Child Abuse

Legal Developments

Federal Case Offers Insight into Protecting Minors From Abuse on Church Property

Churches can use this federal case out of New York when seeking to protect minors from abuse on church property.

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-04.3. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.

A federal court in New York addressed the issue of appropriate restrictions to impose on a felon who had been convicted of possession of child pornography. 

Background

A man convicted in federal court of possessing and receiving child pornography was later released on several conditions.

The man twice violated terms of his supervised release, once in 2021, and again in 2022, due to possessing devices that could access the internet. After the 2021 violation, a special condition was added to his supervised release: he could not have deliberate contact with any child under 18 years of age, and he could not loiter within 100 feet of schoolyards, playgrounds, arcades, or other places frequented by children under 18.

In 2023, the defendant asked a court for permission to attend church or other religious services on a regular basis.

He also asked to be allowed to have lunch with his adult son, adult daughter-in-law, and granddaughter.

The government, in anticipation of prosecuting the defendant’s 2022 violation, indicated it did not object to the defendant attending religious services  on the condition that the man prepared, and the probation department approved, a safety plan for his attendance.

The government also did not object to the defendant having lunch with his adult son, adult daughter-in-law, and granddaughter, even though the defendant’s probation officer objected.

The court granted the defendant’s requests—under certain conditions. 

“The Probation Department’s request for an adequate safety plan before [the defendant] attends religious services is a sufficiently tailored precaution that adequately preserves [his] fundamental rights to associate and to exercise his religion while also protecting the public,” the court concluded. 

The court relied upon an earlier case in which “the Probation Department’s requirements that a defendant convicted of receiving child pornography be accompanied to church by an adult with his pastor’s knowledge were permissible precautions that properly balance public safety and individual liberty interests.” United States v. Hernandez, 209 F. Supp. 3d 542, 546 (E.D.N.Y. 2016).

The court granted the defendant’s request to attend church “on the condition that he provides a safety plan that is approved by his Probation Officer—a condition that his Probation Officer has previously explained to him.”

But the court then noted that the defendant’s request to have lunch with his family, including his granddaughter, “is a more difficult question.” The court recognized

 that [the defendant] has a fundamental right to maintain contact with family. On the other hand, the Court is concerned about the safety of his granddaughter given his track record. According to the Probation Officer, his treatment provider reports that he has struggled in group and individual therapy sessions, minimizes concerning behaviors, and externalizes blame. That behavior is consistent with the fact that in the relatively short period of time that he has been out of prison, he has violated supervised release conditions on two separate occasions, the last just months after he was released from a halfway house as punishment for his first violation… .

That said, the defendant was convicted of possession of child pornography, not physically molesting a child. . . . ’

 [The defendant] is proposing lunch in a public location with the granddaughter and both of her parents. That request is granted on the condition that he, at no time, is allowed unsupervised contact with his granddaughter and that, at all times during the lunch, either his son or his daughter-in-law is present.

What this means for churches 

Churches often struggle with choosing precautions to implement to protect minors from abuse on church premises and during church activities. 

Churches may be liable for incidents of child abuse on the basis of negligence, which means a failure to exercise reasonable care. 

What is reasonable can be a difficult question to answer. But it is often helpful to invoke policies of government agencies in defining reasonableness since government policies are presumptively reasonable, and that’s what makes cases such as this one important. 

Churches that align their policies and practices to thousands of government agencies, including public schools, go a long way toward demonstrating they exercise reasonable care. Efforts to go above and beyond the minimum standards set by government agencies, of course, are often wise for ministry purposes.

The court concluded that the following precautions were sufficient to allow a felon convicted of possession of child pornography to attend church and interact with minor relatives:

Attending religious services so long as he prepares, and the Probation Department approves, a safety plan for his attendance and be accompanied to church by an adult with his pastor’s knowledge of the defendant’s crimes.

Lunch with his adult son, adult daughter-in-law, and granddaughter, so long as the lunch was in a public place and that, at all times during the lunch, either his son or his daughter-in-law was present with the granddaughter.

It is also worth noting the types of conditions placed upon the defendant’s supervised released, and underscores why a church should discuss such conditions with a probation department upfront to fully understand the situation:
  • “The defendant shall not have deliberate contact with any child under 18 years of age, unless approved by the U.S. Probation Office.”
  • “The defendant shall not loiter within 100 feet of schoolyards, playgrounds, arcades, or other places regularly frequented by children under the age of 18.”
  • Barring the possession of a device with internet access.

Of course, appropriate restrictions for interacting with convicted child abusers should be reviewed by church leadership and an attorney.

United States v. Almonte, 2023 U.S. Dist. LEXIS 92633 (S.D.N.Y. 2023).

Legal Developments

Discarding Relevant Video Evidence Leads to $500,000 Judgment Against School

This case illustrates why churches should preserve footage if a lawsuit is filed or anticipated.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Churches that discard potentially relevant records, including video footage, in a pending or threatened lawsuit may be subject to potentially severe sanctions by a court.

Some churches have installed video cameras on their premises as a way to detect criminal activity. In some cases, video cameras are installed in the church office to catch financial improprieties. But the most common use of this technology is to deter incidents of child abuse and to identify perpetrators.

Whatever the reason for using video cameras, church leaders should be aware of their legal obligation to preserve such evidence in the event of litigation.

A Washington state court case illustrates the importance of preserving video camera recordings in the event of litigation.

Background

A student (the “victim”) started first grade at a public school in December 2016. Another student (the “classmate”) was in the victim’s class and they rode the same school bus. On May 22, 2017, the victim told his mother that the classmate sexually abused him “almost every day” at school. He said the abuse had been happening in a school bathroom. The same day, the victim’s parents reported this to his teacher and a school counselor, who then informed the local police department.

During the 2016–2017 school year, the school used eight surveillance cameras. Cameras one through seven were outside the school building, and camera eight was inside a closet. Cameras one through four were not operating during the time the victim and the classmate attended school together.

The school buses also had surveillance cameras. The school installed a new camera system in its buses in April 2017, and that system retained footage for about 30 days. With no action taken to preserve footage, the camera systems automatically overwrote old footage to free up storage capacity. The school cameras retained footage for at least 30 days, but it could retain footage for up to 6 months.

A school-set schedule set forth parameters for retaining camera footage. The schedule prohibits the destruction of any footage subject to “ongoing or reasonably anticipated litigation.”

On June 6, 2017, the principal emailed the victim’s mother, confirming that, based on the principal’s investigation, inappropriate touching occurred. Up to this point in time, the school took no steps to preserve any video footage.

Instructed to preserve documents

On June 19, 2017, the school received a letter from a law firm informing it that it had been retained by the victim’s mother to represent the victim and requesting that it preserve documents related to the victim and the classmate, including surveillance video footage from the school and the buses from December 2016 onward.

On June 21, 2017, school employees received an internal litigation hold letter from its attorney instructing them to preserve documents relating to the victim and to suspend standard document destruction programs. The letter explained that “documents” included electronic information and that failure to preserve documents could lead to “severe sanctions.” Even still, the court noted, the school “did not take any steps to preserve video footage.”

On October 10, 2017, the victim sued the school. On November 9, 2017, the victim sought information, documents, and video recordings related to the victim and the classmate. The victim’s lawyers asked the school to identify:

  • “[E]ach document, which you possess or have the legal right to obtain, pertaining to [the victim] or [the classmate].”
  • “[E]ach document, which you possess or have the legal right to obtain, pertaining to video or audio recordings of [the victim] or [the classmate] on the premises of [the school] or on your school buses during the 2016–17 school year, including without limitation video recordings, audio recordings, and electronically stored information.”
  • “[E]ach document, which you possess or have the legal right to obtain, pertaining to your use of video or audio recording equipment on school buses, including without limitation identification of buses outfitted with recording equipment, procedures for use of the equipment, review processes for recording media, use of the equipment in documenting instances of inappropriate student behavior, and procedures for proper disposal of recording media.”

