, which requires ministers and other “mandatory reporters” to report known or reasonably suspected incidents of child abuse, “does not create a private cause of action for violation of its reporting requirements or create a duty which could be enforced through a common-law negligence action.” Therefore, the plaintiffs’ claims had to be rejected. Meyer v. Lindala, 675 N.W.2d 635 (Minn. App. 2004).
- Civil Liability for Failing to Report Child Abuse
- Note: Courts in the following states have refused to permit victims of child abuse to sue mandatory reporters who failed to report the abuse. Most of these cases are decisions by intermediate level appellate courts, meaning that the highest state court has not addressed the issue. Further, other intermediate level appellate courts in the same state may reach a different conclusion.
- Reece v. Turner, 643 S.E.2d 814 (Ga. App. 2007).
- Cechman v. Travis, 414 S.E.2d 282 (Ga. App. 1991).
- Doe ex rel. Doe v. White, 627 F.Supp.2d 905 (C.D. Ill. 2009) (noting that the child abuse reporting law “does not provide, expressly or impliedly, for a private right of action based on its violation”).
- Cuyler v. United States, 362 F.3d 949 (7th Cir. 2004).
Iowa • Wilson v. Darr, 553 N.W.2d 579 (Iowa 1996). Kansas • Kansas State Bank & Trust Co., v. Specialized Transportation Services, Inc., 819 P.2d 587 (Kan. 1991). Maine • Fortin v. Roman Catholic Bishop of Portland, 871 A.2d 1208 (Me. 2005). Minnesota • Becker v. Mayo Foundation, 737 N.W.2d 200 (Minn. 2007) (“we cannot conclude that the legislature ‘implied’ a cause of action that it chose not to include in the statute”). Mississippi • Doe ex rel. Brown v. Pontotoc County School District, 957 So.2d 410 (Miss. App. 2007). Missouri • Bradley v. Ray, 904 S.W.2d 302, (Mo. App. 1995). New Hampshire
- Marquay v. Eno, 662 A.2d 272 (N.H. 1995).
- Berry v. Watchtower Bible and Tract Society, 879 A.2d 1124 (N.H. 2005).
Pennsylvania • Morrison v. Diocese of Altoona-Johnstown, 2004 WL 3141330 (Pa. Com. Pl. 2004). South Carolina
- Doe ex rel. Doe v. Wal-Mart Stores, Inc., 711 S.E.2d 908 (S.C. 2011) (“the legislature’s silence as to civil liability [in the child abuse reporting statute] indicated its intent not to create civil liability for failing to report as required”).
- Doe v. Marion, 645 S.E.2d 245 (S.C. 2007) (“While [the child abuse reporting law] is silent as to civil liability [it does] impose liability for making a false report …. The fact that such language is missing … indicates the legislative intent was for the reporting statute not to create civil liability.”)
Texas • Marshall v. First Baptist Church, 949 S.W.2d 504 (Tex. App. 1997) (“nothing in the statute indicates that it was intended to create a private cause of action”). Utah • Doe v. The Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 98 P.3d 429 (Utah App. 2004) (“when a statute makes certain acts unlawful and provides criminal penalties for such acts, but does not specifically provide for a private right of action, we generally will not create such a private right of action”). Washington
- State v. Motherwell, 788 P.2d 1066 (Wash. 1990).
- Fleming v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 2006 WL 753234 (W.D. Wash. 2006).
- Doe v. Corporation, 167 P.3d 1193 (Wash. App. 2007) (a minister was not civilly liable for failing to report child abuse since he was not a mandatory reporter under state law).
West Virginia • Barbina v. Curry, 650 S.E.2d 140 (W.Va. 2007) (noting that the child abuse reporting law “does not give rise to an implied private civil cause of action, in addition to criminal penalties imposed by the statute, for failure to report suspected child abuse where an individual with a duty to report under the statute is alleged to have had reasonable cause to suspect that a child is being abused and has failed to report suspected abuse.”) Wisconsin • Kendrick v. East Delavan Baptist Church, 886 F. Supp. 1465 (E.D. Wis. 1995).
