The Liability of Churches for Acts of Child Molestation

A federal court issues an important decision.

A federal court issues an important decision—Kendrick v. East Delavan Baptist Church, 886 F. Supp. 1465 (E.D. Wis. 1995)

Article summary. The potential legal liability of churches for acts of child molestation occurring on their premises or in the course of church activities remains a serious risk. A federal district court in Wisconsin issued an important ruling finding that a church was not responsible for the molestation of a young boy by a teacher at its school on the basis of negligent hiring or negligent supervision. The court also ruled that the church was not liable on the ground that it failed to comply with a state child abuse reporting statute. However, the court cautioned that its ruling was based on the fact that the victim could not prove that any of the incidents of abuse occurred after the time the church received notice of the offender’s misconduct. This case should provide church leaders with a powerful incentive to respond promptly and responsibly to any allegation of child abuse. Failure to do so will expose the church to needless and avoidable risk.

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 negligent hiring, negligent supervision, a failure to notify parents of the offender’s conduct, and a failure to report the abuse to civil authorities as required by state law. The court’s decision was based largely on the fact that the acts of molestation occurred prior to the time that the church had any reason to suspect that the teacher was a child molester. As a result, the case illustrates the critical importance of church leaders promptly and thoroughly investigating allegations of child abuse, and taking appropriate measures to protect children during and after the investigation. This article will review the facts of the case, summarize the court’s decision, and assess the relevance of the case to other churches.

Facts

A church hired a full—time teacher at its private school. The school’s administrator did not recall obtaining an application or resume from the teacher. Nor did the administrator recall contacting the teacher’s previous employers, or college, for references or grade reports. The teacher lived with the administrator (and his wife and small children) from 1982 through 1984, and frequently helped care for the administrator’s children. During the time the teacher taught at the school, a written policy permitted corporal punishment of students to be inflicted only by a parent with a teacher present. The school also had an “unwritten policy” that allowed teachers to administer corporal punishment outside the presence of a student’s parents if another adult were present and the parents were later notified.

While the teacher was employed by the school he removed a young boy (the victim) from class and disciplined him on at least ten occasions. On four of these occasions, the teacher engaged in sexual contact with the victim. The victim never informed either his parents or any church or school officials about the teacher’s behavior. Two months before the end of the teacher’s tenure at the school, the administrator received complaints from the parents of another boy regarding inappropriate behavior by the same teacher. These parents alleged that (1) when the teacher visited their son when he was home ill from school, he took his temperature using a rectal thermometer; and (2) during an overnight church trip with the teacher and a number of other children their son was awakened in the night with a hand near his genitals. The administrator immediately launched an investigation of these charges under the direction of the church board. He interviewed the teacher and the boy whose parents made the accusations, and held a number of meetings with the parents and the church board. While the investigation was in process, the teacher was allowed to remain in the classroom and was not restricted in any way. The administrator’s investigation did not address whether or not the teacher had molested other children. The administrator ultimately concluded that the allegations involving the teacher could not be “proved or disproved.” He noted that the teacher had some medical background and as a result it may have been appropriate for him to use a rectal thermometer. Further, there was no proof that it was the teacher’s hand that was near the boy’s genitals. The administrator decided not to report the allegations to the civil authorities pursuant to the state child abuse reporting statute.

The boy’s parents were not satisfied with this result, and they continued to demand the teacher’s removal. It was at this time that the administrator heard a rumor that the teacher had “had some problem with homosexuality” prior to his employment by the church. In response to this rumor, the administrator contacted the church—affiliated college the teacher had attended, and was informed that the teacher had been temporarily dismissed from the college for a brief period after confessing that he had engaged in homosexual activity on a weekend retreat. Another round of meetings occurred involving the teacher, the administrator, and the president of the college. The three agreed that, even though there was no wrongdoing by the teacher had been proven, the best way to resolve the controversy was for the teacher to resign. He immediately did so—both as a teacher and as a member of the church.

