Child Abuse – Part 2

Church Law and Tax 1990-01-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Minnesota
Categories: Child Abuse, Schools

Church Law and Tax 1990-01-01 Recent Developments

Child Abuse

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

• The Minnesota Supreme Court ruled that a state law requiring the reporting of known or reasonably suspected incidents of child abuse to state authorities was unconstitutionally vague. Here are the facts. An elementary school principal received reports from two mothers that their boys had been sexually contacted by a particular teacher in the school. The principal failed to report such incidents to the authorities, and he later was prosecuted for violating a state law requiring any “professional engaged in the practice of education who knows or has reason to believe a child is being neglected or physically or sexually abused” to report the incident to the state. The principal claimed that the child abuse reporting law was unconstitutional since it was too “vague.” The court acknowledged the “fundamental principle that a [criminal] statute must define the criminal offense with such definiteness that ordinary people can understand what conduct is prohibited … in a manner that does not encourage arbitrary or discriminatory enforcement.” The principal argued that the phrases “reason to believe” and “physically or sexually abused” are so uncertain that reasonable persons cannot determine their actual meaning. A trial court agreed with the principal’s position, but the state supreme court reversed. It ruled that state law did sufficiently define the term “physically or sexually abused” (sexual abuse was defined as any contact that violates the state criminal sexual contact law), and that the term “reason to believe” also had a definite meaning under Minnesota law. The court also rejected the principal’s argument that his right of “free speech” was violated by his prosecution for violating the child abuse reporting law. All the law required, observed the court, was the reporting of information—”a requirement not altogether dissimilar from that imposed by the Internal Revenue Code.” Finally, the court observed that “a professional is free to include in a report that although the report is mandated because the reporter has reason to believe that a child has been abused, the reporter does not hold a personal belief that the child has been physically or sexually abused.” This case illustrates a number of important principles: (1) Every state has a child abuse reporting law requiring certain persons to report known or reasonably suspected cases of child abuse. It is imperative for you to determine which persons are required to report under your state law, since a failure to report (by a person having a legal duty to report) may result in criminal prosecution. (2) Child abuse reporting laws may not be as clear as we would like, but they have been upheld by a number of courts, including the Minnesota Supreme Court. (3) Church leaders should not only determine which employees and volunteers have a legal duty to report, but they also must familiarize themselves with the definition of “sexual” and “physical” abuse under state law. Contact that may seem too trivial to report may well satisfy the definition of sexual abuse under state law. (4) The court specifically acknowledged that “a professional is free to include in a report that although the report is mandated because the reporter has reason to believe that a child has been abused, the reporter does not hold a personal belief that the child has been physically or sexually abused.” State v. Grover, 437 N.W.2d 60 (Minn. 1989).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 c0190

Legal Developments

Child Abuse – Part 1

Church Law and Tax 1990-01-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Florida
Categories: Child Abuse, Criminal Liability

