Inaction and Cover-up Create Significant Liability in Sexual Misconduct Case

Church leaders chose not to report sexual misconduct by a church program leader against a minor and covered up details, prompting a lawsuit.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

Key point 6-08. State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.

Background

A church employee (Jon) ran a church-based program (the “academy”) offering afternoon,  weekend, and summer singing and dancing classes. 

He also directed the academy’s dance team, which consisted of a group of ten standout dancers. They traveled to other states to perform. 

One member of the dance team was a minor (the “victim”). Because of his participation on the dance team, the victim spent a lot of time with Jon, who became a mentor and a friend. 

The victim’s mother described the mentorship as “a natural thing.” Sometimes Jon and the victim went to see a movie or grab a meal.

In July 2009, when the victim was 17 years old, he participated in an overnight church dance team trip supervised by Jon. 

Jon shared a hotel suite with a handful of boys, including the victim. One night, while everyone slept, Jon crept to the victim’s bed, reached under the covers, and fondled him. The next day, Jon confessed to Brian, an adult chaperone (who was a volunteer and former pastor). 

Brian counseled Jon on ways to tame his “dark thoughts.”

In July 2010, shortly after the victim turned 18, the dance team traveled to another overnight event. 

As before, Jon shared a suite with a handful of boys, including the victim. 

Again, Jon crept over to the victim’s bed while everyone slept, and fondled him under the covers. 

The next day, Jon again confessed to Brian. Brian suspected the victim was not asleep when Jon touched him.

The next day Brian—and two members of the pastoral staff—met with Jon. 

Jon explained what had happened the night before. The church leaders sent Jon to counseling. 

They told him he was not to be alone with any minors.

The church leaders did not report that information to the victim, his parents, parents in the church community, or the police. 

They did not terminate Jon’s employment. 

They did not restrict Jon’s access to children.

A confrontation

In 2014, the victim talked to his parents. The parents confronted Jon, who told them about the 2009 and 2010 incidents, as well as his subsequent conversations after each incident with church leaders, and the leaders’ decision to send him to counseling.

The victim’s father demanded a meeting with church leaders, and at that meeting church leaders (1) acknowledged that the church mishandled the situation, (2) agreed to fire Jon (he resigned before being terminated), and (3) falsely advised the parents that the accusations had been reported to the police.

The victim and his family disassociated from the church, which had been the focus of their lives. They sued the church on the following grounds:

  • negligence,
  • negligent hiring, 
  • negligent supervision,
  • negligent retention,
  • negligent failure to warn,
  • negligent misrepresentation, and
  • vicarious liability.

The lawsuit was set for trial in August of 2021, but a trial court dismissed it based upon procedural and evidentiary arguments made by the church. The victim and his family appealed. The appellate court reversed the trial court’s decision and sent the case back to the trial court. No further information about the case’s status was available as of the date of this publication.

 

Why this case matters to churches, church leader, and board members

The facts of this case, and the potential legal liability caused by it, illustrate several scenarios that can lead to significant liability for a church. 

Consider the following:

1. Overnight youth trips

Both acts of molestation happened on overnight trips involving minors.  

Such trips pose a significant risk to churches because (1) they are inherently difficult to supervise, (2) they are often targeted by pedophiles, and (3) monetary damages awarded by juries can be substantial and well above insurance coverage limits. 

Churches can do many things to reduce the risks associated with such trips. 

First, align your precautions with those taken by local public schools and youth-serving agencies, including youth sports teams, regarding sleeping arrangements and overnight trips. This can help with establishing the church’s exercise of care, which may help reduce potential vulnerabilities for children and also help demonstrate the church’s efforts to match its practices with other community institutions. This step also may help negate a claim involving negligence. 

Second, contact your local police department, child abuse reporting agency, church insurance company, and denominational offices for additional information and guidance.

Document in writing every conversation with every agency to include who you spoke with, when you spoke with them, and the response each representative offered.

And third, avoid “power imbalances” when establishing sleeping arrangements. Many believe that having only minors of the same age in a room (no ‘power imbalances”) may be the least risky arrangement. The risk goes up with the addition of older children or an adult. Relatedly, also evaluate what the maximum number of minors in each room should be. Again, check with the public school district and reputable charities to learn from their examples.

2. Off-site socialization and “mentoring”

Jon and the victim “met socially outside of the academy’s activities to see a movie or grab a meal.” Such unsupervised and often spontaneous meetings exposed the church to potential risk. It also exposedthe adult to founded or unfounded accusations of misconduct. Such liaisons should be discouraged or prohibited unless a second adult is continually present.

3. Child abuse reporting

Jon met with members of the pastoral staff and explained his actions regarding his abuse of the victim The church chose not to report the abuse to authorities.

The church’s decision not to report may have violated state child abuse reporting laws.  It also  needlessly exposed other adolescents to the risk of abuse. And finally, it exposedthe church to the risk of liability based on negligence.

4. Jon’s employment

The church’s leaders did not immediately terminate Jon’s employment following his confession. They did not restrict his access to children, but they told him he was not to be alone with any minors. Members of the pastoral staff then later lied to the parents about filing an incident report with the police, which had not been done.

Placing a known or credibly accused child molester in a position involving immediate access to minors is one of the most significant legal risks that a church can take. That is because it may constitute gross negligence. 

Church leaders should be familiar with the concept of gross negligence for the following three reasons:

(1) Punitive damages. Courts can award “punitive damages” for conduct that amounts to gross negligence. Punitive damages are damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is particularly reprehensible and outrageous. This does not necessarily mean intentional misconduct. Punitive damages often are associated with reckless conduct or conduct creating a high risk of harm. 

To illustrate, in one case, a punitive damage award was based on the fact that church officials repeatedly and knowingly placed a priest in situations where he could sexually abuse boys. The church also failed to supervise him and disclose his sexual problem. 

Clearly, church officials did not intend for the priest to molest anyone. But, under the circumstances, the jury concluded that the church’s actions were sufficiently reckless to justify an award of punitive damages. 

Church leaders must understand that reckless inattention to risks can lead to punitive damages, and that such damages may not be covered by the church’s liability insurance policy. 

It is critical to note that many church insurance policies exclude punitive damages

This means that a jury award of punitive damages represents a potentially uninsured risk. 

Accordingly, it is critical for church leaders to understand the basis for punitive damages, and to avoid behavior which might be viewed as grossly negligent. 

(2) Loss of limited immunity under state law. State and federal laws provide uncompensated officers and directors of nonprofit corporations (including churches) with immunity from legal liability for their ordinary negligence. This is an important protection. However, such laws do not protect officers and directors from liability for their gross negligence. 

(3) Personal liability. Church leaders who are guilty of gross negligence are more likely to be sued personally than if their behavior is merely negligent. Indifference by church leaders to information that clearly demonstrates improper behavior by a staff member or volunteer worker can be viewed by a court as gross negligence, and this will make it more likely that the church leaders will be sued personally.

So how can churches and church leaders reduce the risk of such tragic outcomes and liabilities? My 14-step plan for churches provides a comprehensive approach. 

Key point. Look at these precautions as ways to protect minors rather than as a risk management tool. If your goal is risk reduction, compliance is likely to suffer. Compliance is higher and of longer duration when leaders are motivated primarily by a desire to protect minors. 

John Doe v. Church, 2023 WL 3476834 (Cal. App. 2023)

Texas Appellate Court Affirms Dismissal of Decades-Old Abuse Claim

Court said the victim could not establish certain facts that would trigger an exception to the state’s statute of limitations for a civil claim.

Key point 10-16.4 — The statute of limitations specifies the deadline for filing a civil lawsuit. Lawsuits cannot be brought after this deadline has passed. There are a few exceptions that have been recognized by some courts: (1) The statute of limitations for injuries suffered by a minor begins to run on the minor’s eighteenth birthday. (2) The statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. (3) The statute of limitations does not begin to run until an adult with whom a minister or church counselor has had sexual contact “discovers” that his or her psychological damages were caused by the inappropriate contact. (4) The statute of limitations is suspended due to fraud or concealment of a cause of action.

Summary: A Texas state appellate court affirmed a trial court’s decision to dismiss claims brought by a victim against his former church for the child abuse he suffered as a minor based on the acts of two priests.

Decades-old abuse claim involved sexual molestation

In 1978, an adult male (“Doe”) was a 16-year-old student at a Catholic school (“school”) in Dallas, Texas. The school’s president and its principal— both Jesuit priests— invited Doe and a friend (“G.L.”) to a religious retreat in Mobile, Alabama.

At this event, Doe was sexually molested by a priest. The priest got the student drunk and sexually assaulted him. Doe claimed he had no prior sexual experience and did not realize what had happened to him. Doe woke up and told G.L. what happened. Doe testified that after the assault, “I was so scared and then I went to go wake up G.L. to tell him what had happened and—and when I told him what happened and he didn’t believe me and I didn’t know what to think. I was scared. I was hurting, and I just wanted to go home.”

The two boys left Mobile “within a day or so” of the assault.

Shortly after returning to Dallas from Mobile, Doe’s family moved to Harlingen.

The offending priest was later transferred to an assistant pastor position in Shreveport, Louisiana, where he sexually assaulted more children. He was removed from the ministry in 1986.

Doe claimed that he “had absolutely no memory of what the priest had done to me from the time we left Mobile.”

In 2018, Doe was living in Corpus Christi, Texas. G.L. visited Corpus Christi, and he contacted Doe. They met for dinner and discussed their time at the school and the trip to Mobile. During that conversation, Doe remembered the priest’s sexual assault on him for the first time in 40 years.

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G.L. claimed when he was in Mobile in 1978, Doe told him that “he was uncomfortable with something that the priest had done to him.”

G.L. continued, “At the time, I didn’t think much of what he told me and I didn’t ask him any questions. Instead, I responded to [Doe] saying something along the lines that—‘these Jesuits are pretty demonstrative with their affection, don’t take it too seriously.’”

In 2018, Doe told G.L., “I tried to tell you about what the priest did to me when we were in Mobile.”… A few months later, G.L. saw the priest’s name on a list of “credibly accused” clergy. G.L. reported the priest’s sexual assault of Doe to the school’s president. Doe sued the school and the Catholic Society of Religious and Literary Education (the “church defendants”).



Evidence revealed the defendants in the decades-old abuse claim knew as early as January 1975 about the priest’s sexual abuses. The evidence also revealed the defendants intervened to stop an investigation, and acted to keep the information from becoming public.

Letters between the defendants in December 1977 discuss the priest’s history “of overt homosexual encounters with two high school boys.”

The church defendants took no action “on the supposition that the condition had been brought under control.” However, a few weeks later the priest made sexual advances toward a 14-year-old boy.

Doe sued the church defendants on March 14, 2019, almost 41 years after the incident. Doe identified the following bases of liability:

1. Respondeat superior and other types of agency (a principal is responsible for the acts of its agents committed within the scope of agency).

2. The church defendants were negligent by:

  • failing to report to the police and other authorities the priest’s known sexual assaults of children,
  • assigning the priest to locations where children were located, knowing he had sexually assaulted children,
  • failing to investigate the priest’s known sexual assaults of children, and
  • failing to have written policies in place regarding sexual assaults.

3. The church defendants were negligent by retaining the priest and failing to properly supervise him when they knew or should have known he had abused children.

4. The church defendants were in a special fiduciary relationship with Doe which they breached “by subjecting him to … a known pedophile.”

5. The church defendants violated their fiduciary duties by failing to disclose “the extent of the problem of sexual abuse of children by the Roman Catholic clergy.”

The church defendants filed a motion for summary judgment as a matter of law, arguing Doe’s decades-old abuse claim was barred by the applicable statute of limitations in Texas. In Texas, civil lawsuits must be filed within two years of the date of an injury.

The trial court granted the defendants’ motion and dismissed Doe’s claims.

Doe files an appeal

Doe appealed the trial court’s decision.

The appellate court first explained the purpose of the statute of limitations, citing a prior state supreme court decision:

Limitations statutes afford plaintiffs what the legislature deems a reasonable time to present their claims. They also protect defendants and the courts cases where the search for truth may impaired by the loss of evidence. Loss of evidence can come from the death or disappearance of witnesses, fading memories, disappearance of documents or otherwise. The purpose of a statute of limitations is to establish a point of repose and to terminate stale claims. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990).

The appellate court then noted that a statute of limitations “begins to run when a cause of action accrues” and that under the “legal injury rule,” a cause of action accrues “when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later and even if all resulting damages have not yet occurred.”

In this case, “the priest’s assault on Doe occurred in August 1978. Doe was sixteen at the time, so the limitations period did not begin to run until Doe turned eighteen in 1980. … The limitations period was two years. Thus, limitations expired in 1982, two years after Doe turned eighteen, unless accrual of Doe’s causes of action was deferred or the running of the limitations period was tolled.

Doe failed to establish elements of discovery rules

Doe acknowledged that he did not file his lawsuit within two years from the date of injury and therefore the statute of limitation potentially barred his legal claims against the church defendants. However, Doe insisted that the discovery rule applied and deferred the accrual of his decades-old abuse claim until he remembered the assault in 2018.

The appellate court noted that the “discovery rule” is an exception to the general rule that a cause of action accrues at the time of the injury, deferring the accrual of a cause of action ”until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the cause of action.”

The court noted that it applied the discovery rule “only when the nature of plaintiff’s injury is inherently undiscoverable and the evidence of injury is objectively verifiable.”

The court concluded that Doe failed to establish these elements. As a result, the discovery rule did not extend the limitation period beyond two years.

What this means for churches

Many states have adopted a “discovery rule” that suspends the statute of limitations in sexual abuse cases until the victim “discovers, or with reasonable diligence should have discovered, the injury.”

The discovery rule potentially exposes churches to the possibility of a decades-old abuse claim.

Although the appellate court affirmed the trial court’s decision that such an exception did not apply to Doe’s specific claims, church leaders still must note this possible exception to their respective state’s statute of limitations. Furthermore, many states are extending the periods of time for civil claims involving child sexual abuse to be brought or abolishing the statute of limitations for child sexual abuse claims altogether.

There are some important considerations for leaders to especially note:

1. Churches to should keep church insurance policies permanently. That’s because a decades-old abuse claim may require a church to produce a copy of the insurance contract for the year the misconduct happened. In many cases, churches are unable to do so, and face a potentially sizable uninsured risk.

2. To invoke the discovery rule, an adult survivor of childhood sexual abuse must demonstrate that they had no prior knowledge connecting the abuse with the perpetrator. This can be a challenge because it often requires the victim to describe the injury and its effect without realizing that, in doing so, the availability of the discovery rule may be compromised. As the court in this case noted: “Because Doe ceased to remember the assault almost immediately, he could not have told his parents or anyone else.”

3. In recent years, several states have abolished the statute of limitations in child sex abuse cases. This development underscores the need for churches to retain permanently all liability insurance policies.

4. The court cited the following facts that help corroborate allegations of abuse: “A confession by the abuser; a criminal conviction; contemporaneous records or written statements of the abuser such as diaries or letters; medical records of the person abused showing contemporaneous physical injury resulting from the abuse; photographs or recordings of the abuse; an objective eyewitness’s account. …”

5. When shopping for church insurance, church leaders should carefully examine policies for sex abuse coverage. Many insurance policies omit coverage for sex abuse claims involving minors or limit it significantly. Additional coverage for sexual abuse and sexual misconduct may need to be purchased.

Doe v. Jesuit College Preparatory School, 2022 WL 2352953 (Tex. App. 2022)

Court Affirms Massive Prison Sentence for Pastor

The case underscores the need for vigilance in safeguarding and monitoring adult interactions with minors.

Key point 4-11.01. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

A Texas appeals court affirmed five life sentences plus 220 years in prison—all to run consecutively, rather than at the same time—for a pastor who sexually abused three minors, including his biological daughter.

Pastor convicted on 16 counts

A pastor (the “defendant”) was charged with sexually assaulting three minors. The victims alleged that the pastor had shared sexually explicit photos with them using social media, and on several occasions, while taking several minors home after church, he would take one of the victims home last so he could drive her to a secluded place and molest her.

The charges related to all three victims were tried in a single, consolidated jury trial. The jury found the defendant guilty of five counts of aggravated sexual assault of a child, nine counts of sexual assault of a child, and two counts of indecency with a child by contact. The pastor appealed the convictions, as well as the sentencing handed down by the trial court. A Texas appellate court, aside from modifying the judgments to more accurately reflect the correct provisions of the state’s penal code, affirmed the judgments and the sentencing.

What this means for churches

This case is important for four reasons.

First, it illustrates the importance of adopting and enforcing a “two-adult” policy. Such a policy simply says that no minor is ever allowed to be alone with an unrelated adult during any church activity.

Such a policy would have prevented the pastor from transporting minors home in the church van if at any point during the drive he was alone with one minor. A two-adult policy reduces the risk of child molestation, and reduces the risk of false accusations of molestation.

Second, this case demonstrates that, as a “best practice,” churches should prohibit any direct or private messaging on any social media platform (including email) by a member of the pastoral staff, lay employee, or volunteer, with unrelated minors.

To reinforce the validity of such a policy, contact your local public school district and find out what, if any, restrictions the district places on communications between teachers and students.

Third, this case illustrates the importance of addressing high-risk behaviors. Often, those who molest minors in churches or church activities have openly engaged in high-risk behaviors, including:

Unrelated minors spend the night in a leader’s home.

  • An adult leader drives a vehicle with one or more unrelated minors on board, and no other adults.
  • An adult goes on day trips with an unrelated minor.
  • An adult goes on overnight trips with an unrelated minor.
  • A leader spends the night in a hotel with one or more unrelated minors.
  • A leader meets one or more unrelated minors in malls or other places where minors congregate.
  • An adult leader sleeps in a tent with an unrelated minor during a campout.

