Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Legal Developments

Six-Year Sentence for Youth Pastor Who Engaged in Sexting with a Member of His Youth Group

When social media communications evolve into “sexting,” this can expose the adult participant to felony criminal liability.

Richard R. Hammar, Attorney, CPA
Bio

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 Virginia court affirmed a six-year prison sentence for a youth pastor who had engaged in “sexting” with a member of his youth group.

A 14-year-old girl (the “victim”) sought out the youth pastor (the “defendant”) of her church for counseling. The two began to communicate via text message and later through Snapchat, an image messaging mobile phone application in which a user can send a photograph or text message with a set time to expire. The receiving user can only view the text message or photograph for one to ten seconds before the image or text message expires and is automatically deleted from the mobile phone. Via Snapchat, the victim sent the defendant a nude picture of her upper body, and in return, the defendant sent her a nude picture of himself. They also sent each other videos in which the defendant was nude and the victim’s upper body was nude, and engaged in numerous email conversations.

The relationship eventually came to light and the defendant was prosecuted and convicted, after a jury trial, for using a computer to solicit a minor and taking indecent liberties with a child. He received a sentence of six years of incarceration. The defendant appealed his conviction claiming that there was no physical evidence of guilt. The victim testified that she had received the photographs via Snapchat, and that at the time she and the defendant were exchanging Snapchat messages, the application deleted photographs shortly after they were sent and they could not be saved. As a result, because the pictures were sent with Snapchat, the photographs she saw in court were not actually the pictures that were sent, but were just “similar.” She further testified that the pictures introduced in evidence at the defendant’s trial were a fair and accurate representation of the pictures sent to her. The trial court admitted the photographs, noting that the victim had affirmed that the pictures were a fair and accurate representation of the photographs sent to her by the defendant. A state appeals court affirmed the defendant’s conviction.

What this Means for churches

In many states the transmission of sexually explicit text messages (“sexting”) via a cellphone or other electronic device constitutes a crime. Several courts have addressed the issue of criminal liability of pastors for engaging in sexting. Consider the following examples:

EXAMPLE A pastor was convicted of several sexual offenses involving his sexual solicitation and molestation of a minor, and sentenced to a minimum prison term of 186 years. One of his offenses was “contributing to delinquency of a minor,” which was based in part on several sexually explicit text messages (“sexting”) that the pastor sent to the minor on his cellphone. 2010 WL 10409 (N.C. App. 2010).

EXAMPLE A youth pastor (the “defendant”) was sentenced to five years in a state prison as a result of various sexual offenses with a minor female (the “victim”). The victim had sought out the defendant for counseling as a result of her depression and suicidal thoughts that stemmed from an incident of sexual abuse which occurred when she was 9 or 10 years old. A sheriff came upon the defendant and victim parked off a gravel road in a rural area at night. The defendant claimed he was parked in a remote area because he was trying to get a signal on his cellphone. The sheriff told him “it wasn’t smart to be out on a gravel road parked like that with a youth in his vehicle,” and he told him to “use his head.”

The sheriff later informed the victim’s father about what he had seen, and the father instructed the defendant to have no further contact with his daughter by cellphone or text message. A few weeks later the sheriff again came across the defendant and the victim in a car parked along a secluded farm road. The defendant claimed that he was counseling the victim regarding an incident of sexual abuse that had occurred several years earlier. The sheriff again informed the victim’s parents.

The defendant was later charged with several sex offenses. An investigation by the sheriff’s office uncovered text messages between him and the victim containing strong sexual content. His cellphone contained a partially nude image of the victim, and he sent a partially nude image of himself to the victim via a text message. This evidence was used in prosecuting the defendant for violating a state law making it a criminal offense for the sexual exploitation of a counselee by a counselor. The court found that the defendant, as a youth counselor engaged in counseling the victim, was a “counselor” and it sentenced him to a prison term of five years. State v. Duvall, 776 N.W.2d 301 (Iowa App. 2009).

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).

EXAMPLE A youth pastor (the “defendant”) sent several sexually explicit emails to a female adolescent in the church’s youth group. The victim told her mother about the emails. After reviewing the messages, the mother contacted the police. A police officer questioned the defendant about the emails. The defendant admitted that he sent the emails and expressed deep remorse for his actions. In the transcript of this conversation, the defendant stated that he had made “a very, very poor decision to engage in these email conversations with her, uh, and allowed myself to get caught up in things of a sexual nature.” The state charged the defendant with six counts of communicating with a minor for immoral purposes under a state law making it a class C felony for a person to communicate with a minor for immoral purposes through electronic communication. At trial, the defendant testified that he did not remember sending any of the emails. The jury didn’t believe him, and found him guilty on all six counts. The trial court sentenced the defendant as a class C felon to the statutory maximum of five years per count. State v. Haack, 2010 WL 4216705 (Wash. App. 2010).

EXAMPLE A volunteer youth leader (the “defendant”) in a local church was sentenced to eight years in prison on each of two counts of sexual assault in the first degree and contributing to the delinquency of a minor. At trial, the defendant’s former husband testified that he suspected his wife of having an affair. He set up surveillance in his house and then left for the weekend. When he returned and retrieved the hidden device, he watched the videotaped recording of his wife and a 17-year-old male consuming alcohol and having sexual relations. He gave the police this recording, which led to the defendant’s arrest and prosecution. Among the several items of evidence introduced at trial by the prosecution were several sexually explicit text messages from the defendant that the mother of one of the victims found on her son’s cellphone. Cluck v. State, 2009 WL 1362863 (Ark. App. 2009).

Any social media contacts (e.g., email, Facebook, photo sharing) between adult youth workers and minors are inappropriate. Such communications should be banned. Any need to communicate with minors should be done through their parents. When social media communications evolve into “sexting,” this can expose the adult participant to felony criminal liability. Hillman v. Commonwealth, 811 S.E.2d 853 (Va. App. 2018).

Legal Developments

A Church Could Be Liable for Negligent Hiring and Supervision

Negligent supervision claims are not premised on notice of a worker’s misconduct or the potential for it. Liability is based on a duty to supervise that . . . exists independently of what was known or should have been known about the worker himself.

Richard R. Hammar, Attorney, CPA
Bio

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 10-09.1. 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 reversed a trial court’s dismissal of a lawsuit claiming that a church was liable on the basis of negligent hiring and negligent supervision for the rape of a 14-year-old girl by the church’s youth pastor.

A married couple (the “plaintiffs”) sued their church and its lead pastor for monetary damages resulting from the rape of their minor daughter (the “victim”) by the church’s youth pastor. The plaintiffs’ lawsuit, over 70 pages in length, claimed that from 2011 through 2013 the youth pastor abused his position through various forms of sexual misconduct toward female minors who were members of the church’s youth and confirmation groups. The lawsuit claimed that the youth pastor subjected the victim to persistent sexual advances before raping her in June 2013.

Background

The church had adopted a “Safe Church Policy” (SCP) endorsed by its denomination. The SCP required that (1) all employees and volunteers undergo a background check prior to working with minors, (2) “at least two adults be present to supervise any minor youth or child activities,” and (3) “incidents of child abuse observed by employees or volunteers be reported to the Illinois Department of Children and Family Services.”

The plaintiffs alleged that when the youth pastor was hired his father held a senior position within the denomination, and that in hiring the youth pastor the church relied on the recommendation of his father and performed no further investigation into his background or fitness for the position. The plaintiffs’ lawsuit alleged that the church “failed to conduct even a basic, cursory Google search, or any investigation into the background and fitness of [the youth pastor] in violation of church policy.” They further alleged that “a basic, cursory Google search into the online public presence of the youth pastor” would have revealed his inappropriate activities which included posting sexually explicit images of his anatomy (“sexting”).

The plaintiffs cited several examples of misconduct directed toward multiple female minors who were members of the youth or confirmation groups at the church. For example, the youth pastor is alleged to have used his cellphone and a church computer to (1) store pornographic images of underage female members of the youth group, (2) store pornographic images of himself and send them to underage female members, and (3) “friend” underage female members on social media sites and “discuss their romantic relationship or sexual relationships,” in violation of the Safe Church Policy.

The plaintiffs alleged that the youth pastor’s misconduct toward underage female members of the youth and confirmation groups also included in-person misconduct. The plaintiffs alleged the following examples of misconduct “commonly” or “habitually” engaged in with underage female members: “(1) making inappropriate physical contact, (2) making sexually suggestive remarks and engaging the members in sexually-charged banter and games, and (3) showing the groups videos with inappropriate sexual content, including pornographic content.”

The plaintiffs alleged that the victim was the target of a campaign of “grooming” by the youth pastor. According to the plaintiffs, the grooming “escalated” during the summer of 2012, when the victim was 14 years old and the youth pastor was 30 years old. He psychologically manipulated the victim to increase her trust and emotional dependence on him. He “encouraged her to spend large amounts of time telling him about intimate details of her life.” He “stressed to her the importance of and necessity for secrecy and cautioned her repeatedly against telling anyone about the ‘relationship’ between them.”

The plaintiffs alleged that the youth pastor used the church’s computer equipment to communicate with the victim. He sent her sexually explicit pictures and videos, including some of himself. He also “gradually encouraged and convinced the victim to do the same.”

Ultimately, the youth pastor began making inappropriate physical contact with the victim in isolated areas of the church building, including areas of the basement, vacant classrooms, the sacristy, and the audio-visual booth. These incidents culminated in the youth pastor raping the victim.

The lawsuit claimed that the church and its pastor were responsible for the youth pastor’s acts on the basis of negligent hiring of the youth pastor, and negligent supervision. In support of their allegation of negligent hiring the plaintiffs claimed that had the church searched the youth pastor’s online activity prior to hiring him, it would have discovered that he maintained profiles on several websites that featured adult or child pornography. In support of their negligent supervision claim, the plaintiffs claimed that the church and its lead pastor failed to properly supervise the youth pastor, and “knew or should have known” of his history of misconduct prior to his rape of the victim.

The trial court dismissed the lawsuit. As to the negligent-hiring claim, the court reasoned that an online search of the youth pastor’s name would not necessarily have disclosed his activity on pornographic websites since he conducted that activity under a pseudonym. As to the negligent supervision claim, the court found nothing in the lawsuit to indicate that either the church or its lead pastor was or should have been aware of the youth pastor’s malfeasance prior to his sexual assault of the victim. The plaintiffs appealed.

Negligent hiring

The appeals court began its ruling by observing:

To state a cause of action for negligent hiring, the plaintiff must plead facts establishing that (1) 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) this particular unfitness was known or should have been known at the time of the hiring, and (3) this particular unfitness caused the plaintiff’s injury.

The court noted that there was no dispute that the church “should have conducted a reasonable background check on the youth pastor before hiring him. There is also no dispute that a reasonable background check would have included a reasonable search of his activity as it bore upon his fitness for the position of youth director. The dispute on appeal concerns what was feasible for the church to learn about him from an online search of the kind that the plaintiffs alleged the church should have done prior to hiring him.”

The court noted that the plaintiffs alleged that “a basic, cursory Google search into the online presence of the youth pastor would have revealed his activity, which included posting public photos of his own genitalia on numerous pornographic websites.

But the church insisted that there were two problems with the plaintiffs’ negligent hiring claim: First, the plaintiffs did not “explicitly allege that the youth pastor was visiting the [pornographic] websites before he was hired.” A negligent-hiring claim “implies, indeed depends on, the fact that the youth pastor maintained such objectionable online profiles before his hire.”

Second, the church claimed that even if the youth pastor engaged in inappropriate online behavior prior to his hire, the plaintiffs “have failed to establish how the church could have become aware of such behavior before hiring him. The church notes that the youth pastor is alleged to have engaged in inappropriate online behavior under the pseudonym ‘BluesGod88,’ and the church questions how it could have become aware of the activity prior to his hire when it did not know his pseudonym.” The plaintiffs alleged, however, that a basic, cursory Google search” would have revealed the youth pastor’s profiles on pornographic websites.” The court concluded: “From this allegation we draw the reasonable inference that a search under the youth pastor’s given name would have revealed his pseudonym (which in turn would have led the church to the profiles on pornographic websites). Whether the search would indeed have revealed that information is a question of fact” that should have been answered by the jury, and therefore the trial court erred in dismissing the negligent hiring claim.

Negligent supervision

In dismissing the plaintiffs’ negligent supervision claim, the trial court stressed that there was no evidence that either the church or its lead pastor “was or should have been aware of the youth pastor’s malfeasance prior to his sexual assault of the victim.” In reversing this ruling the appeals court observed: “Negligent supervision claims are not premised on notice of a worker’s misconduct or the potential for it. Liability is based on a duty to supervise that . . . exists independently of what was known or should have been known about the worker himself.” As a result, under Illinois law, negligent supervision “does not have as an essential element that the defendant have notice of the unfitness of the party that caused the harm.”

The plaintiffs claimed that when the youth pastor exploited youth group members in the absence of another adult, the church violated its Safe Church Policy that mandated that “at least two adults be present to supervise any minor youth or child activities.” The plaintiffs alleged that the church violated the two-adult policy by allowing the youth pastor to conduct youth activities with no other adult present and that he used that unsupervised access to abuse the victim and other youth. The court concluded that the church’s adoption of the SCP imposed on it a duty of supervision to ensure that the policy was being implemented, and that the church violated this duty. The court observed:

It is, in our view, generally foreseeable that abuse will occur in programs providing adults with unsupervised access to children, for it is well known that pedophiles are drawn to such opportunities, in churches and elsewhere. . . . Public policy in Illinois favors the protection of children. The statutes of this state also manifest “a specific policy which favors, in particular, the protection of children from sex offenders.” In deference to this policy, we hold that the church had a duty of care requiring it to enforce the SCP’s two-adult policy, regardless of its actual or constructive knowledge of its youth pastor’s predatory potential. . . . The church obviously fashioned the two-adult policy in the belief that even the most apparently virtuous adult should not be left alone with children, because it is generally foreseeable that abuse will occur in such a setting. . . . We hold that the common law of this state, whose public policy strongly favors the protection of children, required the church to enforce the two-adult policy. For these reasons we reverse the trial court’s dismissal of the negligent supervision claim.