- 9. Civil liability for employers based on negligent hiring, retention, and supervision
- Penn State and The Second Mile have been named in the first of what will doubtless be several civil lawsuits brought by Sandusky’s victims. Both organizations are exposed to potentially sizable civil damage awards based on a number of theories, including negligent retention and negligent supervision. Negligent retention means that an employer retained an employee after receiving credible information that the employee presented a risk of harm to others. The argument will be made that Penn State was informed by a number of persons that Sandusky posed a risk of harm to young boys, but it failed to take appropriate steps to monitor him and to limit his activities and access. Negligent supervision means that an employer failed to adequately supervise a staff member who the employer knows, or should know, is a risk of harm to others. Both theories of liability are frequently asserted against churches, as noted below.
- Negligent retention
- A church may use reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.
Example. An Ohio court ruled that a church and denominational agency could be sued on the basis of negligent retention for the sexual misconduct of a minister. The court noted that an employer may be liable on the basis of negligent retention for injuries caused by an employee if the employer knew or should have known that the employee might engage in such conduct. The victim insisted that this standard was established by the fact that he was in the priest’s room in the church rectory “hundreds of times until 11:00 PM, and, on dozens of occasions, until 2:00 AM.” The court agreed, noting that the church defendants’ “failure to intervene in the priest’s actions, despite their alleged constructive knowledge of them, allegedly permitted the abuse to continue and is the cause of the injuries.” Mills v. Deehr, 2004 WL 1047720 (Ohio App. 2004).
Example. The Oklahoma Supreme Court ruled that a denomination (the “national church”) was not legally responsible on the basis of negligent retention for a pastor’s acts of child molestation. The court acknowledged that employers may be liable for negligence in hiring, supervising, or retaining an employee. But it pointed out that “the critical element for recovery is the employer’s prior knowledge of the employee’s propensities to create the specific danger resulting in damage.” As a result, in order for the national church to be responsible for the pastor’s acts, the victims would have to prove that “the national organization had notice of [his] deviant sexual tendencies” before his transfer to the church where the molestation occurred. The court concluded that the national church “lacked knowledge sufficient to impose liability.” N.H. v. Presbyterian Church (U.S.A.), 1999 WL 1013547 (Okla. 1999).
Example. The Pennsylvania Supreme Court ruled that a church and diocese could be legally responsible on the basis of negligent retention for a priest’s repeated acts of child molestation occurring off of church premises. The court concluded: “Here [the diocese] knew for certain that [the priest] had a propensity for pedophilic behavior and was aware of several specific instances of such conduct. [It] knew that placing him in a position in which he would have contact with children would afford [him] ample opportunity to commit further acts of abuse, which would likely result in extreme harm to the children under his supervision. Knowing all of this [the diocese] had a duty to take appropriate precautions to prevent him from molesting any more children, e.g., by assigning him to a position in which he would not have any contact with children, by ensuring that he sought treatment for his disorder, or by terminating his employment altogether. [The diocese], however, did not attempt to prevent the foreseeable harm, and instead undertook a course of conduct that increased the risk that [the priest] would abuse … children. [Its] inaction in the face of such a menace is not only negligent, it is reckless and abhorrent.” Hutchinson v. Luddy, 1999 WL 1062862 (Pa. 1999).
- Child abuse reporting laws do not require churches to conduct investigations into allegations or suspicions of abuse. The only requirement for church leaders is to determine if reasonable cause exists that child abuse has occurred.
- Editor’s note. Since this article first published in 2012, numerous legal developments have emerged that have resulted in a change to the guidance provided here regarding investigations. In the best interests of all parties involved, the author recommends churches not attempt to conduct their own investigations of pastors, staff, or volunteers facing abuse allegations.
- Once such a determination is made, church leaders should promptly file a report with the appropriate civil authorities and then allow those authorities to handle any investigation.
- Negligent supervision
- Many of the cases in which churches have been sued for negligent supervision involve incidents of child molestation. A child is molested on church premises, or during a church activity, and the child’s parents sue the church. While the parents may allege that the church was negligent in selecting or retaining the offender, they also may assert that the church was negligent in supervising the offender and its premises and activities. One court defined negligent supervision of children as follows:
The measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average responsible parent; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard. The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it is that care which a prudent person would exercise under like circumstances. As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm. Wallace v. Boys Club of Albany, Georgia, Inc., 439 S.E.2d 746 (Ga. App. 1993).
