Would a Criminal Background Check Have Protected Katie?

A mother alleged that a Sunday School teacher (“John”) sexually molested her minor daughter, Katie,

A mother alleged that a Sunday School teacher (“John”) sexually molested her minor daughter, Katie, on two occasions. One of the incidents allegedly happened during a lock-in on church property. During the lock-in John and the members of his Sunday School class stayed at church all night, watching movies and playing games. Katie claimed that while she was sleeping in the middle of the room, John began fondling her under her blanket. When Katie’s mother arrived in the morning to pick her up, she found John sleeping next to Katie, sharing her blanket. John was later arrested for molesting Katie and another child. He pled guilty and was sentenced to twenty years in a state penitentiary.

At the time John began teaching Sunday School at the church, he had a criminal history that included three felony convictions (two for burglary of a building and one for possession of a controlled substance) and five misdemeanors (public intoxication, possession of marijuana, unlawful carrying of a weapon, and two for evading arrest or detention). There was also a protective order issued against him pursuant to allegations by his ex-wife that he had physically abused their child. The church did not perform a criminal background check on John before allowing him to teach Sunday School, although one pastor testified that they routinely performed such checks on volunteers.

Based on the fact that the church failed to perform both a criminal and civil background check on John, Katie’s mother sued the church. She claimed that the church was liable for John’s acts of molestation on the basis of negligent hiring. That is, the church was negligent in not conducting a criminal records check on John before using him to teach a children’s Sunday School class, and the church’s negligence resulted in Katie’s injuries. A trial court dismissed the lawsuit, and Katie’s mother appealed.

On appeal, Katie’s mother claimed that, under the doctrine of negligent hiring, the church’s duty to exercise reasonable care in the selection of its Sunday School teachers included the duty to perform a criminal background check. She insisted that if the church had fulfilled this duty, it would have known John was unfit and created an unreasonable risk of harm to the children in the Sunday School class. She also noted that the church had a policy of conducting criminal background checks on volunteers and employees who would be alone with children, but that it failed to conduct such a background check on John.

The court concluded that the church had a “self-imposed duty” to check the criminal background of children’s workers because it adopted a policy requiring such checks. Since it failed to check John’s criminal background, it breached this duty. However, the fact that the church had a duty to conduct a criminal records check on John before selecting him as a Sunday School teacher, and it breached this duty, did not necessarily mean that the church was responsible for John’s molestation of Katie. Rather, the church’s duty to inquire into John’s criminal background “was but one component of the duty to protect Katie from John’s conduct. The existence of a duty to protect is dependent on the type of knowledge the church would have gained from John’s criminal record. The issue is whether, if the church had used reasonable care in discovering John’s criminal background, it should have foreseen that hiring John could result in his molesting Katie.” The court concluded that even if the church had checked John’s criminal record, the crimes it would have discovered would not have suggested that he might molest minors. It observed:

While we agree that John’s criminal background probably should have called into question his moral fitness as a Sunday School teacher, we cannot conclude John’s background would have put the church on notice that he might sexually assault a child. While true that “it is not required that the particular accident complained of should have been foreseen,” the injury must be “of such a general character as might reasonably have been anticipated,” and “the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.” Here, none of John’s convictions were for violent or sexual crimes, and nothing in his background indicated that he might sexually assault a child. . . . We conclude there is no evidence in this record that the harm that befell Katie was reasonably foreseeable to the church when it hired John.

As a result, Katie’s mother failed to establish that the church owed a duty to Katie to protect her from John’s criminal acts, and since there was no duty there could be no negligence. Frith v. Church, 2002 WL 1565664 (Tex. App.-Dallas 2002)

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

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