Prior to the parents’ accusations neither the church nor school had any knowledge of improper conduct by the teacher with the victim or any other student.

The victim experienced severe emotional and psychological problems as he matured. When he was in high school, a friend put his hand on the victim’s knee while he was driving a car. The victim reacted by beating his friend uncontrollably. He later explained his behavior as an attempt to punish his friend for what the teacher had done to him years before. After this outburst, the victim was taken to a hospital emergency room where he knocked down a police officer. He was taken to a psychiatric hospital for two weeks, where he was diagnosed with several disorders stemming from the teacher’s abuse.

When the victim was twenty years old, he sued the church claiming that it was legally responsible for the teacher’s misconduct. The victim claimed that the church was responsible for his injuries on the following grounds:

(1) Negligent selection. The victim alleged that the church was negligent in failing to exercise reasonable and sufficient care in the selection of the teacher. Specifically, the victim claimed that the church had failed to perform an adequate background check prior to hiring the teacher by failing to (1) have the teacher complete an employment application, (2) contact prior employers for a reference, and (3) obtain an academic transcript from the college he attended.

(2) Negligent supervision. The victim alleged that the church was negligent in failing to properly supervise the teacher. Specifically, the victim noted that the teacher had disciplined him on several occasions in a manner contrary to the school’s written and unwritten policies on corporal punishment.

(3) Failure to notify. The victim alleged that the church failed to notify the victim’s parents about the teacher’s molestation of the second boy (whose parents made the initial accusations).

(4) Failure to report the abuse. The victim alleged that the church was responsible for his injuries because the administrator, who was a mandatory reporter of child abuse under state law, failed to report the accusations made by the parents of the second boy.

The church asked the court to issue a “summary judgment” in its favor. A summary judgment in favor of a defendant is an extraordinary remedy in which a court summarily dismisses a lawsuit without allowing it to be presented to a jury on the ground that reasonable minds would not rule in favor of the plaintiff.

The court’s ruling

The court issued a summary judgment in favor of the church. Its discussion of each of the victim’s theories of liability is presented below.

negligent selection

The court noted that “negligence” requires proof that (1) the church had a duty to the victim to exercise reasonable care to protect him from harm; (2) the church breached its duty by acting carelessly or in a manner creating an unreasonable risk of harm; (3) the church’s carelessness was the cause of the victim’s injuries; and (4) the victim suffered actual injuries or damages.

The court concluded that the church owed a duty to the victim to exercise reasonable care for his protection. It based this conclusion in part on the Wisconsin child abuse reporting statute, which provides in part:

EXT A … school teacher, administrator or counselor … having reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or having reason to believe that a child seen in the course of professional duties has been threatened with an injury and that abuse of the child will occur shall report ….

A violation of this statute may result in criminal penalties. The court observed: “The Wisconsin legislature, then, has specifically imposed on school officials an affirmative duty to protect students from actual or threatened abuse by reporting such conduct to the authorities.” This duty is also based on common sense, since “it is eminently logical to expect that teachers, school administrators, day care employees, and other professionals entrusted with the daily care of children will exercise some degree of care in ensuring their wellbeing and protecting them from harm.”

The court also agreed with the victim that the church breached this duty by failing to exercise reasonable care in the selection of the teacher. It observed:

EXT [I]t is our view that a reasonable jury could nevertheless find that school officials breached their duty to protect students by failing to exercise ordinary care …. [The administrator] does not recall obtaining a job application from [the teacher] nor contacting [his] prior employers [or college] for references or grade reports. [The administrator] did talk to [the teacher’s former pastor] but did so only after [the teacher] had already been employed by the church …. [The teacher] had also lived with [the administrator] and his family from the time he became a volunteer youth pastor for the church; through this experience [the administrator] no doubt became well—acquainted with [the teacher] and observed his demeanor around [the administrator’s] own children.

