Child Abuse Reporting

Legal Developments

Why Churches Should Report Criminal Activities

Air Force’s liability for church shootings has broader implications—including the reporting of sexual abuse.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Negligence is a common basis for liability. Negligence is conduct that creates an unreasonable and foreseeable risk of harm to another person that results in injury. Negligent conduct need not be intentional. It may consist either of a specific act or failure to act.

A federal district court in Texas ruled that the United States Air Force was 60 percent at fault for the shooting rampage at the First Baptist Church in Sutherland, Texas, in 2017 that left 26 persons dead and 22 more wounded. The failure of Air Force leaders to report the perpetrator’s prior criminal conduct demonstrates the potential liability that organizations—including churches—can face as a result of failing to act.

A former service member attacks Texas church

Devin Patrick Kelley (Kelley) entered the First Baptist Church in Sutherland Springs, Texas, on November 5, 2017, and opened fire, killing 26 people and wounding 22 more. After fleeing the scene, Kelley later died from a self-inflicted gunshot wound.

Several survivors and relatives of those injured or killed (the plaintiffs) sued the United States government, claiming that Kelley should not have cleared the background check mandated for firearms purchases because he had been convicted of a disqualifying offense in November 2012 while he was serving in the Air Force at Holloman Air Force Base in New Mexico. Specifically, Kelley had been convicted by general court-martial of assaulting his then-wife and infant stepson on numerous occasions.

Court: The Air Force failed to meet an obligation

The court noted that the Air Force had an obligation—and multiple opportunities—to ensure that Kelley’s fingerprints and criminal history were submitted to the Criminal Justice Information Services Division (CJIS) of the Federal Bureau of Investigation (FBI) for inclusion in its databases as required by law, but it failed to do so.

In early 2019, the Air Force issued letters of admonishment to three Air Force employees involved in the investigation of Kelley between June 2011 and October 2012.

The letters concluded that the failure to ensure the reporting of criminal history data to the CJIS constituted a dereliction of duty that “fell below the minimum standards” and “contributed to Devin Kelley not being properly identified as an individual prohibited by law from purchasing a firearm.”

The court observed:

There is no question that the [Air Force] agents at [Holloman Air Force Base] who were responsible for collecting and submitting Kelley’s information to the FBI failed to meet this standard of care. [Department of Defense] and [Air Force] instructions imposed mandatory obligations on investigative agents and corrections officers to submit Kelley’s fingerprints and final dispositions. Yet the government stipulated that at no time before the Sutherland Springs Church shooting did the government submit Kelley’s fingerprints or final dispositions. . . . When the [Air Force] received notice of Kelley’s conviction for a reportable offense on November 7, 2012—based in part on conduct discovered during its own investigation—it had an obligation to submit the final disposition report to the FBI within 15 days. It failed to do so. . . . The court concludes that the government failed to exercise reasonable care in performing its undertaking to collect and submit Kelley’s fingerprints and conviction information to the FBI. . . .

The clerk at the Academy Sporting Goods store where Kelley purchased his weapons testified, “We did a [National Instant Criminal Background Check System (NICS)] background check, which goes to the FBI. After the FBI received their document, they sent us a document with a proceed to transfer the firearm to Mr. Devin Kelley.” As a result, “the only reason Kelley was able to acquire the firearms used in the shooting was the Air Force’s failure to submit his criminal history.”

The court concluded:

[T]he government failed to exercise reasonable care in its undertaking to submit criminal history to the FBI. The government’s failure to exercise reasonable care increased the risk of physical harm to the general public, including plaintiffs. And its failure proximately caused the deaths and injuries of plaintiffs at the Sutherland Springs First Baptist Church on November 5, 2017.

What this means for churches

This case is relevant to churches since it suggests that a church can be sued for negligence if it fails to report an incident of child abuse and thereby keeps the offender’s wrongful conduct out of searchable criminal databases.

To illustrate, assume that a pastor learns that a male youth worker has molested a minor female. The pastor decides to handle the matter internally and does not report it to the child abuse hotline.

The offender begins attending another church, where he applies for a youth ministry position. The second church conducts a background check and finds no evidence of wrongdoing. Accordingly, it selects the individual for a youth ministry position.

If the offender molests a minor in the second church, the argument could be made that the failure of the first church to report the offender’s abusive conduct to the state enabled the offender to molest the victim in the second church. This possibility demonstrates the importance of reporting child abuse . Holcombe v. United States, 2021 WL 2821125 (W.D. Tex. 2021).

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Legal Developments

Victim May Sue Religious School and Its Leaders for Failing to Report Abuse, Court Says

A negligence claim can proceed on evidence that religious leaders failed to follow state reporting laws.

Richard R. Hammar



Key point 4-08 . Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Connecticut court ruled that a religious school could be sued by a victim of child abuse on the ground that school officials were aware of the abuse but failed to report it to the state.

A kindergarten student at the school was sexually assaulted on multiple occasions by an older student. The sexual assaults occurred at the school. The school knew that the offender had previously been accused of assaulting another student at the school.

The victim reported the assault to her kindergarten teacher, who did not take any action. The victim spoke to a psychotherapist after her parents noticed she had stopped eating. The victim explained to the psychotherapist that she had been sexually assaulted by another student.

The victim’s mother reported the abuse to a religious leader with oversight of the school, but he failed to report it in the manner mandated by Connecticut law. The mother next reported the abuse to the school’s principal who did not report the sexual assault until the mother insisted a report be filed.

The victim sued the principal and the religious leader, claiming that they were mandatory child abuse reporters and that their failure to report the abuse allowed the offender to continue molesting her.

A state court rejected the defendants’ request to dismiss the claims against them, but the court declined by primarily addressing the religious leader with oversight of the school:

To the extent that the victim claims that the [religious leader] is liable for negligence for failing to report the sexual assault, the victim has sufficiently alleged this claim. The victim alleges that the religious leader operates the school and supervises the teachers and other administrators of the school. Specifically, the victim alleges that he sets the school’s policies and procedures and further supervises its daily operations. He also allegedly hired other administrators and teachers at the school and recruited students. These allegations are sufficient to maintain an action against the defendants for negligence.

What this means for churches

Eight states have enacted laws that create civil liability for failure to report child abuse. In these states, victims of child abuse can sue adults who failed to report the 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.

The text of each of these eight statutes is set forth below.

1. Arkansas

“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.” Arkansas Code § 12-18-206.

2. Colorado

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.” Colorado Statutes § 19-3-304(4)(b).

3. Iowa

“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.” Iowa Code § 232.75(2).

4. Michigan

“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.” Michigan Compiled Laws § 722.633 sec. 13(1)(3).

5. Montana

“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.” Montana Code § 41-3-207(1).

6. New York

“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.” New York Social Services Law § 420.

7. Ohio

“Whoever violates division (A) of this section [i.e., mandatory child abuse reporters] is liable for compensatory and exemplary damages to the child who would have been the subject of the report that was not made. A person who brings a civil action or proceeding pursuant to this division against a person who is alleged to have violated division (A)(1) of this section may use in the action or proceeding reports of other incidents of known or suspected abuse or neglect, provided that any information in a report that would identify the child who is the subject of the report or the maker of the report, if the maker is not the defendant or an agent or employee of the defendant, has been redacted.” Ohio Revised Code § 2151.421(N).

8. Rhode Island

“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.” Rhode Island General Laws § 40-11-6.1.

Key point. Persons who are mandatory child abuse reporters in Arkansas, Colorado, Iowa, Michigan, Montana, New York, Ohio 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—such as the one here in this Connecticut case—will allow victims to sue mandatory reporters for failing to report child abuse even if no state law grants them the specific right to do so. Courts may perhaps even permit victims to sue those who are not mandatory reporters. These potential risks must be considered when evaluating whether or not to report known or suspected incidents of child abuse.

A few courts have ruled that clergy who are mandatory child abuse reporters under state law can be personally liable for monetary damages for failing to report abuse even if no statute explicitly granting such a right exists.

But several other courts have ruled that victims of child abuse have no legal right to sue a mandatory or permissive reporter who knew of the abuse but failed to report it. According to these courts, any legal remedy must be provided by the legislature.

Doe v. Abusahyounn, 2018 Conn. Super. LEXIS 3383 (Conn. Super. 2018).

See also:

Legal Developments

Church School Could be Liable for Failure to Comply with State Child Abuse Reporting Law

A church can be liable on the basis of negligence for an employee’s acts of child molestation if it was aware of prior acts of molestation but failed to report them to the agency designated by state law.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A federal appeals court ruled that a church school could be liable on the basis of negligence for a coach’s sexual relationship with a minor student as a result of its failure to comply with a state child abuse reporting law if it had reasonable cause to suspect that child sexual abuse was occurring.

An adult male (the “coach”) was employed as the girls’ basketball coach at a Christian secondary school from 2008 until 2010. While he was the school’s basketball coach, he sent over 3,200 text messages over a three-month period to a 17-year-old student (the “victim”) who was a member of the girls’ basketball team. The victim informed the school principal later in 2009 that she had received inappropriate texts from the coach. By that point, she had deleted all of the text messages from her phone, but she provided the principal with descriptions of some of the text messages, some of which were sexually explicit. In some, the coach stated that he loved her, did not want her to be with her boyfriend, and wanted to marry her. In addition, the victim suggested to the principal that he speak with another student about similar conduct.

The coach denied that the texts contained any sexual content. Nevertheless, the principal asked him to step aside from his coaching duties while he conducted an investigation, in which he relayed at least some information about the accusations to the school’s athletic director, a friend who was a local police chief, the assistant coach of the girls’ basketball team, the school’s attorneys, and the victim’s parents. The parents were unable to obtain the content of the text messages, but provided phone logs showing that the coach and victim had exchanged thousands of texts in the last few months of 2009.

The principal also contacted the other student the victim identified to investigate whether the coach had an inappropriate relationship with her. This student denied having a physical relationship with the coach, but she suggested that the principal speak with a third student. This student informed the principal that the coach had sent her inappropriate texts before and after her graduation asking about her sexual relations with her boyfriend. She denied having an inappropriate physical relationship with the coach and testified that he never suggested that he wanted to be intimate with her.

Based on the investigation and on the advice of school counsel, the school asked the coach to resign due to the large volume of texts with the victim. The coach resigned a few days later, citing health reasons. No one at the school reported the coach’s texting conduct to law enforcement or the Pennsylvania child protective services agencies.

Following his resignation, the coach applied for a position as a softball coach at a public high school. His application did not mention his position at the Christian school but listed that school’s athletic director as one of several personal references. The athletic director at the public school did not call any of the listed personal references, but obtained all required background and criminal history checks, and all background checks cleared. After being hired as the girls’ softball coach, the coach also applied for an open position as girls’ basketball coach at the same school. He submitted a résumé listing as his reason for leaving his former coaching position a “difference of philosophy” and “heart problems.”

The public school did not hire the coach, but its athletic director did inquire of the athletic director at the Christian school about the coach. The former athletic director stated that the coach had left his coaching position at the Christian school due to an “issue with . . . texting.”

The athletic director informed the principal about the texting issue, and the principal instructed the director to “keep an eye on it” and “watch, see if you see anything.”

During the 2011–2012 school year, there were no complaints from any students or parents about the coach, and he received a positive performance evaluation and returned the following season.

An adolescent female (the “plaintiff”) was on the coach’s softball team during the 2011–2012 and 2012–2013 school years. She did not report any problems with him during her freshman season. Starting in April 2013, during her sophomore season, the coach began sending the plaintiff text messages in which he commented on her looks, and by June 2013, the texts became sexual. During the summer of 2013, the pair engaged in sexual relations. The plaintiff took steps to hide the relationship, but in late September 2013, her parents discovered her sexual relationship with the coach and contacted the police. The coach was arrested and was charged with and pleaded guilty to child pornography and sexual abuse of a minor for his actions with the plaintiff.

The victim later sued the Christian school and school officials for negligence, alleging that these defendants failed to report the coach’s misconduct with the first victim to the civil authorities, and that this failure caused her injury because the coach was not apprehended for his crimes and therefore was free to groom and molest her. A federal district court dismissed all claims against the Christian school, and the case was appealed.

The federal appeals court’s ruling

The plaintiff’s main argument on appeal was that the defendants were liable for her injuries on the basis of their failure to report the abuse as required by the state child abuse reporting law (the Pennsylvania’s Child Protective Services Law), which requires school employees and school administrators to report suspected sexual abuse and exploitation of students. The reporting law specifies:

An administrator and a school employee . . . shall report immediately to law enforcement officials and the appropriate district attorney any report of serious bodily injury or sexual abuse or sexual exploitation alleged to have been committed by a school employee against a student.