These, and similar, “grooming” behaviors are associated with many incidents of sexual abuse involving youth and children’s ministry leaders in churches. They must be promptly confronted and stopped.

Fourth, note the severity of the defendant’s punishment. The court sentenced him to five life sentences, plus 220 years in prison, with the sentences to run consecutively and not concurrently.

Wesley v. State, 2021 WL 5931683 (Tex. App. 2021).

Volunteer Youth Leader Sentenced to Five Years for Molesting Teen Girl

Case illustrates high-risk behaviors that should alert churches to the potential for sexual abuse.

Key point 4-11.01. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

Key point 10-09.01. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

Key point 10-09.03. Churches can reduce the risk of liability based on negligent supervision for the sexual molestation of minors by adopting risk management policies and procedures.

A New Jersey appeals court affirmed the five-year sentence of a church’s volunteer youth worker for sexual contact with an adolescent female.

Background

When she was in fifth grade, a girl (the “victim”) began attending a church with her mother. Several years later, the victim joined the church’s youth group, which conducted activities for the church’s teenage members. At the time, a volunteer leader in the youth group (the “defendant”) would occasionally give sermons at the Bible study meetings, chaperone outings, and attend and chaperone annual retreats.

In October 2013, the victim stopped attending youth group activities. Thereafter, the defendant began calling and texting her to convince her to rejoin the group. The victim claimed that:

  • by November 2013, she and the defendant were speaking on the phone several times per week and regularly exchanging text messages;
  • she began to view defendant as a mentor whom she could speak with about her personal issues, the youth group, and her own relationship with God; and
  • by December 2013, she and defendant began discussing sex, and sex was a “pretty normal” part of their conversations.

By January 2014, the victim had again started to attend the youth group activities and her communications with the defendant increased. She would see the defendant often at these activities and sometimes he would drive her home.

In February 2014, the defendant asked the victim if she would be interested in babysitting his children. The defendant had a daughter who was six years old and a son who was six months old.

The victim agreed and began to babysit the defendant’s children. She did so approximately six to eight times between March 2014 and June 2014. Each time, defendant would pick her up at her home and drive her to his house. She would babysit the children from 5 p.m. until 9 p.m., after which the defendant would drive her home.

The victim testified that during her second visit to the defendant’s home, he entered the family room where she was babysitting and motioned for her to follow him into an adjacent guest bedroom.

Once they were inside the guest bedroom, the defendant told the victim that he had received visions from God indicating she “was hurting.” The defendant said he could help her “be happy” and “become closer to God” if they reenacted his “visions,” which involved various sexual positions.

The victim insisted that the defendant’s actions “definitely made her feel uncomfortable.” She stated, however, that she viewed the defendant as a leader in her church and believed he cared for her, so she trusted him when he said that engaging in this conduct would bring her closer to God. The victim testified that the defendant repeated this conduct each time she babysat for his children, which was five more times.

Police investigation

In June 2014, the victim stopped babysitting for the defendant. About a month later, she called one of her mother’s friends from church, told her what the defendant had been doing, and asked her if it was wrong. The friend immediately went to the church’s pastor to inform him what the victim had told her.

In July 2014, the pastor, his wife, and the defendant met with the victim’s mother to tell her what the defendant had disclosed. The mother immediately took her daughter to the nearest police station, arriving around 1 a.m.

The officers took an initial report and asked the victim and her mother to go home, rest, and return in the morning to give a full statement to the detectives. The victim and her mother returned to the police station later the next day and the victim gave a full statement to several detectives who would be involved in the investigation.

As part of the investigation, the victim agreed to call the defendant on August 5, 2014, while the police listened in and made a recording of the call.

In the recorded conversation, the defendant told the victim that she should not be calling him because her mother “is real strict on that.” She asked the defendant what she should tell her mother about his conduct. He responded, “I have no idea . . . I’m sorry.” During the call, the defendant did not implicate himself in any illegal conduct.

Appeals court affirms the conviction

The victim’s mother gave the police her daughter’s cellphone and consented to a forensic investigation of the phone, which identified 118 text messages and 9 video calls between the defendant and the victim.

Thereafter, the defendant was arrested and charged with criminal sexual contact and endangering the welfare of a child by engaging in sexual conduct. The defendant was found guilty and sentenced to five years of incarceration. An appeals court affirmed his sentence.

What this means for churches

This case offers three important lessons for church leaders.

1. Understand the risk associated with cellphones

This case illustrates the risks associated with cellphones. The defendant’s cellphone contained 118 text messages and 9 video calls between defendant and the victim.

As a “best practice,” churches should prohibit any private messaging on any social media platform by a youth or children’s pastor or lay volunteer with unrelated minors.

To help develop best practices, contact your local public school district and find out what restrictions they place on communications between teachers and students. Often, such communications are prohibited.

2. Enforce a two-adult rule

The defendant was able to pursue his sexual behavior with the victim in his home, the victim’s home, and his car because much of it occurred without any other adults being present.

Even though this conduct occurred off the church’s property and outside of church activities, this case still illustrates the importance of a “two-adult” rule that says no minor is ever allowed to be alone with an unrelated adult during any church activity. Such a policy reduces the risk of child molestation and also reduces the risk of false accusations of molestation.

3. Watch for high-risk behaviors

Some leaders who molest minors in churches or church activities have openly engaged in high-risk behaviors, including:

  • Inviting minors to spend time in their home.
  • Inviting minors to spend the night in their home.
  • Driving a vehicle with one or more unrelated minors on board, and no other adults.
  • Going on day trips with an unrelated minor.
  • Going on overnight trips with an unrelated minor.
  • Spending the night in a hotel with one or more unrelated minors.
  • Meeting one or more minors in places where minors congregate.
  • Sleeping in a tent or cabin with an unrelated minor during a campout.
  • Providing unrelated minors with gifts.

These, and similar, “grooming” behaviors are associated with many incidents of sexual abuse involving youth and children’s ministry leaders. Such behaviors should be promptly confronted and stopped.

State v. S.A.B., 02021 WL 2426613 (N.J. App. 2021).

Convicted Sex Offender Sentenced to Five Years for Violating Megan’s Law

This case underscores four vulnerabilities creating risks, including the failure to consistently enforce an abuse-prevention policy.

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 New Jersey court affirmed a five-year prison sentence for a convicted child molester whose participation in a church’s youth ministry violated Megan’s Law.

A registered sex offender served in a church’s youth ministry

An adult male (the “defendant”) was sentenced to prison for sexually assaulting two teenagers. When he was released, he registered as a sex offender with his local law enforcement agency as required by Megan’s Law.

The defendant was an active member of a church and participated in its No Limits Youth Ministry (NLYM), whose mission was “to prepare students to be effective” at home and in school. Eventually, the defendant became involved in a variety of roles in the church, serving as a leader of the youth ministry and a member of the church’s executive board.

Church leaders knew the defendant had spent time in prison, but they were apparently unaware of the nature of his crimes.

New policy banned the defendant from the youth ministry

However, in 2005, after new board members were elected, the board reviewed a file that included the defendant’s criminal history, and certain board members became concerned about the defendant’s active role in the church’s youth ministry.

The board decided to adopt policies prohibiting the defendant from being involved with the church’s youth ministry and being alone with any of the youth members. The defendant was informed of the board’s decision and complied with the board’s policies from 2005 to 2008.

The pastor did not remove the defendant from the executive board because he did not believe there was any basis for doing so.

The church stopped enforcing the ban

Between 2008 and 2010, the church went through a leadership transition. During this time, the church had multiple pastors as well as new board members, and the board’s policies regarding the defendant’s involvement with the youth ministry and youth members were not enforced. The defendant again began to participate actively in the church’s youth ministry.

At that time, the youth ministry was reorganized to provide church members between the ages of 12 and 17 with spiritual education, social and recreational activities, as well as a community setting to foster personal and religious growth. NLYM organized weekly bible study meetings, social events, and recreational activities such as trips to movies, amusement parks, concerts, and overnight camp retreats.

The church’s youth director from 2006 to 2016 testified that, from 2009 to 2014, the defendant was a youth leader, chaperone, and mentor for the young participants in NLYM. He explained that, as a youth leader, the defendant was responsible for supervising the participants during weekly meetings and facilitating discussions and activities as a part of the ministry’s goal to inspire the participants’ faith.

In addition to their responsibilities at NLYM’s weekly meetings, youth leaders acted as chaperones on trips and offsite camp retreats. The youth director said that from 2008 to 2013, the defendant was a chaperone at the camp retreats. While chaperoning the camps, the defendant would sleep in the same quarters as the young male students.

The youth director specifically recalled the defendant’s participation in at least one NLYM camp in 2010. During the retreat, the defendant’s responsibilities included driving the participants to the camp, helping set up the campsites, leading activities and games, and facilitating group discussions.

In 2008, the church’s senior pastor requested that criminal background checks be performed for volunteers working in the youth ministry and, at a minimum, every two years thereafter. He testified that the background checks had been conducted regularly during the preceding four or five years.

Ruling: The defendant violated Megan’s Law

Based on the defendant’s involvement with NLYM, a grand jury charged him with participation in a “youth serving organization” in violation of Megan’s Law. A trial court agreed and sentenced him to five years in prison. His conviction and sentence were affirmed by a state appeals court. The court concluded that the defendant “knowingly participated” in a youth-serving organization prohibited for him by Megan’s Law.

What this means for churches

This case is important and instructive for church leaders because it points to risks related to the following four vulnerabilities.

Changes in church leadership

First, this case demonstrates the potential risk to church policies associated with a change in leadership. This can occur with a change in the senior pastor, youth and children’s pastors, board members, or youth and children’s volunteer leaders. Church leaders should recognize that policies are potentially imperiled through any change in leadership, and steps must be taken to be alert to such changes and to take corrective action.

Failing to consistently enforce an abuse prevention policy

Second, having a policy that is not consistently enforced exposes a church to potentially significant risk. This does not mean that a church should avoid policies. Rather, it means that appropriate policies should be adopted and steps taken to ensure compliance.

Unwise decisions exposing the church to possible liability

Third, the pastor in this case chose to leave the defendant as a member of the church’s executive board on the ground that his abuse of minors did not compromise his fitness for serving in this capacity. This was an unwise decision that exposed the church to possible liability for any future acts of abuse perpetrated either on the church premises or through a church-sponsored event or activity.

And, if the board acquiesced in the pastor’s decision, this may have exposed board members to personal liability for future cases of abuse by the defendant.

It is true that state and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.

Failing to thoroughly vet youth staff and volunteers

Fourth, the defendant was sentenced to five years in prison because his extensive youth ministry activities violated the limitations placed on sex offenders by Megan’s Law.

A church should thoroughly vet any volunteer or employee for work in youth or children’s ministries, and this should include, among other precautions, a search of the sex offender registry (Megan’s Law).

An applicant who is a registered sex offender should not be considered for any children’s or youth ministry position in the church, and they should be advised of the potential criminal liability they face for pursuing such a position.

State v. S.B, 2021 WL 1625025 (N.J. Super 2021).

Sexual Abuse Victims Can Sue a Church and Regional Denominational Offices

This case demonstrates the potential liability religious denominations may face when misconduct happens at a local church.

Key point 10-07.01. Some courts have found churches liable on the basis of negligent retention for the sexual misconduct of ministers and other church workers on the ground that the church was negligent in retaining the offender after receiving credible information indicating that he or she posed a risk of harm to others.

Key point 10-16.07. A liability insurance policy provides a church with a legal defense to lawsuits claiming that the church is responsible for an injury, and it will pay any adverse settlement or judgment up to the limit specified in the policy. Liability insurance policies exclude a number of claims. For example, some policies exclude injuries based on criminal or intentional acts and claims for punitive damages. A church has an obligation to promptly notify its insurer of any potential claim, and to cooperate with the insurer in its investigation of claims.

Key point 10-17.01. Punitive damages are monetary damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is reprehensible and outrageous. Most church insurance policies exclude punitive damages. This means that a jury award of punitive damages represents an uninsured risk.

Key point. Churches that ignore allegations of wrongdoing by a pastor or lay worker face a number of risks in addition to negligent retention. These include (1) liability based on “ratification” of the minister’s actions; (2) punitive damages; and (3) possible personal liability for members of the church board if their conduct is grossly negligent.

A Virginia court ruled that nine victims of childhood sexual abuse could proceed with a lawsuit against the offender’s church and two regional denominational agencies on the basis of negligence and agency.

While it remains to be seen whether actual liability will be found for any of the claims made against the church and the regional denominational offices involved in this case, the mere fact that the Virginia court allowed the claims to proceed is of enormous significance for the following reasons.

“A sustained pattern of predatory abuse”

A church (“Church”), two regional denominational bodies (“Regional Denominational Body A” and “Regional Denominational Body B”; when appropriate here, collectively referenced as the “church defendants”), and a denomination’s national office were sued by several minor victims of sex abuse. The victims had been molested by the same lay youth worker.

The victims’ lawsuit alleged that the Church knew or should have known of the “dangerous propensity” of the perpetrator to sexually assault minor boys prior to hiring him to work with the youth group or his eventual promotion to head of the youth group.

The lawsuit was brought following “a sustained pattern of predatory abuse” by the molester against many different minor boys affiliated with the church’s youth group.

The court declined to dismiss the victims’ claims

The victims’ lawsuit claimed that the church defendants were liable for their injuries on the basis of negligent hiring, negligent retention, gross negligence, and agency. They sought both compensatory and punitive damages.

The church defendants immediately asked the court to dismiss these claims. The claims against the national denominational office were dismissed for lack of personal jurisdiction, a procedural matter in litigation regarding whether a court has jurisdiction over a party named in a suit. However, the court declined to dismiss the claims against the Church and the regional denominational offices for the reasons summarized below.

Negligent hiring, negligent retention, and gross negligence

The court noted that to proceed on a claim of negligent hiring, “the plaintiff must show that an employee’s propensity to cause injury to others was either known or should have been discovered by reasonable investigation.” Similarly, to proceed on a claim of negligent retention, the plaintiffs must show that “both the nature and the gravity of the risk render unreasonable any mitigating response short of termination.”

The victims alleged that:

  • Allegations of sexual misconduct by the molester predated his involvement with the Church’s youth group and were known to Church leadership. For example, in or around January 2005, two of the Church’s deacons learned of sexual abuse allegations against the molester.
  • The deacons were members of the “Executive Group” of the Church, which holds the power to hire and fire for the Church.
  • In 2007, the Church voted in favor of a denominational resolution “On Protecting Children from Abuse,” which identified and aimed to assist churches in preventing sexual abuse of minors.
  • The Church knew or should have known of a series of allegations against the molester that preceded his hiring. After his hiring, the Church was aware of a series of allegations against the molester stemming from his time with the youth group.

The plaintiffs argued that these and other allegations demonstrated that the Church knew or should have known of the dangerous propensity of the molester to sexually assault minor boys prior to hiring him to work with the youth group or his eventual hiring as the leader of the youth group. The court noted:

The allegations that dogged [the molester] after being hired should have led [the Church] to know or reasonably investigate to find out about his activities with members of the Youth Group. Indeed, [the pastor and youth pastor] did just that. However [the molester] was retained in his position with the Youth Group, and [the pastor and youth pastor] left the [C]hurch.

Punitive damages for “willful and wanton misconduct”

The court noted that “to justify an award of punitive damages, a litigant . . . must present evidence that the defendant’s acts were so willful or wanton as to evince a conscious disregard of the rights of others, as well as malicious conduct.”

The church defendants insisted “there are no facts alleged showing [the Church] acted with the culpability required for an award of direct punitive damages.”

The court responded:

On the contrary, when [the Church] was confronted with allegations against [the molester] by pastors within the Church, [it] threw its support behind [the molester]. . . . The Church voted to support [the molester], and [the Church] accepted the forthcoming schism in its ministry due to the decision.

The court concluded:

[The Church], aware of allegations against [the molester], retained him, promoted him, supported him, and allowed him to continue in his role as Youth Group leader. This intentional act led to further harm, not just against [the victim] but against the eight other minor boys who are represented in this lawsuit. . . . There are substantial and certain factual allegations that would allow a reasonable [jury] to determine there had been willful and wanton misconduct, as there were substantial and certain allegations that led to a significant portion of [the Church’s] congregation leaving the Church.

Agency

The victims claimed that the regional denominational defendants were liable on the basis of agency for the injuries caused by the molester’s wrongful acts since as a minister he was their agent. Regional Denominational Body A argued that there was no agency relationship between it and the Church. Regional Denominational Body A referred to its organizational documents, and said that, in its opinion, it recognizes the “autonomy of each member church . . . to act on and carry out its own affairs and conduct its own business without interference from [it]. [These statements] make it clear that they were not attempting to establish an agency relationship.”

The court responded:

However, “[w]hether a relationship is characterized as agency in an agreement between parties . . . is not controlling. . . . Labels do not govern the presence of an agency relationship. . . . [T]he power of control . . . is determinative. . . .

Agency relationships are created when two parties consent that one party will act on behalf of another party and subject to the second party’s control. . . . In determining an agency relationship, “[a]ctual control . . . is not the test; it is the right to control which is determinative.”

The victims asserted that the Regional Denominational Body A had the power to “hire, assign, and fire pastors, administrators, and other employees at its local churches.” The victims further stated:

[Regional Denominational Body A] exercised its power and control over its member churches, including [the Church] regularly and routinely. [Its bylaws] also dictate the discipline of member churches, encourage and determine the use [of its campgrounds], and establish Youth Group risk-management teams.