The law firm requested, “If any such document was, but is no longer, in [the school’s] possession …, please state what disposition was made of the document.” The firm’s request defined “document” to include “video recording[s].” The responses were due December 9, 2017.

For the first time, the school acted on December 8, 2017, to preserve surveillance camera footage. The school responded to the prior discovery requests by simply stating that it had no evidence responsive to the requests.

The plaintiff asked the court to order the school to provide “complete and nonevasive answers,” and on June 7, 2018, the trial court ordered the school to identify and produce all documents, including videos, related to the victim and the classmate by June 27, 2018. The school did not comply with this order.

The school “repeatedly violated discovery rules”

The trial court concluded that the school had “spoliated” school and bus camera footage. Merriam-Webster defines “spoliation” to mean “the act of plundering,” “the state of having been plundered especially in war,” or “the act of injuring especially beyond reclaim.”

The trial court also concluded that the school “repeatedly violated discovery rules and the court’s discovery orders.” The court granted a default judgment against the school and assessed damages at $500,000.

What this means for churches

Churches that operate surveillance cameras are certainly free to delete footage after a reasonable time if no actual lawsuit is pending and none is anticipated.

But once a lawsuit is filed, or one is anticipated based on facts known to church leadership, it is important to preserve all potentially relevant evidence, including documents, emails, videos, and audio recordings. A failure to do so may constitute “spoliation of evidence” which, as this case illustrates, can result in severe penalties, including a default judgment and monetary damages.

J.K. v. Bellevue School District, 500 P.3d 138 (Wash. App. 2021)

Legal Developments

Sex Offender Sentenced to Life Term of Supervised Release

A federal appeals court ruled that sentence did not amount to “cruel and unusual” punishment.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Sex Offender Sentenced to Life Term of Supervised Release

A federal appeals court ruled that sentence did not amount to “cruel and unusual” punishment.

Richard R. Hammar

Key point. A lifetime of supervised release following a 15-year prison sentence did not violate a child sex offender’s legal rights.

* A federal appeals court ruled that sentencing a sex offender to a life term of supervised release did not amount to “cruel and unusual” punishment prohibited by the Eighth Amendment. After having his computer seized by his probation officers, a convicted child molester (the “defendant”) admitted that it contained child pornography. He later pled guilty to felony possession of child pornography.

This was not the first time that the defendant got into trouble for sexual misconduct. A few years earlier he was convicted of two counts of sexual assault for an incident involving two girls, ages nine and thirteen. The victims were playing outside their home when the defendant approached them and asked for hugs. They said “no” and ran away, but the defendant followed them into their home and cornered them in a bedroom. He received a 10-year sentence for these crimes, but obtained supervised release. His supervised release was revoked in 2002, however, because he skipped sex offender treatment sessions and obtained employment at a fair frequented by children.

A federal district court sentenced the defendant to the mandatory sentence of 15 years, but added a lifetime of supervised release following the end of his prison sentence in order to protect the community. In making this determination, the court relied on the defendant’s prior sexual assault conviction and his apparent obsession with child rape, as indicated by the pornography he possessed and his own statements.

The defendant filed a lawsuit claiming that the lifetime of supervised release following his 15-year prison sentence violated the Eighth Amendment’s prohibition against “cruel and unusual punishments.”

A federal appeals court rejected the defendant’s claim. It noted that the Eighth Amendment forbids “extreme sentences that are grossly disproportionate to the crime,” and that “it is exceptionally difficult for a criminal to show that his sentence is unconstitutionally disproportionate.” The court noted that for the defendant to succeed he would have to prove that his sentence was grossly disproportionate to his crime. It concluded that he “does not come close” to passing this test:

The defendant committed very serious crimes: sexually assaulting a nine-year-old girl, sexually assaulting a thirteen-year-old girl, and numerous instances of receiving child pornography. Moreover, although supervised release limits a criminal’s liberty and privacy, it is a punishment far less severe than prison. A lifetime of supervised release is not inappropriate for, much less grossly disproportionate to, the grave infractions which he committed …. A life term of supervised release is particularly appropriate for sex offenders given their high rate of recidivism. See H.R. Conf. Rep. No. 107-527, at 2 (noting that “sex offenders are four times more likely than other violent criminals to recommit their crimes,” and that their “recidivism rate does not appreciably decline as offenders age”). The defendant is himself a recidivist and has admitted to having rape fantasies, a factor which the district court correctly found to be indicative of future dangerousness. It is therefore not at all excessive to require the defendant to comply with such supervised release conditions as attending sex offender treatment, avoiding the company of children, and meeting regularly with a probation officer. Accordingly, we conclude that a life term of supervised release is not unconstitutionally disproportionate given the circumstances of this case.

Application. This case illustrates an important point. Convicted child molesters often are subject to a parole or probation agreement that imposes strict limitations on their activities. In many cases these include restricted access to places where minors congregate, including churches. When church leaders are deciding how to respond to the presence of a convicted sex offender in their midst, one important consideration is the terms of an applicable parole or probationary agreement. In some cases, the offender will not be permitted to attend church, or may attend under strict conditions. It is imperative for church leaders to be familiar with all such conditions. U.S. v. Williams, 2011 WL 768082 (9th Cir. 2011).

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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

The “Bar Association” Analogy

A Minnesota court recognizes an important principle.

Richard R. Hammar, Attorney, CPA
Bio

A Minnesota court recognizes an important principle, C.B. ex rel. L.B. v. Evangelical Lutheran Church in America, 726 N.W.2d 127 (Minn. App. 2007)

• Article summary. In a case of enormous importance to denominational agencies, a Minnesota appeals court applied the "bar association analogy" in concluding that a regional and national church were not liable for the sexual misconduct of a pastor since the relationship between the church entities and credentialed clergy (which resembled the relationship between state bar associations and licensed attorneys) was too attenuated to justify the imposition of liability on the church entities for clergy misconduct. This case is the second court to recognize this important analogy. The court's ruling also addressed a number of other significant issues. This article will summarize the facts of the case, review the court's opinion, and assess its significant.

• Key point 10-02.1. Employers may be liable on the basis of respondeat superior only for the acts of employees.

• Key point 10-02.3. Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.

• Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker's acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.

• Key point 10-18.3. There are several legal defenses available to a denominational agency that is sued as a result of the acts or obligations of affiliated clergy and churches. These include a lack of temporal control over clergy and churches; a lack of official notice of a minister's prior wrongdoing in accordance with the denomination's governing documents; lack of an agency relationship; the prohibition by the First Amendment of any attempt by the civil courts to impose liability on religious organizations in a way that would threaten or alter their polity; and elimination or modification of the principle of joint and several liability.

A Minnesota appeals court ruled that a local church, as well as regional and national denominational agencies, were not liable for the sexual molestation of a young girl by a retired pastor. The court's ruling addressed several key issues, all of which are summarized in this feature article.

Facts

A pastor (Pastor Owen) and his wife returned to their farm following his retirement. Shortly after returning to his home community, Pastor Owen occasionally conducted worship services in his former church for a fixed fee when the current pastor was unavailable. He also resumed a close friendship with a former parishioner and her husband and two young children. The two families often spent Christmas and birthdays together, and Pastor Owen and his wife regularly babysat the two children. The children frequently visited the farm to play with the animals. Eventually, the children began referring to Pastor Owen and his wife as "grandpa" and "grandma."

Eventually, one of the two children, a young girl (the "victim"), started spending the night at the farm. At about the same time, the victim was having difficulty with her school work. Because Pastor Owen's wife was a retired teacher, she began helping the child improve her grades.

One morning, after having spent the previous evening at the farm, the victim told her mother that she had been sexually abused by Pastor Owen. The parents sought the advice of their current pastor, who they claim instructed them to "stay silent." The police were not informed of the abuse until several months later when an unnamed person made a report. Pastor Owen was charged with child abuse, and pleaded guilty to second-degree criminal sexual conduct. Both Pastor Owen, and the pastor who advised the family to "stay silent," were asked to resign their ministerial credentials by their denomination (the "regional church").