Church Law and Tax 1990-01-01 Recent Developments

Child Abuse

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

• A question that undoubtedly will be of increasing concern to church staff members is their potential civil liability for failing to report known or reasonably suspected cases of child abuse. In many states church staff members are required to report known or reasonably suspected cases of abuse to the authorities. In some states, they have the option to report or not to report. Whether reporting is required or not, a church staff member who is aware (or reasonably should be aware) of an incident of abuse and who elects not to report it may later be sued by the victim. Will such lawsuits be successful, and if so, what will be the basis of liability? A Florida appeals court recently issued a ruling that addresses these issues in the context of a psychiatrist’s failure to report a patient’s physical and emotional abuse of his daughters. The minor daughters sued their father’s psychiatrist, alleging that he knew that his patient had abused his daughters, that he failed to report the abuse to state authorities as required by law, and that his failure to report caused the children to suffer continued abuse and injury. The court acknowledged that state law requires many categories of professionals (including psychiatrists) to report “known or suspected child abuse or neglect,” and imposes criminal penalties for failure to do so. However, the court observed that the reporting law said nothing about victims being able to sue persons who fail to report, and it refused to create a new theory of liability. In fact, it stated that the “increasing complexity” of legislation and the “much higher volume of litigation” required the courts to refrain from creating new theories of liability unless a statute specifically provides for them. It observed that the Florida legislature “has had ample opportunity to broaden the penalty for failure to report” child abuse by allowing children to sue persons who fail to report. As a result, the court rejected the daughters’ attempt to sue the psychiatrist for injuries they allegedly suffered because of his failure to report. A dissenting judge argued that the daughters should have been permitted to sue the psychiatrist. He maintained that “our jurisprudence rests on the principle that for every wrong there is a remedy,” and that the purpose of the child abuse reporting law was sufficiently broad and important that private lawsuits should be encouraged rather than discouraged. This case provides some indication that civil lawsuits against clergy and other church staff members who fail to report incidents of child abuse may not be allowed by the courts, despite the fact that the victims continue to suffer abuse or molestation because of the failure to report. Certainly it is too early to make such a prediction at this time, but the Florida case at least indicates that the civil courts will not automatically recognize such lawsuits. Future developments of course will be fully addressed in this newsletter. Fischer v. Metcalf, 543 So.2d 785 (Fla. App. 1989).

Legal Developments

Child Abuse

Church Law and Tax 1989-11-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Arizona
Categories: Child Abuse

Church Law and Tax 1989-11-01 Recent Developments

Child Abuse

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

• The Arizona legislature recently enacted a law designed to reduce the risk of sexual molestation of children by public school employees. The law demonstrates the importance of adequately “screening” employees who will have access to minors (see the two-part feature article in the last two issues of Church Law & Tax Report). Here is what the law requires: (1) All new employees must be fingerprinted, and a “fingerprint check” must be conducted to determine any previous criminal activity. (2) All employees must certify on forms provided by their employing school that they have never been convicted of or pleaded guilty to any of the following crimes either in Arizona or in any other state, and that they are not presently awaiting trial for any such offenses: sexual abuse of a minor, incest, first or second degree murder, kidnapping, arson, sexual assault, sexual exploitation of a minor, contributing to the delinquency of a minor, commercial sexual exploitation of a minor, felony offenses involving distribution of marijuana or narcotic drugs, burglary, robbery, any dangerous crime against children, child abuse, sexual conduct with a minor, or molestation of a minor. (3) Prior to hiring any new employee, a schools must make a documented, good-faith effort to contact previous employers in order to obtain information regarding the applicant’s fitness for employment (a prior employer cannot be sued for its evaluations unless it knowingly makes false statements with an intent to cause harm to the applicant). Ch. 115, Laws 1989.

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 c0689

Legal Developments

Child Abuse – Part 1

Church Law and Tax 1989-05-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse

Church Law and Tax 1989-05-01 Recent Developments

Child Abuse

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

• A recent California appeals court ruling will be of interest to churches and religious denominations that conduct scouting programs. The court ruled that the Boy Scouts of America (BSA) was not responsible for the homosexual molestation of two young boys by a scoutmaster. The mother of the two boys learned in 1984 that her sons had been repeatedly molested by the scoutmaster during the course of scouting activities. She sued the BSA, alleging that it (1) was responsible for the conduct of the scoutmaster on the basis of the “respondeat superior” theory, and (2) it was negligent in failing to discover that the scoutmaster “had been discharged from the Air Force for improper sexual conduct and had also been convicted … of child abuse in another situation.” A trial court dismissed the case against the BSA, and the mother appealed. A state appeals court affirmed the trial court’s order dismissing the case. It acknowledged that “under the doctrine of respondeat superior, a principal or employer is liable for the wrongful acts of its agent or employee committed … within the scope of the employment.” However, it noted that for the conduct of an agent or employee to fall within the “scope of employment,” the conduct either had to be “(1) required by or incidental to the duties of the agent or employee and hence not a substantial deviation from those duties for personal reasons, or (2) could reasonably have been foreseen by the principal or employer in any event.” The court concluded that a scoutmaster’s homosexual assaults upon young boys satisfied neither of these tests. The court cited with approval previous California decisions rejecting church liability for acts of sexual molestation perpetrated by a church custodian and a Sunday School teacher. The court observed: “Sexual misconduct between a scoutmaster and his charges is so unusual and startling that it is equally unfair to hold BSA liable under the doctrine of respondeat superior for damages caused by that activity.” The court likewise rejected the mother’s claim that BSA was liable for failing to adequately investigate and supervise the scoutmaster. While such facts may have rendered the BSA liable to the victims, they did not render the BSA liable to the mother. And, since the mother was the only party named as a plaintiff in the case, the court had no alternative but to dismiss this allegation as well. In other words, the court left open the question of whether or not the actual victims of sexual molestation could sue the BSA on the basis of its alleged failure to adequately investigate or supervise scoutmasters who had a history of molestation and deviant sexual conduct. The fact that this critical issue was left unresolved reduces significantly the comfort that this case otherwise might have brought to church and denominational scouting programs in California (and to some extent in other states). Churches and denominational agencies that operate scouting programs must continue to exercise extreme care in selecting and supervising workers (both volunteer and compensated). At a minimum, this will mean confirmation of the identity of any previously unknown applicant (through an identification card, such as a state driver’s license, containing a photograph of the applicant); documented reference checks; contacting previous churches with which the applicant claims to have been associated; an appropriate application form; contacting the local social services agency for any available information; never leaving minors in the custody of one adult; and refusing to hire anyone whom you have reasonable cause to believe is unfit. A feature article in a future issue of Church Law & Tax Report will address in detail the issue of church liability for acts of sexual molestation occurring on church premises or during church activities. The article will outline steps that churches can take to reduce the risk of such a tragedy occurring. Cordts v. Boy Scouts of America, Inc., 252 Cal. Rptr. 629 (Cal. App. 3rd Dist. 1988).

Legal Developments

Child Abuse

Church Law and Tax 1989-03-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1989-03-01 Recent Developments

Child Abuse

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

• Should courts consider religious conversions in deciding whether or not to terminate parental rights to children on the basis of child abuse or neglect? No, concluded a New York state court. A county social services agency sought to terminate the parental rights of a couple to their 5-year-old son on the basis of alleged incestuous acts. The couple adamantly denied that they had molested their son, and stressed that their conversion to “biblical Christianity” proved that they would be “fit parents”. In rejecting the couple’s claim, the court observed: “Although some might have been tempted to reject, out of hand, the significance of their religious fervor, this court sees it as having a most positive potential. Religion can and does serve as a means to pray, to enrich and strengthen family life, to inspire commitment, to still anger, to foster understanding, to encourage compassion and good deeds, and to sooth the piercing edge of pain following a loss. To many people these are everyday human miracles which naturally flow from a sincere belief in a Supreme Being, and a tender relationship between themselves and a caring pastor …. However, the court is most reluctant to allow its decision to be influenced by testimony that the [parents’] newfound discoveries of religious morality and the ‘word of God’ are themselves guarantees of [their son’s] safety …. [W]hile it may tempt a court’s inclination to resolve a matter by placing complete trust in a party’s religious faith and enthusiasm, the facts of this case, together with the testimony and experience of six experts, outweighs such considerations. Indeed, such inclinations do not relieve the court of the obligation to consider a demonstrable, unresolved, and existing risk to this child.” In particular, the court was impressed with the following testimony of one expert witness: “In the years that I have been doing this work, I probably have treated people from every religious denomination. We have seen priests, ministers, rabbis who have engaged in pedophilic [i.e., child molestation] behavior, so attendance at a church or being high up in a religious hierarchy doesn’t contraindicate that a person is a [pedophile] …. They tell us that they have repented, that they have found the Lord and no longer have the problem they were accused of having. So we don’t see religiosity as solving the problem.” The court also emphasized that the couple adamantly refused to admit that they had abused their son, despite compelling evidence to the contrary. Citing the “overwhelming view of professionals” that “an admission is critical to successful treatment, the court concluded that the parents’ “piety could have played a major role in their rehabilitation, but only if they first admitted, addressed, and confronted the behavioral problems that they both have. Since the parents refused to admit the acts of abuse, the court felt compelled to reject the relevance of religion in their lives and to terminate their parental rights to their son. Dutchess County Department of Social Services v. G., 534 N.Y.S.2d 64 (N.Y. 1988).