The court concluded that the victims had alleged facts demonstrating that Regional Denominational Body A exercised control over the Church as one of its member churches, and that the Church was responsive to the demands of Regional Denominational Body A.

The victims also argued that an agency relationship existed between the Church and Regional Denominational Body B. Regional Denominational Body B countered by pointing out that its constitution and bylaws “are explicit that individual churches retain autonomy and independence.”

Once again, the court stressed that

labels are not dispositive in determining an agency relationship. . . . Agency relationships are created when two parties consent that one party will act on behalf of another party and subject to the second party’s control. . . . In determining an agency relationship, “[a]ctual control . . . is not the test; it is the right to control which is determinative.”

The Regional Denominational Body B’s constitution and bylaws describe the function of its Executive Board:

[T]he Executive Board shall have entire management of the matters committed to its trust and shall carry out such plans as may seem judicious. . . . [T]he Executive Board shall not have authority to control and direct the agencies, institutions, and shared ministries of the general Association. . . . [I]t is instructed and commissioned to maintain liaison with and study the affairs of these agencies, institutions and shared ministries in search of acceptable solutions to problems which may arise.

The court noted:

[This provision] purports to offer [the Regional Denominational Body B] and its Executive Board only certain, limited powers over member churches. However [the victims] have alleged they have the power and prerogative to address problems with the churches. . . . Indeed, [the Regional Denominational Body B] is alleged to have controlled churches . . . while acting as a ”voluntary organization.” In one example . . . [the Regional Denominational Body B expelled a church] due to violations of [its] rules.

The court pointed out that the Church “chose to participate and cooperate with [the Regional Denominational Body B] instead of maintaining itself as an independent church. . . . [It] also acted on behalf of [the Regional Denominational Body B] by paying the membership dues required of a participating church.”

The court noted that the Regional Denominational Body B had obtained “group exemption” from the Internal Revenue Service (IRS) for all of its churches, including the Church. To qualify for the group exemption, the subordinate organizations must be “subject to the central organization’s general supervision and control.”

The court then stated:

Those subordinate organizations must also provide the central organization with “written authorization . . . [that the subordinate organization] will be subject to [the central organization’s] supervision and control.” During the time period at issue in this case, [the Church] was a subordinate organization to the Regional Denominational Body B [and] remains a subordinate organization. It is reasonable to infer the requisite paperwork granting the power to supervise and control [the Church] was executed in order for [it] to enjoy the group tax exempt status.

The Constitution of [the Regional Denominational Body B] and the tax-exempt status of the churches offers the Executive Board . . . the power to insert itself into the business of local churches. Indeed, it is alleged to have done so in the past. Plaintiffs claim that this power includes the power “to hire, assign, and fire pastors, administrators, and other employees at its local churches and entities.” [Regional Denominational Body B] also has the power to disassociate member churches, as it did in 2012 when it unilaterally dismissed [a church]. Finally, if a church fails to pay its dues for a five-year period, it can be removed from the list of churches on the group IRS exemption for churches submitted by [Regional Denominational Body B]. Discharge of an agent is one of the remedies specifically reserved to a principal.

The court concluded:

[The victims] have alleged facts that would demonstrate an agency relationship between [the Church] and [the Regional Denominational Body B]. Therefore, [they] are entitled to the presumption that actions taken in a specific job-related service for [the Regional Denominational Body B] are made within the scope of the agency relationship. . . . [I]t is premature to cut off the victims’ cause of action against the Regional Denominational Body B.

What this means for churches

This case is important to denominational agencies and to churches affiliated with denominations for the following reasons.

1. The risk of punitive damages and civil suits

Allowing a sex offender to work as a volunteer or employee in a church’s youth or children’s ministry may result in two significant legal risks: punitive damages, and personal liability of church board members.

The court in this case noted that the Church, though aware of numerous allegations of child sexual abuse by the molester, “retained him, promoted him, supported him, and allowed him to continue in his role as Youth Group leader.”

Such behavior, the court concluded, exposed the church to punitive damages because it was “so willful or wanton as to evince a conscious disregard of the rights of others.” This is extremely serious since punitive damages are not covered by a church’s insurance policy, and so the assets of the church (such as its building, vehicles, general fund, and so on) would all be exposed.

The bottom line is that the public will no longer tolerate such behavior. What’s more, the public is outraged by it, and members of the public often express that outrage in the form of their judgments (including punitive damages) as members of juries.

The following common scenarios potentially could result in punitive damages, meaning that the church may face substantial, unbudgeted, and uninsured liability:

  • refusing to implement a program for screening youth and children’s workers (both employees and volunteers)
  • failure to implement and monitor a policy prohibiting the use of cell phones (for calls and texting) while driving a vehicle on church business
  • continuing to use 15-passenger vans
  • using cribs in the church nursery that fail to comply with the guidelines mandated by the Consumer Product Safety Commission

In addition to punitive damages, allowing a sex offender to resume normal activities within a church exposes the church and church board members to substantial monetary damages in a civil lawsuit. If the person should ever have sexual contact with a minor on church premises or in the course of church activities, the church would face a jury that would be incredulous to the reality that such a person was allowed to return to the church.

This would be especially true if the person was allowed to have any involvement with children in the church, but it could apply even if the person was not officially involved in youth or children’s programs.

State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.

Limited immunity is not ordinarily available to compensated officers and directors of churches and other charities. “Compensation” ordinarily is defined to exclude reimbursement of travel expenses incurred while serving as a director or officer.

Churches that compensate their directors and officers over and above the reimbursement of travel expenses should reconsider such a policy if they are located in a state that grants limited immunity to uncompensated officers and directors. Obviously, these statutes will not protect ministers who receive compensation from their church.

2. Understand the potential scope and limits of agency

The most significant aspect of the court’s opinion was its conclusion that ministers (such as the molester) are agents of their church and its regional denominational offices, and that local churches are “agents” of their parent denomination’s regional offices.

The significance of this ruling is the fact that the claims were allowed to proceed, making it possible for a jury to find two regional denominational offices liable for the acts of a local church. In general, agency makes the principal responsible for the agent’s acts (such as sexual misconduct, negligent driving, and so on) no matter how careful the principal was.

To illustrate, consider a denomination with 25,000 ministers. If the ministers are agents of the denomination’s regional offices, then their wrongful conduct is imputed to the denomination’s regional offices, and no amount of care on the part of the denomination’s regional offices changes that.

Since it would be impossible for the denomination’s regional offices to directly police all 25,000 ministers day to day, it is absolutely liable with no defense. This makes a finding that ministers are agents of a denomination’s regional offices an existential threat jeopardizing the denomination’s very existence. But note four potential defenses available to denominations and their regional offices.

First, the principal is only liable for the actions of agents committed while acting in the scope of the agency. Are sexual misconduct, reckless driving, and other injuries caused by an agent done in the scope of the agency? It is difficult to conceive how this would be the case, since criminal acts of this nature are not considered to be within “the scope of the agency.”

Second, several denominations ordain, commission, or license ministers; require ministerial credentials to be renewed annually; require ministers to pay annual dues; and reserve the authority to discipline or dismiss clergy whose conduct violates standards enumerated in the denomination’s governing documents.

However, the denomination typically has been given no authority to independently monitor or supervise the day-to-day conduct of ministers. The authority of a denomination to ordain, license, or commission ministers requires 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 state bar associations, medical associations, and boards of accountancy).

Like many religious denominations, a state bar association has the authority to license attorneys, require dues and annual renewals, and discipline or dismiss attorneys for proven misconduct in violation of professional standards.

However, this limited authority does not give the bar association any right to control or supervise the day-to-day activities of attorneys. No state bar association has ever been sued or found liable for the numerous incidents of attorney misconduct and malpractice that occur each year, and no one has ever suggested that attorneys are “agents” of their state bar associations. The US Constitution bars religious organizations from being treated less favorably.

An identical analogy could be made to any professional licensing organization (such as physicians, CPAs, veterinarians, dentists, nurses, and morticians), since they all exercise about the same degree of control: They license and retain the right to discipline or dismiss for violations of a professional code of conduct, but they have no authority to supervise the day-to-day activities of licensees. For this reason, none have been found liable for the malpractice of their licensees and no court has ruled that licensees are “agents” of their professional accrediting organizations.

A federal appeals court recognized this “bar association analogy” in a significant case involving the Assemblies of God denomination. In Alford v. Commissioner, 116 F.3d 334 (8th Cir. 1997), the court observed:

The General Council’s and District Council’s right to control [Rev.] 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 (emphasis added).

Other courts have recognized the bar association analogy in cases involving attempts to hold religious denominations liable on the basis of negligent supervision for the misconduct of ordained clergy. To illustrate, 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. C.B. ex rel. L.B. v. Lutheran Church in America, 726 N.W.2d 127 (Minn. App. 2007).

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.”

Third, judicial recognition of a duty on the part of a denomination to supervise the activities of affiliated clergy and churches, where no such authority exists, would violate the First Amendment religion clauses since it would amount to governmental manipulation of the polity of a sovereign religious organization.

The essential question in this case is: Can a civil court, consistently with the First Amendment’s establishment and free exercise of religion clauses, impose a duty on a denomination to supervise and control affiliated churches and clergy when the theology, history, practice, and organizational documents of the denomination forbid such control? Stated simply: Can a court compel a religious denomination to alter its polity? Obviously, the answer is no.

The United States Supreme Court has often stated that the civil courts may not affect ecclesiastical doctrine or polity. For summaries of five US Supreme Court rulings showing that civil courts may not affect ecclesiastical doctrine or polity, see the “Defenses of Liability” section in the Legal Library.

The implication of US Supreme Courts precedents I’ve linked to above is unequivocal: Government action that seeks to manipulate or distort the internal organization and government of a religious denomination violates the constitutional guarantee of free exercise of religion.

A civil court is therefore without power to impose a duty of supervision and control upon a religious denomination over its affiliated entities contrary to the doctrine, history, and organizational documents of the denomination in order to redress injuries allegedly caused by the activities of a minister or church.

Some “hierarchical” denominations do exercise sufficient control over clergy and churches to create an agency relationship. For an example, see the second case study in “The Requirement of Employee Status” section of the Legal Library.

3. Definition of agency

Section 1.01 of the Restatement of Agency 3d specifies that “agency is the fiduciary relationship that arises when one person (a principal) manifests assent to another person (an agent) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consent to so act.” It can be argued that in many denominations ministers are not agents under this definition since they are not “subject to the principal’s control.” In many denominations, ministers remain free of any control by their denomination in virtually every aspect of their lives and ministry. To illustrate, ministers:

  • Compose and deliver sermons (their quintessential duty) and perform all of their pastoral responsibilities (i.e., counseling, hospital visitations, managing staff, conducting board meetings) free from any “control” by the denomination.
  • Perform sacerdotal functions (i.e., baptisms, weddings, communion) free from any “control” by the denomination.
  • Choose their place of employment.
  • Along with the governing board of their church, enter into loans, purchase and sell property, admit and expel members, hire employees, and initiate and pursue church construction projects without any involvement, approval, or control by the denomination.

In many denominations, it is difficult to identify a single aspect of a minister’s life and ministry that is subject to the “control” of his or her denomination. Indeed, how could it be otherwise with a population of thousands of ministers.

Meaningful control would require thousands of “inspectors” or “religious police” to monitor ministers continuously. Such a prospect would be intolerable to any denomination and its ministers. This is a far cry from the relationship contemplated by the Restatement of Agency.

4. Group exemptions and denominational liability

The court referenced group exemption rulings in support of its decision. Regional Denominational Body A had obtained a group exemption ruling from the IRS in the past that covered its affiliated churches including the Church.

Group exemptions are an administrative convenience for both the IRS and organizations with many affiliated organizations. Subordinates in a group exemption do not have to file, and the IRS does not have to process, separate applications for exemption. Consequently, subordinates do not receive individual exemption letters.

Exempt organizations that have, or plan to have, related organizations that are very similar to each other may apply for a group exemption. Groups of organizations with group exemption letters have a “head” or main organization, referred to as a central organization.

The central organization generally supervises or controls many affiliates, called subordinate organizations. The subordinate organizations typically have similar structures, purposes, and activities. To qualify for a group exemption, the central organization and its subordinates must have a defined relationship. Subordinates must be:

  • affiliated with the central organization;
  • subject to the central organization’s general supervision or control; and
  • exempt under the same paragraph of IRC 501(c), though not necessarily the paragraph under which the central organization is exempt.

Several lawsuits brought against denominational agencies for the liabilities and obligations of affiliated churches have cited their group exemption as evidence of sufficient control to support liability. After all, a group exemption ruling requires that the central organization have general supervision or control over its subordinate units (i.e., affiliated churches).

Although not addressed by the court, any attempt to use a group exemption ruling as evidence of denominational liability for the obligations of affiliated churches faces formidable obstacles, including the following:

  • No court has found a denominational agency liable on the basis of a group exemption ruling for the acts or obligations of affiliated churches.
  • In only one reported case was a group exemption ruling cited as evidence in support of a denomination’s liability for the conduct of an affiliated church covered by its group exemption. Kersh v. The General Council of the Assemblies of God, 804 F.2d 546 (9th Cir. 1986).

    In this case a federal appeals court upheld a district court’s summary judgment in favor of the national Assemblies of God church (the General Council of the Assemblies of God) in a case claiming that the national church was legally responsible for the alleged securities fraud of an affiliated church.

    In addition, some state trial courts have dismissed denominational agencies as defendants from civil lawsuits and rejected plaintiffs’ claims that they were liable on the basis of a group exemption ruling.

J.W.C. v. Church, 2021 Va. Cir. LEXIS 148 (Va. App. 2021).

A Church Could Be Liable for a Retired Pastor’s Acts of Sexual Abuse

Claims of negligent hiring and retention depend on whether he was an agent or employee of the church.

Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

The Virginia Supreme Court ruled that a church could be liable for a retired pastor’s acts of sexual abuse on the basis of negligent hiring and retention if his performance of miscellaneous tasks for the church made him an agent or employee of the church, exposing it to liability for his acts based on negligent hiring and retention.

Background

An ordained minister (the “defendant”) was hired as lead pastor of a Virginia church (“Church A”) in 1995. Prior to this assignment, the defendant had been involved in “an inappropriate relationship with a young girl” when he was a pastor of Church B. He was terminated from his position in Church B because of this relationship.

He also served as pastor of Church C and engaged in “inappropriate behavior toward women” in that congregation. He allegedly was hired by Church A, despite the fact his prior history of inappropriate behavior toward women was known to Church A and a regional denominational office in Virginia (the “denominational office”).

Not long after he was hired by Church A, a number of persons made allegations about the defendant behaving inappropriately toward some women. For example, in December 1996, a church member wrote to the denominational office that the defendant’s soul was “lost to sin.” The writer forwarded an inappropriate letter that the defendant had sent to two other female church members.

Later, in January 1997, another person wrote the denominational office asking it to prevent the defendant from continuing to contact her and stating that he “needs help.”

Also in January 1997, yet another person wrote to Church A, forwarding a letter the defendant’s daughter had written. The letter referenced multiple incidents of the defendant’s sexual misconduct and predatory behavior, including an instance when he inappropriately touched another person. The letter referenced the defendant’s “unwanted and inappropriate advances on many women over the years.”

In January 2001, yet another person wrote to the denominational office informing it that the defendant had been writing inappropriate letters to her young niece. The writer enclosed letters to her niece and asked the denominational office to intervene to hold the defendant accountable. In the enclosed letters, the defendant confessed his love for the niece, told her that it was hard not being able to touch her, and asked her to send him pictures of herself.

In 2002, the denominational office arranged for the defendant and his wife to attend a Christian counseling and mental health facility. The defendant and his wife attended in July 2002.

Following this visit, a counselor from the facility sent a written report to the denominational office stating that the defendant needed “to set healthy boundaries with women” and that the defendant “needed someone to hold him accountable” for his inappropriate actions. The report suggested that the defendant “should meet with that person regularly for a while.”

This report indicated that the defendant was told to attend the counseling “because of inappropriate communications with a young girl who was a member of the congregation at a church where he pastored prior to his tenure at [Church A].”

The report was placed in the defendant’s file at the denominational office.

In February 2005, two women wrote yet another letter to the denominational office stating that the defendant had been making sexual advances for years toward one of the authors of the letter.

The letter described one instance in which the defendant offered this woman $500 if she would send him pictures of herself “in various states of undress.”

The letter further stated that the defendant arranged a meeting with this woman at the church parking lot where he sexually assaulted her. He “warned her not to tell anyone about his forceful and predatory advances.”

The letter writers asked the denominational office to “make the right decision” and warned it that if it did not “a lot of other young women would be affected by [the defendant’s] ‘perverted sexual conduct in the future.’”

In April 2005, another of the defendant’s daughters wrote to the denominational office stating she could “no longer ‘cover’” for her father and that the allegations made by the writers of the February 2005 letter were true.

This daughter further stated that the defendant had been terminated from at least one position before becoming pastor at Church A and that this termination occurred because of his “inappropriate conduct with young girls.”

Also in April 2005, a grandson of the defendant wrote a letter to the denominational office that corroborated the statements in the February 2005 letter. The grandson asked persons in a position of authority to “quit overlooking” his grandfather’s inappropriate behavior.

In March 2011, the defendant announced his intention to retire, and stepped down as pastor in April 2011. But he continued to maintain a close relationship and serve as a spiritual leader to certain former congregation members from Church A, and he performed miscellaneous duties for the church.