What this means for churches

This case contains a number of important lessons, including the following:

  1. This case demonstrates the importance of following a church’s employee and volunteer screening policies even for persons well-known to church leaders. The church did not think it was necessary to screen the youth pastor because his father was a respected employee of a denominational agency. That was a big mistake.
  2. This is one of a few cases that has addressed the need to research applicants’ social media and internet profiles. The court concluded that the church “should have conducted a reasonable background check on the youth pastor before hiring him. There is also no dispute that a reasonable background check would have included a reasonable search of his activity as it bore upon his fitness for the position of youth director.” Such a search should have included a search of the youth pastor’s social media and internet profile if doing so was feasible given the fact that the youth pastor used a pseudonym.
  3. The court affirmed the fundamental principle that a negligent hiring claim requires evidence of an applicant’s misconduct prior to the date of hire. A negligent-hiring claim “implies, indeed depends on, the fact that the youth pastor maintained such objectionable online profiles before his hire.”
  4. The church’s Safe Church Policy mandated that “at least two adults be present to supervise any minor youth or child activities.” The plaintiffs alleged that the church violated the two-adult policy by allowing the youth pastor to conduct youth activities with no other adult present. The church’s policy illustrates an important point. While two-adult policies are essential, churches need to be careful in drafting them so that they do not impose unrealistic and unattainable burdens on the church. The two-adult policy in this case required that “at least two adults be present to supervise any minor youth or child activities.” But did this go too far? Every public elementary and secondary school has one teacher in a room with dozens of minors (in some cases a second adult, such as a teacher’s aide, may be present some of time). Note that public schools are agencies of the state, and so their policies and practices reflect the authority of the state. The point is that if the state deems one adult to be adequate in a classroom with dozens of minors, then is it necessary for churches to adopt a more stringent standard requiring two or more adults to be present at all times in the presence of one or more minors?
  5. The court perpetuated the confusion over the term “pedophile.” It observed, with reference to the youth pastor, that it is “generally foreseeable that abuse will occur in programs providing adults with unsupervised access to children, for it is well known that pedophiles are drawn to such opportunities, in churches and elsewhere.” But the youth pastor was not a pedophile, a term that is limited to persons having a sexual preference for prepubescent minors. The victim in this case was not such a person. The distinction is important, since pedophiles represent a significant risk to churches. The FBI profile on pedophiles indicates that this condition is associated with several characteristics including (1) promiscuity; (2) predatory behavior; (3) incurability; and (4) high recidivism rates.
  6. The court concluded that the church had a duty to implement and enforce its policies, including the two-adult rule, and that a failure to do so constituted negligent supervision. This aspect of the court’s ruling underscores the importance of church leaders being familiar with church policies and taking steps to ensure that they are being followed.
  7. This case is noteworthy for one additional reason. The trial court dismissed the plaintiff’s allegation that the church’s failure to monitor and enforce its two-adult policy amounted to “willful and wanton conduct.” But the appeals court reversed this ruling and allowed the plaintiff to proceed with this theory of liability. Church leaders should be familiar with the concept of willful or wanton conduct, and its corollary gross negligence, because of the following possible consequences: (1) the assessment of punitive damages which are not covered under any insurance policy; (2) the possible exclusion of insurance coverage for willful and wanton acts; and (3) board members lose their limited immunity from liability under state and federal law.

    8. Doe v. Coe, 103 N.E.3d 436 (Ill. App. 2018).

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Legal Developments

Statute of Limitations Bars Sexual Abuse Lawsuit

Woman’s lawsuit seeking monetary damages for the sexual abuse she suffered at the hands of a youth ministry volunteer over several years was barred by the state statute of limitations

Richard R. Hammar, Attorney, CPA
Bio


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 18th 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.

An Illinois court ruled that a woman’s lawsuit seeking monetary damages for the sexual abuse she suffered at the hands of a youth ministry volunteer over several years was barred by the state statute of limitations.

A 5-year-old girl (the “victim”) and her family began attending a church. The victim became involved in the church’s children’s ministry. Beginning at the age of 11 or 12, she attended an overnight church camp in Wisconsin for approximately two weeks every summer.

A church member (the “defendant”) was a leader at the church in charge of the high school youth group. She met the victim when she was 12 or 13, but the two did not have regular contact until the victim joined the high school youth group when she was 14 years old. At that time, the victim saw the defendant at youth group meetings once a week, at church on Sundays, and for sporadic extracurricular activities.

In the summer of 1996, when the victim was 16, she attended an overnight church camp, where she was one of several youth group leaders for the younger members. The defendant was in charge of the leaders.

The defendant told the victim during a series of conversations that she was interested in pursuing a “discipleship” or mentoring relationship with her. The victim understood this to mean that the defendant wanted to read the Bible together and act as her teacher and spiritual adviser. The victim was aware that the defendant previously had a mentoring relationship with another youth group leader. The victim had seen the other leader in bed with the defendant at camp in the summer of 1993 or 1994, when the victim was 12 or 13. After the victim agreed to the discipleship, the defendant began lying in bed with her, cuddling her, and giving her back rubs.

When the victim returned from camp in August 1996, the defendant invited her to her parent’s house to watch a movie, at which time the defendant fondled her. The victim cried and pulled away, and the defendant, also crying, apologized. The victim later testified that she felt ashamed, surprised, and scared because she knew the touching was wrong. Although the defendant assured the plaintiff that it would not happen again, a month later, in the defendant’s car, the defendant moved her hand up the victim’s leg and kissed her. Again, the victim cried and the defendant apologized. From September to December 1996, the abuse occurred on at least ten occasions. In early 1997, the victim claimed that the defendant “sexually penetrated” her in the defendant’s parent’s house, which the victim knew was inappropriate. Over the next several years, the defendant continued to abuse the victim, often taking her to hotels when the defendant’s parents were home.

The victim claimed that the sexual abuse became less frequent when she began college and stopped altogether in 1999 when she was 20, because she “couldn’t take it anymore” and felt the defendant was no longer interested in being her spiritual adviser, but was using her for sex. At no point did the victim feel that her relationship with the defendant was consensual.

The victim did not report the defendant’s behavior while it was occurring because she was aware that when another minor made allegations against the defendant, the minor and her family had to leave the church, while the defendant remained. In addition, the defendant threatened to kill herself if the victim told anyone about the abuse.

In 1999, after the abuse had stopped, the victim received a phone call from a woman who asked her if the defendant ever tried to touch her inappropriately. She later called the other woman’s cousin and told her about the defendant’s abuse toward her. At around this same time, the victim began experiencing chronic anxiety, sadness, and nightmares. However, she claimed that she did not connect these feelings to the abuse until more than a decade later, when in 2012 she told her husband what she had suffered and began therapy. Her therapist diagnosed her with post-traumatic stress disorder arising out of the abuse.

The victim sued the defendant alleging negligence, battery, and emotional distress. A trial court dismissed the lawsuit on the ground that the statute of limitations had expired. The victim appealed.

The appeals court’s ruling

The appeals court quoted the relevant statute of limitations:

An action for damages for personal injury based on childhood sexual abuse must be commenced within 2 years of the day the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse.

The statute further provides that the limitations period does not begin to run until the victim of the abuse is 18 years old.

The defendant argued that the victim knew of the abuse and knew or should have known that her injury was caused by the abuse no later than 1999, shortly after she ended her relationship with the defendant. Therefore, the limitations period expired two years later in 2001. The court agreed:

First, the victim does not allege her memories of the abuse were repressed. Further, while she, too, denied awareness of the fact that the contact between her and the defendant was criminal, she admitted that she knew the contact was “wrong” and “inappropriate” at the time it was occurring. She elaborated that she did not believe her encounters with the defendant amounted to a consensual dating or sexual relationship. It is well-settled that under the discovery rule a plaintiff need not appreciate the criminality of the conduct at issue to be charged with knowledge that her injury was wrongfully caused. Finally … the victim, at the age of 20, informed a third party that the defendant had been “sexually inappropriate” with her. Indeed, she had considered reporting the defendant’s conduct earlier, but decided against it after remembering that another girl whom the defendant mentored made similar allegations that the defendant “inappropriately touched” her, only to end up leaving the church with her family. The victim also recalled that her youth group leader at the time ordered the members not to discuss those allegations. Taken together, and contrary to her argument on appeal, the victim’s testimony establishes that she knew of the defendant’s abuse at the time it occurred … .

The court then addressed the central issue of when the victim knew that her injuries were caused by the sexual abuse, and it concluded that the victim’s lawsuit itself, along with her own testimony, contained ample evidence that she was aware of the sexual abuse as it was occurring:

In the victim’s complaint, she states a claim for … infliction of emotional distress against the defendant, alleging that “as a direct result of [her] conduct” she “suffered and will continue to suffer … severe and permanent emotional distress, physical manifestations of emotional distress, embarrassment, and loss of self-esteem, humiliation and psychological injuries.” All these are injuries the victim testified she suffered immediately following the abuse. For example, she testified that after the defendant fondled her, she began crying and felt shame, fear, and embarrassment. These same reactions and feelings occurred whenever the defendant abused her. To be sure, she may not have realized that the persistent nightmares and ongoing emotional problems she experienced in her 20s were likewise attributable to the abuse, but it is not necessary that a plaintiff recognize the full extent of his or her injuries before bringing suit. Thus … the evidence reveals that the victim actually knew that a portion of her injury was caused by the abuse at the age of 16. And pursuant to [the statute of limitations] when she reached the age of 18, the statute of limitations began to run. The statute expired two years later, in 1999, well before she filed her complaint against the defendant in 2013.

Editor’s note: In August 2017, Illinois passed a bill that eliminated the statute of limitations for child sex abuse allegations.

What this means for churches

Most states have adopted some version of a “discovery rule” for adult victims of childhood sexual abuse. These laws provide that the deadline for filing a lawsuit for childhood sexual abuse does not begin to run until a victim “discovers” his or her emotional damages and realizes that they were caused, to some extent, by the abuse. Such a law allows some adult survivors of child sexual molestation to sue many years (and in some cases decades) after their 18th birthday, claiming that they had not “discovered” the link between their emotional damages and the abuse until the recent past. But this case, and many others reported in this newsletter, demonstrate the difficulty child abuse survivors have of invoking the discovery rule. In this case, the court concluded that it was the victim’s own words, in her lawsuit and testimony, that defeated any reliance on the discovery rule. Her own words illustrated that she knew the defendant’s acts were both wrong and harmful, thereby negating the core requirement for invocation of the discovery rule. Doe v. Carlson, 71 N.E.3d 806 (Ill. App. 2017).

Legal Developments

Judge’s Severe Comments During Youth Pastor’s Trial Ruled Insufficient Grounds to Reverse Conviction

Court fairly considered all of the evidence presented at trial and, despite its harsh rhetoric, imposed a sentence significantly under the maximum aggregate term that defendant faced.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Harsh rhetoric employed by trial judges in condemning the behavior of child molesters does not necessarily constitute grounds for reversing a conviction.

An Illinois appeals court ruled that a trial judge's harsh comments to a jury concerning child molesters in the prosecution of a youth pastor who had sexually molested minors in his church was not grounds for a reduced sentence or new trial.

A church's youth pastor (the "defendant") sexually assaulted two adolescent boys while they were spending the night in the church's parsonage. The defendant allowed his victims to spend the night with him in his house, which was property owned by the church. He proceeded to perform sexual acts on them in that house before taking them to church the next morning. The defendant admitted that "in both cases I destroyed their trust and friendship and broke the promises that I made to them, their families, the church, the community and to my friends and family." The defendant apologized profusely to the victims, their families, his former congregation, members of the community, and his own family.

As part of the defendant's sentencing, the court asked parents to complete a victim's impact statement. The mother of one of the victims prepared a statement which provided, in part: "You stole our son from us. You stole his innocence, his faith, his trust, his will to live … . When he met you and we found out you were a minister we thought you were going to be good for him, teaching him about God's love. Instead you took it all away from him."The defendant was charged with various felony counts, and was found guilty by a jury and sentenced to 30 years in prison. Separately, the defendant faced prosecution for possession of child pornography based on numerous images of child pornography that he had downloaded onto his church computer.

The judge sentenced the defendant to 30 years in prison, a sentence less than the maximum allowed by law. His remarks, which were directed to the defendant, spanned 13 pages, and provided, in part:

These are crimes … of outrage and I think you can imagine the sentence that might be imposed on you if they left you tied to a post uptown and put above it some of the pictures I saw, some of the despicable filth that you left on your church computer. I don't think it would take too long for the good citizens of this area to deal a punishment on you much more severe than my own. And I have struggled mightily to keep my own emotions as a man, as a church goer, as a father in check and I believe that I have done so, but you need to understand that society's worst opprobrium is reserved for people who commit crimes like this … .

These victims, these boys all came to you through church. The offenses were committed on church property. It happened more than once. They occurred while you were a minister. It is clear that you used the cloak of religion to gain access to your victims and to gain the trust of them and their parents … .

Ordinarily we don't have religion in court, that's not a rule that I have made, but it's the law. It does, however, seem impossible to avoid it in this case. And I have always thought it ironic that the Bible, which is really a book of laws, is the only law book I know of that's not allowed in court. I have considered these letters … but I keep coming back to what you did.

You defied 2 churches, 2 houses of the Lord with your depravity and you cast a pall on churchmen everywhere. You have subjected now the church to a lawsuit from one of the most outstanding plaintiff's tort lawyers in Illinois. They want over a million dollars and you brought that on your church that you profess to love. How many children now will be kept out of church and out of youth group because their parents are afraid they are going to be molested? How much harder is it going to be for ministers to gain the trust of parishioners and children? And you have apparently driven at least one of these boys out of the church and away from God, that's according to the victim statement, and that's your fault … .

You might have started out in the church … but I think perversion is your true religion and you are its high priest and there's been enough sacrifice of young men on the altar of depravity by you… . There is nobody worse than a desecrater and a betrayer, especially a minister who does it, who in his actions drives people from God and that's what you did.

The defendant appealed, claiming that the trial court violated his constitutional rights by exhibiting a personal and religious bias against him. In support of his claim, the defendant cited numerous examples of the court's statements at sentencing. He claimed that these statements, including the court's repeated references to church and religion, exemplified the "judge's active, personal or religious animosity, hostility, ill will or distrust toward the defendant." The court, in rejecting the defendant's challenge, concluded:

The trial court's remarks in the present case do not evince any animosity, hostility, ill will, or distrust toward defendant. The court condemned defendant and his actions in the strongest possible terms. The court described the outrage felt in the community stemming from defendant's crimes. Still, the record demonstrates that the court fairly considered all of the evidence presented at trial and, despite its harsh rhetoric, imposed a sentence significantly under the maximum aggregate term that defendant faced. Defendant was convicted of using his position as a youth minister to engage in sexual contact with two young boys. These crimes warranted harsh criticism from the trial court. We hold that harsh criticism, based on the particular facts of a defendant's case, does not constitute any sort of evidence of prejudice derived from personal bias.

Furthermore, the court's references to religion did not reflect any religious animosity or ill will toward defendant. To be sure, the court's repeated references to religion and church are more than is commonly seen in a sentencing hearing. However, these references were plainly invited by defendant. After calling six clergy members to testify in mitigation, defendant's lengthy [presentencing] statement was ripe with religiosity. Having invited a sentencing hearing teeming with religion, defendant may not now argue that the trial court's references to that topic deprived him of due process. More importantly, a number of factors cited by the trial court in aggravation necessarily related to religion, namely that defendant used religion to ensnare his victims, that defendant's crimes were committed on church property, and that child pornography was found on a church computer. On the facts of this case, it would have been virtually impossible for the court to avoid mentioning church or religion in sentencing. The trial court simply could not reference those factors without referencing religion. Defendant's claims that the trial court exhibited personal or religious bias against him are thus affirmatively rebutted by the record.

What this means for churches

This case is instructive for many reasons, including the following.

First, it illustrates the importance of the "two-adult rule" in church programs and activities. That is, a youth or children's worker should never be alone and unsupervised with one child. Church leadership should have established such a rule, and made it applicable to all church property, including the parsonage where the youth pastor resided, and activities. All pastors and lay youth workers should have been apprised of this rule, and instructed to report any violations.

Second, churches should never allow children or adolescents to spend the night with a pastor or lay youth worker in a private residence, parsonage, or hotel room. The risk of inappropriate conduct is too great. Some churches relax the rules when other adults are present, but this seldom helps since continual monitoring in such cases is difficult, if not impossible. Many minors have been sexually molested under these circumstances because the other adults are sleeping or are in other areas of the home.