The court noted that the reporting law “therefore requires schools to report to law enforcement where there is reasonable cause to suspect sexual abuse or sexual exploitation of a student.” The question in this case was whether the Christian school and its officials had reasonable cause to suspect sexual abuse or exploitation by the coach with the first victim thereby triggering a legal duty to report. The court concluded that such cause existed, and therefore the district court should not have dismissed the case. The court acknowledged the following facts:

When the Christian school principal learned of the first victim’s sexting allegations he investigated them by speaking to the victim, the victim’s parents, the assistant basketball coach who worked with the coach, two other female students rumored to have experienced inappropriate behavior by the coach, the school’s attorneys, and a friend who was a police chief in another jurisdiction. The principal confirmed that the coach had sent the first victim over 3,000 texts between September and December 2009, but the texts had since been deleted. The only remaining evidence of their content was a written record, made by the first victim at her parents’ direction, of what the most suggestive messages had said. The coach denied that the texts contained inappropriate content, and the victim did not assert that the coach had any inappropriate physical sexual contact with her. The principal also followed up on the first victim’s statement that the coach had inappropriate relationships with other students, but these students also denied any physical sexual involvement with the coach. Thus, the principal was able to confirm that coach sent the victim a large number of texts but, on the evidence before him, could not substantiate the “actual proven physical abuse” that he thought the [child abuse reporting law] required.

But, the court insisted that

even if there was no actual proof of physical abuse, a jury could find the victim’s account of the coach’s texts, which allegedly expressed his love and sexual desire for her, combined with the large volume of texts sent by the coach to the victim and the rumors concerning the coach and other female students, sufficient to provide “reasonable cause to suspect . . . sexual abuse or sexual exploitation.” Because a genuine dispute exists as to whether the school defendants were required to report the coach’s conduct to authorities . . . we will vacate the District Court’s order granting summary judgment to the school defendants.

What this means for churches

This case illustrates an important point: A church can be liable on the basis of negligence for an employee’s acts of child molestation if it was aware of prior acts of molestation but failed to report them to the agency designated by state law. The key finding of the court was that even if the school and school officials had no actual proof of sexual abuse, a jury could find that a duty to report arose because the following facts could constitute “reasonable cause to suspect sexual abuse or sexual exploitation of a student”: (1) thousands of emails and text messages were shared between the coach and the first victim; and (2) though the victim claimed that all the texts had been deleted, she did recall that the coach’s texts expressed his love and sexual desire for her.

The bottom line is that to safeguard minors from future abuse, and manage legal risk, the best practice for churches and pastors to follow is to report to the designated state reporting agency all known or reasonably suspected incidents of sexual abuse of a minor. This is so regardless of whether a pastor is a mandatory or permissive reporter, and whether the clergy-penitent privilege excuses a duty to report. Nace v. Pennridge School District, 2018 WL 3737960 (3rd Cir. 2018).

Legal Developments

Childcare Centers Did Not Owe a Duty of Care to the Victim

Court ruled that two childcare centers were not responsible for the death of an infant in another facility on the ground that they failed to report the worker’s prior acts of child abuse to civil authorities.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

Key point 8-24. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.

The Nebraska Supreme Court ruled that two childcare centers were not responsible for the death of an infant in another facility on the ground that they failed to report the worker’s prior acts of child abuse to civil authorities.

A married couple used an online service to find a nanny to provide in-home care for their infant daughter (the “victim”). The parents hired a young woman (the “defendant”) over approximately 30 other matches proposed by the online service, in part because the defendant had more experience working in childcare centers. Before selecting the defendant, the parents conducted a standard background check that revealed no concerns.

The defendant began working for the couple in January 2013. A month later, the defendant inflicted injuries on the infant. The victim died from his injuries several days later. The defendant was found guilty of intentional child abuse resulting in death and was sentenced to imprisonment for a term of 70 years to life.

In 2014, the couple sued the defendant for battery resulting in death. The trial court found her liable and assessed $5.2 million in compensatory damages. The parents also sued two childcare centers where the defendant previously worked claiming they were liable on the basis of negligence for the victim’s death because they knew or should have known that she was abusing children while in their employ and failed to report that abuse to authorities. The parents claimed that the childcare centers had a duty of reasonable care and breached that duty by failing to report the defendant’s abusive behavior. Such a duty, they argued, was based on the state child abuse reporting law that imposes a duty on “any person” having “reasonable cause to believe that a child has been subjected to child abuse or neglect” to “report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the Department of Health and Human Services.”

Like most states, Nebraska maintains a central registry of child protection cases containing records of all reports of child abuse or neglect opened for investigation. Any person listed as a perpetrator on the registry may not be on the premises of a childcare center during the hours of operation.

The two childcare centers where the defendant had previously worked were aware of incidents of child abuse involving the defendant, including the following:

  • A coworker saw the defendant yell at, shove, and drop toddlers in her care. The defendant also was seen forcefully pulling a child down a playground slide, causing the child’s head to hit the ground. A coworker reported these events to the center’s director, who investigated and concluded they did not amount to reportable child abuse. Neither the director, the coworker, nor anyone else reported the defendant’s behavior to the authorities. The defendant was dismissed as an employee of the center.
  • At the second center an employee observed the defendant verbally and physically abuse children. She was seen dragging children, yelling at children, and dropping children. On one occasion, a coworker saw her “shove” shoes and pants into a child’s mouth during a diaper change. On another occasion, a coworker saw her “fling” a child across the room, causing the child to hit her head on a table. These events were reported to the center’s director, who investigated and concluded they did not amount to reportable child abuse. Neither the director, coworkers, nor anyone else at the center reported the defendant to the authorities. The defendant was dismissed as an employee of the center.

The parents argued that if the defendant’s abusive behavior had been timely reported by the childcare centers, then authorities would have investigated the reports sooner, and the defendant’s name would have been placed on the central registry and been detected during the parent’s background check. The trial court agreed with the parents, and the childcare centers appealed.

The state supreme court began its opinion by observing: “When confronted with an unimaginable loss like the one experienced by the parents, it is natural to ask, What more could have been done? But tort law requires that a different question be answered first, Was there a legal duty to do something more?” The court noted that “in order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty, and damages caused by the failure to discharge that duty. The threshold issue in any negligence action is whether the defendant owes a legal duty to the plaintiff.” The court concluded that the childcare centers did not owe a duty of care to the victim:

The failure to rescue or protect another from harm is not conduct creating a risk of harm and does not give rise to a duty of care. . . . When the only role of the actor is failing to intervene to protect others from risks created by third persons, the actor’s nonfeasance cannot be said to have created the risk. Generally speaking, the law does not recognize a duty of care when others are at risk of physical harm for reasons other than the conduct of the actor, even if the actor may be in a position to help. Ordinarily, the failure to act will not be the sort of affirmative conduct that gives rise to a duty. . . .

We cannot find that [the law] supports the existence of a legal duty owed by the childcare centers to the victim or his parents. Indeed, if we were to recognize a legal duty to protect others from harm based exclusively on the failure to report suspected abuse, such a duty could expose every citizen in Nebraska who witnesses possible abuse or neglect and fails to report it, to potentially limitless civil tort liability for the future criminal acts of abusers over whom they have no control, and with whom they have no special relationship.

What this means for churches

It is a fundamental principle of law that there can be no liability for a failure to protect another from harm or peril. As one court observed: “One human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other fellow drown.” Evans v. Ohio State University, 680 N.E.2d 161 (Ohio App. 1996). The Nebraska Supreme Court recognized this principle when it observed that the two childcare centers where the defendant had been employed were under no legal duty to report incidents of child abuse to the state and therefore were not liable for failure to do so. This principle means that in any state that recognizes the general rule of non-liability for failure to warn a church cannot be liable for failing to warn another church of the dangerous propensities of a former employee or volunteer.

But note that some courts have recognized exceptions to the general rule in the case of an organization’s own employees, or if a “special relationship” exists between the former employer and the perpetrator.

In a leading case, the Wisconsin Supreme Court unanimously ruled that a church did not have an affirmative duty to warn future employers that one of its ministers had molested several boys. Hornback v. Archdiocese of Milwaukee, 752 N.W.2d 862 (Wis. 2008). The court concluded:

We decline to rule that under the general duty of ordinary care recognized in Wisconsin, an employer may be found negligent for failing to warn unforeseen third parties of a dangerous former employee. Such a ruling would extend an employer’s obligation to warn indefinitely into the future to a sweeping category of persons, thereby requiring employers to warn nearly all potential future employers or victims, as the plaintiffs in this case argue. . . . A decision to the contrary would create precedent suggesting that employers have an obligation to search out and disclose to all potential subsequent employers, which could include in an employment context every school in the country or beyond, all matters concerning an ex-employee’s history. . . . The primary public policy problem with recognizing the claim as presented by the plaintiffs is that there is no sensible stopping point to recognizing negligence claims for such an open-ended and ill-defined sweeping claim. Recognizing the plaintiffs’ claim against the Diocese in this case could result in requiring all employers to warn all unforeseen potential future employers of any number of problems related to any number of past employees. It could further result in all parents who become aware that their child was sexually abused then facing potential liability for not warning every other parent who might also have children at risk of being in contact with the perpetrator.

Bell v. Grow With Me Childcare & Preschool, 907 N.W.2d 705 (Neb. 2018).

Legal Developments

Clergy-Penitent Privilege May Not Protect Church Elders Who Did Not Report Child Abuse Case

State’s definition of clergy narrowly defined

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-08.08. Clergy who are mandatory reporters of child abuse are excused from a duty to report in many states if they learn of the abuse in the course of a conversation covered by the clergy-penitent privilege. Some state child abuse reporting laws do not contain this exception.

A Delaware court ruled that the clergy-penitent privilege did not necessarily protect two church elders who failed to report a case of child abuse that was shared with them by the victim and his mother.

In 2013, a juvenile member (the "victim") of a church reported to his mother that he was engaged in a sexual relationship with an adult female church member. Two church elders met with the victim and his mother at the church. The elders were informed of the sexual relationship. They later spoke with the adult member who confirmed that the relationship occurred. Both the victim and the perpetrator were "disfellowshipped" (excommunicated) from the congregation. The elders did not report the child abuse under the procedures established by the state child abuse reporting law. The state of Delaware assessed civil penalties against the church and its two elders (the "defendants").

The defendants asked a trial court to dismiss the state's demand for civil penalties on the basis of section 909 of the Delaware child abuse reporting statute, which provides:

No legally recognized privilege, except that between attorney and client and that between priest and penitent in a sacramental confession, shall apply to situations involving known or suspected child abuse, neglect, exploitation or abandonment and shall not constitute grounds for failure to report as required by § 903 of this title or to give or accept evidence in any judicial proceeding relating to child abuse or neglect.

The court noted that section 909 "is a narrow exception to the duty to report child abuse or neglect. It is the religious equivalent of the attorney/client privilege. The obvious purpose of these privileges is to balance free and candid communications with legal or religious advisors, with the public mandate to prevent and prosecute child abuse."

The court noted that if the terms "priest," "penitent," and "sacramental confession" were narrowly interpreted, "only certain religions would be entitled to take advantage of the section 909 exception. The exception only would apply to "denominations that title their clergy 'priests,' refer to parishioners as 'penitents,' and officially recognize a sacrament called 'confession.' Clearly, such an interpretation would compel a finding that section 909 is in violation of the [Constitution] since carving out an exception only for certain denominations would impermissibly grant a preference to some religious societies, denominations, or modes of worship. If section 909 were to be interpreted narrowly, the effect would be to advance certain religions over others."

The court concluded that "to avoid a finding that section 909 is unconstitutional, the statute may be interpreted more generically." For example, "priest" could be interpreted to include any member of the clergy. A "penitent" could refer to any person who seeks spiritual counsel from a minister. And, a "confession" could refer to any confidential conversation with a minister for the purpose of absolution or spiritual counsel.

The court noted that there were two conversations at issue in this case.

Conversation 1

The first conversation was among the victim, his mother, and the two elders. The court concluded that this conversation was not necessarily privileged, and therefore it could not agree with the defendants' request to dismiss the state's attempt to assess civil penalties for violation of the child abuse reporting statute:

The section 909 privilege applies only when the purpose of the conversation is for penitence. The affidavits supplied by defendants leaves open certain questions of fact. What was the motivation of the victim and his mother in bringing the sexual relationship to the attention of the elders? Was the intention to report misconduct to church officials, or to confess sinful behavior and thus to obtain absolution? The fact that the victim was excommunicated may indicate that he did not come voluntarily to the meeting, or that he did not reveal the information with the understanding that his repentance might result in the absolution that ordinarily is associated with a sacramental confession.