In 2016, the defendant developed a relationship with a 13-year-old girl (the “victim”) in Church A. He often invited the victim and her parents to his home for meals, spiritual advising, and fellowship.

On one occasion the victim and her mother went to the defendant’s home to bring him and his wife tomatoes from a farmer’s market.

The victim’s mother spoke with the defendant’s wife in the kitchen. This left the defendant alone with the victim in the living room. He sexually touched the victim after initiating contact under the guise of offering nonsexual comfort and support. Several days later she told her parents what had happened.

The victim: A church and several denominational officials were negligent

The victim sued the defendant, Church A, and state and national denominational offices, claiming that they were all responsible for her injuries on several grounds, including:

  • negligent hiring
  • negligent retention
  • negligence in failing to investigate reports of the defendant’s behavior, failing to remove him from ministry or work that would allow him to be around young women and underage girls, failing to warn members of the church of the danger he posed, and failing to protect minor female members of the church from the defendant
  • negligent infliction of emotional distress
  • intentional infliction of emotional distress
  • fraud by omission or concealment
  • vicarious liability against the state and national denominational agencies based on the scope of the defendant’s duties as an agent, volunteer, or employee
  • vicarious liability based on apparent authority

The trial court dismissed all of the plaintiff’s claims, and the plaintiff appealed to the state supreme court. The court’s analysis of the main claims is summarized below.

Negligent hiring and retention

The Supreme Court of Virginia upheld the trial court’s dismissal of the negligent hiring and retention claims. It noted that negligent hiring focuses on the employer’s negligence “in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances . . . it should have been foreseeable that the hired individual posed a threat of injury to others.”

The court further stated:

A claim for negligent retention exists “for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [others] . . . (emphasis added).

The negligent retention tort . . . requires a showing that the risk of future harm was so grave that discharging the dangerous employee would have been the only reasonable response . . .

(emphasis added).

The Virginia Supreme Court further explained its reasons for upholding the trial court’s decision:

A claim for negligent hiring or retention is not viable for persons who are no longer employed by the defendant employer at the time of the commission of the tort. . . .

[W]e hold that a negligent hiring or a negligent retention claim ceases to be viable for conduct committed after the employee is no longer retained by the employer. . . .

The termination of employment is a logical and practical boundary for employer liability for claims of negligent hiring or retention. The rationale for holding an employer liable for hiring an unfit or dangerous employee is that a victim might be exposed to risk or danger during the course of the employment—not at some other time in the possibly distant future when the employer has no control over the employee. In addition, an employer cannot be liable for “retaining” an employee who is no longer retained. To hold otherwise would impose a duty of care on employers that is unmanageable, utterly unpredictable, and conceptually limitless. The same concept of duty applies to agents. When the agent has ceased working for the principal, the duty of the principal ceases.

The plaintiff insisted that the plaintiff’s negligent hiring and negligent retention claims were viable since the defendant’s miscellaneous duties on behalf of Church A following his retirement made him an agent or employee of the church at the time of the plaintiff’s abuse.

The court responded:

The question then becomes whether the allegations establish that [the defendant] was no longer employed by the defendants at the time he committed the tort. . . . The [plaintiff’s lawsuit] expressly and repeatedly states that [the defendant] was an “agent, volunteer, and/or employee” at the time he improperly touched [the plaintiff]. It additionally states that [the defendant] maintained responsibilities with the church after he retired as the pastor. The [plaintiff’s lawsuit] expressly alleges that [the defendant] was an “agent, volunteer, and/or employee” at the time he committed the tort. A reasonable inference from the allegations in the complaint is that [the defendant] retired as pastor but remained an agent of the church. Another possibility is that [he] was rehired as an employee or agent. If [he] was an employee or agent at the time the sexual battery occurred, the claims for negligent hiring or negligent retention should not have been dismissed on the basis that he retired as a pastor.

If, as a matter of fact, [the defendant] was not an employee or agent at the time he committed the conduct alleged in the pending case, the negligent hiring or retention claims fail as a matter of law and should be dismissed. If [he] was still employed, albeit not as the pastor, or if he was selected or retained to serve in some capacity as an agent at the time the tort was committed, the trial court will need to address on remand from a factual standpoint what his role was as an agent. Further evidentiary development, however, is required to determine [the defendant’s] status as an employee or agent at the time of the tort.

Personal liability of denominational officials

The plaintiff’s lawsuit sought to hold personally liable several officers of the state and national denomination on the basis of negligent hiring and retention. In rejecting this claim, the Virginia Supreme Court observed:

The [lawsuit] seeks to personally hold liable a number of individuals for negligent hiring or retention. These individuals were state or district Overseers. . . . The tort of negligent hiring or retention is available against an employer, not individuals who played a role in hiring or retaining an employee. It is the employer who selects and retains employees and who, therefore, bears responsibility for those decisions. . . . There is no allegation that any of these individual defendants were [the defendant’s] employer. Consequently, we affirm the trial court’s dismissal of the individual defendants with respect to the negligent hiring or retention counts.

Vicarious liability

Employers are vicariously liable for the acts of their employees committed within the course and scope of their employment. The plaintiff acknowledged that the defendant had retired in 2011 and that he stepped down from his role as pastor, but the plaintiff insisted that the miscellaneous duties the defendant performed for the church following his retirement were sufficient to make him an agent or employee whose acts were attributable to his employer under the principle of vicarious liability.

The court agreed that “[i]t is certainly possible to retire from full time ministry as a pastor and, nevertheless, retain a role within the church as an employee, volunteer, or agent.” As a result, the trial court was in error and dismissing the plaintiff’s claim of vicarious liability against Church A.

The court added:

“It simply is not enough . . . that the claim arose out of an activity which was within the employee’s scope of employment.” . . . The [wrongful] act must occur “while the employee was in fact performing a specific job-related service for the employer.” . . . “[Liability] cannot extend to an employer for an unauthorized tortious act by an employee arising ‘wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account.’”

The denominational defendants argued that the misconduct by the defendant was such a significant and unusual deviation from the scope of any conceivable agency or employee relationship that they cannot be liable for the alleged sexual assault of the plaintiff. They noted that

“[an employer] is not liable for every wrong which [an employee] may commit during the continuance of an employment. . . . If the [employee] steps aside from his [employer’s] business and is engaged in an independent venture of his own, the relation of [employer] and [employee] is for the time suspended.”

The court noted that the sexual molestation of the plaintiff occurred on a visit by the defendant and his wife to the plaintiff’s home to deliver tomatoes purchased from a local farmer’s market. While in the home, the defendant and plaintiff remained in a room apart from others, and it was at this time that the molestation occurred in the course of the defendant providing spiritual comfort and counsel.

The court concluded that if an employee’s “acts of molestation occurred simultaneously with his performance of job-related services, a reasonable jury could infer that [the employee] acted from a mixed motive and not ‘wholly from some external, independent, and personal motive.’”

The court found it difficult to imagine that allegations of sexual misconduct could fall within the scope of employment. However, it declined to make this determination and remanded the case back to the trial court for further consideration.

Apparent authority

The plaintiff alleged that the defendant “was cloaked with apparent authority” to act for the church. The court noted that “[a] ‘principal is bound, under the doctrine of apparent authority, to the extent he holds out another as having the authority to act for him.’”

Quoting itself from a previous case, the Virginia Supreme Court added:

An act is within the apparent scope of an agent’s authority if, in view of the character of his actual and known duties, an ordinarily prudent person, having a reasonable knowledge of the usages of the business in which the agent is engaged, would be justified in believing that he is authorized to perform the act in question.

However, the court stated in this case, “the act in question is a sexual battery.” It continued:

No reasonable person would believe that the church vested [the defendant] with the authority to engage in such an act. Therefore, the [trial] court properly rejected [the plaintiff’s] claim that [the defendant] possessed apparent authority for his acts.

Willful and wanton negligence

The plaintiff’s lawsuit alleged that the church defendants’ failure to investigate the reports of the defendant’s behavior, their failure to remove him, their failure to warn members of the congregation about his behavior, and their failure to protect minor female members of the church constituted willful and wanton negligence, and the trial court erred in dismissing her claims that the defendants were grossly negligent.

The court noted that Virginia, like many states, recognizes three levels of negligence:

“The first level, simple negligence, involves the failure to use the degree of care that an ordinarily prudent person would exercise under similar circumstances to avoid injury to another.

“The second level, gross negligence, is a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person. This requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.”

The third level of negligent conduct is willful and wanton negligence. Willful and wanton negligence “is defined as ‘acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.’” . . . We also have stated that “gross negligence involves conduct that ‘shocks fair-minded people,’ and willful and wanton negligence involves such recklessness that the actor is aware that his conduct probably would cause injury to another.”

The court concluded that the plaintiff’s allegations did not rise to the level of gross or willful and wanton negligence because: (1) it was acknowledged that the church defendants manifested some degree of care by requiring the defendant to attend counseling; (2) even if the allegations from one incident in 2005 showed that the defendant presented a particular risk, and therefore sufficed for a claim of negligent hiring or retention, those allegations did not rise to the level of indifference to another and an utter disregard of prudence that would shock the conscience; and (3) some of the plaintiff’s allegations depict conduct directed at women that is wholly inappropriate but did signal that his conduct “probably would cause injury to another.”

Intentional infliction of emotional distress

The court noted:

To recover for intentional infliction of emotional distress, a plaintiff must establish that “(1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous and intolerable; (3) there was a causal connection between the wrongdoer’s conduct and the emotional distress; and (4) the emotional distress was severe.” . . .

Liability is present only when the conduct has been so “outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

The court concluded that the plaintiff’s allegations, even if true, “do not clear the high bar necessary to sustain a claim for intentional infliction of emotional distress.” The court explained:

[The defendant] served as a pastor for over forty years, from 1967 to 2011. There are broad and nonspecific allegations about [his] inappropriate conduct as well as specific allegations of disturbing conduct toward women over the course of those decades. None of the specific allegations prior to the sexual battery of [the plaintiff] involved the sexual battery of a minor. [The defendant] was made to attend and did attend counseling. The [church] defendants’ failure to take measures stronger than ordering counseling does not on these facts rise to the level of being outrageous and intolerable. Therefore, we affirm the dismissal of this claim.

Fraud by nondisclosure

The plaintiff claimed that the church defendants’ failure to warn the congregation of the risk posed by the defendant amounted to fraud by nondisclosure or concealment. The court disagreed:

The [plaintiff] fails to state a claim for fraud by omission for at least two reasons. First, no factual allegations support a conclusion that the [church] defendants intentionally concealed operative facts, as opposed to negligently or recklessly failing to disclose them. Second, the defendants did not owe a duty to warn [the plaintiff] or the other congregants about the complaints against [the defendant], so their silence cannot constitute concealment. . . . There was no special relationship between the defendants and [the plaintiff], and, therefore, there was no duty to disclose [the defendant’s] inappropriate behavior. Consequently, we affirm the . . . [trial] court’s dismissal of this claim.

What this means for churches

There are several important lessons to be learned from this case. Consider the following.

1. Negligent hiring

Most importantly, the court concluded that while a church cannot be liable on the basis of negligent hiring for sexual or other injuries committed by former employees, it may be liable if the former employee performs sufficient duties to be an employee or agent of the church.

This conclusion is significant since the primary basis of liability in most sexual abuse cases involving churches is negligent hiring. That is, the church was negligent or careless in failing to adequately assess an employee’s fitness and suitability prior to the time he or she was hired.

Church leaders should understand that allowing a former church employee to perform miscellaneous tasks on behalf of the church may expose the church to liability on the basis of negligent hiring, if those tasks are sufficient to make the person an employee or agent of the church.

Employee status is defined broadly by the courts, and rather minimal tasks performed by a former employee may suffice for a continuation of employee status.

Often, tasks performed by former employees are sporadic, off-site, and unsupervised, which greatly increases a church’s potential liability. This must be considered before a former employee is allowed to perform tasks for the church.

Also, note that allowing a former employee to perform miscellaneous tasks on behalf of the church may raise additional issues in addition to increased liability, including the following:

  • If a former employee who continues to perform miscellaneous services on behalf of the church is not a minister, then the church may be responsible for withholding Social Security and Medicare taxes from the person’s compensation and may itself be liable for the payment of these taxes if it fails to withhold them. Ministers are exempt from the tax withholding requirement and pay their federal taxes using the estimated quarterly tax procedure.
  • The church may be responsible to comply with the payroll tax deposit requirement if the former employee is not a minister or is a minister who has elected voluntary tax withholding.
  • The church may be required to issue Form W-2 to the former employee.
  • The church may be required to comply with the minimum wage and overtime requirements of the Fair Labor Standards Act.
  • The church may be obligated to pay for workers’ compensation insurance.
  • The church may be subject to the nondiscrimination provisions of Title VII of the Civil Rights Act of 1964 and other federal and state nondiscrimination requirements that pertain to employees.

2. Negligent retention

A church may use reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others. The court explained:

A claim for negligent retention exists “for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [others]. . . (emphasis added).

The negligent retention tort . . . requires a showing that the risk of future harm was so grave that discharging the dangerous employee would have been the only reasonable response . . .

(emphasis added).

The court concluded:

[A]n employer cannot be liable for “retaining” an employee who is no longer retained. To hold otherwise would impose a duty of care on employers that is unmanageable, utterly unpredictable, and conceptually limitless. The same concept of duty applies to agents. When the agent has ceased working for the principal, the duty of the principal ceases.

3. Apparent authority

Many victims of childhood sexual abuse have relied on the doctrine of apparent authority to hold churches and denominational agencies legally responsible for their injuries. Apparent authority derives from agency law, and basically holds that a principal (i.e., a church or denominational agency) is responsible for the acts of its agents that it holds out as having authority to act for it if the agent’s acts are within the apparent scope of an agent’s authority.

The court concluded that this requirement was not met since “the act in question is a sexual battery. No reasonable person would believe that the church vested [the defendant] with the authority to engage in such an act. Therefore, the [trial] court properly rejected [the plaintiff’s] claim that [the defendant] possessed apparent authority for his acts.”

This sensible conclusion will be a useful precedent to any church or denominational agency that is sued on the basis of the apparent authority of an agent.

4. Willful and wanton negligence, and gross negligence

In most states, uncompensated members of nonprofit boards are granted limited immunity from liability by state and federal law for their acts of ordinary negligence. Limited immunity means the board members cannot be personally liable for the ordinary negligence, but they may be personally liable for their grossly negligent acts, or in some states, for their willful and wanton negligence. It is important for church leaders to be familiar with these terms under applicable state law. The court in this case defined both types of negligence as follows:

Willful and wanton negligence “is defined as ‘acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.’” . . . We also have stated that “gross negligence involves conduct that ‘shocks fair-minded people,’ and willful and wanton negligence involves such recklessness that the actor is aware that his conduct probably would cause injury to another.”

The distinction between willful and wanton negligence and gross negligence is significant since it will define the types of negligence for which uncompensated board members are not personally liable.

In addition, one or possibly both of these terms are used to define a church’s liability for punitive damages. These are damages that are designed to punish the defendants for reprehensible conduct. Since they generally are exempted from coverage under church liability insurance policies, it is important for church leaders to understand which term applies and the meaning of the term.

Doe v. Baker, 857 S.E.2d 573 (Va. 2021).

Failure to Conduct Criminal Background Check Showed Negligence

This court case demonstrates the need for churches to properly screen candidates for youth and children’s positions.

Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

A federal court in Illinois ruled that failing to conduct a background check on a new employee hired to work in a children’s hospital was, by itself, evidence of negligence, exposing the hospital to liability based on negligent hiring for the employee’s molestation of several children.

The court addressed four areas of liability

Seven minors (the “plaintiffs”) sued a children’s hospital claiming that they were sexually abused while patients at the hospital, and that the hospital was responsible for the abuse on the basis of negligent hiring, retention, and training. The court also addressed the claim of vicarious liability.

The court determined liability exists for the hospital based on the claims made by the plaintiffs. It rejected the hospital’s motion to dismiss the lawsuit, allowing it to proceed toward trial.

Negligent hiring and retention

The court noted that an employer may be held liable “for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons.” To establish a claim for negligent hiring or retention, the court cited a previous Illinois court decision determining that a plaintiff must show:

(1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and (3) that this particular unfitness proximately caused the plaintiff’s injury.

The court in the present case continued:

Importantly, “[t]o successfully plead a cause of action for negligent hiring or retention, it is not enough for the plaintiff to simply allege that the employee was generally unfit for employment. Rather, “[t]he particular unfitness of the employee must have rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.” For example, knowing that an employee was “vicious and dangerous” might make his assault of a customer foreseeable.

In support of their negligent hiring and retention claims, the plaintiffs noted that a nurse at the hospital had a long criminal record that rendered her clearly unfit to work as a nurse for children. They alleged that the hospital did not conduct a proper background check and so she was hired. She then repeatedly sexually assaulted at least one of the plaintiffs.

The court said that the hospital should have been aware of the nurse’s unfitness when she was hired. It referred to an earlier case holding in which the Illinois Supreme Court held that a church’s failure to conduct a background check before hiring a youth minister satisfied the “should have known” requirement of a negligent hiring claim (i.e., the employer knew or should have known that the employee had a particular unfitness for the position). Doe v. Cole, 135 N.E.3d 1 (Ill. App. 2019).

The court further stated:

A children’s hospital surely has an at least comparable duty to screen its employees. And, once discovered, a long criminal history would put a reasonable person on notice that an employee might use a position of authority to abuse vulnerable children.