Third, the defendant copied significant amounts of child pornography on his church computer. Church leaders need to proceed with caution when contemplating searches of church-owned computers used by church staff. The United States Supreme Court ruled in 2010 that employees have a legitimate expectation of privacy in their workspace and employer-provided computer. City of Ontario v. Quon, 2010 WL 2400087 (U.S. 2010). But the Court added that inspections of church-provided computers used by employees may be legally justifiable if based on a "legitimate work-related purpose" and the search is not "excessively intrusive in light of that justification." Church leaders are advised to consult with legal counsel before embarking on the inspection of computers. People v. Rademacher, 59 N.E.3d 12 (Ill. App. 2016).

Legal Developments

Court Dismisses Negligent Supervision Lawsuit in Student Sexual Abuse Case

Case illustrates the importance of “foreseeability” in finding a school or church liable on the basis of negligent supervision for acts of child molestation.

Richard R. Hammar, Attorney, CPA
Bio


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

A Minnesota court dismissed a lawsuit claiming that a school was responsible, on the basis of negligent supervision, for a coach's sexual abuse of a minor student.

In the fall of 2009, an adult male (the "defendant") was employed as a football coach and weight room supervisor at a public high school. Prior to hiring the defendant, the school district interviewed him, checked his references, and conducted a criminal background check. During the hiring process, the school district did not discover anything that suggested he posed a risk to students.

When the defendant was hired, he received a copy of the school district's employee handbook, which contained policies regarding how employees should interact with students. One policy stated, "Sexual relationships between school district employees and students, without regard to the age of the student, are strictly forbidden and may subject the employee to criminal liability." The policy also prohibited employees from dating students, having sexual interactions with students, and committing or inducing students to commit immoral or illegal acts. The policy directed employees to "employ safeguards against improper relationships with students or claims of such improper relationships." The defendant acknowledged he knew during the fall of 2009 that the policy prohibited school district employees from dating or having sexual interactions with students.

A 13-year-old female student (the "victim") in the school's eighth grade met the defendant when he was coaching the eighth-grade football team. At that time, the victim was friends with football players on the team and would stop by and say hello to her friends at football games. The victim and defendant got to know each other better at the start of her ninth-grade year, as she continued to visit her friends on the ninth-grade football team that the defendant then coached.

After a football game in the fall of 2009, the victim borrowed the defendant's cell phone to call her parents for a ride home. When she got home, she used the caller ID feature of her home telephone to acquire the defendant's cell phone number and proceeded to initiate correspondence with him under a false identity. The victim used her personal cell phone to send the defendant text messages, pretending to be an adult woman interested in having a sexual relationship with him. After a week of exchanging text messages, the victim admitted to him that she was the person who was sending the text messages. The defendant was initially angry with her, but he soon resumed texting with her, even though he knew that she was a ninth-grade student. Over the following weeks, the two exchanged hundreds of text messages, many of which contained graphic sexual content. The defendant also emailed two explicit photographs of himself.

During this time period, the two saw each other in person mainly in the school weight room that the defendant supervised. While the two engaged in sexual touching on only one occasion, they continued to engage often in sexually explicit emails and text messages.

On November 17, 2009, the mother of another student contacted the victim's mother and told her that the defendant and victim had been exchanging sexually explicit text messages. The next day, that student told a school official about the defendant's inappropriate relationship with the victim. The school district called the police the same day to report the sexual abuse. The defendant was arrested, and his employment was terminated shortly thereafter. In 2011, he pleaded guilty to one count of fourth-degree criminal sexual conduct and two counts of solicitation of a minor to engage in sexual conduct.

In October 2011, the victim filed a complaint against the school district, alleging negligence and negligent supervision. The trial court dismissed both claims against the school, and the victim appealed.

The appeals court began its opinion by noting that "for purposes of a negligence claim, there is no general duty to protect another from harm, but a duty to protect arises if there is a special relationship between the parties and the risk is foreseeable." To prove negligent supervision "the plaintiff must prove (1) the employee's conduct was foreseeable and (2) the employer failed to exercise ordinary care when supervising the employee." Therefore, "to succeed on a claim of either negligence or negligent supervision, a plaintiff must prove that the risk in question was foreseeable."

In the context of negligence and negligent supervision claims, foreseeability means "a level of probability which would lead a prudent person to take effective precautions … . In determining whether a danger is foreseeable, courts look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility." Sexual abuse of minors, the court stressed, "will rarely be deemed foreseeable in the absence of prior similar incidents."

The victim argued that the existence of several "red flags" should have put the school district on notice that the defendant's sexual abuse of the victim was foreseeable. These red flags included:

  • While attending a football practice the victim shouted at the defendant, "I love you!"
  • On one occasion, the defendant was seen talking with the victim following a football practice in a school parking lot while they were "alone."
  • Another coach saw the victim using a computer in the weight room office while the defendant was away.
  • A weight room supervisor saw the defendant alone with an unknown "young girl" in the weight room on a Saturday morning when he was supervising the weight room.

The court concluded that these incidents failed to make the defendant's sexual contact with the victim foreseeable, and therefore the school was not guilty of negligence or negligent supervision:

Even viewing the record in the light most favorable to the victim, these alleged red flags were insufficient to raise a genuine issue of material fact as to whether the defendant's sexual abuse of the victim was foreseeable. Taken in context, the incidents she cites are not sufficiently similar to or indicative of sexual abuse as to give the school district notice that an inappropriate relationship existed between her and the defendant. First, the victim's "I love you" shout was a single statement by a teenage girl at a football practice, the defendant did not react to the shout, and the victim was instructed to leave the practice after she shouted. Second, as to the observation of the victim talking to the defendant in the school parking lot, the record indicates that they were not alone and that it was common to see coaches talking with students in the parking lot after sports practices. Third, the observation of the victim using a computer in the weight room office while the defendant was supervising other students in the weight room is not an objectively reasonable indicator of a potentially inappropriate relationship between them. Fourth, observations of the defendant and an unidentified young female alone in the weight room on a Saturday do not raise any reasonable inferences of potential or ongoing sexual abuse. Furthermore, there is no evidence that any school district employee observed physical contact or sexual conduct of any kind between the two.

What this means for churches

This case illustrates three important principles.

First, the case illustrates the importance of "foreseeability" in finding a school or church liable on the basis of negligent supervision for acts of child molestation. Foreseeability means knowledge of prior similar incidents or credible allegations indicating that the perpetrator could engage in such behavior. Conversely, if church leaders do have information suggesting that a person might engage in sexual assaults, then it may be liable for any future assaults on the basis of either negligent supervision or negligent retention.

Second, in concluding that the defendant's sexual relationship with the victim was not foreseeable, the court pointed to the fact that when he was hired, the school interviewed him, checked his references, and conducted a criminal background check. During the hiring process, the school district did not discover anything that suggested he posed a risk to students.

Third, the court dismissed the "red flags" that the victim claimed made the defendant's wrongful acts foreseeable. Doe v. School District, 873 N.W.2d 352 (Minn. App. 2016).

Legal Developments

Church Found Not Liable in Case of Pastoral Affair

Court concluded that the plaintiff failed to show sufficient evidence of any negligence by the church to warrant a trial.

Richard R. Hammar, Attorney, CPA
Bio


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

A Mississippi appeals court ruled that a church was not liable, on the basis of negligence or vicarious liability, for a pastor's sexual relationship with the wife of a counselee and church member.

A married couple were members of a church. In February 2011, the pastor began an extramarital affair with the wife that lasted for nearly a year. The husband (the "plaintiff") eventually learned of the affair and informed the church of it. Church staff met with the pastor that same day, and he voluntarily resigned his position as senior pastor.

On November 9, 2012, the plaintiff filed a lawsuit against the church claiming that it was responsible for the pastor's wrongful acts on the basis of (1) negligent hiring, retention, and supervision, and (2) vicarious liability. On December 9, 2013, the church filed a motion for summary judgment, alleging that the lawsuit should be dismissed as a matter of law.

After a hearing, the trial court entered an order on June 24, 2014, granting the church's motion for summary judgment. In its order, the trial court explained:

There has been no summary judgment evidence presented that the church knew or should have known that the pastor was unfit to serve as Senior Pastor or that he was prone to the activities complained of by [the husband]. Further, no evidence has been presented that the church knew or should have known of these actions by [the pastor] … . [The facts presented] cannot support any of the plaintiff's claims of liability against the church.

On appeal, the plaintiff argued that the trial court erred by granting summary judgment in favor of the church.

1. Negligent hiring, retention, and supervision

The plaintiff claimed that the trial court erred in granting summary judgment on the issues of negligent hiring, retention, and supervision. He argued that the church had been negligent in two ways:

By failing to properly perform a background search on the pastor prior to hiring him. By expressing no concern that the pastor had failed to disclose his position at the church where he was most recently employed.

The plaintiff asserted that the church, as a result of its limited background search, failed to discover that the pastor had a prior alcohol-related arrest and had previously committed adultery. He further claimed that the church failed to have in place any employee policies, any counseling policies, any policies regarding employee sexual misconduct, and any employee handbook, and wholly failed to supervise the pastor.

The court mentioned the following precautions taken by the church in hiring the pastor:

The church formed a pastor search committee. A state denominational agency provided the pastor search committee information and direction on conducting a pastor search, including but not limited to information on background searches of prospective pastors. The pastor search committee reviewed multiple résumés prior to unanimously agreeing to pursue the defendant pastor. The pastor had held three prior pastoral positions. The pastor search committee checked all references on the pastor's résumé, plus 17 additional references. The church performed a background check on the pastor through Safe Hiring Solutions and FreeCreditReport.com, specifically seeking information on his criminal, sexual, driver's license, and credit reports. The church claimed that no negative report was found or reported. The entire pastor search committee interviewed the pastor and his wife, on a wide range of topics, which took over two hours.

Regarding the plaintiff's claims of negligent hiring and retention, the court recognized that "an employer will be liable for negligent hiring or retention of his employee when an employee injures a third party if the employer knew or should have known of the employee's incompetence or unfitness." And, "if an employer exercises due care in the hiring of its employees, that employer will not be liable for the injuries of a third party unless that party can prove the employer knew or should have known of the incompetence and unfitness of the employee." As a result, "a plaintiff must prove the defendant had either actual or constructive knowledge of an employee's incompetence or unfitness before the employer will become liable for the negligent hiring or retention of an employee who injures a third party." Constructive notice is defined as "information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it."

The church insisted that an employer is under no "duty to uncover his employees' concealed, clandestine, personal activities," and that at no point prior to the pastor's employment did the church possess knowledge of any inappropriate counseling given by him to anyone or of any inappropriate relationship that he may have had with another person. Its first knowledge of any inappropriate counseling given by the pastor to the plaintiff's wife—or of any inappropriate adulterous relationship with anyone else—did not occur until the husband disclosed the affair to the church staff.

The court concluded that the plaintiff failed to show sufficient evidence of any negligence by the church to warrant a trial. It noted: "There is no evidence in the record to show that the pastor's prior affair would have been discovered but for some negligence of the church, or that the church knew or should have known of a prior affair or unfitness. The record shows that the pastor's prior affair arose from a private business relationship, and not out of his prior pastoral position … . [The plaintiff] also failed to present any evidence that such information was known by the prior congregation or reflected on any background check."

2. Vicarious liability

The plaintiff claimed that the pastor committed adultery on church property during his regular working hours, and the church's lack of control, supervision, and policies allowed him the opportunity to cause harm. The plaintiff asserted that the church was vicariously liable for the pastor's actions on basis of the legal doctrine of "respondeat superior" under which employers are responsible for the negligent acts of their employees committed within the scope of their employment.

The court noted that an employer is responsible only for those acts of an employee committed in the course of employment, are "in furtherance of the master's business," and "are actuated, at least in part, by a purpose to serve the employer." In rejecting this basis of liability, the court referred to other cases in which the courts have declined to hold churches liable for the sexual misconduct of clergy since such acts are outside the scope of employment and are not done with any intent to serve the church's interests. Note the following examples:

Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss. 2004). The Mississippi Supreme Court stated that "under the theory of vicarious liability, the church … may only be held liable for the actions of its employee taken within the course and scope of his employment." Amato v. Greenquist, 679 N.E.2d 446 (1997). An Illinois appeals court held that the plaintiff failed to establish that a church was vicariously liable where a pastor engaged in a sexual relationship with the plaintiff's wife while the pastor counseled the plaintiff. The court stated: "As to the church defendants' liability for the pastor's actions … we hold that the complaint fails to allege that the pastor's actions in deceiving and otherwise counseling the plaintiff were for anything other than his own benefit."

The court concluded: "The record reflects that the pastor's adulterous actions served his own purposes and were entirely personal acts for his own benefit. The record reflects no evidence to show that the church participated in or benefitted from the pastor's adulterous actions. As a result, we find no error in the trial court's grant of summary judgment on the issues of respondeat superior and vicarious liability since the plaintiff fails to allege that his actions were for any reason other than his own benefit."

What this means for churches

This case is instructive because of the court's description of the steps taken by the church in the hiring of its pastor that precluded it for being liable, on the basis of negligence, for the pastor's adulterous affair with the plaintiff's wife. These steps indicate the kinds of precautions churches can take to reduce the risk of liability for the sexual misconduct of staff members. Backstrom v. Baptist Church, 184 So.3d 323 (Miss. App. 2016).

Legal Developments

Church Not Liable in Suit for Failing to Inform Parents of Child Pornography on Pastor’s Laptop

Church Law and Tax Report Church Not Liable in Suit for Failing to Inform Parents

Church Law and Tax Report

Church Not Liable in Suit for Failing to Inform Parents of Child Pornography on Pastor’s Laptop

Key point 10-04. 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 Missouri court ruled that a church was not liable for failing to inform parents that large amounts of child pornography was found on the pastor’s laptop computer. A minor female (the “victim”) was born in 2001. She and her parents (the “Doe Family”) joined a Catholic church in the summer of 2009. A priest (the “defendant”) became the pastor of the church at about the same time. In December 2010, a computer technician who worked for the church was asked to look at the priest’s laptop because it was running slow. The technician determined that the hard drive was full, and in the process of deleting files, saw pictures of young girls stored on the hard drive with numbers assigned, indicating the pictures had been taken by a camera. The technician reported his discovery to the church’s office manager, and thereafter brought the laptop to the church office to meet with a church deacon. The technician assisted the deacon in navigating to one particular picture he had found of a young girl with her pants pulled down. The deacon immediately contacted an official of the Diocese. On December 16, 2010, the deacon delivered the laptop to the official who asked the Diocese’s Director of Management Information Systems to look at the laptop. On December 17, 2010, this person copied photographs she found on the laptop to a flash drive. On the same day, she and her supervisor prepared a memorandum to the Diocese regarding their findings and attached copies of some of the images found on the laptop. On the same day, the bishop of the Diocese contacted its outside legal counsel for an opinion about whether the images found on the priest’s laptop constituted child pornography. A few days later, outside legal counsel advised the bishop that in his legal opinion, the images on the priest’s laptop were not child pornography.

On December 17, 2010, the priest failed to report to work at the church. The church contacted the police, who discovered the priest unconscious in his garage with his motorcycle running. During Mass on the following Sunday, someone announced that the priest had an “accident” while working on his motorcycle, that those attending Mass should pray for his recovery, and that cards could be placed in a basket at the back of the church. In January 2011, the Diocese sent the priest to a doctor for a psychiatric evaluation.

In February 2011, the bishop assigned the priest to a limited ministry as chaplain for the Sisters of St. Francis. The bishop imposed written restrictions on the priest with which he agreed to comply. The restrictions included that the priest would avoid contact with children, would not use a computer, would use a camera only in limited circumstances, and would not take any photos of children. Neither the bishop nor any other representative of the Diocese told the church’s deacon about the restrictions.