EXT In sum [the administrator] based his assessment of [the teacher’s] qualifications as a teacher on personal experience and observation as well as one conversation with his former pastor; he did not, however, review any information regarding [the teacher’s] academic record or seek input from previous employers regarding his work experience. Whether a more thorough background check would have revealed any irregularities is a question of [causation]; for purposes of this analysis, however, we believe that a reasonable jury could find that, when hiring someone who was to supervise and interact with young children [the administrator] did not use ordinary care by failing to adequately investigate [the teacher’s] background.

While the court ruled that the victim had established the first two elements of negligence (a duty to exercise reasonable care in the protection of children from harm, and a breach of that duty), it concluded that the victim failed to establish the third element—that his injuries were caused by the church’s actions. Causation in the context of negligence means that the defendant’s negligence was a “substantial factor” in causing the victim’s injuries. It emphasized that “a mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture or the probabilities are at best evenly balanced, it becomes the duty of the court [to rule in favor of the defendant].” The victim insisted that the administrator’s failure to more adequately screen the teacher prior to hiring him was the cause of his injuries since the administrator would not have hired the teacher had he more thoroughly checked his academic and work history and discovered that he had been temporarily suspended from college for “homosexual activity.” The court disagreed:

EXT There is no evidence … to indicate what [the administrator] would have done had he made this discovery …. Absent any other information [a jury] would be left to speculate whether or not a more thorough background check would have even uncovered this information and, if so, whether or not [the administrator] would have nevertheless hired [the teacher]. Had [the administrator] sought [the teacher’s] academic transcript, it is not clear whether he would have noticed this gap in [his] attendance record; and even if he had, attempting to determine the explanation [the teacher] would have given is a matter or pure conjecture. And even assuming that [the teacher] would have told the truth, or that [the administrator] would have contacted [college] officials directly, it is not clear what he would have discovered. Had he reached [the president] or other administrative officers, it appears that he would not have been told of the rumor of [the teacher’s] “homosexual problem,” let alone the details of the incident, given their lack of awareness. And because the reason for disciplinary action taken against students is often times not a matter of public record, it is not clear that he would have received any such information even if he had reached [college officials]. This is especially true where, as here, [the student’s] conduct was not criminal or dangerous to others, and apparently was not considered to be so serious that it precluded his readmission to [the college] and subsequent graduation.

EXT Of course, even assuming that [the administrator] would have become privy to this information had he checked [the teacher’s] academic record, the [victim] has provided no proof that [the administrator] would have found [the teacher] unfit to teach at the [school] …. [I]t is important to note that there is no evidence that [the teacher] had performed unsatisfactorily in any previous jobs or had a substandard academic record; nor is there any indication that [he] had ever been disciplined by any previous employer or for any other conduct at [college] …. [G]iven the fact that [the college] only temporarily suspended [him] after his confession, it appears that his transgression (whatever it was) was deemed a one—time “mistake,” and not a permanent character flaw rendering him unfit for accreditation. It, in fact, seems highly unlikely that [the administrator], after observing [the teacher’s] conduct in his home over the past year and with his own children, would have rejected his teaching application based on a single incident which seemed totally out of character.

The court then turned its attention to the important question of the relevance of homosexual activity when assessing the suitability of an adult to work with minors. This is a question that many church leaders have asked. Does evidence of prior or current homosexual activity automatically disqualify a person for any position involving contact with minors? The court responded as follows:

EXT [T]here is a complete lack of evidence in the record regarding any connection between engaging in homosexual activity (whether or not one identifies himself as a homosexual) and pedophilic behavior. There is no evidence in the record to indicate that the incident at [college] involved children. Based on this, it seems clear that, had [the administrator] learned of this information prior to [the time he hired the teacher] he would not have breached a duty of care to protect students had he hired [the teacher]. And if hiring [the teacher] under such circumstances would not have constituted a breach of duty, then hiring him without the benefit of such information cannot … be considered a cause in fact of the [victim’s] harm. Even assuming, then, that a more thorough background check would have uncovered this information, a [jury] would have no logical basis for concluding that, based on issues relating to sexual orientation, [the administrator] would have found [the teacher] to be unfit to teach, or an increased risk to children.