The victim, through her parents, sued Pastor Owen. She also sued the local church and regional and national denominational offices (the "church defendants"). The victim claimed that the church defendants were responsible for Pastor Owen's misconduct on the basis of respondeat superior, negligent supervision, and ratification. Under the legal doctrine of respondeat superior, an employer generally is responsible for the negligent acts of its employees committed within the course of their employment. A trial court dismissed the victim's claims against the church defendants, but allowed her claims against Pastor Owen to proceed. The victim appealed the dismissal of her claims against the church defendants.

The Court's Ruling

Summarized below are the court's responses to each of the victim's three theories of liability—respondeat superior, negligent supervision, and ratification.

(1) Respondeat superior

The appeals court noted that under the respondeat superior doctrine, "an employer is vicariously liable for the acts of an employee committed within the course and scope of employment." The victim argued that an employment relationship existed between Pastor Owen and the church defendants because he was an ordained minister in good standing and his name was on the "clergy roster." Further, she claimed that the regional and national churches exercised enough control over a pastor's ministry to give rise to an employment relationship. In particular, she noted that the regional and national churches (1) determine who is qualified to be a minister; (2) demand that ministers agree and abide by their constitutions and bylaws; and (3) retain the authority to discipline ministers, including the authority to remove them from their pastoral ministry. Such evidence, the victim concluded, was sufficient evidence of control by the regional and national churches to establish an employment relationship between them and all ordained clergy.

The court acknowledged that there was evidence tending to support the existence of an employment relationship between the regional and national churches and ordained clergy:

Both the [regional and national churches] have constitutions under which a minister must abide. There is evidence in the record that both the [regional and national churches] can be involved in the disciplinary process. For example, testimony by church officials indicated that if the [regional and national churches] became aware of inappropriate behavior by a minister, the church entities could request that the minister resign. If the pastor declined to resign, the [regional and national churches] could use the process of discipline outlined in the constitutions to force his or her resignation.

Nevertheless, the court concluded that the fact that the regional and national churches "set certain standards for ministers, and can be involved in disciplinary proceedings, does not automatically mean a true employment relationship exists" that would support the imposition of liability on the church entities for the misconduct of ministers.

The court drew an analogy to the relationship between attorneys and the state supreme court. In Minnesota, the supreme court "through the Rules of Professional Conduct, sets forth the rules and standards by which lawyers must adhere. If these rules are violated, the court may discipline the responsible attorney. But this relationship between the supreme court and the disciplined attorney is not an employment relationship. There has to be something more." Similarly, the regional and national churches in this case had "limited control over the pastor." But, "the congregation, not the umbrella entity, has the responsibility for hiring and firing the pastor, setting forth the terms and conditions of employment, supplying the pastor with parsonage, vacation and supplies, and paying the pastor. [It] is the congregation, not the [regional or national churches], which employs the minister."

The court further concluded that Pastor Owen was not an employee of the local church where he occasionally filled in: "When the church needed a fill-in pastor because the full-time pastor was unavailable, the church would contact a retired pastor, such as Pastor Owen, and request that he fill in. When Pastor Owen filled in as a retired pastor, he was paid approximately $60-80 for each day that he provided his service. The church did not withhold taxes from his paycheck and he was not provided with vacation or health benefits. The record shows that he occasionally served as a fill-in pastor at other churches …. As a retired minister, he was more of an independent contractor than an employee of the church."

The court concluded that the church defendants were not liable on the basis of respondeat superior for Pastor Owen's acts of molestation because an employment relationship did not exist. In addition, his wrongful acts were not committed in the course of his employment, as required by the respondeat superior doctrine. Rather, the occurred at Pastor Owen's farm where the victim was visiting to obtain tutoring assistance from Pastor Owen's wife. The victim never alleged that she went to visit Pastor Owen "for any type of religious counseling or any other reason connected to his status as a retired minister." In fact, she testified that she never attended any religious service conducted by Pastor Owen, and knew him only as a family friend.

(2) Negligent supervision

The court noted that for the victim to prevail on her negligent supervision claim, she had to prove that Pastor Owen's conduct was foreseeable, and that the church defendants failed to exercise reasonable care in supervising him. The court defined foreseeability as "a level of probability that would lead a prudent person to take effective precautions." If Pastor Owen's abusive behavior was objectively foreseeable, then the inquiry must focus on whether the employer took reasonable precautions to prevent the abuse.

The victim claimed that Pastor Owen's abuse was foreseeable because of the following "red flags": (1) the victim's frequent overnight visits with Pastor Owens and his wife; (2) the lavishing of inappropriate and expensive gifts on the victim by both Pastor Owens and his wife; and (3) on at least one occasion, the victim had to be dragged, kicking and screaming, by her parents to Pastor Owen's car to spend time with him and his wife.

The court concluded that the victim failed to establish that the church defendants were responsible for Pastor Owen's acts on the basis of negligent supervision, because (1) Pastor Owen was not an employee of any of the church defendants, and (2) his abusive acts were not foreseeable. The court observed:

[The victim has] failed to provide any evidence that any of the church entities were aware of the alleged "red flags." Even if they were aware of the alleged "red flags," [the victim] fails to establish how these "red flags" should have put [the church defendants] on notice of the abuse. In light of [victim's] relationship with [Pastor Owen and his wife] it would not be abnormal for her to spend the night at [their home] or for [them] to buy nice gifts for somebody they considered to be their granddaughter. It is not abnormal for a teenager to put up a fuss when instructed that she spend time with a tutor to work on her school work. There is nothing in these "red flags" to indicate that Pastor Owen was abusing the vicitm, or that [the church defendants] were aware of the existence of these "red flags."

Ratification

The victim asserted that the church defendants were responsible for her injuries as a result of their "ratification" of Pastor Owen's behavior. Specifically, she claimed that by not taking immediate disciplinary action against him when they learned of the abuse, the church defendants ratified his behavior. The court acknowledged that an employer can be liable for the wrongful acts of an employee "by approving and ratifying such conduct, irrespective of whether that conduct is intentional or negligent." However, the court concluded, "ratification is inapplicable here because ratification has only been found in the context of an employer-employee relationship."

Relevance to other churches and ministers

What is the relevance of this case to church leaders? Consider the following points:

1. In general. A decision by a Minnesota appeals court is not binding in any other state, and may be reversed by the state supreme court. However, there are some aspects to the court's decision that are instructive for all churches.

2. The significance of employee status. The court concluded that the victim's lawsuit had to be dismissed because Pastor Owen was not an employee of any of the church defendants. Without an employment relationship, the court observed, there could be no liability based on respondeat superior, negligent supervision, or ratification. The court acknowledged that each of the church defendants had some ties with Pastor Owen, but nothing close to the level of control required for an employer-employee relationship.

• Key point. The court's decision would have been quite different had Pastor Owen been an employee of the local church rather than a "fill-in" pastor. The church may well have been found liable on the grounds of respondeat superior or ratification. The court's conclusion that Pastor Owen's abusive conduct was not foreseeable would have precluded liability based on negligent supervision.

3. Negligent supervision. The court noted that an employer's liability based on negligent supervision requires not only an employer-employee relationship, but also an injury that was reasonably foreseeable. The court concluded that the following "red flags" did not render Pastor Owen's abusive acts foreseeable: (1) the victim's frequent overnight visits with Pastor Owen and his wife; (2) the lavishing of inappropriate and expensive gifts on the victim by both Pastor Owen and his wife; and (3) on at least one occasion the victim had to be dragged, kicking and screaming, by her parents to Pastor Owen's car to spend time with him and his wife. However, the court stressed that it was the long-standing, close relationship between Pastor Owen and the victim's family that prevented these "red flags" from making Pastor Owen's abusive acts foreseeable.