The court also concluded that the hospital was guilty of negligent retention because it retained another male employee despite knowledge of several allegations of sexual misconduct against him. As a result of these allegations against the male employee, the hospital “should have been aware that [the employee] was not fit to supervise vulnerable children. [The hospital] nevertheless retained [him] and he subsequently sexually assaulted [a victim].”

Negligent training

The court noted that the hospital allegedly had a policy of not properly investigating and punishing abuse, which presumably undermined any formal training employees received on proper conduct. The court concluded this made the hospital liable for negligent training. It explained:

[T]he Complaint suggests that this failure to create an institutional culture of accountability allowed widespread abuse to take place, resulting in the harm and cover-ups described in the Complaint. While the Complaint does not identify specific training programs that were inadequate or needed, such detailed pleading is not required.

Vicarious liability

Lastly, the plaintiffs argued that the defendants should be liable for the conduct of their employees under the theory of respondeat superior. Under the theory of respondeat superior (Latin for “let the master answer”) an employer can be vicariously liable for the conduct of an employee, but only for those acts that are committed within the scope of the employment. The court noted:

Illinois courts have held that “sexual assault by its very nature precludes a conclusion that it occurred within the employee’s scope of employment.” The plaintiffs thus may not be able to sustain [a] vicarious liability claim based on intentional infliction of emotional distress arising from sexual assaults that took place at [the hospital].

However, the court still allowed the vicarious liability claim to proceed because the plaintiffs also “stated a conspiracy claim,” and in one example, they made a plausible assertion that the hospital “hid evidence of ongoing abuse . . . covering up abuse was part of the employees’ responsibilities and had at least the partial purpose of benefiting [the hospital].”

What this means for churches

The most significant aspect of this case was the court’s conclusion that the hospital could be responsible on the basis of negligent hiring for a nurse’s acts of child abuse solely because it failed to perform a background check on her when she was hired.

The relevance of Doe v. Cole

The relevance of this ruling to churches is clear: A church that fails to perform background checks on youth and children’s workers before they are hired may be liable on the basis of negligent hiring for any abuses perpetrated against minors by those workers.

It is also noteworthy that the court relied on a relatively recent, 2019 decision by the Illinois Supreme Court in reaching its conclusion.

In that case, a church’s youth pastor engaged in a sexual relationship with a minor female in the youth group (the “victim”). The victim and her parents (the “plaintiffs”) later sued their church, several regional denominational agencies, and the national church, claiming that they negligently and willfully and wantonly hired, supervised, and retained the youth pastor.

The plaintiffs claimed that no background check was completed on the youth pastor when he was hired, or at any time or after, and that the youth pastor used the same pseudonym, “BluesGod88,” to “friend” youth and adult members of the church on social media sites and to post obscene photos of himself on pornographic websites.

The plaintiffs alleged that the pseudonym “BluesGod88” could have been associated with the youth pastor’s name by way of a simple Google search and that he used the same pseudonym on child pornography websites.

The trial court dismissed all of the plaintiffs’ claims. A state appellate court agreed with most of the trial court’s decision, and the case was appealed to the state supreme court.

The supreme court noted that a negligent hiring claim requires a plaintiff to prove:

“(1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee’s hiring or retention; and (3) that this particular unfitness [directly] caused the plaintiff’s injury.”

The plaintiffs claimed that the church knew or should have known at the time it hired the youth pastor that he had a sexual interest in children, and that it failed to conduct a background check. The plaintiffs further alleged that a simple Google search of the youth pastor’s name would have revealed his pseudonym.

The church insisted that, to prove negligent hiring, the plaintiffs must allege not only that no background check was performed but also what a background check would have uncovered, and any inference that a Google search of someone’s name would reveal that person’s history of visiting pornographic websites was implausible.

The Illinois Supreme Court concluded:

To prove a negligent hiring claim, a plaintiff must show not just that an employee was unfit but that the employee was unfit in a particular manner, which particular unfitness “must have rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.” Plaintiffs allege that “[a] basic, cursory Google search into the online public presence of [the youth pastor] would have revealed [his] activity, which included posting public photos of his own genitalia, on numerous pornographic websites.” [The plaintiffs] maintain that they have evidence that such a Google search at or before [his] hire would have alerted [the church] to [the youth pastor’s] visits to child pornography websites and thus put it on notice of [his] particular unfitness—his sexual interest in children—that later proximately caused [the victim’s] injuries. . . .

We acknowledge [the church’s] argument that a background check is unlikely to produce an individual’s Internet browsing history, but that is a factual dispute. Myriad businesses offer to perform detailed background checks for employers and youth activity sponsors, and [victims] will have to carry their burden in proving their claim.

Plaintiffs have alleged that a background check, by way of a cursory Google search, would have put [the church] on notice of [the youth pastor’s] sexual interest in children at or before his hire. This is a factual allegation and more than a mere conclusion. [The youth pastor’s] sexual interest in children is the particular unfitness alleged to have caused [the victim’s] injuries. Thus, if proven, these facts might entitle plaintiffs to recovery.

Doe v. Cole, 135 N.E.3d 1 (Ill. App. 2019).

Understanding background checks

The court in the Doe case concluded that an employer can be liable on the basis of negligent hiring for the sexual abuse of a minor by an employee if it failed to conduct a “background check” prior to or at the time the employee was hired. But what is a background check?

The court in the Doe case concluded that a background check includes a Google search of a person’s name to discover pseudonyms used to access adult and child pornography websites, including the posting of obscene photos of himself.

But the term “background check” includes much more than a Google search. Depending on the nature of the job, it may also include one or more of the following:

  • criminal records checks
  • reference checks
  • education
  • employment (confirming that the applicant worked for prior employers listed on the application form)
  • motor vehicle records
  • Social Security number check (confirms identity and residential history)
  • credit history
  • professional licenses and certifications

The types of searches selected for any particular applicant will vary depending upon the risks associated with the position.

Comprehensive screening includes more than criminal background checks

As important as criminal records checks are in a comprehensive screening process, they should never be viewed as the only screening procedure to be used.

To illustrate, a church agency in Florida was found liable for a pastor’s molestation of a child in a church that he established. The agency had assisted in training and financing the pastor, and it had conducted a criminal records check. Unfortunately, the church did not call or obtain references from the two prior churches in which the pastor had been employed.

The pastor had molested at least one child in each of these churches. The victim’s parents argued that if the agency had contacted these other churches for a reference, they would have been advised of the pastor’s prior acts of molestation (which were known to leaders in both churches). The court agreed and found the agency liable for the pastor’s acts on the basis of negligence.

This case is important because it demonstrates that criminal records checks should never be viewed as the only screening procedure to be utilized in assessing the fitness of persons for volunteer and paid positions in a church.

Key point. Criminal records checks are not the only step a church should take in screening workers. They are one link in a chain. Keep in mind that most child molesters have no criminal record. Effective protection comes with a multi-faceted approach that includes a suitable application form, reference checks, an interview, criminal records checks, and a 6-month rule (volunteers are not allowed to work with children until they have been members of the church for at least 6 months).

Golbert v. Aurora Chi. Lakeshore Hosp., LLC, 2021 U.S. Dist. LEXIS 46245 (N.D. Ill. 2021).

Youth Pastor Sentenced to Up to 12 Years for Secretly Video Recording Four Girls

Appeals court: consecutive sentencing was reasonable and didn’t “improperly rely on religious grounds.”

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability .

A Michigan court acted properly in sentencing a defendant who had been convicted of sexually inappropriate behavior with four minors to two consecutive, rather than concurrent, terms of incarceration.

Background: Youth pastor secretly video recorded four minors

A police investigation revealed that during 2015 and 2017, a youth pastor (the “defendant”) used his iPhone to secretly video record three sisters and another girl as they showered and changed clothes in his home while staying there on vacation. At the time of the first recording, the three sisters were 12, 14, and 16 years old. The other girl was 16.

The defendant had made several recordings of the girls in various stages of undressing. Using his computer, the defendant created more than 144 still images from the videos, enhancing them to better show the girls’ nudity.

The defendant pleaded guilty to four counts of capturing or distributing images of an unclothed person, and four counts of use of computers to commit a crime. He was sentenced to serve four concurrent sentences of two to five years’ imprisonment for the four convictions of capturing images of an unclothed person. The defendant was also sentenced to four concurrent sentences of four and one-half to seven years’ imprisonment for the four convictions of use of computers to commit a crime. The two sentences were all to be served consecutively.

Concurrent sentences are served simultaneously, whereas consecutive sentences are served back-to-back. The judge’s decision to go with consecutive, rather than concurrent, sentences meant the defendant’s total prison term would run from six and one-half to twelve years.

The defendant appealed, claiming that the trial judge’s decision for him to serve his sentences consecutively, rather than concurrently, was unreasonable.

Decision wasn’t unreasonable, didn’t “improperly rely on religious grounds”

The appeals court noted that a trial court has considerable discretion in imposing consecutive sentences. In this case, the trial judge had given a lengthy explanation as to why he imposed consecutive sentences based on the defendant’s “background and the nature of the offenses.” The trial judge reasoned that a consecutive sentence was warranted for the defendant’s abuse of the trusted relationship he had with his victims and their families.

The trial judge additionally concluded that the defendant in general was a danger to society and in particular to people who would place their trust in him. Thus, the appellate court concluded, the trial judge did not abuse his discretion by imposing the consecutive sentences and appropriately articulated multiple reasons for his decision.

The defendant also argued that the trial judge impermissibly relied on religious views as the reason for imposing the sentence. At sentencing, the appeals court noted, the trial judge stated:

The Bible speaks to a circumstance like this when our Lord Jesus said, “Whoever causes one of these little ones who believe in me to sin, it would be better for him if a millstone were hung around his neck, and he were drowned in the depths of the sea. . . .”

The appeals court responded:

Although this passage references the Bible [it was] merely a reference to defendant’s abuse of his position in the church to exploit his victims. The trial judge’s reference to Jesus’s admonition against causing children to sin is simply an acknowledgement that crimes involving children are generally considered more serious than crimes involving adults and also could have been a reference to defendant’s previous position as the youth pastor for his victims. There is no basis for an inference that the trial judge imposed the consecutive sentences because defendant or the trial judge was Christian. The record shows that the trial judge relied on objective secular factors in deciding to impose the consecutive sentences. . . . Thus, the trial judge did not improperly rely on religious grounds when sentencing defendant.

What this means for churches

This is yet another case illustrating the risks associated with the use of technology by pastors and church leaders in inappropriate and illegal ways. See also “Former Youth Leader Convicted for Attempting to Engage Minors in Sexting.”

For help confronting and managing the many potential risks related to youth ministry, see “Minimizing the Risks of Child Molestation in Churches” and “Defending Youth Ministries from 8 Critical Risks.” To help train staff and volunteers, see Reducing the Risk—available on DVD or through online streaming video. People v. Enciso, 2020 WL 5985069 (Mich. App. 2020).

Former Youth Leader Convicted for Attempting to Engage Minors in Sexting

Churches should be alert to the grooming behaviors that can lead to sexual abuse.

Key point 10.19. There are several legal risks associated with the use of cellphones by church employees and volunteers, including liability for distracted driving while using a cellular device, punitive damages, personal liability of board members, invasion of privacy, and admissions against interest.

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

A North Carolina court affirmed the conviction of a former church youth group leader for his repeated attempts to engage in “sexting” with three adolescent members of the church’s youth group. The case provides a direct reminder of the civil and criminal liability that adults, including clergy, can face when they engage in sexual contact with another adult or minor.

Background: The defendant requested pictures on Snapchat

A church’s youth group allowed older members of the church to act as leaders and mentors to the children. One of the adult leaders (the “defendant”) became very close with a few of the younger children in the group. They would do things outside of church such as:

  • play games in the neighborhood
  • go fishing
  • drive around in the defendant’s car
  • go shopping

The defendant’s relationship with at least two of the boys got to the point where he moved in and lived with their families for some time.

Eventually, the nature of the defendant’s relationship with the boys changed, and three boys (Victims 1, 2, and 3) accused the defendant of using Snapchat to request pictures of their genitals.

When Victim 1 was 15, the defendant began asking him for pictures of his genitals every night for at least three months. The defendant was 21 years old at the time.

When Victim 1 refused to send pictures of his genitals, the defendant got mad, cursed at him, and told him that he didn’t want anything to do with him. Victim 1 never sent the requested pictures and blocked the defendant on Snapchat.

When Victim 2 was 14 years old, the defendant began asking him for pictures of his genitals via Snapchat. The requests continued almost every night for a few months, and the defendant even offered to buy Victim 2 fishing gear and to give him money if he sent the nude pictures.

Despite Victim 2 telling the defendant “no,” the defendant continued to ask. The defendant would get frustrated and tell Victim 2 that he did not want anything to do with him. Victim 2 blocked the defendant on Snapchat and told Victim 3 about it.

Victim 3 was familiar with the defendant’s actions because the defendant sent him the same requests. However, Victim 3 divulged sensitive information to the defendant in a private conversation prior to the requests, and the defendant used that information as leverage. One night, he told Victim 3 that it would “be a shame if everybody found out about your history.” Victim 3 was afraid and sent the defendant a picture of his genitals.

Charged with attempted second-degree sexual exploitation

Victim 2 finally told his father about the defendant’s behavior. The defendant contacted Victim 2’s father via text message and repeatedly apologized for what he had done and prayed for forgiveness.

Victim 2’s parents contacted the local sheriff who then contacted the state bureau of investigation (SBI). The SBI was unable to access the defendant’s messages during the investigation because the messages had been deleted and were never stored on Snapchat or on the victims’ phones.

The defendant was charged with two counts of attempted second-degree sexual exploitation of a minor. A jury found him guilty on both counts, and the trial court sentenced him to an active prison sentence term of 32 months to 58 months. The defendant appealed.

Appeals court affirmed conviction and sentence

A state appeals court affirmed the defendant’s conviction and sentence:

In order to establish the elements of an attempted sex crime against a minor, the State must show: (1) the intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation, but (3) falls short of the completed offense. . . .

Defendant sent dozens of Snapchat messages to [the victims] over many months containing the same request to see their genitals. Defendant took additional steps in furtherance of the attempted exploitation by offering money and gifts in exchange for nude photos. Defendant also used his “older brother” relationship in attempt to coerce [the boys] into sending him the pictures. When they refused, he expressed his frustration and threatened to not have anything else to do with them. Defendant even admitted that his messages were indecent and repeatedly asked for forgiveness for his conduct. The State also offered additional evidence of the defendant’s intent by showing that he had already successfully solicited and received nude pictures of another teenager’s genitals at least once before by using similar behavior and conduct. The evidence was uncontroverted at trial. This was substantial evidence of each essential element of second-degree exploitation of a minor, and of defendant being the perpetrator of such offense. Accordingly, the trial court did not err in denying defendant’s motion to dismiss.

What this means for churches

This case is important for three reasons.

First, it demonstrates the problems that can occur when using mobile devices and social media. The best practice for church leaders is to prohibit cellphone, email, and social media interactions between youth leaders (both employees and volunteers) and minors, and to respond immediately with appropriate discipline if this policy is violated.

A good response to those who consider such a policy too restrictive is to contact your local public school district and find out its policy with regard to mobile device and social media communications between teachers and minors. Many school districts absolutely prohibit such communications.

Second, the defendant’s actions in this case graphically demonstrate the risks associated with grooming. The US Department of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) uses the following definition of grooming:

Grooming is a method used by offenders that involves building trust with a child and the adults around a child in an effort to gain access to and time alone with her/him. In extreme cases, offenders may use threats and physical force to sexually assault or abuse a child. More common, though, are subtle approaches designed to build relationships with families.

The offender may assume a caring role, befriend the child or even exploit their position of trust and authority to groom the child and/or the child’s family. These individuals intentionally build relationships with the adults around a child or seek out a child who is less supervised by adults in her/his life. This increases the likelihood that the offender’s time with the child is welcomed and encouraged.

One court defined grooming as:

[A] systematic process where the sole goal is to gain access to the child for inappropriate sexual behavior. Sometimes the child can be groomed quickly, but other times it can take years. Examples of grooming include buying the child a gift, befriending him, and condoning his behaviors that others disapprove of. Secrecy plays a large part in grooming by enhancing the offender’s control over the victim. This control is used to drive a wedge between the victim and his friends and family. The offender may also buy gifts or offer alcohol or drugs to the victim to entice him to stay with her instead of spending time with his friends and family.

Common examples of classic grooming behavior include:

  • an adult youth leader demonstrates excessive interest in a minor
  • gifts
  • trips and outings
  • spending time alone with a minor, either in person or via email and social media
  • minors spend time, including overnight, in a youth leader’s home
  • providing a minor with alcoholic beverages or narcotic drugs
  • providing sexually explicit materials to a minor

Third, as this case illustrates, child molesters often “seduce” a child’s parents, making it more likely that their attempts to have sexual contact with a minor will succeed.

For additional suggestions for preventing vulnerabilities in children’s and youth ministries, see “Minimizing the Risks of Child Molestation in Churches,” “Defending Youth Ministries from 8 Critical Risks,” and Church Law & Tax’s sexual abuse awareness training program, Reducing the Risk (available online and as a DVD-based program). State v. Ownby, 847 S.E.2d 83 (NC App. 2020)

Sexting Contributed to Court’s Sentencing a Man to a 52-Year Prison Term

Decision carries implications for how youth leaders communicate with teens.

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

A Tennessee court affirmed a 52-year prison sentence for a defendant who engaged in sexually inappropriate conduct with a minor, including sexting.