Key point. The court concluded that a church is not responsible for acts of molestation by a teacher even if the church hired the teacher with knowledge of prior homosexual behavior, so long as (1) the prior homosexual behavior was a one—time and isolated event; (2) the behavior did not involve children; (3) no statistical evidence is offered showing a connection between a homosexual orientation and pedophilia; and (4) the church was aware of no other allegations of inappropriate contact of minors by the individual. Other courts may not reach the same conclusion.

negligent supervision

The victim claimed that the church was negligent in the supervision of the teacher’s activities, and that this negligence contributed to his injuries. Specifically, the victim argued that the school should have limited the number of times the teacher could have disciplined students, since this would have minimized the risk of molestation. In other words, the victim insisted that a church school has a continuing duty to supervise teachers. The court disagreed that churches or schools have so pervasive a duty of supervision. It based this conclusion on the following considerations:

It noted that the right of teachers to discipline students is “unquestionably reasonable and done in nearly every educational setting.”

It “is not unusual for some students to be reprimanded … numerous times over the course of a school year.”

The administrator received no complaints regarding the improper removal of the victim or any other student from class. Accordingly “from the perspective of [church] officials [the teacher] was administering discipline in the same manner as other instructors. While [he] could have been abusing his trust during the process, there is absolutely no indication that [the administrator] or other school officials were notified or should have been aware that child abuse or any violation of the [church’s] corporal punishment policies was occurring.”

The court concluded that

EXT in order to pursue a claim of negligent supervision in this case, the [victim] must show that [church] officials had notice of [the teacher’s] improper conduct with [the victim] or other students. What from the outside appeared to be a normal and common exercise of authority in this case may very well have been something quite different; [church] officials, however, had no reason to suspect [the teacher] of wrongdoing at any time prior to the [accusations made by the parents of the other boy].

However, the court ruled that the church was “placed on notice” of the teacher’s potential wrongdoing when the parents of the other student communicated their accusations to school officials. The school had a duty to supervise the teacher’s actions from this time forward, and as a result any molestation occurring during this period of time could be attributable to the church’s negligent supervision. The court observed:

EXT After [the allegations of the other student’s parents] were raised, one could arguably conclude that [the administrator] failed to exercise ordinary care by not limiting [the teacher’s] unsupervised contact with students pending his investigation; prior to that time, however, one could not conclude that [church] officials, with no reason to suspect any wrongdoing, acted unreasonably in their supervision of him.

The court noted that the allegations of the second student’s parents were made two months before the teacher left the school, and there was no evidence that the victim was molested during this time. As a result, even if church or school officials breached their duty of adequately supervising the teacher during the last two months of his tenure, this breach was not the cause of the victim’s injuries. The court noted that the victim himself could not recall the dates when he was molested, and it refused to assume that any of the four alleged acts of molestation occurred during the final two months of the teacher’s tenure. The court refused to speculate regarding when the alleged incidents of abuse occurred. It concluded:

EXT [The victim has] not established facts which would allow a reasonable jury to [find that the church’s negligence caused his injuries]. Because [the victim] cannot recall with any degree of reliability the approximate dates on which he was abused, the [jury] would have no logical basis for concluding that any such incident occurred during the sliver of time in which any such breach of duty by [church] officials could be said to have contributed to the [victim’s] injuries. At best, it can be said that the [church] could share responsibility for [the teacher’s] conduct during the last 20 to 25 percent of his teaching tenure; coupled with the fact that [the victim] only recalls being abused four times, the probability that any such incident occurred [during the last two months of the teacher’s tenure] is very low, and cannot be ascertained with any degree of reliability …. [I]t is impossible to base a judgment on conjecture, unproved assumptions, or mere possibilities.