Between March 2011 and April 2011, the Doe Family had three interactions with the priest. In March 2011, the Doe Family arranged to meet with him at a park where the Doe Family was playing softball. The parents saw the priest take a picture of their 10-year-old daughter with his cell phone while she was sitting in the “V” between two branches of a tree. Later that same day, the Doe Family and the priest ate together at a pizza restaurant. The priest sat on the opposite side of the table from the child. The parents observed that the priest had his phone in his lap. On Easter Sunday in April 2011, the Doe Family attended Easter Mass at the priest’s invitation, and spoke briefly with him before and after Mass. He did not take pictures of the child on this date.

In May 2011, the priest was arrested and charged with possession of child pornography. None of the charges related to the victim. The arrest occurred within days of the delivery to the police of a CD and a flash drive containing photographs that had been copied from the priest’s laptop. At about the same time, the priest’s brother gave the police CDs and other media he had found in his brother’s residence around the time the priest attempted suicide.

After the priest’s arrest, the Doe Family began to worry that the priest had taken pictures of their 10-year-old daughter. Investigators could find no pictures on the priest’s laptop computer depicting the victim, but the parents insisted that they did exist but had been erased from the laptop’s hard drive by the priest’s brother.

On November 16, 2011, the Doe Family filed a lawsuit naming the priest, the Diocese, and bishop as defendants. A trial court dismissed the lawsuit, and the parents appealed.

The appellate court agreed with the trial court’s dismissal of all claims against the church defendants, noting that, even though the Diocese failed to tell the parents about potentially pornographic images of children found on the pastor’s laptop, there was no evidence that the pastor would have had the opportunity to allegedly take obscene photos of the victim, as would be required to support the parents’ fraudulent misrepresentation claim.

What This Means For Churches:

The most noteworthy aspect of this case was the priest’s preoccupation with photographing children. The FBI profile of child molesters (Child Molesters: A Behavioral Analysis 3rd ed. 1992) lists several characteristics of pedophiles. One of these is described as follows:

Photographing of children

This includes photographing children fully dressed. One pedophile bragged that he went to rock concerts with thirty or forty rolls of film in order to photograph young boys. After developing the pictures, he fantasized about having sex with them. Such a pedophile might frequent playgrounds, youth athletic contests, child beauty pageants, or child exercise classes with his camera.

The FBI profile adds that “collecting child pornography or child erotica is one of the most significant characteristics of pedophiles.”

The takeaway point for church leaders is to watch for adults (especially males) who frequently take pictures of unrelated children at church or during church activities. According to the FBI profile, this is a characteristic of pedophilia. That’s not to say that every adult who takes pictures of unrelated minors at church events is a pedophile, but it does suggest that such persons are exhibiting one of the identifying characteristics of pedophilia according to the FBI profile, and as a result, they need to be confronted about their interest in taking pictures of unrelated minors, and monitored. Doe v. Ratigan, 481 S.W.3d 36 (Mo. App. 2015).

Legal Developments

North Carolina Appeals Court Ruling Shows Limits of Negligent Selection and Negligent Supervision

Church Law and Tax Report North Carolina Appeals Court Ruling Shows Limits of Negligent Selection

Church Law and Tax Report

North Carolina Appeals Court Ruling Shows Limits of Negligent Selection and Negligent Supervision

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 North Carolina appeals court ruled that a diocese could be sued on the basis of negligent supervision for a priest’s molestation of a 16-year-old boy, but dismissed a negligent hiring claim and a demand that the priest undergo a test for sexually transmitted diseases. An adult male (the “plaintiff”) claimed that when he was 16 years old a priest sexually assaulted him on multiple occasions. He further claimed that the priest had begun to “cultivate a special relationship with him, and began to groom him for sexual assault by exhibiting frequent physical contact with him through hugs and embraces.” The plaintiff alleged that the first sexual assault occurred when the priest invited him to spend the night at his home and that the second incident took place when the priest, “using his stature as a priest,” secured an invitation to spend the night at the plaintiff’s home.

The plaintiff reported the sexual abuse to church officials, resulting in the priest’s immediate suspension. The plaintiff sued the diocese, claiming that it was responsible for the priest’s actions on the basis of its negligence in hiring and supervising the priest. He also asked the court to compel the priest to undergo a test for sexually transmitted diseases.

The court began its opinion by rejecting the argument of the diocese that the First Amendment guarantee of religious freedom prevented it from resolving the plaintiff’s claims. It noted, “The dispositive question is whether resolution of the legal claims requires the court to interpret or weigh church doctrine. If not, the First Amendment is not implicated and neutral principles of law are properly applied to adjudicate the claim.” The court defined an “ecclesiastical matter” as one “which concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership … .”

Negligent hiring

The plaintiff’s lawsuit claimed that the priest had been inadequately screened. The court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving this claim, noting that “the decision to hire a minister is inextricable from religious doctrine and protected by the First Amendment from judicial inquiry … . We hold that plaintiff is not permitted to proceed on any claim that the diocese was negligent in hiring the priest as such a claim would clearly be forbidden by the First Amendment.

Negligent supervision

The plaintiff claimed that the diocese was liable for his injuries on the basis of its negligent supervision of the priest. The court noted that negligent supervision required proof that the diocese was aware of, or in the exercise of reasonable care could have been aware of, prior behavior by the priest, suggesting he posed a risk of molesting minors, and that the plaintiff’s injuries were due in part to the failure by the diocese to reasonably supervise the priest. The court agreed, and rejected the position of the diocese that it had no prior knowledge that the priest posed a risk of harm to minors. It noted that the diocese was aware of the priest’s unnatural preoccupation with minors, which included spending the night with them in his home.

STD testing

The plaintiff claimed that when he requested that the diocese require the priest to submit to a test for sexually transmitted diseases and inform him of the results so he could be assured of his health, the diocese refused the request. The court refused to order the diocese to compel the priest to undergo testing for a sexually transmitted disease: “Adjudication of this claim would, by definition, require the examination of church doctrine and thus constitute precisely the type of ecclesiastical inquiry courts are forbidden to make” since it would involve the question of the control by the diocese over a priest. The court noted that “this claim seeks to impose liability based on the diocese’s alleged failure to exercise authority over a priest stemming from an oath of obedience taken by him pursuant to the church’s canon law. As such, this claim directly challenges church actions involving religious doctrine and practice and cannot be adjudicated without entangling a secular court in ecclesiastical matters.”

What This Means For Churches:

This case illustrates the legal duty churches have to supervise any employee or volunteer that they know is a threat of harm to minors, or in the exercise of reasonable care should know is such a threat. In this case, the diocese claimed that it had no actual knowledge that the priest had engaged in the sexual abuse of minors in the past. But, the court concluded, this did not get it off the hook since it had knowledge of other behavior (including preoccupation with minors, and having minors spend the night in his home) that should have alerted it to a potential propensity to molest minors. Doe v. Diocese, 776 S.E.2d 29 (N.C. App. 2015).

Legal Developments

‘Discovery Rule’ Allows Floating Statute of Limitations for Some Child Sexual Abuse Victims

Church Law and Tax Report ‘Discovery Rule’ Allows Floating Statute of Limitations for Some Child

Church Law and Tax Report

‘Discovery Rule’ Allows Floating Statute of Limitations for Some Child Sexual Abuse Victims

SEXUAL MISCONDUCT BY CLERGY, LAY EMPLOYEES, AND VOLUNTEERS

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 18th 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.

A Washington state appellate court ruled that the “discovery rule,” which extends the statute of limitations for child sexual abuse claims until victims “discover” that their emotional injuries were caused by the abuse, enabled an adult woman to sue her former church for the child abuse she suffered as a minor based on the acts of a volunteer youth worker. From 2002 through 2004 an adolescent female (the “victim”) was sexually abused by an adult youth group leader (the “defendant”) at her church. In 2007 she turned 18, and the next year she was married. Over the next several years she experienced sexual dysfunction and a lack of intimacy, and she and her husband argued about whether to have children. Her symptoms, including flashbacks, guilt, and other emotional problems, were worse than she had ever experienced, and the marital problems continued until their divorce in 2011. The victim was also confused about her sexuality. She engaged in a sexual relationship with another woman that also caused significant confusion in her life. The victim also experienced problems at work, and struggled to reconnect with her religion. The church was no longer a comforting influence in her life.

In 2011, at age 22, the victim began seeing a psychologist, and it was then, she later alleged, that she realized for the first time the serious effect of the abuse on her adult relationships, sexuality, work, and spirituality. The psychologist helped her understand how the sexual abuse she suffered as an adolescent triggered symptoms based on the different, new life events that she was experiencing.

In 2012 the victim sued the defendant. A trial court dismissed the lawsuit on the ground that it was filed after the expiration of the deadline prescribed by the statute of limitations. The victim appealed.

A state appeals court reversed the trial court’s dismissal of the plaintiff’s lawsuit, and directed the case to proceed to trial. The Washington statute of limitations for child sexual abuse civil claims states:

All claims or causes of action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within the later of the following periods … (c) Within three years of the time the victim discovered that the act caused the injury for which the claim is brought: PROVIDED, That the time limit for commencement of an action under this section is tolled for a child until the child reaches the age of eighteen years.

The court noted that “this special statute of limitations is unique in that it does not begin running when the victim discovers an injury. Instead, it specifically focuses on when a victim of sexual abuse discovers the causal link between the abuse and the injury for which the suit is brought … . This is because the legislature specifically anticipated that victims may know they are suffering emotional harm or damage but not be able to understand the connection between those symptoms and the abuse.”

According to this statute, the victim’s lawsuit was time-barred unless it was filed within three years of her discovery that her many emotional problems were caused by the abuse she suffered as a minor.

The court pointed out that “the victim claimed that she did not understand the full effect of the childhood sexual abuse until she entered counseling as an adult. Although she had dealt with serious symptoms of her abuse for many years, she presented evidence that, until recently, she was not aware that her new, adult difficulties with her marriage, her work, and connecting with religion were caused by the childhood abuse.” It was not until she sought counseling as an adult in 2011 that she “began to realize how seriously affected she was by the abuse “in relationships, sexuality, work, and spirituality and established the causal connection.”

The court concluded that there was sufficient evidence that the plaintiff had not connected her emotional problems with her abuse as a minor until she sought counseling in 2011 to allow her claims to proceed to trial. It observed:

In summary, the plaintiff argues that she experienced new or more serious injuries from her sexual abuse when she was married, became sexually active, discussed having children with her husband, got a job, and tried to reconnect with the church. She presented evidence that these injuries are new or more serious because she did not understand how her sexual abuse would affect these parts of her life until she actually had these experiences and entered into sexual abuse counseling [relationship with a psychologist] in 2011. This evidence … viewed in a light most favorable to the victim, demonstrates that material facts are in dispute. Thus, a jury must resolve the factual issues and determine whether the statute of limitations bars her claims.

What This Means For Churches:

Most states recognize some variant of the discovery rule, enabling victims of child sexual abuse to file lawsuits years, and in some cases decades, after the abuse occurred. All that is needed is evidence that victims of childhood sexual abuse did not realize that their emotional dysfunctions were caused by the abuse. This “discovery” often is triggered by the initiation of a counseling relationship as an adult. B.R. v. Horsley, 345 P.3d 836 (Wash. App. 2015).

Legal Developments

Church Narrowly Avoids Liability in Advertising Services of Babysitter Who Later Molested Children

Church Law and Tax Report Church Narrowly Avoids Liability in Advertising Services of Babysitter Who

Church Law and Tax Report

Church Narrowly Avoids Liability in Advertising Services of Babysitter Who Later Molested Children

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.

A Texas court ruled that a church was not liable for the sexual molestation of two children by a teenager who had been selected as a babysitter by the victims’ parents due to false information in a flyer that had been made available to parents of young children. In the summer of 2007, a married couple (the “plaintiffs”) enrolled their two young sons in a church-operated childcare center. A 20-year-old college student (Lydia) worked at the center as a teacher and swimming instructor in a summer job between her junior and senior years of college. Lydia’s mother (Beth) spent the first part of the summer of 2007 teaching vacation Bible school at the church. She had five years’ prior experience working at the childcare center and wished to return to work there. She applied and, in August, the center rehired her to work as a teacher. Her class included one of the plaintiffs’ boys and she developed a warm rapport with the parents.

After Lydia returned to college in the fall, she asked her mother to circulate a flyer to school parents to let them know that she would be available for babysitting during her winter break. The school often circulated flyers that advertised events and personal services by placing them in the children’s backpacks. Under the school’s policy, it prescreened each proposed flyer. If the school approved the flyer, it charged $20 to circulate it.

In late fall, Beth circulated an approved flyer offering Lydia’s babysitting services. The flyer explained that Lydia was Beth’s daughter, that she had been a summer school swimming teacher at the center, that she was CPR-certified, and that she would provide references upon request. The plaintiffs hired Lydia to babysit for their sons during the winter break.

Near the end of 2007, Beth prepared a similar flyer, this time advertising her son Mark’s availability for babysitting services. The childcare center approved this flyer and gave permission to her to circulate it. The flyer went home in the children’s backpacks, along with other materials that the school distributed. Though the flyer states that Mark was “part-time summer help” and a “vacation bible school worker,” at the time the plaintiffs read the flyer, the childcare center had not yet employed him. It also had not performed a criminal background check on him, and it had not trained him to work with children. The childcare center had, however, offered the possibility that Mark could work part time the following summer as summer school help.

The plaintiffs discussed the possibility of hiring Mark, and, despite some doubts, decided to do so, because, according to the flyer, he had experience working with children and, in particular, experience working at the childcare center. They did not ask him directly whether he had such experience.

The plaintiffs hired Mark in the first week of January 2008. He went to the plaintiffs’ home while they were present. According to the boys’ mother, Mark was paid “to come to the house to spend time with us, interact with the boys, and get to know them, because my overriding concern was just the transition of them getting to know someone new.” The mother’s first impression of Mark was not positive, but she thought, “okay, maybe he’s just not good with grown-ups,” and that “he must be good with kids or the center wouldn’t have hired him.”

Mark first babysat alone with the boys at the plaintiffs’ home a couple of weeks later. He babysat for them five to ten times between January and June 2008. Toward the end of that period, the boys’ mother noticed a change in his attitude. It caused her concern, and she decided to stop hiring him.

Meanwhile, following up on the center’s offer to employ him that summer, Mark completed his application for summer employment at the center in February 2008 and cleared a criminal background check. Mark worked at the center as a paid employee for one day, in late June. On that day, the plaintiffs’ sons disclosed to their parents that Mark had molested them while he was babysitting. The parents contacted law enforcement, and Mark was arrested. The childcare center immediately discontinued his employment.

Mark later admitted to having sexually assaulted the boys. He pleaded guilty to felony charges and was sentenced to 12 years’ imprisonment. Before his arrest, Mark had no criminal history and no record of any school misconduct that would warrant suspension.

The plaintiffs sued the church and its childcare center (collectively, the “Church”), and Beth, Mark’s mother, who also was a teacher at the childcare center. The jury returned a verdict in favor of the plaintiffs. It found that:

The church appealed.

The appeals court’s decision

The court noted that to prevail on a DTPA claim, the plaintiffs were required to prove that they were consumers; they “detrimentally relied” on the false, misleading, or deceptive act or practice; and the false, misleading, or deceptive act or practice was a “producing cause” of their injuries. If a DTPA claim is based in part upon a failure to disclose material information, the statute also requires proof that the defendant knew the information and failed to bring it to the plaintiffs’ attention.