An adult male (the “defendant”) sexually abused his minor stepdaughter from 2012 to 2016 when the victim was between 11 years old and 15 years old. The defendant was charged with several felony counts. Evidence introduced at his trial included more than 1,000 sexually explicit text messages and images on a cellphone and computer tablet.

What this means for churches

The defendant’s criminal offenses were based, in part, on his sexually oriented text messages with the victim. In many states, the transmission of sexually explicit text messages (“sexting”) via a cellphone or other electronic device constitutes a crime. This case demonstrates the severe consequences individuals can face if they perpetrate abuse against minors, including through illegal activities such as sexting.

Several courts have addressed the issue of criminal liability of pastors for engaging in sexting. Here is one example:

A New Jersey appeals court affirmed the prison sentence of a pastor who engaged in “sexting” and sexual contact with a 14-year-old girl. The defendant was charged with endangering the welfare of a child and criminal sexual contact for which he was sentenced to an aggregate term of six years in prison, parole supervision for life, and additional mandatory penalties. State v. Lopez-Durango, 2018 WL 4956853 (N.J. App. 2018).

For other examples of cases, see “Defending Youth Ministries from 8 Critical Risks.”

Relatedly, such messages also can be used as evidence in civil lawsuits brought against a church. For example, assume that an adolescent female in a church youth group claims that the youth pastor had nonconsensual sexual contact with her. She sues the church, claiming that it is responsible for the pastor’s acts on the basis of negligent hiring and supervision. The victim can then subpoena the youth pastor’s text messages to establish the truth of her claims.

A survey of church practices, which I wrote about in the above-noted article, indicated that 81 percent of youth pastors surveyed said they engaged in one-to-one communication with youth group members at least weekly. Many did so much more frequently. This level of personal and intimate communication with minors is troubling for several reasons. Most significantly, it opens the door to an intensification of the relationship that can lead to sexual intimacy either physically or indirectly.

Allowing youth leaders to communicate with minors without any supervision or accountability is a dangerous practice. It is no different than a church’s senior pastor texting adult females in the church. In some cases, such an unrestricted practice leads to the transmission of sexually explicit text messages or images (“sexting”) using a cellphone or other electronic device.

As noted above, sexting with minors is a felony criminal offense in many states. Such messages also can be used as evidence in civil lawsuits against youth pastors by adolescents with whom they had a virtual, or physical, relationship.

For more details on the above recommendations and additional suggestions for preventing vulnerabilities in children’s and youth ministries, see “Minimizing the Risks of Child Molestation in Churches“ and “Defending Youth Ministries from 8 Critical Risks.”

State v. Mason, 2020 WL 5015903 (Tenn. App. 2020).

Christian College Not Liable for Sexual Misconduct of Former Student Hired by a Church

Churches should be aware that states are divided on liability based on recommendations related to hiring.

Key point. While employers may not have a duty to provide a reference about a former employee, if they choose to do so they may be liable if they fail to disclose information suggesting that the individual may pose a risk of harm to others.

A Missouri court ruled that a religious school was not liable for the sexual misconduct of a former student on the ground that it provided a positive reference to a church on the offender.

Church sues college over positive recommendation

A Christian college (the “College”) is an independent college that prepares students for ministry. On occasion, individual churches needing to fill open positions contact the College for recommendations. However, the individual churches, and not the College, make the ultimate hiring decisions.

Based upon the College’s positive recommendation, a church hired an employee (the “offender”) in 2004. As a result of that employment, the offender allegedly sexually abused a minor (the “victim”) from 2006 through 2010. The victim thereafter sued the College for negligence in providing a positive reference leading to the offender’s employment at the church.

The College asked the trial court to dismiss the case on the ground that the act of providing the church with an employment recommendation did not create a duty to the victim to exercise reasonable care. The court agreed, and the victim appealed.

A recommendation is not a proper basis for asserting negligence

On appeal, the victim argued that once a defendant undertakes to provide a recommendation to a prospective employer, the defendant has a duty to provide a nonnegligent recommendation if the defendant knows or has reason to know that a negligent recommendation involves an unreasonable risk of injury to the prospective employer or third parties. According to the victim, such a “duty” arises because of the fact that “other states have recognized . . . a duty to not provide negligent recommendations.”

In support of this claim, the victim cited cases in New Mexico, Texas, and California. But the court pointed out that the victim “has completely omitted, however, any citation to cases from other states rejecting the existence of such a duty.”

The court cited cases from Indiana, Kentucky, Washington, Illinois, and New York rejecting “the existence of a generalized duty to exercise care in making employment references.” To illustrate, it cited a New York case in which a court concluded that “the mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring.”

The appeals court concluded:

In light of these contrary cases from Indiana, Kentucky, Washington, Illinois, and New York, the victim’s mere citation to supporting cases from New Mexico, Texas, and California fails to analytically support or persuade us that such a duty . . . exists in Missouri’s common law.

What this means for churches

Church leaders often are asked to provide a reference on a former employee. This case illustrates that states are divided on whether former employers are liable for injuries inflicted by an employee for whom they provided a positive reference despite knowledge of wrongdoing. It cited cases in New Mexico, Texas, and California recognizing liability, and cases in Indiana, Kentucky, Washington, Illinois, and New York that did not recognize liability.

Key point. Providing references on former employees is fraught with risk, and should not be undertaken without legal counsel. Doe v. Ozark Christian College, 579 S.W.3d 220 (Mo. App. 2019).

A Nearly $22 Million Verdict for Sexual Abuse Not Excessive, Affirms Federal Appeals Court

Churches should understand that a single incident of child abuse can expose a church to damages far in excess of its insurance coverage.

Key point 10-04 . A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

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 appeals court ruled that a $21.7 million verdict against a teacher and private Jewish school for the teacher’s sexual molestation of a student was not excessive and would not be overturned.

Psychologist: the victim suffered from PTSD due to abuse

An adult male (the “victim”) sued the teacher and school alleging that the teacher sexually abused him for several years while he was a minor student at the school. The teacher had been, at various times, the dean, director, treasurer, and president of the board of directors of the school.

The victim was a student at the school from Fall 2001 until Spring 2005. During that time, when the victim was 14 to 17 years old, the teacher sexually abused him on a frequent, sometimes weekly, basis, sometimes for hours at a time. The teacher provided the victim with alcohol and engaged in a variety of sexual activities with him at several locations including the school, motels, and the teacher’s home.

The victim suffered physical, emotional, and psychological injuries as a result of the abuse. The lasting effect of that abuse was corroborated by his wife and his clinical psychologist.

The victim’s psychologist, a specialist in post-traumatic stress disorder (PTSD) and childhood trauma related to physical, emotional, and sexual abuse, conducted a forensic interview of the victim, and concluded that the victim was shut off emotionally, had lost his sense of trust, had difficulty with intimacy and vulnerability, continued to suffer from PTSD, and would continue to struggle with PTSD throughout his life.

Trial judge ruling: the defendant “repeatedly sexually abused” the victim

The teacher was convicted of felony child abuse, and sentenced to 20 years in prison. At a sentencing hearing, the trial judge denounced the teacher for his actions, noting that the evidence showed that he “repeatedly sexually abused” the victim over several years, and was guilty of a “colossal violation of trust. . . . He committed the worst possible crime in the worst possible way.”

The victim sued the teacher and school (the “defendants”) in a civil lawsuit, alleging that the teacher had sexually abused him and that the school’s administrators had knowledge of the abuse but failed to report the teacher to law enforcement as required by Connecticut law.

At the conclusion of trial, the jury awarded the victim $15 million in compensatory damages, and $5 million in punitive damages plus interest of $1,749,041 for a total award of $21,749,041.

The defendants appealed this verdict to a federal appeals court, arguing that it was excessive and had to be substantially reduced. The defendants asserted that the

evidence presented at trial simply did not support the jury’s exorbitant verdict in this case, which is dramatically out of step with non-economic damage awards by juries in cases involving similar claims of sexual abuse, both in Connecticut and throughout the country.

Past rulings guide appeals court’s decision against teacher

The appeals court affirmed the trial court’s verdict. It observed:

In considering a damages award, a trial court must evaluate whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption. A jury award may not be set aside merely because it exceeds what the court would have awarded. There are only a few decisions in Connecticut addressing the size of a jury award in cases concerning sexual abuse of a minor, but they are instructive. For example, in [one case] the court denied a motion to set aside a $15 million jury verdict against a defendant based on claims that he sexually abused the plaintiff from the time she was six years old until she was seventeen. [In another case] the Connecticut Supreme Court upheld an award of $7 million for three incidents of sexual assault against a minor victim. And in [a third case] the court awarded $75,200 for economic damages; $500,000 for noneconomic damages; and $167,800 in punitive damages based on claims that the defendant sexually molested the plaintiff several times before the plaintiff’s sixteenth birthday. . . .

The district court did not abuse its discretion in [refusing to reduce the amount of the verdict] because the verdict is not excessive as a matter of Connecticut law. While the teacher argues that the victim lacked evidence to support the award of noneconomic damages, there was ample evidence in the record of his physical, emotional, and psychological injuries. In addition to his own testimony, his wife and psychologist both testified that he had issues with intimacy, forming emotional attachments, and vulnerability with others. His wife explained that the teacher’s abuse had a significant, negative impact on their married life. . . . The victim’s psychologist, an expert in PTSD and childhood trauma, indicated that even with treatment, the sexual abuse the victim suffered as a minor would have lifelong consequences for him. The jury clearly credited the witnesses’ testimony in finding the defendants liable and awarding compensatory damages of $15 million.

The amount of compensatory damages is undoubtedly high, but we are not persuaded that a [reduction in the size of the verdict] is warranted under Connecticut law. The award here is not excessive when compared to the awards in the cases cited above. Here, the record indicates that the victim suffered repeated abuse for approximately three years, from the time he was fourteen until he was seventeen years old. At certain points, he was abused for hours at a time, on a weekly basis. . . .

The court noted that on a “per incident basis,” the $15 million verdict for compensatory damages “falls within the range of noneconomic damages that have been upheld by Connecticut courts in cases of sexual abuse.” It cited three additional rulings by the Connecticut Supreme Court:

  • Doe v. BSA Corp., 147 A.3d 104 (Conn. 2016). The Connecticut Supreme Court permitted a $7 million award for three incidents of sexual assault involving a ten-year-old boy by a Boy Scouts leader.
  • Doe v. Thames Valley Council for Community Action, Inc., 797 A.2d 1146 (Conn. 2002). The Connecticut Supreme Court upheld a total award of noneconomic damages of $220,000 to minors who were sexually assaulted by their school bus driver.
  • Sciola v. Shernow, 577 A.2d 1081 (Conn. 1990). The Connecticut Supreme Court ruled that a trial court erred in ordering a reduction of a jury verdict from $400,000 to $323,833 in favor of a plaintiff who claimed that her dentist sexually assaulted her while she was sedated.

The court concluded:

[The victim] testified that [the teacher] sexually abused him weekly during his sophomore year (when he was fourteen years old) and somewhat less often during his junior and senior years (but still at least every three or four weeks), and therefore he was sexually assaulted dozens of times. Based on the evidence presented at trial, we are not persuaded that the jury’s award ‘shocks the sense of justice.’ Consequently, we conclude that the district court did not abuse its discretion in denying the motion for a new trial. . . . The teacher’s challenge to the amount of the verdict fails.

What this means for churches

The sexual molestation of minors remains one of the most serious legal risks facing churches today for a number of reasons, including:

  • In many churches, the number of minors attending youth services and activities is substantial.
  • A single incident of child molestation can cause negative publicity in the community.
  • In many cases, victims of child sexual abuse will sue the church for monetary damages.
  • Many churches have inadequate insurance for child molestation claims, resulting in a potentially significant uninsured risk.
  • A church is exposed to a civil lawsuit by victims of child sexual abuse, usually on the basis of negligent hiring, supervision, or retention.
  • Most states have extended the statute of limitations for cases of child sexual abuse, exposing a church to lawsuits for decades.

The case addressed in this article adds an additional reason why incidents of child molestation represent a significant risk for churches: the possibility of a jury awarding substantial damages to a victim far in excess of a church’s insurance coverage.

How many churches could survive an adverse verdict of $20 million for a case of child molestation? Admittedly, this case involved numerous acts of severe molestation over several years. But the court referenced a verdict of $7 million in a case involving the molestation of a Boy Scout on three occasions. The court cited two other cases involving much lower verdicts, but these were older cases involving very different facts.

The lesson of this case is clear: A single incident of child abuse can expose a church to damages far in excess of its insurance coverage. As a result, this risk constitutes an existential threat to a church that must be taken seriously. Mirlis v. Greer, 952 F.3d 36 (2nd Cir. 2020).

Woman Could Sue Her Former High School for Negligent Supervision in Abuse Claim

But the appeals court ruled that she could not sue for negligent hiring.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

A California appeals court ruled that a woman who was sexually molested by a teacher at the public school she attended as a minor could not sue the school on the basis of negligent hiring for her injuries, but could sue it for negligent supervision.

Background

An adult male (the “defendant”) applied for employment with the Los Angeles Unified School District (LAUSD) in June 2003. The defendant’s job application listed his employment history but did not disclose his previous employment with the Long Beach Unified School District in 1993, or that he had been discharged from this position after being arrested for sexual battery.

At the time the defendant applied to LAUSD, its application asked applicants to report all prior criminal convictions or pending court cases. But state law prohibited employers from asking applicants to disclose prior arrests that did not result in a conviction.

The defendant’s application identified a 2001 conviction for driving under the influence, which was not disqualifying under LAUSD policy. He did not disclose his arrest on suspicion of sexual battery in December 1993 or the underlying circumstances.

In his application, the defendant answered “No” in response to the question, “Have you ever been dismissed from, or not reemployed by, a public or private school while holding any teaching/non-teaching position(s), or while in any other type of employment?”

LAUSD staff reviewed the defendant’s application, interviewed him in person, conducted reference checks, and confirmed the defendant qualified for California teaching credentials. LAUSD staff contacted the defendant’s listed character references by telephone. One of the references was a school official who had supervised the defendant’s student teaching and who rated the defendant as a “5” (the highest level) in overall teaching effectiveness and stated that the defendant “demonstrated many outstanding qualities of a young teacher.”

LAUSD subsequently placed the defendant on the teacher hire eligibility list, pending obtaining his background clearance. For the defendant’s student-teaching job, LAUSD had previously fingerprinted him and submitted his fingerprints to the Federal Bureau of Investigation and the State Department of Justice (DOJ) to have these entities conduct nationwide searches for any prior criminal convictions or pending cases. LAUSD’s Human Resources re-fingerprinted the defendant upon his application for permanent employment and again submitted his fingerprints to the DOJ. The defendant obtained a California Teaching Credential on August 22, 2003, and was cleared for employment.

The defendant was hired as a middle school teacher in 2005, and soon met a 14-year-old student (the “victim”). Over the course of the next four years, the defendant engaged in repeated acts of grooming and sexual contact with the victim.

In May of 2008, an anonymous caller reported to the school principal that she had observed the defendant picking up a female student in the morning and dropping her off at school. The principal was concerned that he was violating LAUSD policy prohibiting teachers from giving students rides without parental consent.

The principal contacted the child abuse unit at the local police department to make a Suspected Child Abuse Report over the phone. The defendant was suspended from teaching the same day.

The school police launched a criminal investigation into the facts and circumstances to determine if a crime had occurred. They interviewed the defendant, who stated he had been tutoring the victim in math and had picked her up from her home on some occasions with the permission of her mother. In addition, the defendant said the school’s flag team coach had asked him for his assistance in coaching the team, and he had sometimes transported some of the flag team girls to and from events.

The school police also interviewed the victim who said she considered the defendant a “friend only” and he, in fact, frequently gave her rides. She said the defendant picked her up from an intersection near her home, and her mother knew this and had no problem with it. She said her father did not know and he would get “mad with me and my mother” if he found out. She said the defendant was tutoring her in math and helping with her flag team.

The principal felt that “something fishy was going on.” He met with the victim and her mother. During this meeting, the victim said that the defendant had taken her to a restaurant, but only when she needed help with her history class. She told the principal that the defendant would take her to school in the morning when she had lots of “books and stuff” to carry, and he would give her rides home from flag practice when it was dark. He would pick her up at the corner instead of her house because she did not want her father to know.

The principal recommended dismissing the defendant for his “failure to follow school policies and procedures and poor judgment in dealing with students.” However, LAUSD determined that “the acts committed by the teacher did not support a recommendation for dismissal.” Instead, LAUSD suspended him for 15 days (later reduced to 10 days) without pay and issued him a Notice of Unsatisfactory Acts for failing to follow LAUSD policies by transporting female students to and from events involving the flag team without having approval from the school administration.

LAUSD instructed the defendant to avoid transporting students in his personal vehicle without proper written permission from school administration and from parents. LAUSD also admonished him not to accompany students off campus, except as part of authorized school activities. LAUSD reassigned the defendant to another school.

In 2012, when she was 18 years of age, the victim informed the police of the defendant’s conduct upon learning that he was seeing another female student. The police conducted a sting operation with the victim’s assistance and ultimately arrested the defendant who later was convicted of two counts of lewd and lascivious acts with a child.

The victim sues LAUSD

The victim sued the LAUSD, arguing that its employees knew or should have known of prior complaints at the other school about the defendant engaging in unlawful sexual touching and indecent exposure, and they negligently ignored facts indicating that the defendant “had the propensity to sexually abuse minors and was in fact likely sexually abusing [the victim].”

The lawsuit claimed that the school district was therefore liable for the defendant’s actions on the basis of negligent hiring, negligent supervision, and negligent retention. The lawsuit also alleged that school district employees owed the victim a duty to protect her from sexual abuse and to enforce policies designed to protect children from sexual abuse.