Conversation 2

The court also noted that the circumstances and motivation of the perpetrator were in question. The defendants' affidavits indicate that the conversation was demanded by the elders as part of a disciplinary process. If the meeting with the elders was not initiated by the perpetrator, "she may not be deemed to be a penitent. If the purpose of this meeting was for the elders to investigate alleged child abuse, this conversation may not be a sacramental confession."

What this means for churches

This case is relevant to church leaders for the following reasons.

First, it demonstrates that clergy-privilege statutes that use restrictive terminology (i.e., priest, penitent, sacramental confession) are constitutional only if they are interpreted broadly to encompass confidential spiritual counseling involving ministers.

Second, the case illustrates the potentially negative consequences that may accompany decisions by church leaders not to report child abuse. Those consequences include the following:

1. Persons who are mandatory reporters of child abuse under state law are subject to criminal prosecution for failure to report. Some clergy have been prosecuted for failing to file a report. Criminal penalties for failing to file a report vary, but they typically involve short prison sentences and small fines. The important point to note is that the legal duty to report is not excused by a church policy of handling such cases.

2. Ministers who are mandatory child abuse reporters under state law may face civil liability for failing to report abuse, if (1) no clergy-penitent privilege exception exists under state law, or (2) such an exception exists, but information concerning child abuse is not obtained in the course of a privileged conversation. Note that the application of the clergy-penitent privilege can be a complex legal question since there are specific requirements that must be met. The communication must be in confidence; it must be made to a minister; and it must be made for the purpose of seeking spiritual counsel. While in some cases the application of the privilege seems clear, in many cases it is not, and so clergy should seek legal counsel if there is any doubt as to the existence of a clergy-penitent privilege exemption and its application to a particular conversation.

In some cases, civil liability for failure to report is based on court rulings. But, seven states have enacted laws that create civil liability for failure to report child abuse. In these states victims of child abuse can sue adults 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 monetary 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. These seven states are: Arkansas, Colorado, Iowa, Michigan, Montana, New York, and Rhode Island. State v. Laurel Delaware Congregation, 2016 WL 369355 (Del. App. 2016).

Legal Developments

Indiana Court Rules Couple Who Reported Suspected Child Abuse May Sue for Having Identity Exposed

Church Law and Tax Report Indiana Court Rules Couple Who Reported Suspected Child Abuse May

Church Law and Tax Report

Indiana Court Rules Couple Who Reported Suspected Child Abuse May Sue for Having Identity Exposed

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

An Indiana appeals court ruled that a husband and wife could sue the state for emotional suffering they experienced after the disclosure of the husband’s identity as the person who reported five neighbors on his church bus route to the child abuse hotline. A husband and wife (the “plaintiffs”) were actively involved in their church. The husband drives a church bus that regularly takes children in the neighborhood to church events. As a result of his involvement with many of these children, as well as incidents he witnessed in the neighborhood, the husband came to believe that children in various homes were being abused and neglected. He spoke to his wife about his concerns, which she shared, and she reluctantly agreed that the husband should make a report to the state Department of Child Services (DCS).

The husband called the DCS hotline to report his suspicions that children in five homes on his street were in need of services due to dangerous living situations. He believed the adult subjects of his report were involved in drugs or other criminal activities and were associated with serious and violent criminals. When he was about to end the call, the DCS employee asked for his name and phone number. The husband expressed reluctance and indicated that he did not want anyone to know that he had called. The employee responded that the information was confidential and nobody would find out that he made the report. The husband then agreed to give his first name and phone number, but not his last name. DCS also had the name of the street on which he lived.

About a week later, the plaintiff was confronted in his front yard by a neighbor (Heather) who lived across the street and was one of the neighbors the husband had reported. While screaming and yelling obscenities, Heather angrily accused the husband of calling DCS. She had in her possession an unredacted copy of the DCS report, which identified the husband as the reporting source. Other neighbors quickly became aware of the report. Upon realizing the report was not kept confidential, the husband felt like “somebody ripped my heart out.”

From that point on, the husband’s family no longer felt comfortable outside their house. They wanted to relocate but could not afford to move. The husband indicated that he was “stared at, glared at, flipped off, yelled at, you know, every day, forever.” His daughter was bullied by other children. Both the husband and wife missed work due to stress and lack of sleep, and the wife was screamed at and threatened by Heather. On one occasion, Heather threatened to “cut that smirky grin off your face.”

The couple filed a lawsuit against DCS, claiming that it had been negligent in failing to protect the husband’s identity. The trial court dismissed the case, concluding that the couple had no private right of action to bring a claim for violation of the child abuse reporting law’s assurance that the identity of reporters would not be disclosed. The couple appealed.

The state child abuse reporting law provides that reports shall be made available to “each parent, guardian, custodian, or other person responsible for the welfare of a child named in a report or record … with protection for the identity of reporters and other individuals,” (emphasis added) and “a person about whom a report has been made, with protection for the identity of … any person reporting known or suspected child abuse or neglect.” While the disclosure of the identity clearly violated this law, DCS argued that the statute did not confer a private right of action on persons harmed by its violations.

The court acknowledged that the child abuse reporting law did not specifically create a “cause of action” for child abuse reporters whose identities are revealed by DCS, but it concluded that this did not matter since a cause of action could be based on common law:

A special relationship was clearly established when the husband made the call to the DCS hotline and, after making his report, indicated his reluctance to give identifying information. Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, the husband then provided the information. The reasonable foreseeability of harm to him and his family upon improper disclosure of this information was evident … . Ultimately [the husband and his family] were left in a far worse position after he called the hotline and relied on DCS’s promise.

The court concluded that “under the specific circumstances of this case, the husband has established the existence of a private duty owed to him by DCS.”

What This Means For Churches:

It is common for ministers to learn that a minor has been abused. This can occur in a number of ways, including a confession by a perpetrator, a conversation with a victim, or a disclosure by a friend or relative of the victim or perpetrator. Ministers often are reluctant to report abuse because of a fear that their identity will be revealed and reprisals by the alleged perpetrator will follow. Most child abuse reporting statutes assure reporters that their identities will not be disclosed. But what if they are, and the reporter suffers retaliation? Can the minister sue the state agency that was responsible for the disclosure? According to this case, the answer is yes.

This was not the first court to address this issue. In a Texas case, a minister received confidential information from members of his congregation that two other members were physically and emotionally abusing their 5-year-old twin boys. The two members accused of abuse were the children’s biological father and stepmother.

The stepmother and her family were prominent members of the congregation. The boys’ biological mother was not a member of the congregation and was not named in the allegations of abuse. The minister tried to persuade the members who disclosed the abuse to report their suspicions to the state. When these efforts failed, the minister called the Department of Human Services. Before making his report, the minister asked a department caseworker if his call would be confidential. Specifically, he asked: “Now I mean … you’re telling me that there is no way that the people that I call in to talk about or anyone in their family will ever find out that I called or anything that I say in the course of this phone call.”

The minister made the report only after requesting and receiving assurances that his identity would not be disclosed to the family. Several months later the alleged abusers requested a copy of the department’s file in order to determine who reported them. The department’s legal counsel determined that there was no legal basis for withholding the minister’s identity, and so the file was released, including the identity of the minister.

Unfortunately, the minister’s worst fears were realized. After learning of their minister’s role in reporting the allegations of abuse against them, the parents filed a $1 million libel suit against him and the church. Several weeks later, the church asked the minister to resign. The libel suit was later dismissed.

Several months later the minister sued the Department of Human Services, seeking monetary damages and declaratory relief requiring the department to guard the confidentiality of persons who report child abuse. The minister claimed that the department’s negligence in disclosing his identity to the family, despite its assurances of confidentiality, caused his church to dismiss him and damaged his reputation. He claimed additional damages for medical expenses to combat depression and for legal expenses incurred by him and the church. A jury ruled in favor of the minister and awarded him damages of $611,000. The trial court concluded that the department violated confidentiality provisions of state law when it revealed the minister’s identity, and it ordered the department not to divulge such information in the future without a court order.

A state appeals court overturned the judgment against the department on the basis of sovereign immunity. Texas Department of Human Services v. Benson, 893 S.W.2d 236 (Tex. App. 1995). But the Texas appeals court affirmed the trial court’s order prohibiting the state from disclosing the identity of child abuse reporters. In barring the department from ever again following such a policy, the court observed: “We hold that the trial court properly declared that confidentiality is central to the [law’s] provisions governing the reporting of child abuse. Those provisions reflect a legislative determination that granting immunity and confidentiality to [reporters] will encourage the reporting of child abuse. The minister’s experience reveals how retaliation may devastate the life of a concerned citizen who fulfills his statutory duty to report suspected child abuse, absent the protection of confidentiality.” Doe v. Indiana Department of Child Services, 53 N.E.3d 613 (Ind. App. 2016).

Legal Developments

The Penalties for Failing to Report Abuse “Immediately”

Church Law and Tax Report The Penalties for Failing to Report Abuse “Immediately” Key point

Church Law and Tax Report

The Penalties for Failing to Report Abuse “Immediately”

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

An Arkansas appeals court ruled that a school counselor who reported a case of child abuse 14 days after learning about it had not reported the abuse “immediately” as required by the state child abuse reporting law, and therefore was properly convicted for the crime of failing to report abuse immediately and sentenced to one-year probation and payment of a $2,500 fine. An 18-year-old woman (the “victim”) informed her father that she had been involved in a sexual relationship with her high school volleyball coach for two years beginning when she was 16 years of age. The victim was extremely distressed over the break-up of her relationship with the coach, and did not want her parents to report the affair to the authorities. The victim’s parents met with the coach two days later and insisted that she resign. Later that day the parents received a call from the school counselor (the “defendant”) who convinced the parents that, for the good of the school and their relationship with their daughter, they should not report the inappropriate relationship to the police. Instead, the defendant told the parents that they should view the incident as a “bad breakup” and wait until the end of the school year when the coach would quietly resign her position.

The parents agreed to wait one week to report the relationship, and at the end of the week they informed the defendant that they would wait an additional week. At the end of the second week, or 14 days after the defendant first learned of the abuse, she made an anonymous report to the child abuse hotline upon learning that the parents planned to do so.

The defendant was prosecuted for the crime of failing to report child abuse “immediately” as required by the child abuse reporting law. She was found guilty of “first-degree failure to notify by a mandated reporter,” and was sentenced to one year of probation and a $2,500 fine. The defendant appealed on two grounds. First, that the child abuse reporting statute did not define the term “immediately,” and that her report filed within 14 days was “immediate.” Second, she claimed that mandatory reporters have no duty to report cases of child abuse when the victims are 18 years of age or older. Both contentions are addressed below.

The duty to report “immediately”

The Arkansas child abuse reporting law requires persons classified as mandatory reporters to “immediately” notify the hotline if he or she reasonably suspects child maltreatment has occurred. The parties agreed that the defendant, as a school counselor, was a mandatory reporter. The defendant argued on appeal that this term was unconstitutionally vague. In several cases, the United States Supreme Court has ruled that criminal statutes that do not provide persons of ordinarily intelligence with fair notice of what conduct is prohibited violate the Constitution’s guaranty of due process. The defendant insisted that the word “immediately” was unconstitutionally vague since it failed to provide fair notice of what was expected. The court disagreed, noting:

If a person’s conduct clearly falls within what is prohibited, that person cannot complain that a statute is vague … . [The defendant] cannot complain that inclusion of the word “immediately” renders the statute vague, since her conduct of purposely delaying making a report to the child abuse hotline for more than two weeks after acquiring direct knowledge of the child maltreatment clearly did not satisfy the requirement of immediacy that is placed on a mandated reporter.

Reporting child abuse when a victim has reached adulthood

Church leaders often are unsure if they are required to report child abuse after a victim of abuse has reached adulthood. Very few courts have addressed this question, so this aspect of the court’s opinion is significant. The court concluded that the fact that the victim was 18 (an adult) when she disclosed her abuse as a minor did not affect the duty of the defendant, as a mandatory reporter, to report the abuse. It stressed that the child abuse reporting statute requires mandatory reporters to report child abuse if they have “reasonable cause to suspect that a child has been subjected to child maltreatment.” The court noted that the statute “is written in the past tense to include a child who has been subjected to child maltreatment.” Therefore, “by its plain language, the statute includes the situation here, where the defendant discovered that the victim had been subjected to child maltreatment when she was in high school and under the age of eighteen.”

In responding to the defendant’s argument that it would be absurd to interpret the child abuse reporting law to require mandatory reporters to report incidents of child abuse when the victim has reached adulthood, since this would require the reporting of abuse that in some cases happened “decades in the past,” the court noted that the purpose of the child abuse reporting law “is not only to protect a maltreated child, but also to protect any other child under the same care who may be in danger of maltreatment.”