failure to report

The victim claimed that the church breached its duty to report to civil authorities the allegations of abuse made by the parents of the second student, and that this failure to report contributed to the victim’s injuries. It is interesting to note that the court concluded that the accusations of abuse by the parents of the second boy constituted “reasonable cause to suspect” that abuse had occurred thereby triggering a duty to report under the state child abuse reporting law. The court observed:

EXT [T]he use of a rectal thermometer on a school—age child, especially by someone other than a parent or a medical professional, clearly raises eyebrows, and seems difficult to justify absent compelling circumstances. And while the allegations regarding [the teacher’s] alleged fondling of the [second boy] may not have been independently substantiated, it nevertheless seems that a reasonable jury could conclude that [the administrator] would have had “reasonable cause to suspect,” if not believe, that [the teacher] had committed sexual abuse, and would have been obligated to alert the authorities under [the state child abuse reporting law].

However, the court again emphasized that the church’s breach of its duty to report the suspected abuse of the second boy 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.

failure to notify

The victim claimed that the church failed to notify other parents of the accusations made by the parents of the other student, and that this failure contributed to his injuries. The court agreed that the church had a duty to inform other parents of the accusations made by the parents of the second boy (so they could “ascertain whether or not their children had been harmed by similar conduct”), and that the church breached this duty by not informing them. As noted above, however, the church’s breach of this duty did not cause the victim’s injuries since the victim could not prove that any of the acts of molestation occurred after the church’s duty to notify other parents arose.

Significance of the case to other churches

What is the relevance of this ruling to local churches? Obviously, a decision of a federal district court in Wisconsin is of limited significance since it has no direct or binding effect in any other state. Nevertheless, there a number of aspects to the ruling that will be instructive to church leaders in every state. Consider the following:

1. Negligent selection. All churches use volunteers or paid employees to work with children. If a child is molested by one of these workers, the church may be legally responsible for the injuries on the basis of the “negligent selection” of the worker. “Negligence” consists of a duty to exercise reasonable care with respect to another, a breach of that duty, and injuries that are caused by the breach. The court concluded that the church had a duty to use reasonable care when selecting teachers, and that it breached this duty. It based this conclusion on the following considerations:

The administrator did not recall obtaining a job application from the teacher prior to hiring him.

The administrator did not recall contacting the teacher’s former employers for references.

The administrator did not recall contacting the college the teacher attended for a reference and an academic transcript. What is the relevance of an academic transcript? The court pointed out that it would have shown “gaps” in an individual’s college attendance that might indicate disciplinary action.

Key point. The court emphasized that it was dealing with an individual who had been hired to teach children. It concluded that “when hiring someone who was to supervise and interact with young children [the school administrator] did not use ordinary care by failing to adequately investigate [the teacher’s] background.”

Key point. This case illustrates the importance of church and school leaders adequately screening those applicants for volunteer and compensated positions who will be “supervising and interacting with young children.” Failure to do so may subject the church or school to liability for acts of child molestation on the basis of negligent selection.

While the church breached its duty of reasonable care in the selection of teachers, it was not guilty of negligence since its failure to exercise reasonable care was not the “cause” of the victim’s molestation. The court based this conclusion on the following factors:

There was no evidence that the teacher performed unsatisfactorily in any previous job, or that he had ever been disciplined by a former employer. As a result, it was not clear that a more thorough background check would have uncovered any information indicating that the teacher should not be allowed to work with children.

Failure to contact college officials for a reference or academic transcript probably would not have revealed the one homosexual incident since college officials generally do not disclose the nature or basis of disciplinary actions to outsiders. The court observed that

EXT because the reason for disciplinary action taken against students is often times not a matter of public record, it is not clear that he would have received any such information even if he had reached [college officials]. This is especially true where, as here, [the student’s] conduct was not criminal or dangerous to others, and apparently was not considered to be so serious that it precluded his readmission to [the college] and subsequent graduation.