Declaration from expert witness details “standard of care”

The LAUSD asked the trial court to dismiss the case. In opposition, the victim submitted to the court a written declaration from an expert witness who was a professor of educational administration with experience in evaluating and developing school policies for preventing educator sexual misconduct and harassment.

The professor’s declaration included her opinion as to “the standard of care” for screening the backgrounds of prospective school employees in order to prevent child sexual abuse. She concluded:

  • Those interviewing candidates for such positions should inquire as to their previous work experience, including gaps in their employment timelines.
  • Candidates for employment and their references should be explicitly asked if the candidates had been previously accused of sexual misconduct.
  • In addition, reference checks should extend beyond the individuals on the candidate’s list of references on his employment application.
  • LAUSD should have asked the defendant about the 13-year period in which he stated he was self-employed as a cabinet maker.
  • LAUSD also should have asked the defendant if he had ever worked for another school and if he had ever been investigated for or accused of sexual misconduct.
  • Schools and school districts need clear policies and regulations that “describe educator sexual abuse, detail acceptable and unacceptable behavior, provide mechanisms for reporting, guide students, teachers, administrators, and parents in prevention, describe a system of investigation, and describe the consequences. These policies should provide guidance in identifying and reporting behaviors that might indicate sexual exploitation and make it clear that the entire school family is responsible for identification and reporting.”
  • School policies should address communications between teachers and students outside of school, prohibit employees being alone with students in closed rooms, and require any after-hours tutoring to be in a public and supervised location.
  • Schools and school districts should conduct annual trainings for all employees focused on adult-to-student sexual misconduct, the signs of such misconduct, and investigation practices. She concluded that “if LAUSD employees had received adequate training on educator misconduct, they would have been better able to recognize and address the defendant’s behavior and better protect the victim and other students.
  • LAUSD’s level of supervision on school grounds was inadequate. She noted that “sexual abuse of students is diminished through active supervision of the school,” including “hall sweeps, checking classrooms at lunch and before and after school to make sure that an adult is not alone with a child.”
  • Increased supervision was necessary for employees who consistently crossed boundaries, hung out with students regularly, or drove them in their cars.
  • Teachers must know where their students are during class time. If policy violations are discovered by employees, they should understand their responsibility to report to administration.

The professor concluded that “based on the above standard of care, LAUSD did not adequately supervise” the defendant or other employees, the school premises, or the victim. In particular, she noted that “regular checks of rooms when class was not in session would have likely uncovered the private meetings between the victim and defendant.

The trial court dismissed the case against the defendant citing a lack of evidence to prove negligent hiring, supervision, or retention. The victim appealed.

The appeals court’s decision—negligent hiring

With regard to negligent hiring as a basis for liability, the court observed: “A defendant may be liable for negligent hiring if it knows an employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him.”

The court referenced a decision of a California appellate court in Evan F. v. Hughson United Methodist Church, 10 Cal.Rptr.2d 748 (Cal. 1992). In Evan F., a church hired a pastor who had previously sexually abused a child. The pastor molested a young boy in the church.

Although the church did not have actual knowledge when it hired the pastor of his prior sexual abuse, it had become “aware of some difficulty” with the pastor’s reappointment to the active ministry and understood he had been on a sabbatical. Nevertheless, the church did not make any inquiry regarding the pastor’s past or his fitness to serve. A trial court dismissed the plaintiff’s negligent hiring claim against the church, and a state appeals court agreed.

The California appellate court in the case involving LAUSD noted:

We conclude that the trial court correctly found no reasonable jury could find LAUSD liable on the victim’s negligent hiring theory. Unlike in Evan F., where the church knew there had been some problems with the pastor in the past and thus should have investigated further, none of the available information about the defendant reasonably should have given LAUSD any cause for concern. He had just finished student-teaching, and his supervisor gave him a superlative review. A professor and an administrator at his college program had also vouched for him. Because he omitted his employment with the Long Beach Unified School District and did not list any other work experience in a school setting on his application, it was reasonable for LAUSD to assume he did not have any other experience working at a school and pointless to ask this question. In the absence of any clue at the time that the defendant had not been truthful or had misconduct in his past, there was no reason to probe further. . . .

Finally, we disagree that LAUSD could reasonably be faulted for not asking the defendant about whether anyone had previously accused him of sexual impropriety. LAUSD had run two background checks using his fingerprints, which yielded only a conviction for driving under the influence. LAUSD was prohibited under Labor Code section 432.7 from asking about prior arrests that did not result in a conviction. The defendant answered “No” to the question asking if he had been dismissed from or not reemployed by any school or any other type of employment. Although he testified at his deposition that he would have “told the truth” if LAUSD had asked him about his arrest while working for the Long Beach school, this does not mean that LAUSD was negligent for not ferreting out information about his prior arrest and misconduct in another district and questioning him about it. We conclude no reasonable jury could find LAUSD was negligent in failing to make further inquiries when it had no reason to suspect anything problematic about the defendant or his background.

The appeals court’s decision—negligent supervision

The court concluded that the trial court erred in dismissing the negligent supervision claim against LAUSD. It noted that “ineffective supervision of a student, as well as the failure to use reasonable measures to protect a student from foreseeable injury from a third party, may constitute a lack of ordinary care on the part of those responsible for student supervision.” It further noted: “Reasonable minds could differ as to whether the school’s lack of supervision that allowed the defendant access to the victim for grooming constituted negligence for which LAUSD is vicariously liable,” and therefore the trial court erred in dismissing the negligent supervision claim against LAUSD.

What this means for churches

This case is instructive for church leaders for at least five reasons:

  1. California is one of 33 states that have adopted a “ban the box” law prohibiting employment applications from asking applicants to disclose prior arrests that did not result in a conviction. The defendant’s application did not disclose his arrest on suspicion of sexual battery in December 1993 or the underlying circumstances. Since the state’s ban the box law prohibited LAUSD from asking for this information, the LAUSD could not be found liable on the basis of negligent hiring as a result of its inability to obtain it. The same logic would apply to churches if forbidden by state law to ask job applicants about prior arrests. Note, however, that some exceptions exist under the ban the box laws in some states.
  2. The defendant’s job application identified a 2001 conviction for driving under the influence, which the court noted “was not disqualifying under LAUSD policy.” Every state requires criminal records checks for school employees, and identifies crimes that disqualify an applicant for employment. This can provide churches with a useful tool in identifying those crimes that disqualify applicants for employment. To the extent a church aligns its practices with those of the public schools (an agency of the state) it has gone a long way in establishing a defense in the event it hires an applicant.
  3. In May of 2008, an anonymous caller reported to the school principal that she had observed the defendant picking up the victim in the morning and dropping her off at school. The principal contacted the child abuse unit at the local police department to make a Suspected Child Abuse Report over the phone. The defendant was suspended from teaching the same day. The duty to report child abuse is triggered in most states by a reasonable belief that a minor is being sexually abused. In this case, the principal concluded that the anonymous phone call provided a reasonable belief that the victim was being abused.
  4. LAUSD had a policy prohibiting teachers from giving students automobile rides without parental consent. Such a policy is strongly recommended because so many incidents of child abuse occur off campus and are facilitated by the use of automobiles. The problem in this case was that this policy was not consistently enforced. To achieve the lowest risk, such a policy should not have a “parental consent” exception.
  5. The victim’s expert witness testified that LAUSD “did not adequately supervise” the defendant or other employees, the school premises, or the victim. The expert witness cited 11 grounds for her conclusion that are summarized above. They provide churches with excellent guidelines to examine their own policies and procedures for protecting minors from abuse.
  6. C.A. v. L.A. Unified School District, 2019 WL 1649637 (Cal. App. 2019).

Pastor Sentenced to Prison for “Sexting”

A New Jersey appeals court affirmed the prison sentence of a pastor who engaged in “sexting” and sexual contact with 14-year-old-girl.

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

A New Jersey appeals court affirmed the prison sentence of a pastor who engaged in “sexting” and sexual contact with a 14-year-old girl.

A 14-year-old girl (the “victim”) and her family lived across the street from the church they attended. The victim developed a close relationship with one of the church’s three pastors (the “defendant”). The two of them began texting each other. On one occasion, he hugged her in a way that made her uncomfortable in a backroom of the church. On another occasion, she went to speak with him in the church and he led her into a room with a couch where he initiated sexual contact with her. When he tried to flip her over, he fell and she told him to stop, which he did.

That same day the victim told her uncle what had happened. She did not tell her mother until later. Her uncle confronted the defendant and told him to apologize to the victim.

The victim continued to text the defendant. She eventually told one of the other pastors what the defendant had done, but she asked that the police not become involved. This pastor promptly notified the prosecutor’s office, which called defendant in to discuss the allegation. The defendant then spoke to the victim’s mother, admitting he “went too far.” The defendant was charged with endangering the welfare of a child and criminal sexual contact for which he was sentenced to an aggregate term of six years in prison, parole supervision for life, and additional mandatory penalties.

What this means for churches

The defendant’s criminal offenses were based, in part, on his sexually oriented text messages with the victim. In many states the transmission of sexually explicit text messages (“sexting”) via a cell phone or other electronic device constitutes a crime. Such messages also can be used as evidence in civil lawsuits. For example, assume that an adolescent female in a church youth group claims that the youth pastor had nonconsensual sexual contact with her. She sues the church, claiming that it is responsible for the pastor’s acts on the basis of negligent hiring and supervision. The victim subpoenas the youth pastor’s text messages to establish the truth of her claims.

Several courts have addressed the issue of criminal liability of pastors for engaging in sexting. Here is one example:

A court used sexually explicit text messages between a youth pastor and a female member of the youth group to corroborate her account of sexual exploitation. The court sentenced the pastor to a prison sentence of four years to life. 2009 WL 1476934 (Colo. App. 2009).

For other examples, see my article “Defending Youth Ministries from 8 Critical Risks.”

Churches should adopt a written policy banning all pastors and lay volunteers engaged in youth or children’s ministries from engaging in any form of private messaging with minors. Violations of this policy must not be tolerated. Failure to consistently enforce the policy not only will expose the church to civil liability, but also will expose minors to harm.

Contact your local public school district for assistance in formulating your policy. This can have several important benefits, including:

  1. A policy drafted by your local public school district will provide the church with helpful assistance in drafting your own policy;
  2. The fact that your local public school district has enacted such a policy, with sanctions for violations, will underscore the need for the church to do likewise;
  3. Churches that align their practice with the public schools reduce their exposure to civil liability based on negligence since they are emulating the practice of an agency (the public schools) of the state.
  4. State v. Lopez-Durango, 2018 WL 4956853 (N.J. App. 2018).

Church Volunteer Given 35-Year Prison Sentence for Raping a Minor

Case illustrates the importance of adopting, and enforcing, a “two-adult rule” that prohibits church employees and volunteers from being alone with a single minor.

Key point 10-09.3. Churches can reduce the risk of liability based on negligent supervision for the sexual molestation of minors by adopting risk management policies and procedures.

An Indiana court affirmed a 35-year prison sentence for a church’s volunteer driver who raped an adolescent female who was the only passenger in his vehicle during a trip to a church activity.

An adult male (the “defendant”) attended a church in Indiana, and drove parishioners to and from church using a van owned by the church. One day, the defendant drove a 13-year-old girl (the “victim”) and her family to and from the church. On the drive home, he told the victim that there was an activity planned for teens at the church the following day and that she should call him if she wanted to attend. The following day, the victim obtained her father’s permission to attend the church event and called the defendant to ask for a ride to the church.

The next day the defendant drove his personal vehicle to the victim’s house to pick her up. When she got in the defendant’s vehicle, he did not take her to the church, but instead drove her to a horse stable. When the victim asked why he had not driven to the church, the defendant explained that he needed to pick up some items from his home. He then drove to his home. When the defendant went inside, the victim stood at the door to wait for him. The defendant then invited the victim inside and took her to his bedroom. The victim attempted to run away, but tripped and fell onto the bed. The defendant forcibly removed the victim’s clothing and raped her while she physically resisted. When he was finished, he instructed the victim to put her clothes back on, and then drove her home. He admonished her not to tell anyone what had happened.

When the victim got home, she took a bath, placed her clothes in the washer, and fell asleep. She eventually told one of her friends what had happened, and that friend telephoned the victim’s father and told him that he needed to speak with his daughter. When her father questioned her, the victim told him what had happened. At one point, the defendant called the victim’s father and asked him not to bring criminal charges. The following morning, the father took her to the hospital. After speaking with the victim and her father, a nurse at the hospital contacted the police.

The state charged the defendant with Class A felony for child molesting. A jury found the defendant guilty as charged. The trial court sentenced the defendant to 35 years imprisonment. The defendant’s appeal was rejected by a state appeals court.

What this means for churches

This case illustrates the importance of adopting, and enforcing, a “two-adult rule” that prohibits church employees and volunteers from being alone with a single minor. Had the church in this case adopted and enforced such a rule, it would have barred the defendant from driving the victim to church without a second adult in the vehicle. This would have had the following consequences:

  • the rape would not have occurred;
  • the defendant would not have been sentenced to prison for 35 years;
  • the church would not have been exposed to liability based on negligence for allowing a minor to be alone with an adult volunteer youth worker.

Clearly, adopting a two-adult rule, while an integral part of a program to reduce the risk of child molestation on church property and during church activities, is of no value if the policy is not followed. Church leaders need to continually stress the importance of following such a policy, and be alert to violations.

Also, note that a two-adult policy typically prohibits one adult from being alone with one minor. Permitting one adult in the presence of multiple minors, such as an adult teacher in a classroom with several students, is not prohibited since the opportunity for sexual assaults in such a setting is remote. This is the model employed by most public schools. This is significant since public schools are agencies of the state, and so churches that align their practices with those of the state through its public schools are far less likely to be liable on the basis of negligence for sexual assaults that occur.

A two-adult policy should apply to any church program or activity on or off church property. It should also apply to vehicles. Note that it is common for the two-adult rule to be triggered during an activity. To illustrate, a church adopts a two-adult policy prohibiting youth and children’s ministry workers from being alone with a child. A fourth grade teacher in the church’s Sunday school program has 12 students in his class on a Sunday morning. At the end of the class the children exit the classroom—except for one student who stays behind to talk with the teacher. While the two-adult rule would not apply at the beginning of the class, it would when only one student remains in the classroom at the end of the class. Consider another example.

A church adopts a two-adult policy prohibiting youth and children’s ministry workers from being alone with a child. A volunteer worker in the church’s high school ministry is asked to drive six teenagers home in a church vehicle at the end of a church activity. The driver drops off five students at their homes, and then proceeds to the sixth teenager’s home. While the two-adult rule would not apply initially, it would at the moment the driver is alone with the sixth student. Posey v. State, 110 N.E.3d 1190 (Ind. App. 2018).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The federal appeals court’s ruling

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

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

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

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

But, the court insisted that

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

What this means for churches

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

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

Church Protected by “Qualified Privilege” from Defamation Claims by Minister

Court concluded that there is an “absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding,”

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.

An Illinois court ruled that statements made in a church disciplinary process involving accusations of sexual misconduct by a minister were protected against claims of defamation by a qualified privilege.

A minister (the “plaintiff”) served as a church’s lead pastor and also as chairperson of a committee responsible for screening candidates for admission to the ministry within his denomination (the “national church”). A woman (the “defendant”) was one of these candidates. The plaintiff claimed that he informed the defendant that she would need additional counseling before her application could proceed. She alleged that when she met with him to discuss her application he made offensive, sexually explicit comments to her. The plaintiff was shocked.

The Book of Discipline prohibits sexual harassment by ministers, stating that sexual harassment “by representatives of the church is a betrayal of a sacred trust, and a sinful abuse of power for which consequences are necessary and appropriate.” The Book of Discipline defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or non-verbal conduct of a sexually offensive nature” that occurs in a workplace setting.

The Book of Discipline also establishes a system for reporting and adjudicating claims of sexual misconduct against members of the clergy. A victim of sexual harassment may report the allegation to his or her local minister. The person receiving this information must then make a written record of the complaint within 48 hours. The accuser then has seven days to submit a written complaint. The complaint must be in writing, sworn under penalty of perjury, and sent via certified mail to the national church’s “Judicial Committee.” The complaint should contain a description of the facts giving rise to the claim.

The Judicial Committee, which acts like a grand jury, serves as the investigative body of the national church. This committee gathers evidence and investigates claims. While performing its role, the Judicial Committee must act confidentially and can discuss the matter only with other individuals responsible for adjudicating the case. Breach of confidentiality “shall be charged and tried pursuant to the relevant provisions” of the Book of Discipline. The Judicial Committee determines whether there is sufficient evidence to support the allegations of sexual misconduct. If the Judicial Committee finds that the allegations are unfounded, the case is dismissed. If the Judicial Committee finds there is sufficient evidence to support the allegation, the matter is referred to the Trial Committee for a hearing. The Trial Committee, which acts as the trier of fact, determines whether the allegations in the complaint are “sustained, unsustained, or neither sustained nor unsustained.” If the Trial Committee determines that the allegations are sustained, the Book of Discipline provides for punishments ranging from a six-month suspension to permanent termination.

Immediately following the incident of harassment, the defendant, pursuant to the procedure spelled out in the Book of Discipline, filed a complaint with her minister, who forwarded it to a regional church officer, who forwarded it to another officer. This officer ordered the Judicial Committee to convene to investigate the matter. The Judicial Committee determined that the defendant’s allegation of harassment was sustained.