What This Means For Churches:

Every state has a child abuse reporting statute that requires persons designated as “mandatory reporters” to report known or reasonably suspected incidents of child abuse to a designated state agency. These reporting laws typically require mandatory reporters to report abuse “immediately,” within a specified time (i.e., 24 hours or 48 hours). As this case demonstrates, mandatory reporters who fail to report abuse by the deadline prescribed by law face criminal penalties, which may include prison or a fine. As a result, it is imperative for church leaders to be familiar with the definition of “mandatory reporter” under state law, and the time period for reporting abuse (for more help, please see the 2015 Child Abuse Reporting Laws for Churches resource on ChurchLawAndTaxStore.com).

We recommend that legal counsel be retained to assist church leaders with understanding two important issues under state law: First, the time period for reporting child abuse; and second, the duty to report child abuse when the victim is now an adult. Griffin v. State, 4543 S.W.3d 262 (Ark. App. 2015).

Legal Developments

The Liability of Knowing but Not Acting

Church Law and Tax Report The Liability of Knowing but Not Acting Key point 4-08.

Church Law and Tax Report

The Liability of Knowing but Not Acting

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

The Pennsylvania Supreme Court affirmed the felony conviction of a priest who worked in an administrative position with an archdiocese for “endangering the welfare of a child” for failing to take steps to protect children from a priest who had molested children. In 1992, a Catholic priest (the “defendant”) was appointed Secretary for Clergy for the Archdiocese of Philadelphia, where he served for 12 years, until 2004. As Secretary for Clergy, he was responsible for ensuring that parishes were filled with enough priests, resolving disputes among priests, and handling clergy sexual abuse issues. It was his responsibility to collect and assess information concerning allegations of sexual abuse against priests in the Archdiocese, discuss the allegations with the accused priests, participate in deciding how to address the allegations, and make recommendations to the Cardinal about the priests against whom allegations were made.

By his own account, the defendant was the sole “funnel” of information concerning instances of clergy sex abuse, and it was his office alone that was responsible for not only receiving the allegations and exploring them, but also for passing vital information about abusive priests and their young victims up the chain of command in the Archdiocese.

Although he could only independently remove a priest from a parish if that priest admitted that he had abused someone, it was the defendant’s responsibility to make recommendations about assignments to the Cardinal, who had the ultimate decision-making authority. For example, the defendant could make recommendations to place a priest on administrative leave or restrict a priest’s ministry by, for instance, prohibiting contact with the public or with children. In this respect, the defendant characterized protecting children as the most important part of his job, and explained that he worked “for” the children of the Archdiocese.

When the defendant first assumed the office of Secretary for Clergy in 1992, he collected information. In addition, his position authorized him to be one of the few officials within the Archdiocese of Philadelphia with access to the “Secret Archives.” The Secret Archives were located on the 12th floor of the Office of Clergy and maintained under lock and key; they contained information about “any kind of major infractions a priest would have,” and which only a “very, very limited number of people within the Archdiocese had access to or a key to.” The Secret Archives were largely in the defendant’s control as Secretary for Clergy, and he routinely consulted them to determine if there was already information relevant to a priest about whom he had received complaints.

In early 1994, after receiving accusations of inappropriate conduct by a priest in active ministry, the defendant consulted the Secret Archives and discovered documentation that this particular priest had engaged in serious sexual misconduct in the past. This discovery caused the defendant to become concerned that there were other priests in active service against whom allegations of abuse had been asserted, and this prompted him to conduct a comprehensive review of the Secret Archives to check for incidents of child sexual abuse among all priests in active ministry within the Archdiocese of Philadelphia.

This review encompassed 323 priests and resulted in a report created by the defendant that identified 35 priests in active service with previous complaints of sexual abuse of minors. The defendant placed each of these 35 priests on one of three lists: three priests were identified as “pedophiles;” 12 priests as “Guilty of Sexual Misconduct with Minors;” and 20 were included on a list titled “Allegations of Sexual Misconduct with Minors with No Conclusive Evidence.” Regarding the 12 priests that the defendant determined were guilty of sexual misconduct with minors, he considered it his job “to do something about them.”

The first name on the defendant’s list of priests whom he considered to be guilty of sexual misconduct with minors was Father Jones. The defendant was personally familiar with Jones due to previous investigations into allegations of alcoholism and the molestation of an 11-year-old boy. Jones had built a trusting relationship with this minor in his church, groomed him with attention outside of the church, and, on several occasions supplied him with alcohol and engaged in inappropriate sexual conduct. Jones often invited several boys to spend the night in his home, where he provided them with alcohol and wrestled with them. According to the victim, Jones continued this pattern of inviting him to participate in seemingly innocuous activities, and then groping him when vulnerable.

After the victim revealed the details of his sexual abuse to the defendant, Jones was sent to a mental health facility for six months for evaluation and treatment. His first post-discharge assignment was as a hospital chaplain. Despite his treating therapist’s concerns about the existence of other victims, and his recommendation that Jones be kept away from minors, Jones was allowed to reside in a nearby rectory owned by a church that operated a grade school. The defendant never shared with anyone his concern that Jones was guilty of sexual misconduct with minors, while housing him where he had access to grade school children.

Soon after moving into the rectory, Jones met a 10-year-old altar boy who assisted with religious services at the church. Following one service, and after everyone had left, Jones made the boy strip naked to music while telling him that “this is what God wants.” He then engaged in multiple sex acts with the boy. The effect of this abuse was devastating. The boy became withdrawn and began using drugs, which developed into a heroin addiction by age 17.

Ultimately, due to these and other wrongful acts, the Archdiocese of Philadelphia removed Jones from active ministry and rectory living, “or any other living situation in which he would have unrestrained access to children now or in the future.”

A district attorney in Philadelphia began to investigate the Archdiocese for clergy sex abuse. In 2002, a grand jury was empanelled at the request of the district attorney to investigate the Archdiocese’s treatment of allegations of such abuse. The grand jury subpoenaed documents from the defendant pertaining to priests accused of sexual abuse, and the defendant was summoned to testify repeatedly. In 2011, the district attorney charged the defendant with two counts of “endangering the welfare of a child” (EWOC), under a state law that provided, in part: “A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.”

The defendant sought to quash the charges of EWOC on the ground that he had “no connection whatsoever” to the children whose welfare he was accused of having endangered. The court rejected the defendant’s position, and the criminal prosecution against him proceeded to trial. The state introduced extensive evidence that the defendant’s handling of Father Jones’ case was not an anomaly, but was in accord with his established practice for dealing with sexually abusive priests. The evidence demonstrated that “he violated his duty to prevent priests from sexually molesting children in order to protect their reputations in furtherance of his objective to conceal the misconduct and to protect instead the reputation of the Archdiocese,” and that “evidence in the files of other priests revealed that the defendant routinely failed to act in his supervisory capacity to protect the welfare of children when faced with reports of priests who were raping, molesting, and acting immorally with these children, repeatedly [making] transfers to facilities where clergy could continue abusing children when trouble arose, and permitting abusing priests to continue in the ministry while keeping parents and law enforcement ignorant of the peril.”

After several months of testimony, the jury found the defendant guilty of EWOC on the ground that his frequent failure to remove pedophile priests constituted “knowing endangerment of the welfare of children” in violation of the statute. The conviction and sentence were reversed by a state appeals court, but were reinstated by the Pennsylvania Supreme Court in a ruling in 2015. The court concluded that one can commit the crime of EWOC without any direct supervisory responsibility over a child if his conduct knowingly endangers the welfare of children. The court concluded:

The Commonwealth’s evidence established that despite being responsible for responding to sexual abuse allegations against priests for the purpose of protecting the welfare of children, the defendant mollified victims of sexual abuse by falsely telling them their allegations were being seriously investigated and that the particular priest would never again be assigned around children, despite knowing that the priests under his supervision would merely be reassigned to another parish with no ministry restrictions on contact with children; he informed parishioners that the priests he transferred were moved for health reasons, leaving the welfare of children in jeopardy; he routinely disregarded treatment recommendations for priests; he failed to inform the relocated priest’s new supervisor about abuse allegations; he took no action to ensure that the abusive priest was kept away from children at his new assignment; he suppressed complaints and concerns by the colleagues of the priests; all with the knowledge that sexually abusive priests rarely had only one victim and that all of these actions would endanger the welfare of the diocese’s children. Finally, and even more egregiously, when the defendant was contacted by law enforcement, he misrepresented facts to thwart their investigation of these priests, and their crimes.

The plain reading and common sense of the phrase “supervising the welfare of a child” leaves little doubt that the defendant’s actions constituted endangerment of children. Further, the broad protective purpose of the statute, the common sense of the community, and the sense of decency, propriety, and morality which most people entertain, coalesce and are actualized in our conclusion that the defendant’s particular conduct is rendered criminal in accord with the EWOC statute … . The Commonwealth proved beyond a reasonable doubt that as Secretary for Clergy the defendant’s day-to-day responsibilities involved receiving allegations of clergy sexual abuse and reacting to them for the protection of the children of the Archdiocese from harm by sexually abusive priests over whose assignments he exercised significant influence. He endangered the welfare of [children] whose well-being he supervised, when he placed Father Jones in a position to have access to them.

What This Means For Churches:

This case is significant for one reason: it demonstrates the potential criminal liability that may befall a minister or denominational leader who fails to (1) take steps to protect minors from ministers who are known or reasonably suspected of having molested children, and (2) report such individuals to civil authorities pursuant to the state child abuse reporting law. Commonwealth v. Lynn, 2015 WL 1888582 (Pa. 2015).

Legal Developments

Priest Not a Mandatory Reporter in Child Abuse Case

Louisiana court rules priest not subject to civil liability for failing to report abuse.


Overview

Every state has a child abuse reporting law that requires persons designated as “mandatory reporters” to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states, but some states exempt them from the reporting obligation if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. This generally refers to communications, in confidence, with a minister in the course of spiritual counsel.

This article explores a decision by the Louisiana Supreme Court regarding some of these issues. Of note, the court concluded a minister can be subject to civil liability for failing to report child abuse to the authorities, unless the minister learned of the abuse solely in the course of a conversation protected by the clergy-penitent privilege.


Background


Parents of Minor Child v. Charlet, 135 So.3d 1177 (La. 2014)

Key Point 3-08.03. In most states either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.

A 64-year-old male (“Phil”) was a long-time and respected member of a Catholic church. He began exchanging emails with a 14-year-old girl (the “victim”) whom he met at church. The emails increased in frequency and became “laced with seductive nuances.” The relationship culminated in kissing and fondling.

The victim became confused and scared over the evolving “relationship” with Phil, and on three separate occasions she decided to seek spiritual guidance through confession with her priest. On each occasion she related to the priest that Phil had inappropriately touched her, kissed her, and told her that “he wanted to make love to her.” The victim alleged that the priest instructed her to handle the situation herself, because otherwise, “too many people would be hurt.”

Following these three meetings with the priest, the abusive acts continued. The priest and the victim's parents later met with Phil and his spouse concerning the “obsessive number of emails and phone calls” between Phil and the victim and the seemingly inappropriate closeness between the two that had been observed by various parishioners.

Shortly thereafter, the parents confronted their daughter about the emails and phone calls, at which time, she confessed to the true nature of the relationship, including details of the inappropriate sexual contacts. The parents immediately contacted Phil, ordering him to cease contact with their daughter, and filed a formal complaint with the local sheriff's department. An official investigation was ongoing when Phil died unexpectedly from a heart attack.

The parents filed a lawsuit naming as defendants the priest, for allegedly being a mandatory reporter who failed to report the abuse allegations; and their church, alleging vicarious liability for the alleged misconduct of the priest in failing to report the sexual abuse, as well as for the negligent training and supervision of the priest.

Shortly before the scheduled trial date, the church filed a motion seeking to prevent the plaintiffs from “mentioning, referencing, or introducing evidence at trial of any confessions that may or may not have taken place” between their minor child and the priest, while the priest was acting in his official capacity hearing a confession from his parishioner. The trial court denied the motion, finding the testimony of the victim regarding the confession was relevant and, as the holder of the privilege, she was entitled to waive it and testify. However, the trial court “did recognize the conundrum with which the priest is presented, and I know his solution to that is going to be that he is not going to say anything about any confession.”

A state appeals court reversed the trial court's ruling and concluded that the parents could not compel the disclosure of their daughter's communications with the priest. The court reasoned:

Because we have concluded that the priest is not a mandatory-reporter, there can be no private or civil cause of action against him for any breach of a statute inapplicable to him; thus, any evidence or testimony, by anyone, regarding the occurrence of a confession, or the subject matter thereof, is wholly inadmissible, irrelevant, and non-probative. Accordingly, the motion seeking to exclude all such evidence, should have been granted.