• Key point. Without Pastor Owen's long and close relationship with the victim's family, the "red flags" cited by the victim may well have been sufficiently suspicious to make his abusive acts reasonably foreseeable. Many cases of child molestation have occurred while minors are spending the night in a staff member's home. Many of these cases have been addressed in previous issues of this newsletter. Church leaders should view this as a high risk practice that should be prohibited except in the most limited circumstances (i.e., the staff member is a close relative of the minor).

4. The "bar association analogy." Perhaps the most significant aspect of the court's decision was its use of the "bar association analogy." In recent years several plaintiffs have attempted to hold denominational agencies liable for the acts of ministers that they ordain or license. The argument is that the act of ordaining or licensing to a minister, and the retention of authority to discipline or dismiss a minister for misconduct, constitutes sufficient "control" to make the denomination liable for the minister's actions.

It is true that many denominational agencies ordain or license ministers; require ministerial credentials to be renewed annually; and reserve the authority to discipline or dismiss ministers whose conduct violates specified standards. In some cases, ministers are required or expected to provide annual contributions to the denomination. However, in most cases, the denomination retains no authority to supervise or control the day-to-day activities of ministers. It may be authorized to discipline or dismiss a minister following an investigation, but ordinarily it has no authority to independently monitor or supervise the day-to-day conduct of ministers, and no such authority is ever exercised.

The authority of many denominations to license and ordain clergy, require annual renewals of ministerial credentials, and discipline or dismiss clergy found guilty of specified misconduct, is precisely the same authority that is exercised by state professional accrediting organizations, such as bar associations. Like denominational agencies, the bar association (or, in some states, the state supreme court) has the authority to license attorneys, require annual renewals, and discipline or dismiss attorneys for violations of professional standards. In addition, many require annual contributions. However, this limited authority does not give the bar association any right to control or supervise the day-to-day activities of attorneys, and it is for this reason that no bar association has ever been sued on account of a licensed attorney's malpractice, much less been found liable, and religious organizations should be treated no differently.

An identical analogy can be made to any professional licensing organization (e.g., physicians, CPAs, veterinarians, dentists, nurses, morticians), since they all exercise about the same degree of control—they issue licenses and retain the right to discipline or dismiss licensees for violations of a professional code of conduct, but they have no authority to supervise licensees' day-to-day activities.

The civil courts are beginning to recognize the bar association analogy. The first court to do so was a federal appeals court in the case of Alford v. Commissioner, 116 F.3d 334 (8th Cir. 1997). The court, in addressing the question of whether Pastor Alford, an Assemblies of God minister, was an employee of the national church ("General Council") and one of its regional agencies ("District Council"), made the following observation:

The General Council's and District Council's right to control Alford during the relevant years extended primarily to their function in awarding credentials to ministers like himself. Generally, the church has established certain criteria that must be met for an individual such as Alford to obtain credentials initially and to renew that status annually. There are standards for the education a minister must acquire (which he must obtain and pay for himself) and for his performance on certain tests. Other requirements include subscribing to the doctrinal statement of the Assemblies of God, which sets forth the religious beliefs of the church, its ministers, and its members, and to the form of church government. Ordained ministers must preach thirteen times a year, but topics are not decreed by the regional or national organizations. Ministers holding credentials cannot preach in churches other than Assemblies of God churches without permission of the District Council. Ministers may be disciplined for what the church considers failure to follow church doctrine and for lapses in personal conduct, and may, in fact, have their credentials revoked. With some exceptions not relevant here, a minister must tithe to both the regional and national organizations. Attendance at certain meetings is expected, but not required. Thus it is apparent that, while the regional and national churches had doctrinal authority to exercise considerable control over Alford as regards his beliefs and his personal conduct as a minister of the church, they did not have "the right to control the manner and means by which the product [was] accomplished."

The [trial court] and the United States make much of the fact that Alford, as a minister holding credentials, was "amenable" to the General Council and to the District Council in matters of doctrine and conduct. But this is not unusual in such a profession, and actually is merely a shorthand way of describing the parent church's doctrinal and disciplinary control discussed above. The control exercised by the regional and national organizations, and their right to control Alford, was no more nor less than most professions require of individuals licensed or otherwise authorized to work in the profession. State bar associations, for example, have certain education requirements and demand a certain level of performance on a bar examination before an individual can be licensed to practice law. On an annual basis, such associations require the payment of dues and often the completion of continuing legal education in order for an attorney to retain his license. State bar associations are empowered to monitor attorneys' behavior and to discipline them as they see fit, including the revocation of an attorney's license to practice law (disbarment). Yet no one would suggest that, by virtue of this right to control an attorney's working life, the bar association is his employer, or even one of his employers.

Obviously, the importance of this case cannot be overstated. It will effectively refute, in many cases, attempts by plaintiffs to hold denominational agencies accountable for the acts of their ordained and licensed ministers.

The second reference to the bar association analogy was the Minnesota appeals court decision addressed in this article. The court compared a religious denomination's ordination and discipline of ministers to similar functions performed by the state supreme court. In Minnesota, the state supreme court licenses attorneys and retains the authority to discipline those who violate a code of professional ethics. The appeals court concluded that this relationship was too attenuated to establish an employment relationship, and as a result the regional and national churches could not be liable for Pastor Owen's abusive acts.

• Key point. Any regional or national church that issues ministerial credentials, and that disciplines ministers who violate a code of conduct, can use the bar association analogy. It is a powerful and compelling argument. The bottom line is this—no bar association has ever been sued, much less found liable, for the malpractice of an attorney; why should religious organizations be treated differently?

• Example. The Alabama Supreme Court compared an attempt to impute legal liability to a denomination as a result of the misconduct of a minister "to situations where a young man may be in a seminary and the seminary is asked to supply a preacher or a minister for a congregation. The fact that the young minister may have some alma mater does not make the seminary responsible for his behavior in the event he elects to commit a burglary or some other act which he might consider to be ordained by divine aegis or providence. It would not in and of itself make the seminary responsible for his behavior." Wood v. Benedictine Society of Alabama, Inc., 530 So.2d 801 (Ala. 1988).

© Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800)222-1840. © 2007 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Sex Offenders and Church Attendance

Any decision to allow a known sex offender to attend church, even with conditions, should not be made without the assistance of legal counsel.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Sex Offenders and Church Attendance

Any decision to allow a known sex offender to attend church, even with conditions, should not be made without the assistance of legal counsel.

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

Key point. Convicted sex offenders often are subject to probation agreements that restrict their attendance at church services. It is important for church leaders to be aware of such restrictions before allowing such persons to attend church or participate in church activities.

* The North Dakota Supreme Court ruled that a convicted child molester violated the terms of his probation by attending a church service and sitting with a minor child. An adult male (the “defendant”) was charged with sexually molesting a four-year-old child. He was sentenced to seven years in a state penitentiary, but the sentence was reduced to seven years of supervised probation in exchange for his confession. The conditions of probation included the following: “You shall not initiate, establish or maintain contact directly or indirectly, with any child under the age of 18, or attempt to do so, except under circumstances approved in advance and in writing by your probation officer. You may not go to or loiter near schoolyards, parks, playgrounds, arcades, or other places primarily used or visited by minors. You may not obtain employment with any agency or place of business that provides services for the care or custody of minors. You may not date or socialize with anybody who has children under the age of 18 years besides your wife, unless pre-authorized by your parole/probation officer.”

The defendant’s probation officer composed a “safety plan” that allowed him to attend church under the following conditions:

Arrival/Pre-Church

  1. I will either ride with my parents or drive myself to church.
  2. During this time I will always be in the presence of at least one adult and will never be in a room alone with a minor.
  3. If I do have to leave the room, I let an adult know where I am going (i.e. bathroom).

    4. During Church

    1. I will sit with my parents.
    2. If I have to leave the sanctuary, I let my parents know where I am going (i.e. bathroom).