- 10. Two-adult rule
- Sandusky was repeatedly alone with young boys in Penn State locker rooms and other facilities, with no other adults present. He allegedly used this isolation and lack of supervision to isolate and molest his victims.
- Like Penn State, churches face the risk of child molestation whenever they allow an adult to be alone with a child on church premises or during an off-campus church activity. This risk can be substantially reduced by adopting a “two-adult” policy. Such a policy simply says that no minor is ever allowed to be alone with an adult during any church activity. This rule reduces the risk of child molestation, and also reduces the risk of false accusations of molestation.
Example. A church has a policy requiring two adults to work in the nursery. However, the policy does not prohibit children from being in the custody of less than two adults. On a Sunday morning during worship services, one adult temporarily leaves the nursery for ten minutes to speak with another church member. A few days later the parents of one of the infants in the nursery suspect that their child has been molested. Suspicion is focused on the church nursery. Since the two nursery workers cannot prove that they both were present with the child throughout the entire worship service, they cannot “prove their innocence.” The worker who was present in the nursery while the other worker was temporarily absent is suspected of wrongdoing, even though she is completely innocent.
Example. A church sponsors a campout for young boys. Some of the boys are accompanied by their fathers, but several are not. One tent is occupied by an adult volunteer worker and one boy. This arrangement violates the two-adult rule.
Example. A youth pastor takes home a group of five teenagers following an activity at church. After taking four of the teenagers to their homes, he is left in his car with a 15-year-old female. This arrangement violates the two-adult rule.
- 11. Insurance for intentional acts
- General liability insurance policies generally include a number of exclusions. An exclusion is a basis of liability for which no coverage is available under the policy. A common exclusion is intentional or criminal acts. If the Penn State insurance policy contains such an exclusion, then Sandusky will be responsible for retaining and paying his own attorney.
- This issue is relevant to church leaders, since such an exclusion in a church insurance policy may expose the church to a potentially significant uninsured and unbudgeted liability. Some courts have ruled that such exclusions bar any coverage for churches that are sued as a result of the sexual misconduct of an employee or volunteer. But other courts have said that such exclusions do not bar coverage for a church, since the church was not guilty of intentional or criminal acts, but instead is usually sued on the basis of negligence in selecting, retaining, or supervising the offender. Church leaders should discuss this issue with their church insurance agent to determine what coverage is available to the church in the event of a sexual misconduct claim. If an exclusion bars coverage, then find out how this gap can be covered with a special endorsement.
Example. A federal appeals court ruled that a church’s insurance policy did not cover lawsuits arising from the employment relationship. A pastor dismissed his church’s music director. The music director sued the pastor, church, and state denominational agency, claiming that she had been dismissed because she suffered from post-traumatic stress disorder and multiple personality disorder. She insisted that her dismissal amounted to unlawful discrimination based on disability. She also claimed that the pastor had defamed her, and invaded her privacy. The church’s insurance carrier insisted that the church insurance policy did not cover the woman’s claims, and it refused to provide the church with a legal defense or to pay any portion of a jury verdict or settlement. A federal appeals court agreed that the insurance policy did not cover the woman’s claims. It noted that the policy indemnifies the church for damages resulting from “personal injury,” including injury from defamation. The policy further obligates the company to defend the church in any suit seeking damages covered by the policy. However, the policy excludes from coverage “personal injury sustained by any person as a result of an offense directly or indirectly related to the employment of such person by the named insured.” The court noted that the key question was whether the woman’s lawsuit was for “personal injury” sustained “as a result of an offense directly or indirectly related to her employment” by the church. If it was, then the exclusion applied, and the company had no duty to defend the church against the lawsuit. The court concluded that “defamatory statements providing an explanation for termination or directed to performance are related to employment. Alleged offenses occurring as part and parcel of an allegedly wrongful termination are plainly related to employment. Post-employment defamations can be directly or indirectly related to employment, and thus can fall within an exclusion of the sort at issue here. The statements to which [the lawsuit] refers are comments as to [the woman’s] abilities and job performance. They are explanations as to why [the pastor] terminated [her] employment.” The Parish of Christ Church v. The Church Insurance Company, 166 F.3d 419 (1st Cir. 1999).
