Editor’s Note: Historically, the May/June issue of Church Law & Tax Report features an annual 50-state review of child abuse reporting laws. Because these laws change infrequently, we will instead publish this review every other year. In its place, we gladly offer an article on background checks and the critical role they play in selecting suitable staff and volunteers to work with children. For the 2010 50-State Review of Child Abuse Reporting Laws, please visit http://bit.ly/aWoGlP.
There are several factors for church leaders to consider in deciding whether or not to conduct criminal records checks on persons who potentially could have unsupervised access to minors on church property, in church vehicles, or in the course of church activities. These factors include the following:
- No court has found a church liable for a youth worker’s sexual misconduct on the ground that it failed to conduct a criminal records check.
- Churches are not legally required to conduct criminal records checks unless specifically required by law. To illustrate, in many states, church-operated schools and preschools must conduct criminal records checks on employees.
- Criminal records checks will reduce a church’s risk of being found liable for the negligent selection of youth workers.
- The minimum acceptable standard of care in the selection of youth workers appears to be changing. It is possible, if not likely, that the courts someday will find churches liable on the basis of negligent selection for the sexual misconduct of a volunteer or employee having unsupervised access to minors if no criminal records check was performed before the individual was hired. This conclusion is based on several considerations, including the following:
- Over the past few years, many national youth-serving charities have begun mandating criminal records checks for volunteers who work with minors. This list includes the Boy Scouts, Little League, and Youth Soccer. As more and more youth-serving charities conduct criminal records checks on volunteers, it is only a matter of time before a court concludes that such checks are a necessary component of “reasonable care” in the selection of youth workers. Such a finding would make it negligent for a church not to conduct such checks.
- The 106th Congress, 2nd session, stated during discussions of the Volunteer Organization Safety Act of 2000 (HR 4424) that: “It is the sense of Congress that to be effective, a background check must be fast, accurate, cost-effective and performed on everyone having regular contact with young people in a youth service organization.”
- The federal General Accounting Office noted in a recent study 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.”
- A number of courts have suggested that a charity’s duty of care in selecting workers is higher when those workers will be working with children. Some of these cases are summarized earlier in this section. While the courts have clearly defined what this “higher” duty of care means in practical terms, it is certainly predictable that one day it will mean the use of criminal records checks in selecting such workers.
- Criminal records checks are relatively inexpensive, and fast.
- There is little justification for a church not conducting a sex offender registry search at a minimum, especially in states where these checks are available online, and for free. However, such checks have serious limitations and should never be regarded as the only screening procedure.
- There are different kinds of criminal records checks available. The best options are a FBI fingerprint check (obtained through your designated state agency, which often will be the state police), or a search of multiple state databases using a reputable private company. There are hundreds, if not thousands, of private companies that will perform criminal records checks for a fee. But be careful when selecting one. Remember, private companies cannot access the FBI database, and so be wary of companies that offer “national” checks. Ask what they mean by “national” (in particular, what criminal records are searched, and in which states). If in doubt, go with a private company that has been selected by national youthserving charities to conduct their criminal records checks on volunteers. Companies such as Safe Hiring Solutions and Choicepoint have been selected by a number of national and local charities on the basis of their review of the many options. You can find more information on selecting a background check provider at http://bit.ly/hacPTR).
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