The jury found that the plaintiffs would not have hired Mark but for the representations in the flyer, and that those representations were a substantial factor in bringing about their damages. But the appeals court disagreed:

A legal cause sufficient to impose civil liability for the criminal conduct of another is lacking in this case … . The relationship between Mark and the plaintiffs developed independently of Beth and the church. After the initial flyer, all of the contact between Mark and the plaintiffs took place at the plaintiffs’ home … . The plaintiffs own interactions with Mark informed their decision to continue to hire him. By the time of the abuse, the connection between the representations in the flyer and Mark’s presence in the plaintiffs’ home was too attenuated to cause the plaintiffs’ injuries….. The misrepresentations in the flyer created a condition that later made the grievous injuries possible—it was not a producing cause of them.

What This Means For Churches:

This case illustrates the potential risk churches face when they endorse or recommend to the congregation a member’s services, especially when the recommendation is accompanied by false information. While the appeals court concluded that the church was not liable for the false information shared with the victims’ parents about Mark’s prior childcare experience or the church’s steps to screen him, the trial court disagreed with this conclusion as might other courts. Further, the appeals court relied in part on the length of time that transpired between the false recommendation and the incidents of abuse, and the fact that all the abuse occurred off of church premises. The court’s decisions likely would have been different but for these two circumstances. The lesson is clear: churches should avoid recommending person’s services to the congregation unless they are fully vetted and the text of any recommendation is verifiably accurate.

This case also demonstrates that churches may be liable under state “deceptive trade practices” legislation for communicating false information to members concerning the fitness and suitability of youth workers. Bryant v. S.A.S., 416 S.W.3d 52 (Tex. App. 2013).

Legal Developments

Louisiana Court Affirms Decade Sentence for Church Volunteer Convicted of Molestation

Church Law and Tax Report Louisiana Court Affirms Decade Sentence for Church Volunteer Convicted of

Church Law and Tax Report

Louisiana Court Affirms Decade Sentence for Church Volunteer Convicted of Molestation

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.

A Louisiana appeals court affirmed a 10-year sentence at hard labor for a volunteer youth worker who raped a 13-year-old girl while taking her home from a church event. A 13-year old girl (the “victim”) attended youth group meetings at a church. The victim and several other members of the youth group went to dinner at a local restaurant. Some of the volunteer youth workers also attended this event, including an adult male (the “defendant”) and his pregnant wife and 1-year-old son. The defendant and his wife drove separately to the restaurant.

After dinner, the defendant’s wife wanted to take their infant son home. The defendant volunteered to take the victim home in his truck, and it was during this ride that the defendant started rubbing the victim’s leg. The victim asked him to stop, but he pulled over onto a dirt road, parked the truck, and raped her despite her begging him to stop. The defendant then exited the truck from the passenger side and locked the door so the victim could not escape. He got back in the truck and drove her home. Before the victim exited the truck, the defendant said, “I hope I didn’t cross any boundaries.” The victim arrived home around midnight, and both of her parents were asleep.

The next morning, the victim told her parents that the defendant had “rubbed her leg” on the way home the night before, but did not tell her parents about the rape. The parents arranged a meeting with their pastor and the defendant. When confronted with the victim’s allegations, the defendant started crying, and admitted to inappropriately touching her on her leg and apologized repeatedly. The parties did not discuss contacting law enforcement.

Three years later, the victim told two of her friends, and her youth pastor, about the rape. The youth pastor instructed her to tell her mother what occurred, which she did. Despite assuring the victim that she would not report the rape to the police, she did so.

A detective later met with the defendant. The defendant, who was not under arrest at that time, voluntarily agreed to give a statement. After being advised of, and waiving his Miranda rights, the defendant admitted only that he had touched the victim on her leg, and emphatically denied the victim’s rape allegation.

The defendant was charged with molestation of a juvenile, and was found guilty by a jury. At the defendant’s sentencing hearing, a probation officer testified that the defendant had shown no remorse for his actions. The victim’s mother described the negative effects the crime had on the victim. The defendant also made a statement, stating that he prays for forgiveness everyday and that he had apologized to the victim and her family at the meeting with the pastor. After a careful consideration of the evidence, the trial court sentenced the defendant to 10 years at hard labor. It also informed the defendant of the sex offender notification and registration requirements.

The defendant appealed, arguing that the sentence was excessive in light of his lack of a criminal history and his family obligations, and that the record was void of any indication that he was an ongoing threat to the victim or others. The defendant expressed his remorse, and asserted that he was not among “the most egregious or blameworthy offenders.” The state responded by noting that in light of the fact that the defendant faced a sentencing exposure of 20 years at hard labor, the 10-year sentence was not excessive.

A state appeals court affirmed the defendant’s 10-year sentence at hard labor: “The defendant was sentenced to 10 years at hard labor, with credit for all time served. This midrange sentence does not shock the sense of justice, nor is it disproportionate to the severity of the offense. The trial court adequately considered all of the aggravating and mitigating factors when tailoring its sentence for the defendant. After a careful review of the record, we find that the trial court did not abuse its discretion in imposing that sentence.”

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 such a rule, it would have barred the defendant from taking the victim home without a second adult in his truck. This would have had the following consequences:

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. State v. Linder, 162 So.3d 1278 (La. App. 2015).

Legal Developments

Pastor, Church, and Denomination Could Face Liability for Negligent Supervision But Not for ‘Duty to Warn’

Church Law and Tax Report Pastor, Church, and Denomination Could Face Liability for Negligent Supervision

Church Law and Tax Report

Pastor, Church, and Denomination Could Face Liability for Negligent Supervision But Not for ‘Duty to Warn’

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 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on First Amendment considerations.

A federal court in Vermont ruled that a church and its parent denomination could be liable for a pastor’s acts of child molestation on the basis of negligent supervision, but not on the basis of a “duty to warn” the congregation of the pastor’s dangerous propensities. A woman (the “plaintiff”) sued her former church, its pastor, and the national denomination with which the church is affiliated, claiming that she had been sexually molested by the pastor when she was a minor. The plaintiff’s mother eventually learned of the abuse, and reported it to church officials. The officials took no action against the pastor, issued no warnings to the congregation, and did not report abuse to any child protective agency or police agency. The plaintiff claimed that the pastor abused at least three other minors before abusing her, one of whom reported the abuse to the church, which took no action.

The plaintiff sued the church in a federal district court for breach of fiduciary duty, negligence, breach of a duty to warn the congregation, ratification, and fraud.

Fiduciary duty

The plaintiff claimed that the church defendants entered into a fiduciary relationship with her by permitting the pastor to hold himself out as a representative of the church, and that this duty was breached by the church defendants’ failure to prevent the pastor from molesting her.

The court noted that a fiduciary relationship exists “when a principal is dependent upon, and reposes trust and confidence in the fiduciary.” It concluded that a fiduciary relationship does not exist between a church or pastor and a member of the congregation as a result of membership status. A fiduciary relationship “can only be inferred from a specific relationship between a fiduciary and the principal, not from a principal’s general status as a member of a church.” The court concluded that since there were no special facts that would create a fiduciary relationship, such as a counseling relationship between the pastor and plaintiff, this basis of liability had to be dismissed.

Negligence

The court noted that “to hold a defendant liable for negligence, a plaintiff must establish the defendant owed her a particular duty of care, it breached that duty of care, and the breach harmed the plaintiff.” The plaintiff claimed that the church defendants had duties to:

1. supervise the pastor

2. control him

3. protect the plaintiff from him, and

4. warn her of his vicious propensities.

The plaintiff argued the church defendants breached these duties of care by allowing the pastor to have unsupervised contact with her, by failing to supervise the pastor, by choosing not to investigate him, and by concealing information about his vicious propensities from her parents.

(1) duty to supervise the pastor

The plaintiff claimed the church defendants “had a duty to provide reasonable supervision” of the pastor. The court agreed, noting that “in cases regarding the liability of religious organizations for negligent supervision of their clergy, the courts have held that in order for a duty to have existed, the organizations must have known or should have known that misconduct was occurring.” The court concluded: “If the pastor connected with the plaintiff and her family through his position at the church and the church was forewarned of the danger he posed, the church may have had a duty to supervise him. This is sufficient to state a claim for negligent supervision.”

(2) duty to control the pastor

The court noted that “generally, there is no duty to control the conduct of another to protect a third person from harm. An exception to this rule may arise where there is a special relationship between two persons which gives one control over the actions of another.” A “special relationship” can arise “where an off-duty employee’s negligent acts occurred on the employer’s premises” or “where the employer voluntarily and knowingly assumes a duty of control.”

The plaintiff alleged that the pastor molested her on his personal property, not on property belonging to the church defendants. She claimed that the church defendants had a duty to protect her from the pastor because it was aware of his prior abuse of minor congregants. But the court noted that “mere foreseeability is insufficient to establish a duty to control if the employee is not on the employer’s premises.”

The court concluded that there is no “special relationship” between the church defendants and the pastor giving rise to a duty “when he was not on the church’s premises or carrying out its business, and therefore the church had no duty to control him when he was … outside church activities.” As a result, “to the plaintiff’s negligence claim depends on the existence of a duty to control, that claim is dismissed.”

(3) duty to protect the plaintiff

The court noted that “to state a claim for negligence based on a duty to protect, the plaintiff must show the church voluntarily assumed an obligation to protect her in particular from the pastor. At this time, to the extent her negligence claim depends on the existence of a duty to protect, it is dismissed without prejudice.”

(4) duty to warn

The plaintiff claimed the church had a duty to warn members of the pastor’s dangerous propensities. The court disagreed: “[We find] no duty to warn distinct from a duty to protect exists in the context of institutional sex abuse cases. Accordingly, to the extent the plaintiff’s negligence claim depends on the existence of a distinct duty to warn, it is dismissed with prejudice.”

Ratification

The plaintiff asserted that the church defendants were liable for the pastor’s wrongful acts on the basis of the legal theory of “ratification.” Ratification is “the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with actual authority.” Under this theory, an employer “may ratify the unauthorized act of its employee, i.e., an act not within the scope of the employment, and thereby become obligated to the same extent as if the principal had originally authorized the act.” The plaintiff claimed that the church defendants ratified the pastor’s wrongful acts by refusing to remove or discipline him after learning of his molestation of the plaintiff.

The court refused to recognize ratification as a separate basis for liability in sex abuse cases since it had never been recognized by the state supreme court.

What This Means For Churches:

This case underscores two points.

First, most courts have rejected “breach of a fiduciary duty” as a basis for church liability in child molestation cases based solely on the victim’s status as a member of the church. There must be a “special relationship,” such as a counseling relationship, for a fiduciary duty of protection to arise.

Second, and most importantly, the court agreed with the plaintiff that the church defendants had a duty to supervise the pastor once they became aware of his propensity to molest minors. And, a violation of this duty amounted to negligent supervision for which the church defendants were liable. This is an important conclusion that has been recognized by many courts. Church leaders that learn that a pastor or other employee or volunteer has had inappropriate sexual contact with a minor (or adult), and that for whatever reason decide to retain him, have a legal duty to supervise him to prevent future harm. Most church leaders conclude that it would be impossible to adequately supervise a sex offender, and for this reason terminate the person’s employment or volunteer service. But the takeaway point is that church leaders should never retain a known or reasonably suspected sex offender without legal counsel. The risks are too great, as this case illustrates. Lewis v. Congregation, 95 F.Supp.3d 762 (D. Vt. 2015).

Legal Developments

Social Media and Sexual Offenses

Church Law and Tax Report Social Media and Sexual Offenses Key point 4-11.1. Clergy who

Church Law and Tax Report

Social Media and Sexual Offenses

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.

The Indiana Supreme Court upheld the conviction of a teacher for the attempted seduction of a minor based on his communications with a 16-year-old student via an Internet social network. A high school teacher and coach communicated via an Internet site (Facebook.com) with a 16-year-old student. The communications, which were replete with sexual references and images, constituted “sexting.” While the teacher repeatedly urged the girl to sneak out of her house while her parents were asleep and join him, such an encounter never occurred. The relationship was entirely “virtual,” using social media.

The teacher’s actions came to light after the student informed her parents, and he was charged with two counts of attempted child seduction. Under Indiana law, a teacher who engages in touching or fondling a student between the ages of 16 and 18 with the intent to arouse or satisfy the sexual desires of the teacher or the student commits “child seduction,” a class D felony. Indiana law also provides that a person “attempts” to commit a crime when, “acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.” The teacher was found guilty of two counts of attempted child seduction.

The teacher appealed, claiming that online solicitation was not aimed at the “immediate commission of a crime” and therefore he had not committed the crime of attempted child seduction.

A state appeals court reversed the teacher’s convictions, noting that as a matter of law the Internet solicitations did not constitute a substantial step toward the crime of child seduction because the teacher’s requests were simply an invitation to the student, not the required “urging” or “persuasion,” and in any event, because the requests were not made in the student’s presence, the student was never in a position to submit to the solicitation, so the requests related to future conduct rather than the immediate commission of a crime.

The state supreme court reversed the appeals court’s ruling and reinstated the trial court’s conviction. The court acknowledged that “what constitutes an attempt offense in the area of sex offenses against children can, on occasion … involve subtle distinctions in behavior and the nuance of the context in which the behavior occurs.” But the court concluded that in this case it was reasonable for the jury to conclude that the offense of attempted child seduction had occurred.

What This Means For Churches:

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. Consider the following examples:

Example. A pastor was convicted of several sexual offenses involving his sexual solicitation and molestation of a minor, and sentenced to a minimum prison term of 186 years. One of his offenses was “contributing to delinquency of a minor,” which was based in part on several sexually explicit text messages (“sexting”) that the pastor sent to the minor on his cell phone. 2010 WL 10409 (N.C. App. 2010).

Example. A youth pastor (the “defendant”) was sentenced to five years in a state prison as a result of various sexual offenses with a minor female (the “victim”). The victim had sought out the defendant for counseling as a result of her depression and suicidal thoughts that stemmed from an incident of sexual abuse which occurred when she was nine or ten years old. A sheriff came upon the defendant and victim parked off a gravel road in a rural area at night. The defendant claimed he was parked in a remote area because he was trying to get a signal on his cell phone. The sheriff told him “it wasn’t smart to be out on a gravel road parked like that with a youth in his vehicle,” and he told him to “use his head.”

The sheriff later informed the victim’s father about what he had seen, and the father instructed the defendant to have no further contact with his daughter by cell phone or text message. A few weeks later the sheriff again came across the defendant and victim in a car parked along a secluded farm road. The defendant claimed that he was counseling the victim regarding an incident of sexual abuse that had occurred several years earlier. The sheriff again informed the victim’s parents.

The defendant was later charged with several sex offenses. An investigation by the sheriff’s office uncovered text messages between him and the victim containing strong sexual content. His cell phone contained a partially nude image of the victim, and he sent a partially nude image of himself to the victim via a text message. This evidence was used in prosecuting the defendant for violating a state law making it a criminal offense for the sexual exploitation of a counselee by a counselor. The court found that the defendant, as a youth counselor engaged in counseling the victim, was a “counselor” and it sentenced him to a prison term of five years. State v. Duvall, 776 N.W.2d 301 (Iowa App. 2009).

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).