The appeals court further found no civil remedy for violation of a mandatory reporter's duty to report child abuse. Accordingly, the court dismissed the plaintiffs' claims against the priest and the church in their entirety. The parents appealed this ruling to the Louisiana Supreme Court.


the clergy-penitent privilege

The state supreme court first addressed the application of the clergy-penitent privilege to the victim's communications with her priest. The Louisiana clergy-penitent privilege, set forth in Code of Evidence Article 511, provides:

A. Definitions. As used in this Article:

(1) A “clergyman” is a minister, priest, rabbi, Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.

(2) A communication is “confidential” if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

B. General rule of privilege.

A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.

C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person. (emphasis added)

The court noted that, according to this language the privilege “clearly belongs to the penitent-communicant, not to the priest.” It observed:

A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman …. It follows, if the penitent waives the privilege, the priest cannot then raise it to protect himself as he can only “claim the privilege on behalf of the person,” not in his own right. Therefore, we find the appellate court erred in granting the church's motion excluding all evidence of the confession in its entirety as the child is free to testify and introduce evidence as to her own confession.

failure to report child abuse

Can a minister be subject to civil liability for failing to report child abuse to the authorities? The court referenced “the duty imposed by law on members of the clergy” under the state child abuse reporting law, which defines a mandatory reporter to include a member of the clergy:

“Member of the clergy” is any priest, rabbi, duly ordained clerical deacon or minister, Christian Science practitioner, or other similarly situated functionary of a religious organization, except that he is not required to report a confidential communication, as defined in Code of Evidence Article 511, from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential. In that instance, he shall encourage that person to report the allegations to the appropriate authorities ….

As a result, “a member of the clergy as a mandatory reporter under this provision has a mandatory duty to report abuse in accordance with the following provision of the child abuse reporting law:

Notwithstanding any claim of privileged communication, any mandatory reporter who has cause to believe that a child's physical or mental health or welfare is endangered as a result of abuse or neglect or that abuse or neglect was a contributing factor in a child's death shall report [the abuse to the authorities].

The supreme court concluded that the appeals court erred in concluding that the priest could not be personally liable for violating his duty to report the victim's abuse. The appeals court concluded that “there is no duty on a clergy member, the breach of which would sustain a private or civil cause of action.” But the supreme court disagreed, noting that such a conclusion

disregards our general concept of liability set forth in our Civil Code that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,” and “every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” It likewise disregards the duty imposed by law on members of the clergy [to report child abuse].

The court also rejected the appeals court's conclusion that the priest was not required to report the victim's abuse because he learned about it in conversations with the victim that were protected by the clergy-penitent privilege. Such a conclusion, the court concluded, assumed that the victim's communications with the priest fit within the narrow exception of privileged communications as defined in Code of Evidence Article 511 (above), meaning

from a person to a member of the clergy who, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential.

The court concluded that “there exist material issues of fact concerning whether the communications between the child and the priest were confessions and whether the priest obtained knowledge outside the confessional that would trigger his duty to report.”

The supreme court sent the case back to the trial court for further consideration.

Relevance to church leaders

The Louisiana Supreme Court's decision is relevant to church leaders because it directly addresses the role of the clergy-penitent privilege with respect to child abuse reporting laws. Leaders must be aware of who may claim the clergy-penitent privilege. Leaders also must be aware when the privilege may be waived.

Additionally, as this Louisiana Supreme Court ruling illustrates, leaders also must be aware of the potential civil liability of clergy, who are mandatory child abuse reporters under state law, for failing to report abuse. The court concluded that a minister can be subject to civil liability for failing to report child abuse to the authorities, unless the minister learned of the abuse solely in the course of a conversation protected by the clergy-penitent privilege. It rejected the lower court's conclusion that “there is no duty on a clergy member, the breach of which would sustain a private or civil cause of action.” Such a conclusion, the supreme court concluded,

disregards our general concept of liability set forth in our Civil Code that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it,” and “every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” It likewise disregards the duty imposed by law on members of the clergy [to report child abuse].

Lastly, leaders must know potential criminal liability for failing to report abuse.

The issues raised in this article are covered in greater detail in Richard Hammar’s article, “Child Abuse Reporting and the Clergy Privilege.”

Legal Developments

Clergy-Penitent Privilege Protects Pastor

Charges of criminal failure to report child abuse were dismissed for one Michigan pastor.

Child Abuse Reporting


Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Michigan court ruled that a pastor could not be prosecuted under the state child abuse reporting law for failing to report an incident of child abuse that had been disclosed to him in the course of a conversation protected by the clergy-penitent privilege. In 2009, a pastor was approached by a parishioner regarding her concerns that her husband was abusing her daughters. The parishioner testified as follows at a hearing to dismiss the charges:

I didn't know what to do, because I had found out that my husband at the time had my girls touch themselves [in their genital areas], and I went to my pastor because I didn't know what to do. So I went to him to find out what to do, because I wanted [my husband] to get help, and I wanted to know what he thought—whether I should make a report when my husband did not actually touch the girls.

She further testified that she told the pastor she was willing to report it if necessary. She asked the pastor to meet with her husband. She could not remember if she met with him at the church, but she thought she had called him. She testified that she talked with him alone and no one else was listening to the conversation.

The mother went to her pastor again in 2011 after an additional incident. She explained: "I woke up to my daughter screaming. My husband was in her room, and she was screaming, "I hate you, I hate you, don't ever touch me again. I went in there and asked her what happened. And she said that he was touching her."

When the mother went to the pastor following this incident he told her she needed to report it or else he would. It was during the investigation of this incident that the police learned about the 2009 report by the mother to the pastor.

The pastor was prosecuted for criminal failure to report child abuse. He asked the court to dismiss the charges on the ground that his conversations with the mother were protected from disclosure by the clergy-penitent privilege. The Michigan child abuse reporting law defines mandatory reporters to include any "member of the clergy," but it further provides:

Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made or for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to this act.

The clergy-penitent privilege is defined by Michigan law as follows: "Any communications between attorneys and their clients, between members of the clergy and the members of their respective churches, and between physicians and their patients are hereby declared to be privileged and confidential when those communications were necessary to enable the attorneys, members of the clergy, or physicians to serve as such attorney, member of the clergy, or physician."

The trial court dismissed the charges against the pastor on the ground that he had become aware of the abuse in the course of a conversation with the mother that was protected by the clergy-penitent privilege. The state appealed.

A state appeals court began its opinion by noting that there was no dispute that the pastor was a member of the clergy or that the mother talked with him in his professional character. The issue was whether the mother communicated with her pastor "in his … professional character in a confession or similarly confidential communication." The state asserted that the privilege was limited to confessions, and since the mother did not confess to anything in her conversations with her pastor, but rather relayed information pertaining to her husband's actions, the privilege did not apply and so the pastor could be prosecuted for failing to report the abuse.

The court disagreed:

We hold that a communication is within the meaning of "similarly confidential communication" when the church member does not make [a confession] but has a similar expectation that the information will be kept private and secret. In the case at bar, the trial court made a finding of fact that the mother went to the pastor "for guidance, advice and expected that the conversation be kept private." The court determined, "I can't find anything but that this was done within exactly what the privilege was intended to target" and concluded that the privilege applied … . The mother "was approaching [the pastor] in his role as a pastor. She was seeking his pastoral guidance and for that reason, there was the expectation of privacy." The trial court also noted that she "clearly testified as well that she did expect for this to be a confidential communication between her and within her family." Thus, in this case, although the mother did not make a confession, she had a similar expectation the communication would not be shared. Therefore, the communication [was privileged] and the pastor was not required to make a report.

What This Means For Churches:

Clergy are mandatory child abuse reporters in 41 states, either because the definition of "mandatory reporter" under state law includes "ministers" (26 states) or because the state child abuse reporting law defines "mandatory reporter" to include all persons (15 states). However, in 30 of these states, clergy who otherwise are mandatory reporters are not required to report abuse disclosed to them in the course of a conversation covered by the clergy-penitent privilege.

This case is significant for three reasons:

First, it illustrates the potential criminal liability that clergy face if they are mandatory child abuse reporters under state law, but fail to report known or reasonably suspected incidents of abuse.

Second, this case demonstrates the importance of being familiar with the clergy-penitent privilege. The wording of this privilege varies somewhat from state to state, and few ministers could define it with specificity. But understanding the privilege is vital to an assessment of potential criminal liability for not reporting child abuse in those states in which clergy are mandatory reporters except in cases where they learn of the abuse in the course of a conversation protected by the clergy-penitent privilege.

Finally, note that the fact that a minister is excused from the duty to report child abuse by the availability of the clergy-penitent privilege does not mean that clergy should not report such abuse. They are deemed "permissive" reporters of abuse under such circumstances, meaning that they face no criminal liability for not reporting abuse. But in most cases, clergy should report known or reasonably suspected cases of child abuse even if not legally required to do so. Not only will this contribute to a cessation of the abuse, but it will also protect the minister and his or her church from potential civil liability for not reporting. People v. Prominski, 839 N.W.2d 32 (Mich. App. 2013).

Legal Developments

Child Abuse: Mandatory Reporters and Victims’ Rights

Victims of abuse may be able to sue a church as a result of leaders’ handling of the case.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Child Abuse: Mandatory Reporters and Victims’ Rights

Victims of abuse may be able to sue a church as a result of leaders’ handling of the case.

Richard R. Hammar, J.D., LL.M., CPA

KEY POINT 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

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. A minor female (the plaintiff) claimed that she told a minister that her stepfather was sexually abusing her and her sister. She met with the minister because she “just wanted the abuse to stop. That’s it.” The plaintiff further alleged that the minister responded, “I’m so glad you came and talked to me, because I don’t have to report it.” The minister explained that another minor female in the church had informed her school counselor that her father was molesting her, and this had resulted in the state investigating the allegation and ruining the father’s reputation in the community and bankrupting the family. The plaintiff stated that “[the] message came across pretty loud and clear [that] had I gone to somebody else, they would have reported it. And the situation, what happened to the other family, would be what would happen to my family.”

A few years later the plaintiff and her sister sued their church for negligence and emotional distress as a result of the continuing molestation they had endured as a result of the failure by the church to report the child abuse to civil authorities. After three weeks of trial the jury returned a verdict in the plaintiffs’ favor of $4.2 million based on emotional distress and a negligent failure to report the abuse. The church appealed.

Does the Reporting Statute Create a Civil Remedy?

A state appeals court began its ruling by addressing the question of whether the state child abuse reporting law, which is a criminal statute, provides a civil remedy for a failure to report. The court concluded that a private remedy could be inferred by the reading of the reporting statute, for the following reasons: (1) “Implying a remedy is consistent with the underlying intent of the statute-imposing civil consequences for failure to report motivates mandatory reporters to take action to protect victims of childhood sexual abuse.” (2) The reporting statute grants immunity from civil liability to “a person who, in good faith and without gross negligence, cooperates in an investigation arising as a result of a report made pursuant to this chapter.” A grant of immunity from liability “clearly implies that civil liability can exist in the first place. Accordingly, we conclude that a private cause of action is implied under the mandated reporting statute.”

Liability for Failure to Report

The Washington reporting statute defines a “mandatory reporter” to include several specified occupations, including a “social service counselor.” A social services counselor is defined as “anyone engaged in a professional capacity during the regular course of employment in encouraging or promoting the health, welfare, support or education of children, or providing social services to adults or families, including mental health, drug and alcohol treatment, and domestic violence programs, whether in an individual capacity, or as an employee or agent of any public or private organization or institution.”

The church claimed that the reporting statute did not impose a general duty to report child abuse, but only requires certain categories of professionals to report child abuse. Because ministers are not professional social service counselors, the church argued that it had no duty to report. The court agreed. It concluded that “the legislature did not intend the mandated reporting statute to apply to volunteer counselors who are not professional social service counselors and not acting in their regular course of employment.”

In summary, the court acknowledged that a right to sue for civil damages could be implied in the child abuse reporting law, but only with respect to mandatory reporters. And, since ministers ordinarily are not professional social service counselors, they are not mandatory reporters and therefore no civil remedy exists for a failure to report child abuse. As a result, the court dismissed the plaintiffs’ claim that the church was liable for a failure to comply with the child abuse reporting law.

The church also claimed that ministers are not included on the list of mandatory reporters, and so the church could not be liable for a minister’s failure to report. Once again, the court agreed.