      3. After Church

      see the “Arrival/Pre-Church”

      Other

      1. I will not go into the nursery or classrooms.
      2. If I do have contact with a minor, I will politely excuse myself and either leave the building or find a group of adults.

        3. Three years later a court revoked the defendant’s probation when it was disclosed that he had engaged in contact at church with his previous victim. This contact consisted of the defendant sitting with the victim during a church service. The court re-imposed the seven-year prison sentence. The defendant’s probation officer testified that he had allowed the defendant to attend church, but warned him, “No contact with kids, so you don’t sit by one. If one initiates contact with you, you get up and excuse yourself politely. You leave. I made clear that he’s not to have any contact with kids, so that if he did go to church, he would make sure that he didn’t have contact with other people’s kids.”

        On appeal, the defendant argued that the revocation of his probation was an unwarranted and excessive response to the harmless act of sitting with a child during a church service. The state supreme court disagreed, and affirmed the seven-year prison sentence.

        Application. This case is instructive for two reasons. First, it demonstrates that child molesters who are not currently in prison may be subject to a supervised probation arrangement that restricts their church attendance. Many church leaders have learned that registered sex offenders are attending their church. Knowing how to respond in such cases can be a difficult question. Many churches do not allow such persons to attend church until they have ascertained whether they are subject to probation, and if so, the conditions imposed by the probation arrangement. In many cases, probation arrangements prohibit a defendant from attending church under any circumstances, while in other cases a defendant is allowed to attend church but under strict conditions such as those described in this case. A church’s exposure to liability is increased if it allows a known sex offender to attend services or other church activities without ascertaining the existence and contents of a probation arrangement.

        Second, the conditions identified by the defendant’s probation officer in this case are significant, since they represent a determination by a government agency of the conditions under which a known child molester may attend church. Allowing known sex offenders to attend church will expose a church to a high level of risk. This risk must be properly managed. Some church leaders seek to manage the risk by totally excluding such persons from church property. Others prefer to allow them to attend church, but under specified conditions. The substance of these conditions will vary depending on the circumstances of each case. In drafting the conditions, church leaders may benefit from reviewing probation agreements used by government agencies. The restrictions on church attendance composed by the probation officer in this case are a useful example. Church leaders also should consider speaking with probation officers in their community regarding the kinds of conditions that would be appropriate in allowing a sex offender to attend church. Often, these persons will provide helpful information. Basing your decisions on this kind of information will help to demonstrate the exercise of reasonable care, and reduce the risk of negligence. In some cases, the nature of the prior offenses may make such “conditional attendance” arrangements inappropriate. Once again, your local probation officers can assist you in knowing how to decide whether to completely exclude a person or to allow him or her to attend church under specified conditions. Any decision to allow a known sex offender to attend church, even with conditions, should not be made without the assistance of legal counsel. State v. Wardner, 725 N.W.2d 215 (N.D. 2006).

        * See also “Sexual harassment,” Krasner v. Diocese, 431 F.Supp.2d 320 (E.D.N.Y. 2006), in the recent developments section of this newsletter.

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 Texas court ruled that the clergy-penitent privilege did not prevent a minister from testifying against a church member in a child molestation prosecution.

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 Texas court ruled that the clergy-penitent privilege did not prevent a minister from testifying against a church member in a child molestation prosecution.

A 10-year-old girl claimed that her stepfather (the defendant) had sexually molested her. Following this incident, the defendant and his wife conferred with an elder of their church. The defendant's wife also reported the incident to the police, and the defendant was charged with indecency with a child. At trial, the defendant claimed that statements he made to a church elder were privileged communications to a member of the clergy under a Texas law which states that "a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to the clergyman in his professional character as a spiritual adviser."

A jury convicted the defendant of indecency with a child and imposed a sentence of 5 years in prison. The defendant appealed his conviction on the ground that the trial court improperly admitted the testimony of the elder in violation of the clergy-penitent privilege.

The appeals court conceded that "a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser." However, "in a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client."

The court concluded that "because this case involved abuse of a child, we conclude the trial court was correct in overruling defendant's objection that [the elder's] testimony involved privileged matters." It also pointed out that "the Texas legislature has determined that any communication involving the abuse or neglect of a child will not be afforded protection under any circumstances other than the attorney-client privilege," and "as a result, there is no privilege protecting communications with a clergyman in his professional capacity as a spiritual adviser regarding the abuse or neglect of a child."

Application . Several states, like Texas, have laws that make ministers mandatory child abuse reporters even with respect to information disclosed to them in the course of a confidential communication subject to the clergy-penitent privilege, and that allow such information to be admissible in court proceedings. Almendarez v. State, 153 S.W.3d 727 (Tex. App. 2005).

Legal Developments

Child Abuse Reporting

A California court ruled that the “ecclesiastical privilege” prevented it from resolving a pastor’s lawsuit against his denomination.

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 California court ruled that the "ecclesiastical privilege" prevented it from resolving a pastor's lawsuit against his denomination in which he claimed that a denominational officer "barred" him from preaching in a church in order to prevent him from learning of and reporting an incident of child abuse allegedly perpetrated by the officer.

James was ordained as an elder in the United Methodist Church in 1951. This ordination enabled him to preach, conduct weddings and funerals, and provide all other sacraments recognized by the church. In 1994 he was acting as an associate pastor in a church when the senior pastor became incapacitated. Pastor James applied for the senior pastor position, but his application was "derailed" by his district superintendent. Instead, a new pastor was appointed. The church membership rejected the new pastor's appointment and Pastor James remained as the interim pastor for an additional year until his retirement. Shortly after Pastor James' retirement, the district superintendent issued a "barring order" preventing him from preaching or worshipping at the church. Pastor James did not learn of the barring order until 2002 when the church's senior pastor invited Pastor James to conduct worship services while he was out of town. The senior pastor was informed by denominational officials of the barring order, and he rescinded his invitation.

Pastor James later sued his annual conference as a result of the barring order and rescission of the invitation to preach. Pastor James' lawsuit claimed that after he was rejected as senior pastor at the church in 1994 the district superintendent appointed another pastor who was rejected by the congregation; and, that the superintendent thereafter sent a letter to a 16-year-old youth leader who was a member of the church's pastor-parish relations committee regarding her participation in the rejection of the new pastor. In the letter, the superintendent charged the youth leader with "knowingly becoming involved in a smear campaign" against the pastor, being involved in "unchristian behavior" by acting on gossip, and "undermining the ministry of a pastor," which was a "chargeable offense" that risked one's standing in the denomination as well as possible legal repercussions.

The youth leader was extremely upset as a result of this letter. Pastor James' lawsuit alleged that the letter constituted "emotional child abuse" and was viewed as such by church leaders. The superintendent knew that Pastor James was a psychologist and, therefore, a mandatory reporter of child abuse, and he feared that if he became senior pastor he would discover that the superintendent had been accused of the abuse of a minor church member and that as a mandatory reporter he would have been obliged to report the alleged abuse to the authorities. To prevent this, Pastor James alleged, the superintendent embarked upon a plot to prevent him from learning about the abuse, and this included the issuance of the secret barring order.

A state appeals court began its opinion by noting that when a dispute involves the employment or termination of employment of clergy, the "ecclesiastical privilege" applies barring the civil courts from intervening. The rule "is about as absolute as a rule of law can be—the first amendment guarantees to a religious institution the right to decide matters affecting its ministers' employment, free from the scrutiny and second-guessing of the civil courts." And, this is true "regardless of whether the termination, or other adverse action, was taken for theological reasons. The fact that the employee was a clergyperson is enough to trigger the privilege."

The court noted that Pastor James was claiming that the barring order was part of an attempt to prevent him from discovering and reporting an act of reportable child abuse. Reportable child abuse, under the applicable reporting law, includes "a situation where any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering." The court rejected Pastor James' argument that the superintendent's letter to the youth leader constituted a willful infliction of unjustifiable mental suffering. It observed, "[The superintendent] wrote a single letter to the official youth member of a church pastor-parish relations committee expressing his displeasure at the member's participation in the rejection of a pastor. While the letter may have caused the youth leader to experience some feelings of guilt, anxiety, or remorse, the letter does not constitute child abuse. A youth leader who participates in a church committee and is reprimanded by a member of the church hierarchy for decisions made by that committee regarding church leadership is not a victim of child abuse."