Example. A youth pastor (the “defendant”) sent several sexually explicit emails to a female adolescent in the church’s youth group. The victim told her mother about the emails. After reviewing the messages, the mother contacted the police. A police officer questioned the defendant about the emails. The defendant admitted that he sent the emails, and expressed deep remorse for his actions. In the transcript of this conversation the defendant stated that he had made “a very, very poor decision to engage in these email conversations with her, uh, and allowed myself to get caught up in things of a sexual nature.” The state charged the defendant with six counts of communicating with a minor for immoral purposes under a state law making it a class C felony for a person to communicate with a minor for immoral purposes through electronic communication. At trial, the defendant testified that he did not remember sending any of the emails. The jury didn’t believe him, and found him guilty on all six counts. The trial court sentenced the defendant as a class C felon to the statutory maximum of five years per count. State v. Haack, 2010 WL 4216705 (Wash. App. 2010).

Example. A volunteer youth leader (the “defendant”) in a local church was sentenced to eight years in prison on each of two counts of sexual assault in the first degree and contributing to the delinquency of a minor. At trial, the defendant’s former husband testified that he suspected his wife of having an affair. He set up surveillance in his house, then left for the weekend. When he returned and retrieved the hidden device, he watched the videotaped recording of his wife and a 17-year-old male consuming alcohol and having sexual relations. He gave the police this recording, which led to the defendant’s arrest and prosecution. Among the several items of evidence introduced at trial by the prosecution were several sexually explicit text messages from the defendant that the mother of one of the victims found on her son’s cell phone. Cluck v. State, 2009 WL 1362863 (Ark. App. 2009).

The lesson is clear: social media and electronic devices can create risks of both criminal and civil liability, and this fact should be frequently stressed to church staff members. 17 N.E.3d 270 (Ind. 2015).

Legal Developments

Sexual Misconduct and Church Liability

Church Law and Tax Report Sexual Misconduct and Church Liability Key point 4-11.1. Clergy who

Church Law and Tax Report

Sexual Misconduct and Church Liability

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.

Key point 4-11.2. Clergy who are sued for sexual misconduct may be able to assert one or more defenses.

The Iowa Supreme Court affirmed the criminal conviction and prison sentence of a pastor who engaged in sexual relations with four emotionally vulnerable women in his congregation. A pastor was employed by a church from 2003 to 2010. Church members testified that his sermons were “amazing,” “great,” and “dynamic.” He was a “very talented speaker.” “He definitely could preach the word of God.”

The pastor initiated sexual relationships with four women in his congregation.

Victim #1
The pastor began making unsolicited calls to Victim #1 on her cellphone. At the time, she was undergoing fertility treatments unsuccessfully and was struggling with her infertility. The pastor began asking questions about her personal life, and she began to confide in him. Victim #1 and her husband decided to look at international adoption, and an opportunity arose to adopt four siblings from abroad as a group. Victim #1 was personally struggling with this adoption, and at the recommendation of her husband and her mother she decided to see the pastor. The pastor asked her to come alone to his home to discuss her concerns. During an initial meeting the pastor asked her about her marriage and whether her husband was “meeting her needs.” She started to cry and said that things were difficult. At that point, the pastor made advances toward her and had sexual relations with her.

He continued to call her repeatedly on her cellphone, and would talk for two to three hours each day. This lasted for months. The pastor also arranged liaisons with victim #1 during the workday at hotel rooms and other buildings. Eventually, after victim #1 and her husband adopted a child, the relationship cooled. She called the pastor and told him she “knew what he was doing, that he was trying to get women into counseling for the purpose of trying to have sexual contact with them.” Victim #1 did not report anything to the church elders or the police at the time, because she did not think she would be believed.

Victim #2
Victim #2 and her husband were also active members of the same church. She was experiencing several crises. Her father was going through a severe illness, her husband was depressed, her best friend died, and her daughter was having problems in her marriage. The pastor called her on her cellphone while she was driving and wanted to know how she was doing. She responded that she was not doing very well, and started shaking. She pulled her car over. At this point the pastor made a comment to her that “he would like it if we could be together under the cool, crisp sheets.” He added, “You know, if you ever need anybody to talk to, call me. I’ll always be there for you.” Victim #2 was shocked by the pastor’s comment.

Several months later, Victim #2 called the pastor because she “just had absolutely nobody to talk to.” She asked him to come see her because she wanted to discuss problems in her marriage. During this and subsequent meetings the pastor initiated sexual contact with her. The pastor told her not to tell anyone, and that “the elders will never believe you. They will only believe me. I’ll make sure everybody knows you’re crazy.”

Eventually the pastor terminated the relationship. But he said to Victim #2, “Call me if you ever need me or need somebody to talk to, I’ll always be there for you night or day.”

Victim #3
Victim #3 was a married church member who asked the pastor for a meeting. It was arranged for the meeting to occur in the pastor’s home office. He assured her that it was fine to come to his home during the evening, as he “counsels women” in his home. When she arrived, the pastor took her down to his office in the basement. He began asking her very personal questions. He asked questions about her father who recently had been diagnosed with Alzheimer’s. She revealed that she had been sexually abused as a child. The conversation lasted a couple of hours. The two continued to meet. They had sexually charged conversations. Soon they began to have sexual relations. The pastor instructed her not to tell anyone because “nobody would understand this. Even if you feel close to your husband, never tell him. Never think he’s going to understand this.” The pastor and Victim #3 engaged in sexual activity over a period of years.

Victim #4
Victim #4 and her husband were also members of the church. She had a young child with special needs, her mother-in-law had passed away, and she had an overworked husband. As she put it, “My plate was very full.” She had seen a physician and had been prescribed an anti-depressant and anxiety medication, which she was taking.

The pastor called Victim #4 and asked to set up a meeting. She recounted, “He just wanted to make sure that I was doing okay.” Eventually a meeting was set for a school day in the pastor’s basement office. The pastor locked the door from the inside. They began with conversation. He asked whether she felt stressed. He asked about her family issues. He asked whether she had had premarital sex. After a while, the pastor informed her that he was very fond of her and “would like to get to know her better.” He added, “Somebody needs to take care of you. You have your hands full.” She became uncomfortable. Her feet were trembling. During this and subsequent meetings the pastor’s questions became more intimate. He asked her to provide details of her “sex life” with her husband, and whether she had been abused as a child. Victim #4 later recounted, “The questions were getting deeper and he was getting to know me more and more, I guess knowing my vulnerabilities, where the voids were in my life.”

The pastor called Victim #4 on her cellphone several times each day. Within a few months the two were having sexual relations, and continued to do so for the next two years. The pastor cautioned Victim #4 that this was a “secret relationship, and we need to keep it a secret.”

During their final encounter, in Victim #4’s home, her husband came home unexpectedly early and found the two in bed. The husband immediately went to the elders of the church to inform them of what he had witnessed. The pastor resigned immediately.

Criminal Charges

The pastor was charged with four counts of sexual exploitation by a counselor or therapist in violation of section 709.15(2)(c) of the Iowa Code. This section provides:

2. Sexual exploitation by a counselor or therapist occurs when any of the following are found …

(c) Any sexual conduct with a patient or client or former patient or client within one year of the termination of the provision of mental health services by the counselor or therapist for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the patient or client or former patient or client.

Sexual exploitation by a counselor or therapist is a “serious misdemeanor.” It is a class “D” felony for a counselor or therapist to engage in a “pattern or practice or scheme of conduct” of sexual exploitation.

The statute defines “counselor or therapist” as follows:

“Counselor or therapist” means a physician, psychologist, nurse, professional counselor, social worker, marriage or family therapist, alcohol or drug counselor, member of the clergy, or any other person, whether or not licensed or registered by the state, who provides or purports to provide mental health services. (emphasis added)

During the pastor’s trial, all four victims testified. The pastor and his wife testified for the defense. The pastor acknowledged having sexual relations with all four women, but maintained that it was consensual. He denied having provided “mental health services” to any of the women, and therefore he had not committed sexual exploitation or a pattern of exploitation as defined by state law.

The jury found the pastor guilty on the four sexual exploitation charges. He was sentenced to ten years imprisonment.

On appeal, the Iowa Supreme Court upheld the pastor’s conviction over the pastor’s objection that there was insufficient evidence to convict him:

We begin by noting a few common facts. All four women were members of [the same church]; the [pastor] had been their pastor for several years. Three of the four had preexisting marital problems in addition to other difficulties in their personal lives. The fourth developed such problems after getting involved with the pastor, who claimed to be resolving them. Two of the four went to the pastor’s office initially thinking they would receive help from him, and he quickly ended up having sex with both of them (one of them in the office that day). Before and during his sexual encounters with each of the four women, the pastor asked each of them deeply personal and probing questions, purporting to guide them through their personal difficulties … .

We find sufficient evidence to sustain the convictions on all of the sexual exploitation counts. There is substantial evidence that he counseled each of the four women for an “emotional … or social dysfunction, including an intrapersonal or interpersonal dysfunction.” See Iowa Code § 709.15(1)(d) … . This went beyond an “informal exchange of advice,” or “the giving of general spiritual advice or guidance from a clergy member to congregants.” There is substantial evidence that a relationship was established between the pastor and each victim, at least initially, “for the purpose of addressing particular mental, intrapersonal or interpersonal dysfunctions.” To some extent … it appears sexual contact was part of the pastor’s program of pseudotherapy and treatment for his victims.

Constitutionality

The pastor claimed that section 709.15(2) (quoted above), as applied to him, unconstitutionally burdened his fundamental right to enter into sexual relationships. He claimed that section 709.15(2) “creates a ban on all sexual relations between certain categories of individuals regardless of the existence or nonexistence of consent.” The pastor insisted that his sexual relations with all four women was consensual and not criminal. The court disagreed:

Based upon their testimony, the relationships between the pastor and each of the four women did not involve full and mutual consent. In each case, the pastor used—misused—his position of authority as a counselor to exploit the vulnerabilities of his victim. The relationships were of a kind where “consent might not easily be refused … .” The pastor is not the first person to assert that any sexual exploitation laws that criminalize consensual sexual relations between adults are unconstitutional. Similar arguments have been raised, generally without success, in other jurisdictions. For the most part, the courts have reasoned that the statutes do not implicate fundamental rights … because the relationship is imbalanced and not fully consensual.

What This Means For Churches:

Note the following:

1. This case illustrates that sexual misconduct by clergy with adult congregants may result in criminal liability under state laws making such conduct illegal. Presently, the following 12 states have laws that specifically make sexual contact between a minister and a counselee a crime:

Arkansas
Code § 5-14-126

Connecticut
Statutes §§ 53a-65 et seq.

Delaware
11 Del. Code §§ 761 et seq.

Iowa
Code §§ 709.15 et seq.

Minnesota
Statutes §§ 148A.01 et seq.

Mississippi
Code § 97-5-23

New Mexico
Statutes §§ 30-9-10 et seq.

North Dakota
Century Code § 12.1-20-06.1

South Dakota
Codified Laws §§ 22-22-27 et seq.

Texas

Penal Code, § 22.011

Utah
Code § 76-5-406

Wisconsin
Statutes §§ 895.441 et seq.

2. Several states have laws that make sexual contact between a psychotherapist and a counselee a crime, and, unlike the statutes mentioned above, do not specifically define “psychotherapist” to include a member of the clergy. However, the definition of “psychotherapist” under some of these laws may be broad enough to include a member of the clergy.

3. Every state has enacted laws making it a crime to engage in nonconsensual sexual contact with another person. These laws constitute another potential basis of criminal liability for ministers who engage in sexual contact with a counselee or member of their congregation. A typical statute makes it a felony for anyone to “engage in sexual contact with another person without consent of that person.”

4. Every state has enacted a law making assault and battery a crime. These laws constitute another potential basis of criminal liability for ministers who engage in nonconsensual sexual contact with a counselee or member of their congregation.

5. Church insurance policies exclude any claims based on intentional or criminal misconduct. As a result, ministers who are prosecuted for a sexual offense involving a counselee or member of their congregation ordinarily cannot expect the church insurance company to pay for a legal defense.

6. There are many other consequences of clergy sexual misconduct. To illustrate, clergy who engage in such behavior may have to register as a sex offender under state law; and, churches and denominations increasingly are revoking the ministerial credentials of ministers who engage in such behavior. Removal of ministerial credentials generally is motivated by several considerations, including the protection of others, the scriptural standards for ministry, accountability, and an avoidance of legal liability for a minister’s future misconduct. State v. Edouard, 854 N.W.2d 421 (Iowa 2014).

Legal Developments

A Church’s Knowledge and Liability

Key point 8-24. A reference letter is a letter that evaluates the qualifications and suitability

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

Key point 10-16.5. The legal liability of churches and their officers, directors, and volunteers, is limited by state and federal “charitable immunity” laws.

An Ohio court ruled that a church was liable for a former pastor’s rape of a minor in another church since it had recommended him for a pastoral position despite knowledge of at least two incidents of child molestation. A 15-year-old girl (the “victim”) was raped by the senior pastor of her church (“Church A”) in the pastor’s office during a counseling session in 2008. The pastor (the “defendant”) pled guilty to two counts of sexual battery and was sentenced to two consecutive four-year prison terms.

The victim later learned that the defendant had previously worked in another church (“Church B”) as a youth pastor; that in the early 1990’s Church B learned that the defendant had engaged in sexually inappropriate sexual conduct with a minor female but took no action; that in 2001, Church B learned that the defendant had made inappropriate sexual comments to and inappropriately touched a female he was counseling but took no action; and, that in 2004, the defendant left his employment at Church B to become senior pastor of Church Awith the assistance, financial support, guidance, and supervision of Church B.

The victim sued Church B for negligent hiring, retention, or supervision, or negligent recommendation, promotion or support. During the trial, a young woman testified that in the early 1990’s, when she was between 13 and 16 years of age, her church went on a joint mission trip with Church B. The defendant was the youth pastor of Church B at the time. The woman testified that while at a concert during the mission trip, the defendant started rubbing her shoulders, moved his hand down her back between her shirt and the overalls she was wearing, and continued to move his hand down so his hand was on her skin on her lower back and the top area of her buttocks. The woman jerked forward and left the concert. She told her mother about the incident when she returned home. The mother informed the pastor of her church, and a meeting was convened with the mother and her daughter, the defendant, members of the church board, and representatives of Church B in attendance. During the meeting, the woman gave a full account of what happened to her, including that she felt scared and uncomfortable. The defendant apologized and said he was sorry if she felt uncomfortable. The woman testified that the representatives from Church B made light of this incident and acted as if she were making it up. The mother stated that, at the end of the meeting, one of the men from Church B said, “let’s just keep this quiet to protect our brother.” The mother was upset and felt the representatives from Church B were protecting the defendant. Neither the mother nor her daughter reported the incident to law enforcement and neither contacted Church B after the meeting to find out if it had taken any action with regard to the defendant.

The jury returned a verdict in favor of the victim in the amount of $1.5 million for past non-economic damages, $150,000 for future economic damages, and $2 million for future non-economic damages. The trial judge applied Ohio’s damages cap statute to reduce the award.

Another witness at the trial (“Amy”) testified that she attended Church B when the defendant was the youth pastor. In 2002, when she was eighteen (18) years old, she applied to go on a mission trip and had to meet with a pastor as part of the application process. When she met with the defendant, he did several things she felt were inappropriate, such as sharing the details of his sex life with his wife with her, touching her inappropriately, and telling her he could get away with having sex with her right there and then in his office, but his guilty conscience would stop him. Amy reported the incident to the pastor of Church B, who contacted the defendant for an explanation. The defendant claimed he did not remember saying or doing those things, but if he did, he was sorry.