The plaintiff sued the defendant, the regional church, and church officers (the “church defendants”) alleging defamation and emotional distress. He claimed that the allegations of sexual misconduct were false, and that repeating them to other ministers brought him into “public disgrace and scandal.”

The church defendants claimed that the plaintiff’s claims were barred by the “ecclesiastical abstention doctrine,” which recognizes the “power and autonomy of religious organizations to govern and discipline their own clergy free from secular court interference.” The answer further asserted that plaintiff, as a minister, was governed by the national church’s Book of Discipline. The church defendants also claimed that the defamation claim had to be dismissed since statements made in the course of internal church disciplinary proceedings are protected by a “qualified privilege,” meaning that they cannot be defamatory unless made maliciously. The defendants argued that the qualified privilege applied since all of the allegedly defamatory communications occurred within the internal disciplinary proceedings of the church. A trial court dismissed the plaintiff’s claims, and he appealed.

The appeals court affirmed the dismissal of the plaintiff’s lawsuit. It began its opinion by noting:

The First Amendment’s protection of internal religious disciplinary proceedings would be meaningless if a parishioner’s accusation that was used to initiate those proceedings could be tested in civil court. Indeed, a person must be free to say anything and everything to his church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. . . . Since the only defamatory publication allegedly made . . . was made to the church itself within internal disciplinary proceedings, the absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding precludes the court from exercising jurisdiction in this matter.

The court noted that the plaintiff failed to present evidence that the church defendants published the victim’s statements to anyone outside of the internal disciplinary procedures of the church, and therefore the qualified privilege applied and required the dismissal of the plaintiff’s lawsuit.

The court rejected the plaintiff’s claim that his lawsuit could be resolved using neutral principles of law requiring no interpretation of church doctrine:

Plaintiff argues we can evaluate his claims under neutral principles of law. Essentially, notwithstanding any underlying ecclesiastic matter, plaintiff contends that we can determine (1) whether the church followed its own disciplinary proceedings and (2) whether the alleged statements were defamatory under neutral principles of law. We disagree. Illinois courts will not resolve cases that require interpretation of religious doctrine. Nonetheless, when doctrinal issues are not involved, the court may evaluate the dispute under neutral principles of law. Under the neutral principles of law approach, a court objectively examines pertinent church characteristics, constitutions, bylaws, deeds, state statutes, and other evidence to resolve the matter as it would a secular dispute. Traditionally, the neutral principles of law approach is applied to allocate disputed church property under objective, well-established concepts of trust and property law.

While it is possible that resolution of plaintiff’s claims would not require any interpretation of church’s doctrine, resolving this dispute would involve the secular court interfering with the church’s internal disciplinary proceedings. . . . Irrespective of the fact that a court or jury could apply neutral principles of law . . . to determine whether they were defamatory, those statements were published exclusively within the context of the church’s disciplinary proceedings. Therefore, as previously discussed, this court is bound to step aside and permit the church to consider the veracity of the defendant’s charges of sexual abuse through the church’s process.

What this means for churches

The court concluded that there is an “absolute First Amendment protection for statements made by church members in an internal church disciplinary proceeding,” meaning that complaints of ministerial misconduct made to church officials for investigation ordinarily will not expose the complainants to civil liability for defamation or emotional distress. However, the court cautioned that there is no absolute privilege to make accusations of ministerial misconduct to persons outside of the church disciplinary process, and as a result, such accusations may expose the complainants to civil liability. 2018 IL App (4th) 170469.

Pastor’s Multiple Acts of Sexual Misconduct Not Necessarily Protected by First Amendment

The First Amendment does not categorically insulate religious relationships from judicial scrutiny.

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.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

The Iowa Supreme Court ruled that finding a church liable on the basis of negligent supervision for a pastor’s multiple acts of sexual misconduct with adult women was not necessarily barred by the First Amendment guaranty of religious freedom.

In 2003, a church hired a new pastor. The pastor was respected and considered a “dynamic” and “very talented speaker.” He engaged in sexual relationships with several women in the congregation, as summarized below.

Victim 1

A couple in the church were members of the church at the time the pastor arrived. In 2005, the couple were struggling with infertility, which was taking an emotional toll on the wife. Upon learning of her struggles, the pastor began making unsolicited phone calls to her cellphone, inquiring into her personal life and fertility. In 2006, the couple were in the process of seeking an international adoption, and the wife decided to seek counseling from the pastor to help her cope. The pastor invited her to comes see him “at his study,” which was in the basement of his home. The pastor locked the door to his office during the initial counseling session, and engaged in sexual contact and intercourse. The wife consistently maintained that the sex was against her will. Following the encounter, the pastor continued to call the wife, insisting that her husband was not meeting her needs. He informed her that her emotional struggles stemmed from “sexual frustration” and unhappiness in marriage, and that he was “protecting” her by helping her release her sexual energy. He also persuaded her to loan him $70,000.

Victim 2

In 2009, victim 1’s sister confided in her that the pastor had tried to kiss her during a counseling session. Once victim 1 learned what the pastor had done to her sister, she realized he was using his pastoral position and the trust that people put in him as a pastor to recruit women to be counseling candidates so he could get them into a position of trust and vulnerability for the very purpose of abusing them.

Soon after this conversation, victim 1 called the pastor and told him he was using his position as pastor under the guise of counseling to have sexual relationships with women. She broke off contact with him, although she did not inform the church or the police of his conduct out of fear of retribution or not being believed.

Victim 3

Another couple were members of the church when the pastor was called. In 2008, the wife was going through a difficult time. She felt overwhelmed by a recent death in the family, marital problems, and her special needs child. She had been prescribed antidepressant and anxiety medications, which she was taking. The pastor called the wife and suggested that she counsel with him. As with victim 1, the wife counseled with the pastor behind a locked door in his basement office. The counseling consisted of highly personal questions regarding her personal life, her marital struggles, and whether she had engaged in premarital sex. The wife left the meeting to pick up her son, although she felt uneasy about the line of questioning.

The pastor then began calling the wife frequently, asking to see her again. During a subsequent counseling session, the pastor grabbed her and kissed her. Soon, the “counseling” evolved into regular meetings for the pastor to provide “healing” through sexual activity. Beyond sexual intercourse, the pastor would aggressively call the wife, sometimes 10 to 15 times a day.

Victim 4

Eventually, the pastor informed victim 3 about his prior relationship with victim 1 and a fourth woman. After this conversation, victim 3 “started putting all the pieces together very quickly.” She began to see what had happened to victims 1 through 4, and multiple other women in the church.

Two of the victims’ husbands met with three church elders and informed them of the pastor’s misconduct with their wives. That same evening, the pastor came to a church meeting and one elder questioned him about his conduct with victim 3. The pastor admitted to inappropriate conduct with victim 3 and voluntarily offered his resignation. The entire board of elders met later that evening and voted to accept the pastor’s resignation.

The elders sent a letter to the entire congregation explaining they had accepted the pastor’s resignation. The letter stated that his “sins are of such a nature that they warrant our acceptance of his resignation,” but did not disclose the nature of the misconduct. A few weeks later, victims 1 and 3 were called to appear before the elders. At the meeting, the women were asked to confess their sins with the pastor and ask for forgiveness, which they did. The elders understood the women to have confessed to “adultery.” The elders granted the women forgiveness.

A female church member wrote the elders and urged them to refrain from blaming the pastor’s victims or referring to the misconduct as “affairs.” The member, a social worker, explained that blaming the women for the pastor’s clergy abuse would significantly damage them, as well as the congregation as a whole. The member submitted suggested language for a letter to the elders, who declined to send the letter. In a letter circulated among the elders, the elders expressed their view that

a false dichotomy is established when it asserts that all blame is [the pastor’s]. The victims are certainly sinned against, but they are also sinning. All the parties involved failed to walk in the light (1 John 1) and the women, though not bearing the same degree of responsibility as does [the pastor], were certainly responsible for their behavior and need to be called to repentance for consenting to his advances and for violating their marital covenant. They sinned sexually, even though they can rightly in one sense be denominated as victims of the pastor’s machinations.

Some elders did not view the victims’ experiences as rape or sexual assault, and some even questioned whether the pastor engaged in any misconduct at all. One elder opined that there was “sin on both sides” and that the pastor’s conduct “was not clergy sexual abuse.”

The pastor was prosecuted for three counts of sexual abuse in the third degree, four counts of sexual exploitation by a counselor or therapist, and one count of engaging in a pattern or practice of sexual exploitation by a counselor or therapist. The pastor testified in his defense, maintaining all sexual activity was consensual, and he never provided mental health services. The jury convicted him of the five sexual exploitation charges and the court sentenced him to five years in prison.

Two of the victims sued the church and several elders on the following grounds: (1) negligently declined to invite mental health counselors and clergy sexual abuse experts to work with the congregation; (2) negligently blamed the women for their sexual exploitation, causing them severe emotional harm; (3) negligently investigated the pastor’s misconduct following the victims’ complaints; (4) negligently supervised and retained the pastor; and (5) made a number of defamatory statements against the victims.

The trial court dismissed all of the claims against the church and elders, and the victims appealed.

Negligent response to sexual abuse allegations

The plaintiffs allege the church (1) willfully disregarded the advice of professional counselors and denounced established and accepted mental health treatment concepts after it learned of the abuse; and (2) ignored any duty of care it had to the plaintiffs and instead blamed them for their actions, causing them emotional harm.

In rejecting this theory of liability the court observed:

Following the pastor’s resignation, the elders sought to help the congregation move forward and heal. The means by which they chose to counsel and advise the congregation is outside the purview of the government. The plaintiffs argue “a reasonable church would seek assistance for parishioners and not label victims ‘adulteresses.’” Yet, that is precisely the type of determination that the [First Amendment] Religion Clauses prohibit. The elders determined that certain speakers and mental health resources were outside of their faith. A court cannot dictate what teachings and services a church offers its parishioners. Nor can we disapprove of the elders deciding, pursuant to their duty as religious authorities, that the women would be best healed by simply confessing their “sins.” Because the plaintiffs’ first two negligence claims go to the very heart of religious decision-making, they are barred by the First Amendment.

Negligent investigation

The plaintiffs next claimed that the church was negligent in failing to conduct an investigation into the pastor’s conduct after the plaintiffs disclosed his abuse. The court upheld the trial court’s dismissal of this claim: “The elders were informed of the pastor’s criminal conduct on December 13, 2010. A few hours later, they accepted his resignation. While the church indeed owed a duty of care to the plaintiffs, it acted immediately and affirmed the pastor’s removal from his office, preventing him from further using his office to abuse [the victims].”

Negligent supervision

The court then addressed the victims’ negligent supervision claim: “The crux of a negligent-supervision claim is an employer’s failure to exercise ordinary care in supervising the employment relationship so as to prevent the foreseeable misconduct of an employee from causing harm to others. . . . Conduct that results in harm to a third person is not negligent or reckless unless there is a foreseeable likelihood that harm will result from the conduct.”

The church argued that negligent-supervision claims are barred by the First Amendment, as a court would be called upon to “adjudicate the reasonableness of a church’s supervision of a cleric,” which is an adjudication that necessarily requires inquiry into religious doctrine. The court disagreed: “The First Amendment does not categorically insulate religious relationships from judicial scrutiny, for to do so would necessarily extend constitutional protection to the secular components of these relationships . . . and impermissibly places a religious leader in a preferred position in our society.”

Defamation claims

The victims claimed that many of the statements made by the elders were defamatory. The church insisted that statements made by the elders were protected by a “qualified privilege.” The court acknowledged that “communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged.” The qualified privilege may be lost, however, “if the speaker abuses the privilege by speaking with actual malice or excessively publishing the statement beyond the group interest.” A statement is made with actual malice if the speaker “acted with knowing or reckless disregard of the truth of the statement.” In the clergy context, “a statement loses its privilege if made to individuals outside the congregation.”

The court concluded that none of the allegedly defamatory statements constituted defamation. For example, the victims alleged that the elders prepared and read the following statement to the congregation: “God calls it sin when someone who is married willingly has intimate relations with a person who is not their spouse and we have learned that other members rejected the manipulations of a man who never should have lead them astray.” The court concluded that this statement was not defamatory since it was qualifiedly privileged: “The elders were speaking to members of the church about the conduct of other members in their capacity as such. . . . We find that plaintiffs have not proven that the elders spoke with a knowing or reckless disregard of the truth.”

Similarly, during a home visitation with members of the church, an elder stated, “Our only wish is that the women would admit what they did was wrong and ask for forgiveness like [the pastor] did.” The court conceded that some may have found the statement offensive, but “since he was speaking as an elder to members of the church about whether other members should ask for forgiveness for their alleged sins,” the statement was qualifiedly privileged “as it is a “communication between members of a religious organization concerning the conduct of other members or officers in their capacity as such.”

What this means for churches

This case contains a number of important lessons for church leaders, including the following.

First, this case graphically illustrates the importance of establishing boundaries in the counseling activities of ministers. Amazingly, much of the illicit activities of the pastor in this case occurred in the basement of his private residence, behind a locked door with no one else present or even nearby. Church leaders should be alert to any counseling activities by clergy and other staff that are conducted in isolation.

Second, the court rejected many of the victims’ claims on the ground that they would impermissibly entangle the court in matters of church doctrine and governance, but it did allow the victims to pursue their negligent supervision claim against the church so long as the court would not be required to apply or interpret religious doctrine.

Third, the court recognized the so-called qualified privilege to defamation claims. Many courts have recognized this privilege, which shields some intra-church communications from defamation claims. The privilege applies to statements made to members concerning a matter of “common interest” among members. Such statements ordinarily cannot be defamatory unless made maliciously (meaning with a knowledge that a statement is false, or with a reckless disregard as to its truthfulness). This is why it is important for potentially damaging statements regarding matters of common interest to members (e.g., member discipline, employee terminations) be communicated only to members. The privilege does not apply if nonmembers are present. Bandstra v. Covenant Reformed Church, 913 N.W.2d 19 (Iowa 2018).

Court affirmed Youth Pastor’s 40-year Sentence for predatory sexual assault

The defendant, despite his lack of a criminal history and his confession and remorse, was sentenced to a combined sentence of 40 years in a state penitentiary.

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

An Illinois appeals court affirmed a youth pastor’s prison sentence of 40 years for predatory sexual assault of two 12-year-old girls.A youth pastor (the “defendant”) engaged in grooming behavior with two 12-year-old girls that culminated in sexual contact.

Victim 1

The grooming behavior with victim 1 included numerous “love letters” and emails. Sexual contact occurred during “Bible quiz” tournaments at three churches. Eventually, the victim informed her parents of the defendant’s conduct, and the parents informed the police. Several police officers executed a search warrant on defendant’s apartment and seized a laptop computer. The defendant’s wife later gave the officers a second laptop computer. The computers were subjected to forensic analysis, and images of child pornography were found. One computer had almost 14,000 images and the other computer had over 15,000 images.

The defendant informed the police that he met one of the victims at church and their relationship “grew from there.” The defendant said that his relationship with the victim eventually became inappropriate, but that was not his intention in the beginning. He stated that he developed a “spiritual mentorship” with the victim and that he “had a deep desire pretty much his whole life to be someone’s hero, someone’s leader, helping them in all facets of life.” Defendant said that the victim “attached herself” to him and looked up to him, and he took advantage of that.

The trial court sentenced defendant to 21 years’ imprisonment. In support of the sentence, the court found that the offense threatened serious “psychological, developmental, and emotional harm to the victim.” The court also considered that defendant was in a position of trust or supervision and that the offense occurred in a place of worship. The court also found it relevant that defendant destroyed some evidence upon learning that his relationship with the victim had been exposed. The court stated that the evidence showed that defendant was “clearly sexually attracted to preadolescent females” which it concluded “could be a propensity for future offenses.” The defendant asked for a lighter sentence based on a lack of any prior history of criminal conduct, and the fact that he pled guilty and accepted responsibility for his actions. The appeals court affirmed the 21-year sentence, finding that it was reasonable.

Victim 2

Victim 2 was a 12-year-old girl whom the defendant had groomed much like victim 1, including with multiple letters and emails expressing love and devotion. As with victim 1, the grooming culminated in sexual contact. The defendant was charged with four counts of predatory criminal sexual assault of a child. He pled guilty to one count, and was sentenced to 19 years in prison. The state appeals court affirmed this sentence, and rejected the defendant’s request for a lighter sentence.

What this means for churches

There are several lessons to be learned from these two cases, including the following.

First, they illustrate the serious consequences associated with child sexual abuse. The defendant, despite his lack of a criminal history and his confession and remorse, was sentenced to a combined sentence of 40 years in a state penitentiary.

Second, these cases present textbook cases of “grooming” behavior by pedophiles. The defendant targeted the two victims by showering them with attention and expressions of affection in countless letters and emails. The takeaway lesson for church leaders is the importance of recognizing grooming behavior by youth and children’s ministers and lay volunteers and taking steps to promptly expose and stop it.

Third, most of the defendant’s romantic communications with the victims were by email. It is entirely inappropriate for youth and children’s pastors and lay teachers and volunteers to communicate via social media or email with minors. Such behavior should be unequivocally prohibited by church policy, and violators should be removed immediately. Church leaders should check with the local public school district to see what policy it has adopted regarding communications by teachers with minors via email and social media. In many if not most cases, they will find that the school district has adopted a zero tolerance policy. People v. Lawrence, 2018 IL App (3d) 160004 (Ill. App. 2018).

Editor’s note: Church Law & Tax offers various resources for reducing the chance of a child or teen being harmed in your ministry, including the Reducing the Risk training program and the Youth Ministry in the #MeToo Era.

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