The court concluded that Pastor James' lawsuit was subject to the ecclesiastical privilege, and that he was attempting "to circumvent the bar of the ecclesiastical privilege by arguing [that the superintendent] barred him from the church in order to prevent him from discovering and reporting an act of child abuse. Even if he were barred to prevent his discovery of the letter to the youth leader, the letter was not an act of child abuse. Therefore, there is no compelling governmental interest at issue in this case sufficient to override application of the ecclesiastical privilege."

Application . Note that clergy were not mandatory reporters of child abuse in California in 1994 when the alleged abuse in this case occurred. But, Pastor James was a mandatory child abuse reporter because he was a psychologist. As a result, it was Pastor James' contention that the superintendent attempted to bar him from serving as pastor of the church in order to prevent him from learning of and reporting the "abuse" of the youth leader. The court rejected this argument as nothing other than an attempt to avoid the dismissal of his claims against the church on the basis of the ecclesiastical privilege. The court concluded that the child abuse reporting law could not be used in this manner. Johnson v. California-Pacific Annual Conference of the United Methodist Church, 2004 WL 2474437 (Cal. App. 2004).

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).

Legal Developments

Child Abuse Reporting

A Pennsylvania court ruled that a victim of child abuse could not sue ministers who knew of the abuse but failed to report it.

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 Pennsylvania court ruled that a victim of child abuse could not sue ministers who knew of the abuse but failed to report it, but he could sue the church for breaching its promise to pay his counseling bills.

A 36-year-old male (Eric) claimed that he was sexually molested by three priests some 20 years before when he was 16 years of age. He sued his former church and diocese on the basis of several theories of liability including a failure to report the abuse when it happened pursuant to the state child abuse reporting law, breach of a fiduciary duty, and negligent supervision. In addition, Eric claimed that when he informed the diocese of the abuse in 2002, he was assured by diocesan officials that the diocese would pay for psychological treatment which was not covered by insurance. However, he claimed that a year later the diocese ceased payment of these bills and instead imposed "oppressive conditions" that would have to be met for the payments to resume. These conditions required the diocese to review a clear treatment plan that would include both comprehensive psychiatric and psychological evaluation "to ensure that the recommended treatment plan is well reasoned and has a high probability of being a benefit to him."

failure to report child abuse

Eric claimed that the church and diocese were responsible for his injuries because they failed to report suspected child abuse pursuant to the state child abuse reporting law. At the time of the alleged abuse in 1980 and 1981, the reporting law did not specifically list clergy as a category of those required to report abuse. Clergy were not added to the list of mandatory reporters until the law was amended in 1995. The court refused to apply the 1995 amendment retroactively to make church and diocesan officials mandatory reporters in 1980 and 1981. It concluded that "no statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." Such an intent was not present in this case.

counseling fees

While the diocese's promise to pay Eric's counseling bills was initially an unenforceable, oral commitment, it may have become enforceable as a result of the legal doctrine of "promissory estoppel." The doctrine of promissory estoppel "is invoked when there is no enforceable agreement between the parties" and is applied "to avoid injustice by making enforceable a promise made by one party to another, when the promisee relies on the promise, and therefore changes his position to his own detriment." The court noted that Eric began treatment in reliance upon the otherwise unconditional promise to pay, and then discontinued his treatment because the diocese failed to continue to make payments.

Application . This case is important for two reasons. First, it affirms the general view that ministers who fail to report known or reasonably suspected incidents of child abuse do not thereby expose either themselves or their employing church to civil liability unless they are mandatory reporters under the reporting law and civil liability for failing to report is imposed either by the reporting law itself or by court decisions in that state.

Second, this is one of the few courts to address the issue of counseling fees paid by a church to a victim of clergy sexual abuse. The court concluded that the church's promise to pay Eric's counseling fees was unenforceable at the time it was made, based on the principle of "consideration." It is a fundamental principle of contract law that a promise is not legally binding or enforceable unless the party making the promise receives something of value (called "consideration") in exchange. Since the diocese received nothing in exchange for its promise to pay Eric's counseling bills, its promise was unenforceable. However, there are certain exceptions to this rule, including the doctrine of promissory estoppel. As the court noted, this doctrine may make an unenforceable promise enforceable "when the promisee relies on the promise, and therefore changes his position to his own detriment." The court noted that Eric began treatment in reliance upon the otherwise unconditional promise to pay, and then discontinued his treatment because the diocese failed to continue to make payments. As a result, the church's promise to pay the counseling bills may have become enforceable. Morrison v. Diocese of Altoona-Johnstown, 2004 WL 3141330 (Pa. Com. Pl. 2004).

Legal Developments

Child Abuse Reporting

A federal appeals court ruled that a church was not liable for a minister’s acts of child molestation on the basis of a failure to comply with the state child abuse reporting law.

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.
Failure to Report Child Abuse

A federal appeals court ruled that a church was not liable for a minister's acts of child molestation on the basis of a failure to comply with the state child abuse reporting law since ministers were not mandatory reporters at the time of the abuse and the church had no reason to suspect that the minister was engaging in such acts.

An adult male (Randy) sued a church and diocese claiming that he had been sexually molested by a priest when he was a 16-year-old student attending a church school. Randy claimed that the priest sexually abused him on multiple occasions, often after serving him alcohol, and that he repressed the shame associated with the abuse and discovered the link between the abuse and his psychological injuries only years later, when a psychologist explained that his emotional problems stemmed from the experiences with the priest. Randy asserted that the diocese had a legal duty to report child abuse, and that its failure to do so constituted negligence. A state appeals court disagreed. It acknowledged that "clergy" have been mandatory reporters under the Pennsylvania child abuse reporting law since 1995, but concluded that clergy were not mandatory reporters prior to 1995, and that the diocese had no reason to suspect that the priest had molested Randy and so there was nothing to report even if a duty did exist. As a result, the court dismissed Randy's claim. Hartz v. Diocese of Greensburg, 94 Fed.Appx. 52 (3rd Cir. 2004).

Legal Developments

Child Abuse Reporting

A New York court ruled that a school principal and counselor could be personally liable for failing to report suspected child abuse to state 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.

A New York court ruled that a school principal and counselor could be personally liable for failing to report suspected child abuse to state authorities.

A 9-year-old girl informed her mother that she had been sexually molested by her half-brother, Anthony. The mother reported this information to a school counselor who referred the girl to a counseling center for professional counseling. The mother then informed the school principal of Anthony's behavior. A few months later, the mother learned that Anthony had been subjecting two other sisters to continuous acts of sexual intercourse and she immediately called the police. The mother later sued the school counselor and principal for failing to report the allegations of sexual abuse to the statewide central register of child abuse. New York's child abuse reporting law requires mandatory reporters to report child abuse "when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child."

The child abuse reporting law specifies that "any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure."

Both the school counselor and principal were mandatory reporters under state law, and as such were potentially liable for failing to report the information shared with them by the mother. They claimed, however, that reportable child abuse was defined by state law to include only such abuse as is inflicted upon a minor by a "parent or other person legally responsible for his care." The counselor and principal argued that since Anthony was not a person "legally responsible" for the care of any of the victims, they were not required to report the mother's allegations of abuse as required by state law. The court disagreed. It concluded,

It is not the duty of the mandated reporter to assess whether the abuser would be considered by Family Court to be a "person legally responsible" or whether a "person legally responsible" allowed the abuse to occur. If [the mandated reporter] has reasonable cause to suspect that a child has been sexually abused, the reporter must report immediately. It is the duty of the investigating agency to determine whether the report was founded.