The importance of the court’s decision that the church breached a duty of care to the victim when selecting the teacher is not lessened by the fact that the court found that this breach was not the “cause” of the victim’s injuries. The court reached this conclusion because of two factors that often will not be present in the church context: (1) There was no evidence of any unsatisfactory job performance in the teacher’s previous jobs, and so the church’s failure to conduct a reference check of previous employers could not be the cause of the victim’s injuries. That is, even if the previous employers would have been contacted by the church, no information would have been shared indicating that the teacher posed a risk to children. (2) Failure to contact the teacher’s former college would have been futile, since college administrators generally do not reveal information concerning student discipline.

Key point. The church was fortunate that nothing in the teacher’s employment or college backgrounds indicated that he might pose a risk to children. If it were likely that reference checks with the teacher’s prior employers and college would have raised questions, then the church’s failure to conduct these checks would have been the cause of the victim’s injuries and the church would have been responsible for the victim’s injuries on the basis of negligent selection. As a result, sound risk management dictates that churches conduct reference checks on employees and volunteers who will be working with minors.

Key point. While colleges often refuse to disclose to outsiders disciplinary actions taken against students, this is not necessarily true for other institutions (churches, employers, etc.).

Key point. Churches that are sued on the basis of the negligent selection of a child molester because they failed to conduct a reference check should consider making the same argument that the court adopted in this case—a church cannot be negligent for failing to conduct reference checks if such checks would have revealed no information suggesting that the molester posed a risk of harm to children.

2. The relevance of homosexual activity. Another significant aspect of the court’s ruling was its handling of homosexuality. Many churches have wrestled with the question of whether or not to allow a person to work with children who is a homosexual. Some churches absolutely refuse to allow such an individual to work with children, based on a belief that all homosexuals are pedophiles. Very few courts have addressed this issue, and that makes cases such as this one especially instructive. The court concluded that

EXT there is a complete lack of evidence in the record regarding any connection between engaging in homosexual activity (whether or not one identifies himself as a homosexual) and pedophilic behavior. There is no evidence in the record to indicate that the incident at [college] involved children. Based on this, it seems clear that, had [the administrator] learned of this information prior to [the time he hired the teacher] he would not have breached a duty of care to protect students had he hired [the teacher] …. Even assuming, then, that a more thorough background check would have uncovered this information, a [jury] would have no logical basis for concluding that, based on issues relating to sexual orientation, [the administrator] would have found [the teacher] to be unfit to teach, or an increased risk to children.

Key point. The court concluded that a church is not responsible for acts of molestation by a teacher even if the church hired the teacher with knowledge of prior homosexual behavior, so long as

(1) the prior homosexual behavior was a one—time and isolated event;

(2) the behavior did not involve children;

(3) no statistical evidence is offered showing a connection between a homosexual orientation and pedophilia; and

(4) the church was aware of no other allegations of inappropriate contact of minors by the individual.

If any one or more of these conditions would not have been met, the court presumably would have found the church negligent for hiring the teacher.

3. Negligent supervision. While churches and schools have a duty to properly supervise youth activities, this duty is not absolute. Churches and schools are not “guarantors” of the safety of children. They will be legally responsible on the basis of negligent supervision for a child’s injuries only if they breach their duty of exercising reasonable care in the supervision of youth activities. The court in this case ruled that neither the church nor school had a “continuing duty” to supervise teachers, and were not automatically liable for the teacher’s acts of molestation. The court observed that

EXT in order to pursue a claim of negligent supervision in this case, the [victim] must show that [church] officials had notice of [the teacher’s] improper conduct with [the victim] or other students. What from the outside appeared to be a normal and common exercise of authority in this case may very well have been something quite different; [church] officials, however, had no reason to suspect [the teacher] of wrongdoing at any time prior to the [accusations made by the parents of the other boy].

But, the court cautioned that once church officials are presented with information indicating that a worker may pose a risk of harm to children, they have a duty to supervise the worker. If the church fails to adequately supervise the worker, and the worker injures a child, the church may be responsible for the injury on the basis of negligent supervision.