The pastor of Church B testified that in 2002 he was the acting senior pastor at the church. He confirmed that though the defendant was leaving to be the senior pastor at Church A, he remained on the payroll of Church B until the end of 2005. Church B’s current pastor testified that the previous pastor did not inform him of the 2002 allegations by Amy; that the defendant’s behavior was inappropriate and should have been reported; and that if he had known of the 2002 incident he would not have recommended the defendant for the senior pastor position at Church A.

The defendant reported weekly to Church B’s elder board regarding his activities as senior pastor at Church A and, for a period of time, Church B’s pastor acted as his supervisor.

The jury found that Church B was liable for the victim’s injuries based on negligence since it was aware of the past behavior of the defendant and failed to do a proper investigation and documentation of the previous two incidents and, as a result, the defendant was empowered to a greater responsibility as senior pastor at Church A. The jury returned a verdict in favor of the victim in the amount of $1.5 million for past non-economic damages, $150,000 for future economic damages, and $2 million for future non-economic damages, for a total of $3.65 million.

The trial judge applied Ohio’s damages cap statute to reduce the award for the victim’s past and future non-economic damages to $350,000, and entered judgment for the victim in the amount of $500,000. The victim appealed.

The appeals court’s ruling

The appeals court began its opinion by noting that “the existence of an employer-employee relationship imposes a duty upon the employer to prevent foreseeable injury to others by exercising reasonable care to refrain from employing an incompetent employee. Injury is foreseeable if a defendant knew or should have known that his act was likely to result in harm to someone.” The foreseeability of a criminal act such as rape “depends upon the knowledge of the defendant, which must be determined by the totality of the circumstances.” The court concluded:

In this case, the two prior incidents which Church B became aware of both consisted of sexual misconduct and involved minor females being supervised or counseled by the defendant as a church employee either at the church or at a church camp. In light of this similar prior conduct, we find the totality of the circumstances indicates that a reasonable jury could have found that Church B should have reasonably foreseen the 2008 incident.

The court also refused to reverse the jury’s conclusion that Church B failed to take reasonable steps to protect the victim and whether the prior incidents should have influenced the church’s retention and promotion of the defendant to Church A.

Finally, the court rejected the victim’s argument that an Ohio statute that capped future noneconomic damages (i.e., pain and suffering) at $350,000 was unconstitutional.

What This Means For Churches:

This case illustrates the legal risk that is assumed by a church in not handling allegations of sexual misconduct properly, in not reporting child abuse to the civil authorities, and in affirmatively recommending perpetrators of child abuse for positions in other churches.

On the other hand, the court affirmed the constitutionality of a $350,000 cap on future, noneconomic damages in civil cases. Some states have enacted such laws, and they may protect a church from runaway verdicts. Simpkins v. Grace Church, 16 N.E.3d 687 (Ohio App. 2014).

* See also “Insurance,” Interstate Fire & Casualty Company v. Roman Catholic Church of Diocese, 761 F.3d 953 (9th Cir. 2014), in the Recent Developments section of this newsletter.

Legal Developments

Denominational Due Diligence

Key point 10-09.2. Some courts have found churches not liable on the basis of negligent

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

Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

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

The Minnesota Supreme Court ruled that a state denominational agency was not responsible for the molestation of an adolescent boy by a youth leader because of the agency’s limited involvement in the selection and supervision of the volunteers in affiliated churches. In 1991, an adult male (Paul) began working as a youth pastor at a local church (the “church”). Shortly thereafter, he obtained credentials as an ordained Assemblies of God minister. During his ministry at the church, members raised concerns regarding his inappropriate relationships with male adolescents. The church’s senior pastor learned that Paul had hosted a sleepover and insisted that a young male sleep in the same bed with him. Two or three months later, another family notified the senior pastor that Paul had pressured their son to sleep in the same bed with him. The senior pastor ordered Paul to stop the sleepovers but did not make a report to police because no one alleged any sexual misconduct. Eventually the church advised Paul that he must “resign under discipline” or be terminated. He elected to resign under discipline.

After resigning, Paul worked in the information technology field. He also began volunteering with the youth-ministry program at another Assemblies of God church. Volunteers in the youth-ministry program were not required to have ministerial credentials, and received all of the training required of lay volunteers.

After approximately three years of volunteer work, Paul became a “volunteer captain.” He led “cell group” meetings, which were Friday evening gatherings for either middle school or high school students. Sometimes students would stay overnight at Paul’s home.

In 2005, Paul sexually abused an adolescent male (the “victim”) during two sleepovers. When it learned of these allegations of abuse, the ministry ended Paul’s volunteer work. In 2010, Paul pled guilty to two counts of criminal sexual conduct in the fourth degree arising out of his abuse of the victim and another youth.

At the time Paul abused the victim, he still maintained his ministerial credentials. Each year he submitted a renewal application to the District Council, whose role was to make a recommendation to the denomination’s governing body, the General Council of the Assemblies of God (General Council). Only the General Council had the authority to renew Paul’s credentials, which it did every year.

In 2004, the senior pastor at the church where Paul had worked as a youth pastor joined the District Council as an officer. In 2004 and 2005, the District Council recommended that the General Council again renew Paul’s credentials, effective for the years 2005 and 2006. The General Council did so, as it had done before. In a deposition, a District Council officer testified that, in recommending renewal, he did not “make a recommendation as to Paul’s fitness” or any other applicant. Rather, the District Council’s responsibility was to verify that the applicant had completed all of the preliminary steps in the renewal process. The officer described the General Council as the organization responsible for assessing an applicant’s “fitness.”

Under Assemblies of God polity, the District Council did not control or supervise the youth-ministry programs, or volunteers, of any of its affiliated churches.

In 2011, the victim sued Paul, the church in which Paul served as a volunteer leader, and the District Council. A trial court dismissed all claims against the District Council, and the victim appealed. A state appeals court reversed the trial court’s ruling, concluding that there was sufficient evidence for a jury to conclude that the District Council’s conduct created a foreseeable risk of injury to a foreseeable plaintiff, and thus, the District Council owed the victim a duty of care, even in the absence of a special relationship. The court of appeals also held that the First Amendment did not bar the victim’s negligence claim. The District Council appealed to the state supreme court.

In most cases, the denomination retains no authority to supervise or control the day-to-day activities of ordained or licensed ministers.

The court began its opinion by defining negligence: “Negligence is the failure to exercise the level of care that a person of ordinary prudence would exercise under the same or similar circumstances. To recover on a claim of negligence, a plaintiff must prove: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) that the breach of the duty was a proximate cause of the injury.”

The key issue in this case, the court concluded, was whether the District Council had a duty of care toward the victim. It referenced “the general common law rule that a person does not owe a duty of care to another—e.g., to aid, protect, or warn that person—if the harm is caused by a third party’s conduct.” However, the court noted an exception to this general rule when “the defendant’s own conduct creates a foreseeable risk of injury to a foreseeable plaintiff.” The court added:

When we refer to the defendant’s own conduct, we mean misfeasance, which is “active misconduct working positive injury to others.” Nonfeasance, which is “passive inaction or a failure to take steps to protect [others] from harm,” is not enough. Once we identify the defendant’s “own conduct,” we then determine whether that conduct created a foreseeable risk of injury to a foreseeable plaintiff …. To determine whether the risk of injury to the plaintiff is “foreseeable,” we “look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility.” The risk must be “clear to the person of ordinary prudence.” If the connection between the danger and the defendant’s own conduct is too remote, there is no duty.

The court concluded that “the District Council did not create a foreseeable risk of injury to the victim, and thus the District Council did not owe him a duty of care. Simply put, the link between the District Council and the victim’s injury is too attenuated. Several undisputed facts, considered together, establish that the connection is remote”:

First, the District Council did not employ Paul, control the local church’s youth-ministry program, or supervise its volunteers. The church, not the District Council, had the responsibility to vet, train, and supervise Paul. Second, according to the church’s youth pastor who supervised Paul’s volunteer work, Paul’s credentials from the General Council “didn’t short circuit [the volunteer process] in any way.” Third, Paul was a well-established volunteer at the church long before 2004 when the District Council became aware of his history … . By 2005, when he assaulted the victim, Paul had served as a volunteer for approximately six years, including approximately three years as a captain. Finally, in the credentials renewal process it was the General Council’s responsibility, not the District Council’s, to determine fitness. Therefore the District Council did not create a foreseeable risk of injury to a foreseeable plaintiff. Thus, as a matter of law, the District Council had no duty to the victim.

What This Means For Churches:

Negligence is one of the most common forms of church liability. As this case illustrates, for a church or denominational agency to be responsible for an injury on the basis of negligence, it must be first established that it owed a duty of care to the victim. And, importantly, the court stressed that, as a general rule, one does not owe a duty of care to protect others from harm caused by the conduct of third parties. In this case, that means that the District Council could not be liable for the victim’s injuries caused by the actions of Paul. The court recognized two exceptions to this rule. First, a duty may arise in the case of a “special relationship” between a church or denominational agency and a victim of harm. But the court refused to find that a special relationship existed between a church or denominational agency and a minor participating in church activities. The second exception to the general rule that one cannot be liable for injuries caused by third parties may occur when “the defendant’s own conduct creates a foreseeable risk of injury to a foreseeable plaintiff.” The court concluded that “the District Council did not create a foreseeable risk of injury to the victim, and thus the District Council did not owe him a duty of care. Simply put, the link between the District Council and the victim’s injury is too attenuated.” This conclusion was based on the following facts: (1) The District Council did not employ Paul, control the local church’s youth-ministry program, or supervise its volunteers. (2) Paul’s credentials from the General Council “didn’t short circuit [the volunteer process] in any way.” (3) Paul was a well-established volunteer at the church long before 2004 when the District Council became aware of his history. (4) In the renewal of Paul’s ministerial credentials, the District Council claimed that it was the General Council’s responsibility, not the District Council’s, to determine fitness for ministry. Therefore the District Council did not create a foreseeable risk of injury to a foreseeable plaintiff, and as a matter of law, the District Council had no duty to the victim.

In recent years, a number of lawsuits have attempted to hold denominational agencies legally accountable for the acts of ministers that they ordain or license. The argument is that the act of issuing credentials to a minister, and the retention of authority to discipline or dismiss a minister for misconduct, constitutes sufficient “control” to make the denomination liable for the minister’s actions. In most cases, such efforts will fail. It is true that many denominational agencies ordain or license ministers; require ministerial credentials to be renewed annually; and reserve the authority to discipline or dismiss clergy whose conduct violates specified standards. In some cases, ministers are required or expected to provide annual contributions to the denomination. However, in most cases, the denomination retains no authority to supervise or control the day-to-day activities of ordained or licensed ministers. It may be authorized to discipline or dismiss a minister following an investigation, but ordinarily it has no authority to independently monitor or supervise the day-to-day conduct of ministers, and no such authority is ever exercised. It is important to point out that most denominations are “delegated powers” institutions, meaning that they can only exercise those powers that have been delegated to them by their constituent members in their governing documents. If these documents confer no authority to monitor and supervise the day-to-day activities of clergy, the denomination is prohibited from doing so.

The authority of many denominations to license and ordain clergy, require annual renewals of ministerial credentials, and discipline or dismiss clergy found guilty of specified misconduct, is precisely the same authority that is exercised by state professional accrediting organizations, such as the bar association. Like such denominational agencies, the bar association has the authority to license attorneys, require annual renewals, and discipline or dismiss attorneys for proven misconduct in violation of professional standards. In addition, many require annual contributions. However, this limited authority does not give the bar association any right to control or supervise the day-to-day activities of attorneys, and it is for this reason that no bar association has ever been sued on account of the malpractice or misconduct of a licensed attorney, much less found liable. State bar associations have never been sued or found liable for the numerous incidents of attorney misconduct and malpractice that occur each year, and religious organizations should be treated no differently.

An earlier Minnesota case reached such a conclusion. The court applied the “bar association analogy” in concluding that a regional church and national church (the “church defendants”) were not liable for the sexual misconduct of a pastor since the relationship between them and credentialed clergy (which resembled the relationship between state bar associations and licensed attorneys) was too attenuated to justify the imposition of liability for clergy misconduct.

In Minnesota, the supreme court “through the Rules of Professional Conduct, sets forth the rules and standards by which lawyers must adhere. If these rules are violated, the court may discipline the responsible attorney. But this relationship between the supreme court and the disciplined attorney is not an employment relationship. There has to be something more.” Similarly, the regional and national churches in this case had “limited control over the pastor.” But, “the congregation, not the umbrella entity, has the responsibility for hiring and firing the pastor, setting forth the terms and conditions of employment, supplying the pastor with parsonage, vacation and supplies, and paying the pastor. [It] is the congregation, not the [regional or national churches], which employs the minister.” The court concluded that the church defendants were not liable on the basis of respondeat superior for the pastor’s acts of molestation because an employment relationship did not exist. In addition, his wrongful acts were not committed in the course of his employment, as required by the respondeat superior doctrine. Doe 169 v. Brandon, 845 N.W.2d 174 (Minn. 2014).

Legal Developments

Sexual Abuse Screenings and Liability

Key point 10-04.2. Some courts have found churches not liable on the basis of negligent


Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.

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

Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on First Amendment considerations.

A federal court in Colorado ruled that a church was not liable on the basis of negligence or fiduciary duty for a Sunday School teacher's sexual relationship with one of his adolescent students off of church premises. A 40-year-old male (the "defendant') became a volunteer Sunday School teacher at his church for a group of adolescent minors. The church had a "two-deep" policy for certain settings where two adults had to be present, including Sunday classrooms with children ages 11 or younger. The church did not apply the two-deep policy to teenage Sunday School classes because there were several teenagers in the classroom, the doors were not locked, the church was full of people, other adults were frequently in and out of the classroom, and the class was short.

The church did not conduct background checks on Sunday School teachers, and none was conducted on the defendant. If a criminal background check had been conducted, it would have revealed the following:

In the Sunday School class the defendant taught, there were anywhere between five and 12 students, including both boys and girls. There was no co-teacher. There were two doors to the room, which were closed during class. The doors had a peephole that allowed people to look into the room. During class, the defendant became acquainted with a 15-year-old girl (the "plaintiff"). He often texted her while teaching, but was never alone with her during class and had no physical contact with her.

The plaintiff later sued the defendant, and church, claiming that the church was responsible for the defendant's wrongful acts on the basis of negligent hiring and supervision.

The plaintiff began communicating with the defendant outside of class. Initially, it was "just regular conversation," usually by texts. But over the next few months they communicated by text messages hundreds of times, and by phone "thousands and thousands of times." This usually occurred between 9 p.m. to 2 a.m. or 3 a.m., when the defendant got off work. The relationship ultimately resulted in sexual intercourse on at least two occasions, at the plaintiff's home. The defendant led the plaintiff to believe he wanted to have a long-term relationship with her. He said he wanted to marry her. She considered marrying him when she turned 18. However, the plaintiff saw on Facebook that the defendant had another woman in his life. Once plaintiff realized she was not going to get married to the defendant, she felt hurt, betrayed, manipulated, and angry. She called and told her mother, who reported the matter to the police. At first, plaintiff told her mother that she had been raped because she felt like she had—that the defendant had manipulated her into believing it was okay.

The defendant pled guilty to sexual assault with a 10-year age difference, a class 1 misdemeanor.