Emotional Distress

The court concluded that the church could be liable for inflicting emotional distress on the plaintiffs. It 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.”

Application. This case is significant for two reasons:

First, the court concluded that the state child abuse reporting law gave victims of abuse the right to sue mandatory reporters for negligence as a result of a failure to report known or reasonably evident cases of child abuse.

Second, the court concluded that churches may be liable on the basis of emotional distress for how they handle disclosures by minors of abuse, even though there is no legal duty to report the abuse to civil authorities. Doe v. Corporation, 167 P.3d 1193 (Wash. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, September/October 2008.

Legal Developments

School Not Liable for Teacher’s Affair with Student

Court determines the school did not have enough evidence to intervene.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

School Not Liable for Teacher’s Affair with Student

Court determines the school did not have enough evidence to intervene.

Richard R. Hammar, J.D., LL.M., CPA

Key Point 10-05.2 Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

Key Point 10-07 A church may exercise 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.

A Mississippi court ruled that a school was not liable for the molestation of a minor student by a teacher since it had insufficient evidence of the teacher’s wrongful conduct to intervene. A teacher at a public middle school (the “defendant”) developed a mentoring relationship with an adolescent girl (the “victim”), which was approved of and encouraged by her mother who was divorced and appreciated a “father figure” in her daughter’s life. The defendant had no prior criminal record, no history of sexually harassing students, was in fact highly regarded by school officials, and had a reputation as a capable and caring teacher.

The defendant began paying more attention to the victim because of their mentoring relationship. It was not unusual for him to call her at home, take her to church, or attend dance recitals and other extra-curricular activities. The victim’s mother had complete trust in the defendant, and later claimed that he gave her no indication that his relationship with the victim was anything more than “fatherly” attention. Eventually, the defendant began having sexual contact with the victim on numerous occasions. They increasingly communicated with each other through email, phone calls, and handwritten notes. Because of the illicit and illegal nature of the relationship, the defendant and victim both concealed it. The defendant often stressed the importance of keeping their relationship a secret, and that if the truth were disclosed he would lose his job, wife and daughter.

The school principal first heard about the possibility of the defendant’s inappropriate conduct through an unsubstantiated rumor from the school secretary that the defendant and victim were involved in an inappropriate relationship. The principal immediately confronted the defendant and asked about the truthfulness of the rumor. The defendant vehemently denied any wrongdoing. The principal warned him that even a mere rumor could ruin a teacher’s career. The principal believed the defendant. In any event, there was no substantiated evidence beyond this one rumor to prove otherwise. The principal did not receive any other complaints or rumors from anyone else regarding the situation, including other students, teachers, or any of the victim’s family members.

The relationship was finally exposed when the victim’s sister found some discarded love letters from the defendant to the victim in the trash. The mother was told about the letters, obtained her daughter’s email password, and read the impassioned emails between her daughter and the defendant and was infuriated by the defendant’s breach of trust. The mother claimed it was at this time she first realized the defendant’s relationship with her daughter was not innocent. With copies of the emails in hand, the mother went to the defendant’s house, confronted him in front of his wife and demanded his resignation from the school. The teacher complied and gave the principal his resignation, claiming it was over some “stupid emails.”

The victim’s mother sued the defendant and school. The claims against the defendant were later settled out of court, and the case against the school proceeded to trial. The mother claimed that the school was responsible for the defendant’s wrongful acts on the basis of negligent training, negligent retention, and failure to comply with the state child abuse reporting law. The court ruled in favor of the school, and the mother appealed.

Negligent retention

The court noted that “an employer will be liable for negligent retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness …. A plaintiff must prove the defendant had either actual or constructive knowledge of an employee’s incompetence or unfitness before the employer will become liable for the negligent retention of an employee who injures a third party.” The court defined constructive notice as “information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.”

Did the school have actual or constructive knowledge that the defendant represented a risk of harm to minors? No, concluded the court:

From the evidence and testimony in the record, the trial court was correct in finding there was no actual notice to prove the school knew of the affair. The school had one uncorroborated rumor about a possible inappropriate relationship between the defendant and victim which was initiated by the school secretary and told to the principal. There was no tangible evidence of the affair until the discarded notes and emails were found. School computers were not used for this correspondence nor were school telephones used for phone calls. All of the physical contact occurred [off of school property]. Understandably, because of its illicit nature, the couple did not inform anyone of their relationship. Also understandably, the victim’s mother did not inform anyone at the school about the relationship because she was under the impression it was innocent. The mother presented no evidence that any employee or official at the school knew of the relationship either, except the isolated rumor by the school secretary. There were no complaints, formal or informal, lodged at the school or alleged by any individual. In retrospect, it is easier to see the signs of inappropriateness in the defendant’s actions, but at the time they were occurring, there was insufficient proof to claim the school was negligent in not taking action.

Furthermore, there was insufficient constructive notice of the inappropriate relationship to claim the school should have known of the affair. The defendant had no prior history of wrongdoing and had a good reputation with the principal who knew him personally from when he was a student. There was no indication that the defendant would be an unfit or incompetent teacher either when they hired him or after he began teaching. He had a good reputation … and there is nothing indicative about his past actions or actions at the time of his employment at the school that would rise to the level of giving constructive notice to the school of his transgressions. Further, many of his acts were under the guise of innocence, such as his tutoring of the victim and her babysitting of his child. Importantly, the victim’s mother approved of and gave permission for most of the instances when the couple was together …. The principal was dealing with limited information that did not include knowledge of the extra tutoring, rides home from sporting events, church and softball excursions, phone calls, emails, notes, and the mentoring relationship.

The court also ruled that the school acted appropriately in retaining the defendant until the emails were discovered and he resigned. Once the school learned of the extent of the defendant’s misconduct, it “did not exhibit indifference. The principal testified that if the defendant had not resigned he would have been fired.”

Child Abuse Reporting

The mother insisted that the school was liable for the defendant’s wrongful acts on the basis of the school’s failure to comply with the state child abuse reporting law. The court disagreed, for four reasons. First, it pointed out that the Mississippi child abuse reporting law specifies that “any … public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services.” The statute defines an “abused child” as “a child whose parent, guardian or custodian or any person responsible for his care or support” committed the abuse. The court noted that while the defendant “was surely an employee of the school … we fail to see how he could ever be considered a person responsible for the victim’s care or support.”

Second, the reporting duty only arises when a mandatory reporter has reasonable cause to suspect that abuse has occurred, and school officials did have sufficient evidence of wrongdoing to have reasonable cause to suspect that the defendant had abused the victim. In this regard, the court noted that “there was no evidence which proves the school’s officials were aware of the inappropriate relationship until after the defendant resigned.” The court also noted that “an unsubstantiated rumor carries significantly less credibility than a formal accusation, and there were no formal accusations in this case.” In addition, the rumor did not involve any indication of “fondling or sexual involvement between the victim and defendant,” but rather “only the possibility of an inappropriate relationship.”

Third, even if school officials “shirked their duty” to report sexual involvement of a teacher with a student, by the time they had sufficient knowledge to report the behavior the defendant had already resigned and the relationship had ended. Reporting to law enforcement officials at the time of the rumor “would not have alleviated any of the defendant’s prior wrongdoings, or any alleged current or potential future damages claimed by the victim.”

Application. This case is important for the following reasons:

  1. It illustrates the danger inherent in unsupervised “mentoring” relationships between adults and minors. Such arrangements occur in many churches, and they should always be viewed as involving a high degree of risk. Churches should never consider the establishment of such relationships without (1) conducting thorough background checks on the adult mentors; (2) the creation of appropriate boundaries; and (3) obtaining and following the guidelines used by other charities (such as Big Brothers/Sisters) that utilize mentoring relationships between adults and minors.
  2. The court concluded that school officials’ awareness of a rumor of an inappropriate relationship between a teacher and a minor student was not enough to make the school liable on the basis of negligent retention for the teacher’s acts of molestation. The court noted that there was no tangible evidence of the affair until the discarded notes and emails were found; school computers and telephones were not used to facilitate the relationship; all of the acts of molestation occurred off of school premises; the defendant had no prior history of wrongdoing, and had an excellent reputation; and, because of its illicit nature, the couple did not inform anyone of their relationship.
  3. The court rejected the mother’s claim that school officials violated a state child abuse reporting law since the reporting duty only applied to an “abused child,” and the victim in this case did meet the statute’s definition of an abused child since she was not abused by someone “responsible for her care or support.” Several other states define reportable child abuse in this same way, and this illustrates the importance of church leaders being familiar with their state’s requirements.
  4. The court also rejected the mother’s claim that school officials violated their duty to report child abuse since an unsubstantiated rumor did not create the reasonable suspicion of abuse necessary to trigger a duty to report. The court concluded that “an unsubstantiated rumor carries significantly less credibility than a formal accusation.”
  5. The court concluded that mandatory child abuse reporters cannot be liable for failing to report abuse when they don’t learn of the abuse until after the abuse is disclosed and the offender’s wrongful acts terminated. Doe ex rel. Brown v. Pontotoc County School District, 957 So.2d 410 (Miss. App. 2007).

    6. This Recent Development first appeared in Church Law & Tax Report, March/April 2008.

Legal Developments

Former Director of Evangelization Sues Diocese for Wrongful Termination

Courts generally cannot resolve church employment disputes.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Former Director of Evangelization Sues Diocese for Wrongful Termination

Courts generally cannot resolve church employment disputes.

Richard R. Hammar, J.D., LL.M., CPA

Key Point 2-04.1 Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

A Washington state appeals court ruled that the First Amendment prevented it from resolving a claim of wrongful termination by the former director of evangelization of a diocese. A Catholic diocese hired a man (“Bruce”) as director of evangelization. Bruce’s job description defined his duties to include the development and implementation of “evangelization adult formation programs in Christian discipleship, Scripture, the Catholic Faith as summarized in the Creed, Sacraments, Liturgy, Morality, Spirituality, Evangelization and Social Justice with the goal of preparing every Catholic for ministry in the Church and mission in society.” Bruce helped compile a handbook for the Deacon Formation Program and guidelines for the Parish Pastoral and Finance Councils. In this bishop’s opinion, Bruce’s job “was directly related to the teaching of the Catholic Faith and doctrine.”

The diocese discovered pictures on a priest’s computer of naked adolescent boys on a beach. When confronted, the priest attempted suicide. In response, the diocese sent him to a psychiatric facility. The computer was turned over to state and federal prosecutors, but no charges were filed. The priest returned to the diocese and was assigned to a church that operated a parochial school. Bruce disagreed with the handling of the situation, and expressed his dissatisfaction in writing. Thereafter, his duties were cut back to the point that he was forced to resign. He later sued the diocese for retaliatory discharge.

A trial court dismissed Bruce’s lawsuit, and the case was appealed. A state appeals court ruled that the “ministerial exception” required it to affirm the dismissal of Bruce’s claims. The court, in explaining the ministerial exception, observed: “Secular courts must avoid controversies between a church and its minister because the introduction of government standards to the selection of spiritual leaders would significantly, and perniciously, rearrange the relationship between church and state. Moreover, an investigation and review of such matters of church administration and government as a minister’s salary, his place of assignment and his duty could only produce by its coercive effect the very opposite of that separation of church and state contemplated by the First Amendment.”

The court concluded that Bruce’s position was ministerial, though he was not ordained, and therefore the ministerial exception applied. It noted that “In determining whether an employee is considered a minister for the purposes of applying the ministerial exception, we do not look to ordination but instead to the function of the position,” and that the ministerial exception “encompasses all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission.” The court noted that the diocese hired Bruce as its director of evangelization, and that “evangelism by its very term means preaching the gospel.” Fontana v. Diocese of Yakima, 157 P.3d 443 (Wash. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, January/February 2008.

Posted:

Legal Developments

School Not Liable for Teacher’s Molestation of Student

Court rules that the school lacked sufficient evidence to intervene.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

School Not Liable for Teacher’s Molestation of Student

Court rules that the school lacked sufficient evidence to intervene.

Richard R. Hammar, J.D., LL.M., CPA

Key Point 10-05.2 Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

Key Point 10-07 A church may exercise 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.

A Mississippi court ruled that a school was not liable for the molestation of a minor student by a teacher since it had insufficient evidence of the teacher’s wrongful conduct to intervene. A teacher at a public middle school (the “defendant”) developed a mentoring relationship with an adolescent girl (the “victim”) which was approved of and encouraged by her mother who was divorced and appreciated a “father figure” in her daughter’s life. The defendant had no prior criminal record, no history of sexually harassing students, was in fact highly regarded by school officials, and had a reputation as a capable and caring teacher.