Key point. It is critical for church leaders to respond promptly to allegations of inappropriate sexual conduct by youth or children’s workers. Such allegations immediately impose upon the church (and church leaders) a duty of supervision. Failure to discharge this duty can result in legal liability for the church, and perhaps its leaders, on the basis of negligent supervision.

Key point. The court concluded that the church could not be liable on the basis of negligent supervision for the teacher’s acts of molestation. However, the court cautioned that its ruling was based on the fact that the victim could not prove that any of the incidents of abuse occurred after the time the church received notice of the offender’s misconduct. This case should provide church leaders with a powerful incentive to respond promptly and responsibly to any allegation of child abuse. Failure to do so will expose the church to needless and avoidable risk.

Key point. The court concluded that unsubstantiated accusations of misconduct by a parent were enough to impose a duty on the church to supervise the teacher.

4. The church’s investigation. When presented with an allegation of inappropriate sexual conduct by a youth worker, church leaders often are unsure how to respond. This case provides some helpful insight.

the allegations

The school administrator received the following accusation from the parents of a minor concerning the teacher: (1) when the teacher visited their son when he was home ill from school, he took his temperature using a rectal thermometer; and (2) during an overnight church trip with the teacher and a number of other children their son was awakened in the night with a hand near his genitals.

the investigation

The administrator immediately launched an investigation, which included the following steps: (1) He interviewed the teacher; (2) he interviewed the boy whose parents made the accusations; (3) he held a number of meetings with the parents of the boy and the church board.

The administrator’s investigation did not address whether or not the teacher had molested other children.

During the investigation the teacher was allowed to remain in the classroom and was not restricted in any way.

The administrator ultimately concluded that the allegations involving the teacher could not be “proved or disproved.” He noted that the teacher had some medical background and as a result it may have been appropriate for him to use a rectal thermometer. Further, there was no proof that it was the teacher’s hand that was near the boy’s genitals.

The administrator decided not to report the allegations to the civil authorities pursuant to the state child abuse reporting statute.

what should have been done

The administrator’s investigation was potentially inadequate in a number of ways, including the following:

(1) The administrator did not address whether or not the teacher had molested other children.

(2) The teacher was not immediately suspended (with or without pay) from teaching or other school activities pending the investigation.

(3) The administrator did not report the alleged abuse to civil authorities pursuant to the state child abuse reporting law.

(4) The administrator’s conclusion that the allegations of misconduct could not be “proved or disproved” missed the point. The question in such cases is not whether the accusations can be “proved or disproved.” In many cases accusations will not be proved or disproved, but this does not mean that the alleged offender is vindicated and may be allowed to have further contact with minors. The question is whether or not there is a reasonable basis for concluding that the allegations are true. Absolute certainty is not required, and in most cases will not be possible. Many child molesters will deny that they have engaged in wrongdoing, and this forces church leaders to make decisions based on reasonable inferences from the evidence. Finding that there is sufficient evidence of wrongdoing, when the alleged offender denies it, can be unnerving for church leaders who want absolute certainty. Church leaders must recognize that absolute certainty regarding the guilt or innocence of an alleged child molester will often not be possible. What is needed is a reasonable basis for concluding that the alleged offender is guilty. This makes a thorough investigation essential. The investigation should seek out other possible victims, witnesses, and any documentary evidence (photos, letters) that may substantiate the charges.

A church’s investigation can be assisted in some cases by reporting the alleged abuse to civil authorities who receive reports of child abuse. In many cases the civil authorities will conduct their own investigation, which can greatly assist church leaders in reaching an appropriate decision.

Key point. The court concluded that unsubstantiated accusations of misconduct by a parent were enough to impose a duty on the church to supervise the teacher.