See Confidential communications, Church of Jesus Christ of Latter-Day Saints v. Superior Court, 764 P.2d 759 (Ariz. App. 1988); Personal injuries occurring on church premises or during church activities, J. v. Victory Baptist Church, 372 S.E.2d 391 (Va. 1988).

Legal Developments

Court Upheld the Criminal Conviction of a Mother for “Maliciously Disciplining” Her Child

A Florida state appeals court upheld the criminal conviction of a mother for "maliciously disciplining"

Richard R. Hammar, Attorney, CPA

Bio

State: Florida
Categories: Child Abuse

A Florida state appeals court upheld the criminal conviction of a mother for "maliciously disciplining" her child. The mother, who beat her 7-year old son with a belt on his back, arms, and shoulders, was convicted under a Florida law banning the "malicious punishment" of children.

The court acknowledged that "a parent does not commit a crime by inflicting corporal punishment on her child if she remains within the legal limits of the exercise of that authority." However, when the corporal punishment is "malicious," a crime occurs. The court concluded that corporal punishment oversteps the bounds of permissible discipline if it is motivated by malice, rather than educational purposes; if it is inflicted upon frivolous pretenses; if it is excessive, cruel, or merciless; or if it results in great bodily harm, permanent disability, or permanent disfigurement.

The court observed that the Swedish parliament banned all corporal punishment of children (including punishment inflicted by parents) in 1979 by a vote of 259 to 9. While this extreme action has not been taken in the United States, the court observed that "cases like this should stand as a warning to those, parents and others alike, who quickly turn to corporal punishment as a solution to their child discipline problems. It is apparent that there is a serious risk of `going too far' every time physical punishment is administered. The consequences now may include not only harm to the child but criminal prosecution as well." Herbert v. State, 526 So.2d 709 (Fla. App. 4th Dist. 1988)

Legal Developments

Court Concluded Father’s Beating Constituted Child Abuse Not Excused on the Grounds of Reasonableness or Religion

At what point does the physical discipline of a child by a parent become "child

Richard R. Hammar, Attorney, CPA

Bio

State: South Carolina
Categories: Child Abuse, Freedom of Religion

At what point does the physical discipline of a child by a parent become "child abuse"? This difficult question was addressed in a recent South Carolina case. A father beat his 13-year old daughter with a belt, and hit her on the face with his hand (while wearing a large college ring).

Five days later, the girl had large purple bruises covering most of the back of her legs and thighs, as well as a bruise on her face. The father felt that the beating was a proper exercise of parental discipline (his daughter allegedly told a lie), that it was a reasonable use of force, and that it was protected by the constitutional guaranty of religious freedom. He cited Proverbs 23:13-14: "Withhold not correction from the child; for if thou beatest him with the rod, he shall not die."

The court concluded that the beating constituted child abuse, and that it was not excused on the grounds of either reasonableness or religion. The court acknowledged that "reasonable" physical discipline is permitted, but concluded that the beating in question was excessive. With regard to the claim that the Bible justified the beating, the court observed that the Bible also pronounces the death penalty on disobedient children (Deuteronomy 21:18-21)—a claim that the parents clearly did not espouse.

The court further noted that "the law can regulate how people act, even if how they act is based on what they believe. If the law were otherwise, a Fundamental Mormon could have multiple wives, a Jehovah's Witness could withhold medical care form his child and a modern-day adherent of an early easter religion could drown a virgin bride to appease a river god. Indeed, if the law were otherwise, the father in this case could beat his daughter into submission.