The defendant began paying more attention to the victim because of their mentoring relationship. It was not unusual for him to call her at home, take her to church, or attend dance recitals and other extra-curricular activities. The victim’s mother had complete trust in the defendant, and later claimed that he gave her no indication that his relationship with the victim was anything more than “fatherly” attention. Eventually, the defendant began having sexual contact with the victim on numerous occasions. They increasingly communicated with each other through email, phone calls, and handwritten notes. Because of the illicit and illegal nature of the relationship, the defendant and victim both concealed it. The defendant often stressed the importance of keeping their relationship a secret, and that if the truth were disclosed he would lose his job, wife and daughter.

The school principal first heard about the possibility of the defendant’s inappropriate conduct through an unsubstantiated rumor from the school secretary that the defendant and victim were involved in an inappropriate relationship. The principal immediately confronted the defendant and asked about the truthfulness of the rumor. The defendant vehemently denied any wrongdoing. The principal warned him that even a mere rumor can ruin a teacher’s career. The principal believed the defendant. In any event, there was no substantiated evidence beyond this one rumor to prove otherwise. The principal did not receive any other complaints or rumors from anyone else regarding the situation, including other students, teachers, or any of the victim’s family members.

The relationship was finally exposed when the victim’s sister found some discarded love letters from the defendant to the victim in the trash. The mother was told about the letters, obtained her daughter’s email password, and read the impassioned emails between her daughter and the defendant and was infuriated by the defendant’s breach of trust. The mother claimed it was at this time she first realized the defendant’s relationship with her daughter was not innocent. With copies of the emails in hand, the mother went to the defendant’s house, confronted him in front of his wife and demanded his resignation from the school. The teacher complied and gave the principal his resignation, claiming it was over some “stupid emails.”

The victim’s mother sued the defendant and school. The claims against the defendant were later settled out of court, and the case against the school proceeded to trial. The mother claimed that the school was responsible for the defendant’s wrongful acts on the basis of negligent training, negligent retention, and failure to comply with the state child abuse reporting law. The court ruled in favor of the school, and the mother appealed.

Negligent retention
The court noted that “an employer will be liable for negligent retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness …. A plaintiff must prove the defendant had either actual or constructive knowledge of an employee’s incompetence or unfitness before the employer will become liable for the negligent retention of an employee who injures a third party.” The court defined constructive notice as “information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.”

Did the school have actual or constructive knowledge that the defendant represented a risk of harm to minors? No, concluded the court:

From the evidence and testimony in the record, the trial court was correct in finding there was no actual notice to prove the school knew of the affair. The school had one uncorroborated rumor about a possible inappropriate relationship between the defendant and victim which was initiated by the school secretary and told to the principal. There was no tangible evidence of the affair until the discarded notes and emails were found. School computers were not used for this correspondence nor were school telephones used for phone calls. All of the physical contact occurred [off of school property]. Understandably, because of its illicit nature, the couple did not inform anyone of their relationship. Also understandably, the victim’s mother did not inform anyone at the school about the relationship because she was under the impression it was innocent. The mother presented no evidence that any employee or official at the school knew of the relationship either, except the isolated rumor by the school secretary. There were no complaints, formal or informal, lodged at the school or alleged by any individual. In retrospect, it is easier to see the signs of inappropriateness in the defendant’s actions, but at the time they were occurring, there was insufficient proof to claim the school was negligent in not taking action.

Furthermore, there was insufficient constructive notice of the inappropriate relationship to claim the school should have known of the affair. The defendant had no prior history of wrongdoing and had a good reputation with the principal who knew him personally from when he was a student. There was no indication that the defendant would be an unfit or incompetent teacher either when they hired him or after he began teaching. He had a good reputation … and there is nothing indicative about his past actions or actions at the time of his employment at the school which would rise to the level of giving constructive notice to the school of his transgressions. Further, many of his acts were under the guise of innocence, such as his tutoring of the victim and her babysitting of his child. Importantly, the vicitm’s mother approved of and gave permission for most of the instances when the couple was together …. The principal was dealing with limited information that did not include knowledge of the extra tutoring, rides home from sporting events, church and softball excursions, phone calls, emails, notes, and the mentoring relationship.

The court also ruled that the school acted appropriately in retaining the defendant until the emails were discovered and he resigned. Once the school learned of the extent of the defendant’s misconduct, it “did not exhibit indifference. The principal testified that if the defendant had not resigned he would have been fired.”

Child abuse reporting
The mother insisted that the school was liable for the defendant’s wrongful acts on the basis of the school’s failure to comply with the state child abuse reporting law. The court disagreed, for four reasons. First, it pointed out that the Mississippi child abuse reporting law specifies that “any … public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services.” The statute defines an “abused child” as “a child whose parent, guardian or custodian or any person responsible for his care or support” committed the abuse. The court noted that while the defendant “was surely an employee of the school … we fail to see how he could ever be considered a person responsible for the victim’s care or support.”

Second, the reporting duty only arises when a mandatory reporter has reasonable cause to suspect that abuse has occurred, and school officials did have sufficient evidence of wrongdoing to have reasonable cause to suspect that the defendant had abused the victim. In this regard, the court noted that “there was no evidence which proves the school’s officials were aware of the inappropriate relationship until after the defendant resigned.” The court also noted that “an unsubstantiated rumor carries significantly less credibility than a formal accusation, and there were no formal accusations in this case.” In addition, the rumor did not involve any indication of “fondling or sexual involvement between the victim and defendant,” but rather “only the possibility of an inappropriate relationship.”

Third, even if school officials “shirked their duty” to report sexual involvement of a teacher with a student, by the time they had sufficient knowledge to report the behavior the defendant had already resigned and the relationship had ended. Reporting to law enforcement officials at the time of the rumor “would not have alleviated any of the defendant’s prior wrongdoings, or any alleged current or potential future damages claimed by the victim.”

This Recent Development first appeared in Church Law & Tax Report, January/February 2008.

Legal Developments

The First Amendment and Church Employment Disputes

Courts are generally barred from resolving ministers’ employment claims.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

The First Amendment and Church Employment Disputes

Courts are generally barred from resolving ministers’ employment claims.

Richard R. Hammar, J.D., LL.M., CPA

Key Point 2-04.1 Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

A Massachusetts court ruled that it was barred by the First Amendment from resolving a minister’s claim that his dismissal was unlawful. An Episcopal priest (the “plaintiff”) served as an interim priest until a new bishop was appointed for the diocese. The new bishop considered the plaintiff’s criminal record, information revealed in a background check, information the plaintiff volunteered about his previous employment, and knowledge of the plaintiff’s conduct as a priest to determine that the plaintiff could serve only as a supply, substitute, or assistant priest but not as an interim priest, priest-in-charge, or rector within the diocese. The plaintiff thereafter served various parishes in the diocese as a supply or assistant priest. The bishop later withdrew the plaintiff’s license to serve as a priest on the basis of complaints about the plaintiff’s conduct and performance; improper attempts by the plaintiff to obtain additional compensation from a church; inappropriate email communications from the plaintiff that were intercepted by the diocese; and other unspecified information obtained about the plaintiff’s behavior.

The plaintiff sued the diocese, claiming that he had been removed from his position as an interim priest, and denied any administrative or interim positions in the diocese since that time. He further claimed that he had been removed as a priest because of his efforts to pursue an audit of the church’s finances, and his filing of a written complaint with the Internal Revenue Service. He also claimed that his dismissal as a minister was due in part to unlawful “retaliation” against him for reporting child abuse. Specifically, he argued that he observed a church member transporting boy scouts in his motor vehicle though his driver’s license had been revoked or suspended for a conviction involving the member’s drunk driving and killing of a child with his vehicle. The plaintiff claimed that after reporting to the vestry and the diocese and being “rebuked,” he made a report to the local police pursuant to the state child abuse reporting law. He argued that the reporting law protects mandatory reporters of child abuse from retaliation by their employer for making a report of child abuse, and that the diocese violated this prohibition by revoking his ministerial status.

The court rejected this argument for three reasons. First, the plaintiff reported the alleged abuse to the police rather than to the Department of Social Services as required by the reporting statute. As a result, the anti-retaliation provision in the reporting law was not triggered. Second, the plaintiff reported the alleged abuse to the police in 2000, two years before clergy were added to the list of mandatory reporters in Massachusetts. As a result, the antiretaliation provision, which only protects mandatory reporters, did not apply. Third, the court considered it “doubtful” that the plaintiff had “reasonable cause to believe” that, as a result of the transportation arrangement, any of the boy scouts was a victim of child abuse, and therefore no report was required.

Application. This case is important for two reasons. First, the court concluded that the constitutional limitation on judicial intervention in clergy employment disputes applies to “whistleblowers.” Second, the court’s analysis of the anti-retaliation provision in the Massachusetts child abuse reporting law is instructive. Such provisions are common in child abuse reporting laws, but, as this court concluded, they may not protect clergy if (1) they report child abuse to the wrong person or agency; (2) they are not mandatory reporters under state law; or (3) they lacked reasonable cause to believe that child abuse had occurred. Gallagher v. Episcopal Diocese of Massachusetts, 864 N.E.2d 1260 (Mass. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, January/February 2008.

Legal Developments

Child Abuse Reporting Protection in Counseling

A Florida appeals court ruled that counseling notes prepared by a psychotherapist during counseling sessions with a minister accused of child abuse were not protected against disclosure in court.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Child Abuse Reporting Protection in Counseling

A Florida appeals court ruled that counseling notes prepared by a psychotherapist during counseling sessions with a minister accused of child abuse were not protected against disclosure in court.

Richard R. Hammar, J.D., LL.M., CPA

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

* A Florida appeals court ruled that counseling notes prepared by a psychotherapist during counseling sessions with a minister accused of child abuse were not protected against disclosure in court by the state’s psychotherapist-patient privilege if they contained references to child abuse. A minor (the “plaintiff”) sued a church claiming that he had been sexually molested by a Catholic priest. The plaintiff subpoenaed counseling notes prepared by a psychiatrist during his counseling sessions with the defendant priest. These sessions included an evaluation for pedophilia. The psychiatrist refused to turn over the notes based on the state’s psychotherapist privilege. This privilege gives patients the privilege “to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.”

The plaintiff claimed that the psychotherapist privilege did not apply in this case because of the following state law: “The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the [clergy-penitent] privilege … shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report [child abuse] regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect.”

A state appeals court sent the case back to the trial court, with the stipulation that the trial judge review the counseling notes and decide which portions “concern communications involving known or suspected child abuse.” The court ruled that the psychotherapist privilege would not apply to these portions of the notes, based on the state law quoted above, even if the references to child abuse pertained to minors other than the plaintiff. Doherty v. John Doe No. 22, 957 So.2d 1267 (Fla. App. 2007).

Legal Developments

Civil Liability for Failure to Report Child Abuse

Mandatory reporters who fail to report abuse can be subject to possible criminal liability and can be sued for money damages by the victims of abuse.

Richard R. Hammar, Attorney, CPA
Bio


Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

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 conceded that courts in other states have generally refused to allow victims of child abuse to sue mandatory reporters who fail to report, but it noted that all of those rulings were in other states.

The plaintiff acknowledged that the reporting statute did not explicitly authorize civil lawsuits for failure to report, but argued 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 in this case 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:

The plaintiff, a victim of childhood sexual abuse, certainly falls within the class of persons the statute is designed to protect. Washington courts have clearly stated that the mandatory reporting statute is designed “to secure prompt protection or treatment for the victims of child abuse ….” Second, the legislative intent behind the statute supports the creation of a civil remedy. It is true that [the statute] provides a penal remedy, but not a civil remedy. [The church] asserts that such a penal remedy indicates that the legislature did not intend to imply a civil remedy also. However, this court recognizes, just as Washington state courts have recognized, that when a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned therein …. The logical conclusion is that the legislative intent supports the creation of a civil remedy for victims of child sexual abuse when those mandated to report the abuse fail to do so. Likewise, the Court finds that implying a civil remedy is consistent with the underlying purpose of the statute. The declared intent of the statute is “to prevent further abuses, and to safeguard the general welfare of such children.” RCW 26.44.010. Implying a civil cause of action against those who are mandated to report child abuse, but fail to do so, will motivate those required to report to take action, and furthers the goals of the statute itself. Accordingly, the Court finds that there is an implied private cause of action stemming from the statutory requirement to report child abuse.

Application. Eight states (Arkansas, Colorado, Iowa, Michigan, Montana, New York, Ohio, and Rhode Island) have enacted laws that create civil liability for failure to report child abuse. In these states victims of child abuse can sue adults 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.