5. Failure to report the abuse. The court concluded that the church had “reasonable cause” to suspect that child abuse had occurred on the basis of the parents’ allegations that the teacher used a rectal thermometer to take their minor son’s temperature and that during an overnight church trip with the teacher and a number of other children their son was awakened in the night with a hand near his genitals. Under the state child abuse reporting law, the church had a duty to report these allegations since there was “reasonable cause” to suspect that abuse had occurred. The Wisconsin child abuse reporting statute provides in part:

EXT A … school teacher, administrator or counselor … having reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or having reason to believe that a child seen in the course of professional duties has been threatened with an injury and that abuse of the child will occur shall report ….

The court observed:

EXT [T]he use of a rectal thermometer on a school—age child, especially by someone other than a parent or a medical professional, clearly raises eyebrows, and seems difficult to justify absent compelling circumstances. And while the allegations regarding [the teacher’s] alleged fondling of the [second boy] may not have been independently substantiated, it nevertheless seems that a reasonable jury could conclude that [the administrator] would have had “reasonable cause to suspect,” if not believe, that [the teacher] had committed sexual abuse, and would have been obligated to alert the authorities under [the state child abuse reporting law].

What lessons can be learned here? There may be a duty to report child abuse under state law, even if church officials cannot “prove or disprove” that it occurred, if there is a reasonable basis for believing that it occurred. Absolute certainty is not necessary. Further, note that the court’s interpretation of “reasonable cause” was a broad one. Finally, the court concluded that the child abuse reporting statute imposed a duty on school officials to exercise reasonable care in the protection of children.

Key point. The court emphasized that the church’s breach of its duty to report the suspected abuse of the second boy 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.

6. Failure to inform parents. The court recognized a potentially new and significant theory of liability against churches that has not been recognized in any other case. It concluded that a church has a duty to inform parents of accusations of sexual misconduct made against a youth worker so they can “ascertain whether or not their children have been harmed by similar conduct.” However, the court ruled that the church was not responsible for the victim’s injuries on the basis of its failure to notify his parents of the accusations made against the teacher since the victim could not prove that any of the acts of molestation occurred after the church failed to notify his parents.

Key point. This potential basis of liability makes it even more critical for church leaders to respond immediately to accusations of sexual misconduct by youth workers. Ignoring such accusations subjects the church to liability for future incidents of molestation on the basis of negligent supervision as well as negligent failure to notify other parents.

© Copyright 1996, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: M67 M10 M86 C0396

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

ajax-loader-largecaret-downcloseHamburger Menuicon_amazonApple PodcastsBio Iconicon_cards_grid_caretChild Abuse Reporting Laws by State IconChurchSalary Iconicon_facebookGoogle Podcastsicon_instagramLegal Library IconLegal Library Iconicon_linkedinLock IconMegaphone IconOnline Learning IconPodcast IconRecent Legal Developments IconRecommended Reading IconRSS IconSubmiticon_select-arrowSpotify IconAlaska State MapAlabama State MapArkansas State MapArizona State MapCalifornia State MapColorado State MapConnecticut State MapWashington DC State MapDelaware State MapFederal MapFlorida State MapGeorgia State MapHawaii State MapIowa State MapIdaho State MapIllinois State MapIndiana State MapKansas State MapKentucky State MapLouisiana State MapMassachusetts State MapMaryland State MapMaine State MapMichigan State MapMinnesota State MapMissouri State MapMississippi State MapMontana State MapMulti State MapNorth Carolina State MapNorth Dakota State MapNebraska State MapNew Hampshire State MapNew Jersey State MapNew Mexico IconNevada State MapNew York State MapOhio State MapOklahoma State MapOregon State MapPennsylvania State MapRhode Island State MapSouth Carolina State MapSouth Dakota State MapTennessee State MapTexas State MapUtah State MapVirginia State MapVermont State MapWashington State MapWisconsin State MapWest Virginia State MapWyoming State IconShopping Cart IconTax Calendar Iconicon_twitteryoutubepauseplay
caret-downclosefacebook-squarehamburgerinstagram-squarelinkedin-squarepauseplaytwitter-square