Example. A federal appeals court ruled that an insurance policy covered two denominational agencies that were sued as a result of the sexual misconduct of an affiliated pastor, despite the fact that the policy excluded sexual misconduct claims. A learning disabled woman claimed that she had been sexually assaulted by an ordained minister on several occasions at a state school for the mentally handicapped. The minister served as a chaplain at the school. The woman sued the minister for injuries she allegedly suffered as a result of these assaults. She also sued the national denomination (the “national church”) with which the minister was affiliated, and a regional denominational agency (the “regional church”). She claimed that the national and regional churches had been negligent in training, supervising, placing, and monitoring the chaplain, who eventually was indicted for alleged sexual contact with three mentally handicapped individuals. The chaplain was never an agent or employee of the national or regional churches, but graduated from a seminary affiliated with the national church and was listed in the national church’s “clergy roster” as a retired pastor. The national church had an insurance policy containing both comprehensive general liability and “umbrella” liability provisions. The comprehensive general liability provision provided nationwide coverage for the national church. The umbrella liability provision covered the national church and about 40 regional churches. Both the comprehensive general liability and umbrella liability provisions obligated the insurance company to pay “damages because of bodily injury or property damage to which this insurance applies,” but the policies explicitly require that “the bodily injury or property damage must be caused by an occurrence.” An “occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general conditions.” Both policies excluded “bodily injury or property damage expected or intended from the standpoint of the insured.” The insurance company asked a federal district court to dismiss the case on the ground that the chaplain’s conduct had been “intended” and therefore was excluded from any coverage under the terms of the policy. The district court declined to do so, and ruled that the policies did provide coverage for the national and regional churches. The insurance company appealed. The federal appeals court concluded that under Illinois law (that law applicable to this case) it was clear that the victim’s allegations of negligent hiring fell within the definition of “occurrence.” It added that “if a complaint potentially supports a ground for recovery, the insurer must defend the entire complaint.” The court, in rejecting the insurance company’s argument that the exclusion of intentional acts precluded coverage, observed: “Here, negligent training was not an intentional tort, and [the chaplain’s] acts are not the insureds’ intentional acts. Thus, the insurance policy did not exclude the acts, and [the insurer] has a duty to defend.” Evangelical Lutheran Church in America v. Atlantic Mutual Insurance Company, 169 F.3d 947 (5th Cir. 1999).
Example. A federal appeals court ruled that a church insurance company was under no legal obligation to provide a legal defense to a church or its board of directors in a lawsuit alleging that a church volunteer had sexually molested a young girl. The church’s insurance company refused to provide the volunteer, the church, or the church board with a legal defense to the lawsuit, and denied any obligation to pay any judgment rendered in the case. The insurer based its position on the following language in the church’s insurance policy: “This policy does not apply … to personal injury arising out of the willful violation of a penal statute or ordinance committed by or with knowledge or consent of any insured.” The policy defined the term “insured” to include any duly appointed volunteer. The church and church board conceded that the insurance policy did not protect the volunteer, but they insisted that they were being sued solely on the basis of their negligence and accordingly the insurance policy should cover them. The appeals court rejected the position of the church and church board. It observed, “[T]here is conclusive proof [of a willful violation of penal statutes] by guilty pleas and criminal convictions on both such charges …. We cannot agree with the [argument of the church and church board] that the cases can be viewed as involving only the negligence allegations and the negligent entrustment theory. It is, instead, an essential element of [negligence] that [the volunteer] molested the girls and caused them injuries of mind and body. A cause of action for negligence depends not only upon the defendant’s breach of duty to exercise care to avoid injury to the plaintiff, but also upon damage or injury suffered by the plaintiff as a consequence of the violation of the duty. The sexual violations and resulting injuries cannot therefore be disregarded. And giving consideration to them, the exclusion in the policy is thus applicable providing that the policy does not apply ‘to personal injury arising out of the willful violation of a penal statute or ordinance committed by or with knowledge or consent of any insured.'” All American Insurance Company v. Burns, 971 F.2d 438 (10th Cir. 1992).