Most state child abuse reporting laws do not specifically authorize victims of abuse to sue mandatory reporters who failed to report the abuse. Several courts have addressed the issue of whether to recognize such a civil remedy apart from any specific language in the statute creating one. Most have not. The decision of the Washington federal court reflects the minority position. As a result, mandatory reporters in Washington may be subject to both criminal and civil liability for failing to report known or reasonably suspected incidents of child abuse. Fleming v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 WL 753234 (W.D. Wash. 2006).

See a summary of the child abuse reporting laws of all 50 states.

Legal Developments

Child Abuse Reporting

The New Hampshire Supreme Court ruled that church leaders who failed to report allegations of child abuse could not be sued.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

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.

A female church member sought spiritual guidance from elders of her church because of marital problems she was experiencing, which included physical and verbal abuse. In response to her requests, the elders provided the couple with spiritual advice and assistance, which included prayers, Bible readings, and discussion of the Scriptures for application to their problems. The wife claimed that on ten separate occasions she informed the elders that her husband was abusing their two minor children. The husband was later convicted of molesting one of the children. Several years later, when the two children were adults, they sued their church, and a parent denomination (the 'church defendants'), claiming that they were liable for their injuries on the following grounds: (1) negligent failure to report the abuse; (2) a breach of their fiduciary duties by failing to report the abuse; and (3) willful concealment of the abuse.

The church defendants asked the trial court to dismiss the lawsuit since (1) the clergy-penitent privilege prevented the elders from reporting the abuse; (2) they had no fiduciary duty to protect minor church members from abuse; and (3) the child abuse reporting law did not create a private right of action. The trial court ruled that all of the plaintiff's claims amounted to 'clergy malpractice,' and that the First Amendment guaranty of religious freedom barred the civil courts from resolving such claims. The plaintiffs appealed.

The child abuse reporting law

The plaintiffs argued on appeal that the plain language of the child abuse reporting law required the elders to report the suspected child abuse to law enforcement authorities, and so their failure to report rendered them liable for the plaintiffs' injuries. 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.

'Common law duty' to report child abuse

The plaintiffs claimed that the church defendants had a common law duty to take action to protect them because a 'fiduciary relationship' existed between them that arose because 'they and their family were members of the church and relied to their detriment on elders of the congregation for moral, spiritual, and practical guidance.'

The court noted that 'special relationships' giving rise to a duty to aid or protect individuals from the criminal acts of others include relationships between schools and students, common carriers and passengers, innkeepers and guests, and landowners and invitees. These are deemed special relationships because each involves the assumption of custody over another 'under circumstances such as to deprive the other of his normal opportunities for protection.'

In this case, however, the court concluded that there was no reason to find a special relationship between a church and its members (including those who are minors), since 'there is no allegation that [the father's] alleged abusive acts took place on congregation property or during congregation-related activities. There is no allegation that the plaintiffs were under the custody or control of the church defendants at any time. In fact, the evidence is that the plaintiffs were at all times under the custody and protection of their parents. [As a result] there are no factors present that establish any special relationship between the plaintiffs and church defendants.' Since there was no special relationship, there was 'no common law duty running from the church defendants to the plaintiffs' that was breached by their failure to report the abuse.

The court pointed out that the mother had her own independent and overarching duty to protect her children from abuse perpetrated by her husband and had a common law obligation to intervene regardless of any advice she received from the elders.

Breach of a fiduciary duty

The court rejected the plaintiffs' claim that the church defendants owed them a fiduciary duty of care when the elders became aware of the abuse. A fiduciary relationship exists 'wherever influence has been acquired and abused or confidence has been reposed and betrayed.' In this case, the plaintiffs 'did not allege that the elders acquired influence over them or that their confidence had been reposed in the elders and that without these basic facts, there can be no fiduciary relationship.'

Application . This case is significant for two reasons. First, it rejects the view that a state child abuse reporting statute authorizes victims of abuse to bring civil lawsuits against persons who knew of the abuse but failed to report it. This same conclusion has been reached by many other courts. Note, however, that eight states have amended their child abuse reporting law to specifically authorize victims to sue mandatory reporters who fail to report abuse. Second, it is interesting to note that the court failed to point out that the New Hampshire child abuse reporting law specifically negates the clergy-penitent privilege in the context of child abuse reporting. It states, 'The privileged quality of communication between husband and wife and any professional person and his patient or client, except that between attorney and client, shall not apply to proceedings instituted pursuant to this chapter and shall not constitute grounds for failure to report as required by this chapter.' Berry v. Watchtower Bible and Tract Society, 879 A.2d 1124 (N.H. 2005).

Legal Developments

Child Abuse Reporting

A New York court ruled that the subject of a child abuse report had no legal right to obtain the name of the person who reported the abuse.

Richard R. Hammar, Attorney, CPA
Bio


Key point 4-08 . Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A New York court ruled that the subject of a child abuse report had no legal right to obtain the name of the person who reported the abuse, despite his claim that he needed the reporter's identity so that he could sue him for filing a false and malicious report.

A public school employee reported a suspected case of child abuse to state authorities. The report identified the suspected perpetrator of the abuse (the plaintiff). Upon learning that he was accused of child abuse, the plaintiff sued the school for defamation and emotional distress. When the school refused to disclose the name of the employee who reported the abuse, the plaintiff sought a court order compelling the school to disclose the reporter's identity.

A trial court granted the order, but a state appeals court reversed this ruling. The appeals court noted that the state child abuse reporting law specifies that reports of child abuse "shall be confidential and shall only be made available" to certain persons and agencies listed in the statute. While persons who are the subject of a report are entitled to a copy of the report, the law specifies that "nothing in this [law] shall be construed to permit any release, disclosure or identification of the names or identifying descriptions of persons who have reported suspected child abuse or maltreatment to the statewide central register … without such persons' written permission."

The court agreed with the plaintiff that the child abuse reporting law allows the subject of a child abuse report to sue the reporter for monetary damages if the reporter did not act in good faith and acted with willful misconduct or gross negligence. However, the court noted that the statute "made no exception for the disclosure of the name of the person reporting the suspected abuse where there is an allegation that such person acted with willful misconduct or gross negligence, and we decline to read an implied exception into the statute."

The court conceded that its conclusion "may make it difficult for plaintiff to pursue his action, but our holding is consistent with the intent of [the law] to protect the confidentiality of the names of the persons reporting suspected child abuse [since] disclosure of sources of information could have a chilling effect, thus hampering agency efforts in providing services to distressed families. If a party alleging defamation, such as plaintiff here, could obtain the names of the reporters by simply commencing a defamation action, any such exception would swallow the rule of reporter confidentiality."

Application . Church leaders who report child abuse (or who are considering doing so) often wonder if their identity will be revealed to the alleged abuser. This case demonstrates that a reporter's identity may be kept confidential as a result of state law, even if this means that it will be difficult if not impossible for alleged abusers to exercise their right under a child abuse reporting law to sue a reporter for making a false or grossly negligent report. Selapack v. Iroquois Central School District, 794 N.Y.S.2d 547 (N.Y. App. 2005).

Legal Developments

Child Abuse Reporting

A Utah court ruled that a national church was not liable for the molestation of two minors by a local church leader.

Richard R. Hammar, Attorney, CPA
Bio


Key point 4-08 . Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A Utah court ruled that a national church was not liable for the molestation of two minors by a local church leader despite the fact that it had received reports for more than 30 years concerning the leader's acts of child abuse, and had failed to report these allegations to civil authorities as required by the state child abuse reporting law.

For many years, a man (George) was a lay leader in a local church and also served as a scout leader in a Boy Scout troop hosted by the church. Over the course of nearly 30 years the denomination with which the church was affiliated (the "national church") received numerous complaints from members that George was sexually abusing children, though none of these complaints alleged that the abuse was occurring on church property or in the course of church activities. Two of George's victims were Jane and John. In 1976, George enticed Jane, who was then 13 years old, into his home where he molested her. He sexually abused John (Jane's son) between 1993 and 1996 when John was 5 or 6 years old.

In 2001 Jane learned of news reports that led her to believe that the national church had prior knowledge of George's propensities to sexually abuse children. Her investigation of these reports prompted her to sue George on the basis of his molestation of both herself and her son, and the national church on the basis of negligence, breach of fiduciary duty, and emotional distress. Jane alleged that the national church did nothing in response to the numerous complaints it had received over the course of nearly 40 years concerning George, and actively concealed his sexual abuse from its members and secular authorities. Moreover, the national church allowed George to continue to serve as scout leader.

A trial court dismissed all claims against the national church on the ground that no special relationship existed between it and the victims, and therefore it had no duty to protect them from George. The victims appealed.

duty to warn

Did the national church have a legal duty, as Jane insisted, to warn her and her brother about George's prior acts of child sexual abuse? The court noted that the traditional rule is that no one has a legal duty to warn others of impending harm, unless a "special relationship" exists with either the potentially dangerous person or a victim. It rejected Jane's contention that such a relationship existed between the national church and George. It pointed out that a special relationship generally applies only to a person or entity having "custody and control" over another, since under these circumstances it should be expected that the person or entity exerting the custody and control would warn others of potential dangers. But, such a relationship simply did not exist between the national church and George. The court noted that George was not an employee of the national church, he was not a minister, and none of the acts of abuse occurred on church property or during a church activity or in connection with George's role as a scout leader.

The court conceded that the national church had the authority to remove George as a lay leader in his church, and to excommunicate him, but these facts alone were "insufficient to establish that the national church had custody and control over him. As a result, the court concluded that no special relationship existed between the national church and George that would give rise to a duty on the part of the national church to warn Jane and her son about George. The court concluded, "Because the national church did not have custody or control over George, the plaintiffs' claim that it had thirty years of notice that he was uniquely dangerous is irrelevant. Although his history certainly suggests that it was foreseeable that he would sexually abuse other minor church members, the state supreme court has emphasized that foreseeability of harm, by itself, is unrelated to whether a special relationship exists."

The court also rejected Jane's argument that a special relationship existed between the national church and herself and her son that gave rise to a duty to warn since they were church members at risk of harm by a suspected child molester. Once again, the court pointed out that a special relationship would only arise if the national church exercised custody and control over Jane and her son when they were molested. The court concluded that "if a church lacks custody, it has no protective obligation and no special relationship exists."

The court acknowledged that the national church's president wielded considerable authority and had "the power to greatly minimize the harm George was causing." However, the court noted that "the ease with which a party may fulfill a duty is irrelevant to whether a special relationship exists because that question assumes a party already has a duty." The court concluded, "The sexual abuse in this case was unconnected to the national church and did not occur while plaintiffs were in the national church's custody. Accordingly, we also reject plaintiffs' argument that church membership alone was sufficient to establish a special relationship between the national church and plaintiffs that created a duty on the national church's part to warn plaintiffs about George."

failure to report child abuse

Jane and her son claimed that national church officers who were apprised over the course of 30 years of George's acts of child abuse had a legal duty to report the abuse to civil authorities pursuant to the state child abuse reporting law, and that their failure to do so allowed many children, including themselves, to be molested. They claimed that the national church should be liable on this basis for George's acts of molestation. The court disagreed. It conceded that Utah law provides for criminal sanctions for failing to report suspected child sexual abuse. However, "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." In other words, the child abuse reporting law did not contain a provision allowing molested children to sue mandatory reporters who failed to report prior abuse committed by the person who molested them, and any such basis of civil liability would have to be created by the legislature rather than the courts.

Application . This case is important for the following reasons. First, the court refused to impose a "duty to warn" upon a denominational agency despite reports stretching back more than 30 years that a church member holding a position of leadership in an affiliated church had repeatedly molested children. A duty to warn, the court concluded, only arises when a "special relationship" exists, and such a relationship did not exist between the national church and either the offender or the victims. This conclusion will be surprising if not shocking to some, and it certainly should not be viewed as a model for others to emulate. Courts in other states may well not agree with this conclusion. And, even if they do, church leaders should realize that while they may not have a legal duty to warn potential victims absent a special relationship, they may have an ethical duty to do so. Also, note that even under this court's reasoning a special relationship will arise between a national church and its clergy, and in any case involving custody or control over a perpetrator or victim (e.g., minors at a church-operated camp).

Second, the court refused to hold the national church liable for the molestation of the plaintiffs on the basis of its failure to comply with its child abuse reporting obligation under state law. The plaintiffs claimed that if church officials had complied with their duty to report the numerous allegations of child abuse concerning George, then he would have been apprehended and would never have been able to molest them. This is a compelling argument, but it was rejected by the court on the ground that "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." Note, however, that some state child abuse reporting laws have specifically created a private right of action which allows victims to sue mandatory reporters for failing to report abuse. See a summary of the child abuse reporting laws for all 50 states. Doe v. The Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 98 P.3d 429 (Utah App. 2004).

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