Application . This case demonstrates two important points. First, mandatory reporters of child abuse under state law may be personally liable for failing to report known or reasonably suspected cases of child abuse. A listing of each state that imposes liability on mandatory reporters who fail to report abuse is contained in a feature article that appeared in the May-June 2004 issue of this newsletter. Second, the court in this case concluded that the principal and counselor could be personally liable for failing to report suspected child abuse even though they did not believe reportable abuse had occurred since Anthony was not a person "responsible for the care" of the victims. The court ruled that it is the duty of the state, and not mandatory reporters themselves, to determine if a perpetrator of child abuse is someone "responsible for the care" of the victim. As a result, the principal and counselor erred in not reporting the suspected abuse, and letting the state decide whether or not the abuse met the definition of reportable abuse under the law. Catherine G. v. County of Essex, 761 N.Y.S.2d 727 (Sup. Ct. 2003).

Legal Developments

Child Abuse

A Florida court ruled that a victim of child abuse cannot sue a mandatory child abuse reporter who knew of the abuse but failed to report it.

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 Florida court ruled that a victim of child abuse cannot sue a mandatory child abuse reporter who knew of the abuse but failed to report it.

A counselor met with a divorced woman and her minor children, and concluded that the children had been sexually molested by their father. Though the counselor was a mandatory child abuse reporter under state law, she chose not to report the abuse. The mother used the counselor's opinion to obtain an injunction against her former husband, without advance notice to him. Because the husband did not have advance notice of the injunction, he did not have an opportunity to defend against the allegations. The injunction denied him legal custody of his children and effectively denied him all parental rights, including visitation.

The father sued the counselor (and the counselor's employer), claiming that her failure to report the abuse denied him the opportunity to prove his innocence in the course of a state investigation. A state appeals court concluded that the child abuse reporting statute does not authorize civil lawsuits against mandatory reporters who fail to report known or suspected cases of child abuse.

The court noted that the child abuse reporting statute does not specifically create "a cause of action for violation of its terms." It acknowledged that a cause of action could be "implied" if there was clear evidence of a legislative intent to create one, but it failed to find such an intention in the statute.

It observed, "We find nothing in [the statute] that suggests such an intent. On the contrary, we note that [it] appears to address the subject of penalties for failure to report known or suspected child abuse and makes such nonfeasance a first-degree misdemeanor. It says nothing about the availability of a cause of action for damages …. Accordingly, we hold that [the child abuse reporting statute] does not create a cause of action for damages."

Application . This case is important because it rejects the argument that mandatory child abuse reporters can be personally liable for failing to report known or suspected abuse. While such reporters are subject to criminal liability (a misdemeanor) for failing to report, they may not be subject to personal liability in a civil lawsuit for failing to report, at least in states that follow the ruling in this case. Welker v. Southern Baptist Hospital of Florida, 2004 WL 34512 (Fla. App. 2004).

Legal Developments

Child Abuse

The Georgia Supreme Court ruled that a person who reported suspected child abuse to the authorities could not be sued by the alleged perpetrator.

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 Georgia Supreme Court ruled that a person who reported suspected child abuse to the authorities could not be sued by the alleged perpetrator after the report was determined to be unfounded.

Many pastors, lay church employees, and volunteers are mandatory reporters of child abuse under state law. Mandatory reporters are legally required to report known and reasonably suspected cases of child abuse to a designated state agency. Often, it is very difficult to know if abuse has occurred. This raises the possibility that abuse in some cases will be reported that in fact never occurred, so long as the reporter had a "reasonable suspicion" that it did.

In a recent case in Georgia, a mother suspected that her two young daughters had been sexually molested by their paternal grandfather after spending a weekend with him. She took the girls to a counselor, who reported the suspected abuse to the state. The prosecutor later announced a "nolle pros" of the case, meaning that a decision had been made not to prosecute (neither innocence nor guilt is to be inferred from such a disposition). The grandfather sued the counselor for filing a false report.

The state supreme court noted that the child abuse reporting law provided "immunity" from civil or criminal liability to anyone who "in good faith" reports child abuse. The court continued,

We conclude that immunity may attach in two ways, either by showing that "reasonable cause" exists or by showing "good faith." Once a reporter has reasonable cause to suspect child abuse has occurred, she must report it or face criminal penalties. The trigger for the duty to report is "reasonable cause to believe," which requires an objective analysis. The relevant question is whether the information available at the time would lead a reasonable person in the position of the reporter to suspect abuse. Once reasonable cause has been established under this standard, a reporter complying with the statutory mandate to make a report is, by definition, operating in good faith. Therefore, if the objective analysis supports the reporter's conclusion that child abuse has occurred, then immunity attaches and there is no need to further examine the reporter's good faith.

On the other hand, if under an objective analysis, the information would not lead a reasonable person to suspect child abuse, the reporter may still have immunity if she made the report in good faith …. Good faith is a subjective standard … a state of mind indicating honesty and lawfulness of purpose; belief that one's conduct is not unconscionable or that known circumstances do not require further investigation …. Thus, the relevant question is whether the reporter honestly believed she had a duty to report. A reporter acting in good faith will be immune even if she is negligent or exercises bad judgment.

The court concluded that the evidence in this case clearly demonstrated that the counselor was acting in good faith when she made the report. In particular, the court noted that the victims were young children who made specific allegations of sexual contact by their grandfather. The "sexually explicit nature of these allegations by such young children raised a concern about the possibility of abuse. We conclude that, as a matter of law, the children's allegations are sufficient to cause a reasonable person to suspect that child abuse has occurred." As a result, the court dismissed the grandfather's lawsuit against the counselor.

The court rejected the grandfather's argument that even if a reporter has reasonable cause to believe that child abuse has occurred, he may be personally liable for reporting the abuse if he did so in bad faith. The court noted that "this interpretation chills the reporting requirement and fails to honor the legislative goal of protecting children by encouraging the reporting of suspected child abuse. It furthermore would require a mandatory reporter to make a detailed investigation before making a report. Such an investigation is contrary to the statutory scheme that places the job of investigation on child welfare authorities and the criminal justice system."

Application . Every state provides limited immunity from liability to persons who report child abuse. According to this court, reporters have immunity from liability if they (1) have a reasonable suspicion that child abuse has occurred, or (2) act in good faith. The counselor in this case satisfied both of these grounds, and so there was no basis for personal liability. Second, the court concluded that "specific allegations" of sexual molestation by young children raise an inference of child abuse that trigger the immunity from liability provided by law. O'Heron v. Blaney, 583 S.E.2d 834 (Ga. 2003).

Legal Developments

Child Abuse Reporting

Maryland’s highest court ruled that the state child abuse reporting law included a school teacher after school hours who molested a minor while driving her home from school.

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.

Maryland's highest court ruled that the state child abuse reporting law which limited reportable abuse to abuse inflicted by parents or "a person responsible for the supervision of a child" included a school teacher after school hours who molested a minor while driving her home from school.

The court's decision provides helpful guidance in the interpretation of reportable child abuse, since many states have laws restricting reportable abuse to acts committed by parents or others responsible for the care of a minor. A teacher volunteered to drive a 14-year-old girl home following classes on the last day of school, and en route he stopped at his home and engaged in sexual intercourse with the girl. Although the teacher had driven the victim home from school on prior occasions, the victim's mother was unaware of this practice. The school principal later testified that teachers had no responsibility for students after the school day ended when not engaged in any official school activity. The teacher was later found guilty of felony child abuse under a state law that specified, "A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child or a household or family member who causes abuse to the child is guilty of a felony." Although the teacher was neither a parent nor a family member of the victim, the trial court found that he had "responsibility for the supervision" of the victim at the time of the alleged misconduct. The teacher appealed, claiming that he was not a person having "supervision of a child" after the end of the school day while driving a student home, and so he could not be guilty of violating the law. The state court of appeals (the highest court in Maryland) upheld the teacher's conviction. The court observed,

It is absurd to suggest that when a parent entrusts her child to a school that that parent does not impliedly consent to any reasonable assistance that a teacher may provide to assure the child's return home from school. In other words, it may be reasonably assumed by both parent and teacher that a parent impliedly consents to all reasonable measures taken by a teacher to assure the safe return of the child from school, including personally driving that child home. Once a teacher assumes the task of personally transporting a child from school to home with the implied consent of the parent, he or she also assumes the responsibility of supervising that child.