Example. A federal court in Rhode Island ruled that a diocese’s insurance company had a legal duty to defend diocesan officials who were sued as a result of the sexual molestation of several children by Catholic priests. Nine lawsuits were brought against the Roman Catholic Diocese of Providence, Rhode Island, and various of its officials by persons who claimed that they were sexually assaulted by priests of the diocese. The lawsuits were brought against the individual priests accused of perpetrating the assaults, the diocese, and various diocesan officials. The victims claimed that the diocese and its officials were liable for their injuries on the ground that they were negligent in hiring and supervising the priests and that they failed to take appropriate preventive action after learning of the priests’ propensities. The diocese’s insurance company asked a federal court to rule that it had no duty to defend the diocese or its officials, or to pay any damages awarded to the victims as a result of their lawsuits. The insurance company claimed that it had no duty to defend the diocese or pay any judgments since (1) the diocese had violated the insurance policy by not providing it with timely notice of the claims; (2) the priests’ actions were intentional, and the policy excluded any coverage for intentional acts; and (3) the victims sought punitive damages which were excluded under the policy. The court rejected the insurance company’s position, and ordered it to defend the diocese and its officials in the lawsuits brought by the alleged molestation victims. The court pointed out that under Rhode Island law “an insurer’s duty to defend is broader than its duty to indemnify,” and that “a duty to defend arises if the factual allegations contained in the complaint raise a reasonable possibility of coverage. An insurer is not relieved of its duty to defend … on the ground that the claim against the insured lacks merit. In short, determining whether an insurer has a duty to defend requires nothing more than comparing the allegations in the complaint with the terms of the policy. If the facts alleged in the complaint fall within the risks covered by the policy, the insurer is obligated to defend. Otherwise, it is not.” Aetna Casualty & Surety Company v. Kelly, 889 F. Supp. 535 (D.R.I. 1995).
- 12. Access by former employees
- The grand jury report noted:
Sandusky holds emeritus status with Penn State. In addition to the regular privileges of a professor emeritus, he had an office and a telephone …. The status allowed him access to all recreational facilities, a parking pass for a vehicle, access to a Penn State account for the internet, listing in the faculty directory, faculty discounts at the bookstore and educational privileges for himself and eligible dependents. These and other privileges were negotiated when Sandusky retired in 1999. Sandusky continued to use University facilities as per his retirement agreement. As a retired coach, Sandusky had unlimited access to the football facilities, including the locker rooms.
- A Potentially significant uninsured risk
- These cases suggest that sexual misconduct exclusions in church insurance policies may apply even though a church is being sued for negligence. Other courts have disagreed with this conclusion. Church leaders should examine their insurance policies to see if a sexual misconduct exclusion exists. If so, do not assume that it will not apply to negligence claims brought against the church resulting from the sexual misconduct of an employee or volunteer. Church leaders should discuss this coverage issue with their insurance agent. If the policy does not provide coverage in the event the church is sued on the basis of negligence for the sexual misconduct of an employee or volunteer, then this represents a potentially significant uninsured risk that needs to be addressed either through a separate endorsement with the current insurer, if available, or by switching to another insurer that will insure against this risk.
- Sandusky’s unrestricted access to university property facilitated his molestation of children. Church leaders should be alert to the risk that is created when former employees are given access to church property. This risk can be reduced in several ways, including the following:
- Require employees to return keys or any other means of unsupervised access to church property at the time of termination. This should be done in a termination interview.
- If access to church premises is by a keypad, change the code periodically.
- Continued access to church property by employees or volunteers who are terminated for sexual misconduct presents a continuing and significant risk to churches. Such persons should be informed at the time of termination that they will have no further access to church property. If they are thereafter observed on church premises, they should be confronted and asked to leave.
- If church premises are locked or otherwise secured, inform staff to be alert to “hitchhikers” who gain access by following an employee into the building.
- What this means for churches
- The public revulsion over the Penn State scandal will tarnish the image and reputation of the university for many years to come. This revulsion is based not only on the alleged despicable acts of Jerry Sandusky, but also on the willful failure by university officials, including the president, to deal responsibly with credible evidence of Sandusky’s crimes.
- There is an important lesson here for church leaders. Treat every allegation of misconduct by a staff member or volunteer seriously, take immediate steps to protect the congregation from being victimized, and in the case of child abuse, make a report to civil authorities immediately.
Resource. Child sexual abuse is a real problem in ministry today. Reducing the Risk, a comprehensive training and screening program by Richard Hammar specifically designed for churches, helps minimize liabilities and protect children. Reducing the Risk features an engaging DVD training program and includes a Leader’s Guide, Training Workbook, and Screening Forms. Learn more at ChurchLawAndTaxStore.com.