Decisions of the United States Supreme Court have denied constitutional protection to the former practices. By our own decision in this case, we deny constitutional protection to the latter." The court left the girl in her parents' home, subject to "protective services." "We believe," concluded the court, "the mother and father can, if they will, learn to express their love in better ways, and the child can, if she will, learn to obey her parents—a requirement, coincidentally, of both the Bible and the law." Department of Social Services v. Father and Mother, 366 S.E.2d 40 (S.C. App. 1988)

Legal Developments

School Not Responsible for Damages Resulting from an Alleged Sexual Relationship Between a Teacher and Student

Can a church school be legally responsible for damages resulting from an alleged sexual relationship

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Child Abuse, Schools

Can a church school be legally responsible for damages resulting from an alleged sexual relationship between a teacher and student? This was the difficult question confronting a Washington state appeals court in a recent case.

The student's parents sued the school and church for "negligent hiring" and "negligent supervision." The court rejected both allegations. With regard to the school's alleged negligent hiring, the court observed that "the hiring process employed by the school suggests it took reasonable care in hiring [the teacher] …. The process appears sufficient as a matter of law to discover whether an individual is fit to teach at [the school]."

With regard to the school's alleged "negligent supervision," the court agreed that "schools have a duty to supervise their students," and to take precautions to protect students from dangers that may reasonably be anticipated. However, "at some point the event is so distant in time and place that the responsibility for adequate supervision is with the parents rather than the school." Such was the case here, concluded the court, since the alleged misconduct occurred off school property during noninstructional hours.

The court also rejected the argument that the school had breached an implied promise to provide a "competent and morally fit faculty." Scott v. Blanchet High School, 747 P.2d 1124 (Wash. App. 1987)

Legal Developments

Court Ruled Church Was Not Liable for Repeated Acts of Sexual Assault by a Sunday School Teacher

Can a church be liable for repeated acts of sexual assault on a minor by

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Can a church be liable for repeated acts of sexual assault on a minor by a Sunday School teacher? No, concluded a California appeals court in an important ruling.

A volunteer Sunday School teacher began picking up a second grade boy each Sunday morning and evening allegedly for church services, and on Thursday evenings to participate in a church visitation program. This relationship continued for two years, during which time the teacher frequently molested the boy. The boy's mother had no suspicion that her son was being sexually abused by the teacher. On the contrary, she felt the teacher was an ideal adult who was fulfilling the role of "second father" for her son, whose real father was suffering from a serious illness.

Eventually, the teacher was arrested and charged with 47 counts of child molestation, including 9 counts against the boy in question. Thereafter, a lawsuit was brought against the church, alleging assault, battery, and infliction of emotional distress. The state appeals court began its opinion by observing that an employer can be liable for the misconduct of employees or volunteers only if the misconduct was committed "within the scope of the employment."

The court continued: "Certainly [the teacher] was not employed to molest young boys. There is no evidence the acts occurred during Sunday School …. There is no evidence to suggest that [the teacher's] conduct was actuated by a purpose to serve [the church]. Rather, the acts were independent, self-serving pursuits unrelated to church activities. Finally, [the teacher's] acts of sexual molestation were not foreseeable 'in light of the duties he was hired to perform.' There is no aspect of a Sunday School teacher's or member's duties that would make sexual abuse anything other than highly unusual and very startling. We conclude [the teacher's] acts against [the boy] were neither required, incidental to his duties, nor foreseeable. They were, therefore, not within the scope of his employment."

The court based its decision in part on an earlier California appeals court ruling that had dismissed a lawsuit against the Archbishop of Los Angeles Diocese of the Roman Catholic Church for the alleged sexual molestation of a 16-year old girl by two priests. The court in the earlier case had similarly concluded that "it would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop of the Roman Catholic Church. There is simply no basis for imputing liability for the alleged conduct of the individual priests … to the Archbishop." Scott v. Central Baptist Church, 243 Cal. Rptr. 128 (4th Dist. App. 1988)