The court also noted that there was no "break" in the "teacher and student relationship" that existed between the teacher and the victim. It acknowledged that "such a break, depending on its length and nature, can dispel the teacher's duty to supervise." For example,

Had the teacher and [the victim] met, for example, after they had parted, at a location unconnected with the school, we might have reached a different result in this case. But that is not the case here. Indeed, the teacher's offer to give the child a ride home was made on school premises while the child was still under the supervision of the teacher. And the trip home began on school premises. From the moment he extended his invitation until the time he and [the victim] had sexual intercourse, she was never for long, if ever, either out of his sight or, for that matter, out under his influence or control. At bottom, a teacher-student relationship is based on the student's trust and acquiescence to her teacher's authority. At no time was there a temporal break in that relationship so that we might conclude the relationship inducing both trust and acquiescence to authority have at least temporally ended.

Application . Several states define reportable child abuse as abuse that is inflicted by a parent or other person "responsible for the supervision of a child." This case suggests that this definition can be met by a teacher even outside of school hours and off of school property so long as there has been no "break" in the teacher-student relationship. The court based its decision in part on a Missouri case in which a teacher was convicted of felony child abuse against a student after a school play when the teacher offered to drive the student home. The student accepted the ride and the teacher made a detour to his own home. Sexual contact occurred during the ride. The teacher challenged the evidence that there existed a custodial relationship between himself and the victims. The court described the scope of the student-teacher relationship as follows: "Teachers are undeniably charged with the care and custody of students. When parents send their child to school, they entrust the teacher with that child's well-being. A teacher's duty of care and custody extends beyond the confines on the schoolyard. By virtue of a teacher's position, he was able to exert influence upon [the victim], not only within the confines of the school, but outside of it as well." Anderson v. State, 2002 WL 31812670 (Md. 2002).

Legal Developments

Child Abuse Reporting

The Wisconsin Supreme Court ruled that a school principal who disclosed to an alleged child abuser the identities of the school employees who reported the abuse could be prosecuted.

Richard R. Hammar, Attorney, CPA
Bio

• Key point. Persons who disclose the identities of those who report child abuse may be subject to criminal prosecution under the confidentiality provisions of the child abuse reporting laws of some states.

* The Wisconsin Supreme Court ruled that a school principal who disclosed to an alleged child abuser the identities of the school employees who reported the abuse could be prosecuted for violating the state child abuse reporting law's prohibition on the disclosure of the identities of reporters. A teacher noticed a mark on a child's forehead, and suspected it was the result of child abuse. The teacher removed the student from the classroom and took him to another teacher for evaluation. The teachers concluded that it was possible that the child had been abused, and they reported the abuse to civil authorities. A social worker arrived a short time later, spoke with the student, and determined that abuse was unlikely. The child's parents learned of the incident and were very upset at how it was handled. They met with their child's teacher, the school principal, and the superintendent of schools. The superintendent of schools later wrote the parents a letter in which he disclosed the identity of the two teachers who noticed and reported the suspected abuse. The superintendent was later charged with violating a state law prohibiting the disclosure of the identities of persons who report suspected child abuse. The statute specifies, "All reports made under this section … shall be confidential. Reports and records may be disclosed only to [the child's parents] …. Any person who violates this section … may be fined not more than $1,000 or imprisoned not more than 6 months or both."

The state supreme court ruled that the word "disclose" requires that the persons to whom the identity of a child abuse reporter is communicated must have been unaware of the reporter's identity at the time of the disclosure, and therefore the state has the burden of proving this beyond a reasonable doubt. However, the court rejected the superintendent's argument that he could not be guilty of violating the statute because he did not "intend" to disclose confidential information. The court concluded that the statute did not require a specific intent, and therefore the superintendent could be convicted for simply disclosing reporters' identities without any proof of intent. It concluded, "Here, the legislature, by establishing a confidentiality requirement, was clearly attempting to impose a high standard of care on those with access to records and reports of child abuse and neglect. In such a case, it is not unfathomable that the legislature would eliminate a mental state to enforce such a standard."

Application. The relevance of this case to church leaders is apparent. In many states, pastors are mandatory reporters of child abuse (see the May-June 2003 issue of Richard Hammar's Church Law & Tax Report newsletter for a review of the child abuse reporting laws of all 50 states). In many cases, church employees or volunteers share their suspicions of child abuse with the pastor who then may or may not report the allegations to the state. Pastors who report abuse that is disclosed to them by staff members, and who later reveal the identity of the "reporter" to the alleged offender, may be subject to criminal penalties. This is an important point for pastors to consider before disclosing the identity of a child abuse reporter to the person accused of abuse. State v. Polashek, 646 N.W.2d 330 (Wisc. 2002).

© Copyright 2003 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 c0403

Legal Developments

Child Abuse

A California court ruled that a 6-year-old child could not be sued by an adult male against whom she made false accusations of child abuse.

Richard R. Hammar, Attorney, CPA
Bio

• Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a "qualified privilege," meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

A California court ruled that a 6-year-old child could not be sued by an adult male against whom she made false accusations of child abuse. It is every youth worker's worst fear—being falsely accused of molesting a child. What recourse does a person have in such a case? Can a child be sued who makes a knowingly false accusation of child abuse? That was the issue in a recent California case. A 6-year-old child made a false accusation of child abuse against an adult acquaintance. The child accused the adult of performing various sexually deviant acts upon her person. She made her initial accusations to her grandmother, and then to her parents. After her parents reported the accusations to the police, the child was interviewed by police officers. She repeated the accusations to the police. The child knew that the accusations she was making were false.

As a result of the false accusations, the alleged offender was arrested, booked and jailed. It was later determined that the child had fabricated her allegations, and the alleged offender was released and all charges were dropped. He sued the child for defamation. He conceded that the state child abuse reporting law gave mandatory and permissive child abuse reporters "limited" immunity from liability, but only if their reports were not "malicious" (knowingly false). Since the child in this case was a permissive reporter, and she knew her allegations of abuse were false, she was not protected from personal liability. A trial court dismissed the lawsuit, and a state appeals court upheld this disposition. The court concluded that children who are victims of abuse are neither mandatory nor permissive child abuse reporters, and so they have much broader protection from liability than what is provided under the child abuse reporting law.

The court concluded that the statements the child made to the police were "absolutely privileged," meaning they could not be the basis for liability even if she knew they were false. This is because of a state law that provides absolute immunity to any statement made in "an official proceeding authorized by law." The court noted that other courts in California had reached different conclusions as to whether allegations of child abuse made to the police are statements made in "an official proceeding authorized by law." It concluded, however, that they fit within this rule of immunity, and therefore the child could not be liable. It also concluded that the statements she made to her grandmother were also privileged, since they were directly related to the allegations that were later made to the police.

The court acknowledged that its decision prevented a wrongfully accused adult "from any relief or compensation for the grievous injury which we must assume resulted from intentionally false and malicious acts on the part of [the child]. We do so because we are obligated to honor the determination of the legislature that protection of one innocent segment of society warrants occasional injury to another."

Application. As this case illustrates, persons who are falsely accused of child molestation by a minor may have no legal recourse. This is a compelling reason why church leaders should implement appropriate policies and procedures to reduce the likelihood of innocent volunteer workers being falsely accused of child abuse. For a summary of preventive policies and procedures, see chapter 10 in Richard Hammar's book, Pastor, Church & Law (3rd ed. 2000). Smith v. M.D., 105 Cal.App.4th 1169 (Cal. App. 2003).

© Copyright 2001 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 m53 c0303

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