Negligent hiring

The court began its opinion by noting that negligent hiring involves an "employer's responsibility for the dangerous propensities of the employee, which were known or should have been known by the employer at the time of hiring, gauged in relation to the employee's job duties …. An employer has a duty to exercise reasonable care in making his decision to hire …. The requisite degree of care increases, and may require expanded inquiry into the employee's background, when the employer expects the employee to have frequent contact with the public or when the nature of the employment fosters close contact and a special relationship between particular persons and the employee."

The plaintiff claimed that the church had a duty to protect her from the sexual assaults occurring off church premises, and that it violated this duty by appointing the defendant as a Sunday School teacher. The court disagreed:

Plaintiff argues this duty existed because the church was aware of the defendant's history of domestic violence and crimes involving his own children, but failed to discover his character to cause harm to women and children. The undisputed facts, however, are to the contrary. Instead, the evidence establishes that, at the time of his calling [as a Sunday School teacher] the defendant had been a church member for several years; his membership record bore no annotation for abuse; and [church leaders] were only aware that around the time of the end of his first marriage he had taken his children across state lines, which [church leaders] viewed as domestic issues between a husband and wife. Such facts show no propensity or characteristic that put the church on notice that the defendant posed a risk of harm to minors as implicated in this case.

The plaintiff also argued that the church had a heightened duty to investigate due to the defendant's regular contact with the public. The court disagreed, noting that even if teaching a weekly 40-minute Sunday School class to a limited number of students in a group setting was sufficient "regular contact" requiring an independent inquiry, that inquiry would have shown violations relating to domestic disputes that did not "put the church on notice of any character or propensity on the part of the defendant to engage in sexual misconduct involving a minor at church or, for that matter, anywhere else."

Negligent supervision

In a claim for negligent supervision against an employer, the plaintiff must prove that the defendant "knew his employee posed a risk of harm to the plaintiff and that the harm that occurred was a foreseeable manifestation of that risk." As with negligent hiring, liability is "predicated on the employer's antecedent ability to recognize a potential employee's attributes of character or prior conduct which would create an undue risk of harm to those with whom the employee came in contact in executing his employment responsibilities."

The plaintiff claimed that the church was responsible for the defendant's acts on the basis of negligent supervision. In particular, she cited the lack of:

The court noted that "before a duty of care may exist there must be a connection between the employer's knowledge of the employee's dangerous propensities and the harm caused. In this case, there is insufficient evidence that any alleged supervision deficiencies caused the harm." For example, "there is no evidence that the defendant's lack of training on religious education was the cause of the sexual intercourse, and it should go without saying that an employer need not have to train a 40-year-old adult male that he is prohibited from engaging in sexual intercourse with a 15-year-old. There is also no evidence that the lack of a co-teacher or a window in the classroom door caused the harm—the sexual interactions occurred at night, outside of plaintiff's house."

"Grooming"

The plaintiff alleged that the defendant "groomed" her during Sunday School class, that the grooming occurred due to a lack of supervision, and that the intercourse would not have occurred without the grooming. The court noted that the plaintiff failed "to identify specific conduct constituting grooming; to tie that conduct to the Sunday School class; and to explain how that conduct would have been deterred by some specific form of supervision." Even if this conduct could be deemed grooming, "it would be dwarfed by the non-controllable instances of identical conduct. Plaintiff testified that she and the defendant exchanged hundreds of text messages and thousands of calls outside of church—all between about 9 p.m. to 2 a.m. or 3 a.m.—when the defendant got off work. If any grooming occurred, it was far from a time and place connected with the defendant's 'employment' at the church."

Fiduciary relationship

The plaintiff also claimed that the church was liable for the defendant's wrongful acts on the basis of a breach of its "fiduciary duty" to her. In particular, she asserted that the church and defendant were acting as fiduciaries in providing religious instruction and creating a setting for interaction which created trust and reliance. In support of her argument, plaintiff further noted that the defendant and church placed themselves in a position of superiority, trust, and influence and she, then age 15, was vulnerable and dependent.

The church countered by asserting that "no court has recognized a fiduciary duty based on a basic clergy-congregant relationship" much less a Sunday School teacher-student relationship. In other words, attending church or its Sunday School "does not create a fiduciary relationship between the church/school/teacher and the parishioner/student."

The court concluded:

What is notably absent is any evidence that the defendant and church [the defendants"] assumed any duty to act in plaintiff's best interest or that plaintiff reposed any trust or confidence in and relied on defendants to protect her interest. Instead, she was a visiting parishioner, present at church services like all other parishioners and at Sunday School like other young men and women. She was free to attend or not attend, as demonstrated by her testimony that she attended anywhere from three to 20 occasions. Such undisputed facts do not support the existence of a fiduciary relationship between defendants and plaintiff. Similarly, plaintiff's bare allegations and arguments that a fiduciary duty existed, without any evidentiary basis to show such a duty in fact existed, are insufficient.

What This Means For Churches:

This case is instructive for the following reasons:

First, it demonstrates that not all crimes render one unfit for children's ministry. The defendant's criminal record was limited to various violations of child custody agreements.

Such crimes, the court concluded, did not suggest that he was a risk to minors.

Second, the court concluded that a failure to conduct a criminal records check on a church volunteer who will work with minors does not, by itself, make a church liable for the volunteer's wrongful acts. A failure to conduct a criminal records checks is irrelevant if such a check would not have revealed any crimes suggesting that the person poses a risk of harm to minors.

Third, the court suggested that the "degree of care increases, and may require expanded inquiry into the employee's background, when the employer expects the employee to have frequent contact with the public or when the nature of the employment fosters close contact and a special relationship between particular persons and the employee." However, the court concluded that an "expanded inquiry" into the defendant's past would not have revealed any facts suggesting he was a risk of harm to minors.

Fourth, the court rejected the plaintiff's argument that it was responsible for her injuries on the basis of negligent supervision since it failed to adequately train the defendant, did not have a co-teacher in the classroom, and did not have a window in the classroom. It noted that there was "insufficient evidence that any alleged supervision deficiencies caused the harm." For example, "there is no evidence that the defendant's lack of training … was the cause of the sexual intercourse, and it should go without saying that an employer need not have to train a 40-year-old adult male that he is prohibited from engaging in sexual intercourse with a 15-year-old. There is also no evidence that the lack of a co-teacher or a window in the classroom door caused the harm—the sexual interactions occurred at night, outside of plaintiff's house."

Fifth, the plaintiff alleged that she and the defendant had exchanged hundreds of text messages and thousands of calls outside of church. Such communications, the court concluded, were too far removed from the church to serve as a basis for liability. But, at a minimum, they suggest that social media contacts between adult youth workers and minors in the youth group are inappropriate, and may lead to a sexual relationship that in some cases may expose a church to liability. Such communications should be absolutely banned.

Any need to communicate with minors should be done through their parents. When social media communications evolve into "sexting," this can expose the adult participant to criminal liability, as has been noted in several previous articles in this newsletter. Lindeman, 2014 WL 2505647 (D. Colo. 2014).

* See also Insurance, Drew v. Insurance Company, 2014 WL 2436273 (D.N.J. 2014), in the Recent Developments section of this newsletter.

Legal Developments

Church Could be Liable for Negligent Hiring

Court rules church hiring youth pastor without checking reference could be liable for workers’ molestation of a minor.

Church Law and Tax Report

Church Could be Liable for Negligent Hiring

Court rules church hiring youth pastor without checking reference could be liable for workers’ molestation of a minor.

Key point 10-04.1. Some courts have found churches liable on the basis of negligent selection for the molestation of a minor by a church worker if the church failed to exercise reasonable care in the selection of the worker.

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.

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 Georgia court ruled that a church that hired a youth worker without checking the references listed in his employment application could be liable on the basis of negligent hiring for the workers’ sexual molestation of a minor. A church’s child protection policy stated that “all volunteers working with children or youth” were required to have maintained church membership for at least three months and to complete a membership class and an application, which included two reference forms and written consent to a background check. A 21-year-old male (the “defendant”) began attending the church, and soon expressed an interest in volunteering to work with the youth ministry. He filled out a volunteer application, which included the names of two references, and gave it to the church’s youth pastor. The church’s administrative assistant found the application suspicious, felt that there was “something not right” about him, and communicated these concerns to the youth pastor, who took no further action.

The defendant began attending youth group meetings, and assisted the youth pastor. One of these meetings was a “game night” at which the defendant handed out pizza, played catch football, ran laps around a makeshift trail, and took some boys to the weight room, with some of these activities taking place without any other adult present.

One of the two reference forms turned in by the defendant bore a signature from a woman who later testified that she had declined to provide a reference for the defendant, that she never filled out the reference form, and that her signature on the form was a forgery. She further testified that had the church contacted her, which it did not, she would “never” have recommended the defendant as a volunteer because she had “concerns that he may be a sexual predator.” For example, she testified that the defendant was a frequent visitor to her house, and that he paid special attention to her second son, who was four years old; that on one night when she and two of her children, and the defendant, were all sleeping together in the same room, the defendant, who was sleeping on the floor, repeatedly “grabbed” the feet of her second son, who was also sleeping on the floor, in an effort to “pull” or “slide” the boy’s body “down” toward him. This happened “four or five times,” and the defendant pretended to be asleep throughout. She repeatedly pulled her son away from the defendant before pulling him off the floor entirely and into bed with her.

At about the time that the defendant became involved with the church’s youth ministry, a 14-year-old boy (the “victim”) began attending Wednesday night youth services at the church as a guest of a friend. On one of his visits, the victim met the defendant, describing him to his mother as a “cool” youth leader who liked the same video games that he did.

A few weeks later, the church held a fall festival that included food, children’s games, and other activities. At around 2 p.m. that day, the defendant called the victim and invited him to the festival. When the victim put his mother on the phone, the defendant told her that he was a youth leader and asked if the victim could attend the festival. The victim’s mother agreed; drove the boy and his friend to the church, where adults and children were engaged in cleanup after the conclusion of the festival; and dropped the two boys off in the parking lot without speaking to the defendant or any other adult.

The victim and his friend accompanied the defendant to a vacant room in the church where the defendant told the boys that he wanted to show them “some Army moves” he learned from his drill sergeant. The defendant then put the victim in a headlock, choked him until he passed out, and slapped him in order to revive him. The defendant thereafter led the boys off church property to a wooded nature trail. He told the victim’s friend to wait some distance away. The defendant then proceeded to sexually molest the victim. Later that day, the victim informed his parents what had happened. The parents immediately called the youth pastor, who informed them that: (1) Although the church had received the defendant’s application to become a youth worker, it had not completed the background check on him required under church policy; and (2) the defendant should not have been allowed to have unsupervised contact with youth at the church.

The defendant was arrested and charged with one count of attempted aggravated child molestation and three counts of child molestation. He pled guilty to two counts of child molestation and was sentenced to 20 years.

The victim’s parents sued the church, claiming that it was negligent when it hired, retained, and supervised the defendant as a youth group volunteer and its failure to warn the victim. The trial court dismissed the lawsuit on the ground that “no evidence” demonstrated that the church “knew or should have known” of the defendant’s “propensity or proclivity to commit the criminal offense of sexual assault against a minor.” The parents appealed.

The appeals court began its opinion by noting:

An employer must exercise ordinary care in the selection of employees, and must not retain them after knowledge of incompetency … . These same principles apply to the acts or omissions of non-profit organizations, including churches, when such an organization solicits volunteers to perform projects on its behalf … . As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.

However, a church will be liable for injuries occurring outside the scope of a volunteer’s duties “only where there is sufficient evidence to establish that the employer reasonably knew or should have known of the person’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff,” such that it is “reasonably foreseeable that the person could cause the type of harm sustained by the plaintiff.”

The court concluded that “the question of whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case,” and specifically, “a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.” The court continued:

The church allowed the defendant unsupervised contact with children before it checked his references, one of which would have yielded some evidence that he had attempted to molest a child—the same category of criminal and tortious conduct of which [the parents] complain. Because a jury could reasonably conclude on this record that the church failed to exercise reasonable care as to accepting the defendant’s services as a volunteer youth leader without contacting either of his references, the trial court erred when it granted the church’s summary judgment on the negligent hiring, retention, and supervision claims.

What This Means For Churches:

This case is relevant and instructive to church leaders for three reasons.

First, the court affirmed that “a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.”

Second, the court concluded that “the question of whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case,” and specifically, “a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.”

Third, the court concluded that the church could be liable for the defendant’s acts on the basis of negligent hiring because it “allowed him unsupervised contact with children before it checked his references, one of which would have yielded some evidence that he had attempted to molest a child.” In fact, the defendant provided the church with two written references, but one of them later testified that she was never asked for a reference by the church, that her “signature” had been forged, and that she would have alerted the church to the defendant’s propensity to molest minors had she been contacted.

The takeaway point is that churches should not rely on written references provided by applicants for youth or children’s ministry without verifying the authenticity of the references through personal contact with them. Allen v. Church, 761 S.E.2d 605 (Ga. App. 2014).

Legal Developments

Former Scout Leader Sued for Molestation

Court rules scouting organization is not responsible.

Church Law and Tax Report

Former Scout Leader Sued for Molestation

Court rules scouting organization is not responsible.

Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.

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.

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.

An Illinois court ruled that a scouting organization was not responsible for the molestation of a young boy by a former scout leader. A minor boy (the “victim”) was sexually molested by a scout leader. The victim’s mother sued the scout leader (the “defendant”) for assault and battery, and the national and regional scouting organizations (the “scouting defendants”) for negligent hiring and negligent retention of the perpetrator. The mother’s lawsuit alleged that the victim met the defendant while participating in a local scout troop; that the victim often spent time alone with the defendant at the latter’s home and other locations; and, that the defendant engaged in multiple sexually deviant acts with the victim over the course of 10 months.

The first incident occurred in February 2006, when the victim accompanied the defendant on an overnight trip and they shared the same bedroom at a hotel. The victim’s mother consented to this trip because the defendant had been in scouting for several years and she had no suspicions about him and trusted him.

The mother claimed that the national and regional scouting organizations were “negligent in the manner that [they] screened, hired, retained, and supervised the defendant when [they] knew or should have known that he posed a threat of sexual abuse to children.” She further claimed that the scouting defendants “failed to conduct background checks on new or existing scouting leaders, employees, agents, volunteers, agents or apparent agents or more carefully screen scout leaders who did not then and never had sons in scouting.”

The mother’s lawsuit cited the following evidence in support of her claims of negligent hiring and retention:

• A scouting volunteer who attended the same church as the defendant testified to his suspicions about the defendant. He noted that the defendant was involved in the youth program and manifested “an inordinate amount of interest” in young boys at church. The volunteer observed that the defendant would “hug the kids, and pick them up, if they were small enough, and rub up against them.” He also testified that the defendant acted suspiciously at the YMCA where the volunteer’s two minor sons were part of a swim team. The defendant would position himself in the locker room so that he could “watch,” in one of the mirrors, the boys change clothes. The volunteer assumed that it was because of the flexibility of the defendant’s job that he was able to be at the YMCA on afternoons when the boys’ swim team was practicing.

• The same volunteer further claimed that the defendant displayed all of the “warning signs” of which scout volunteers are admonished as part of their training. In particular, volunteers are given “the name of the scout executive and his direct phone number so that if you ever saw anything that was inappropriate that was going on, you were supposed to call directly to him.” The volunteer conceded that he did not share his concerns with scouting officials because he did not have a “smoking gun” that the defendant was molesting boys.

• The defendant had served in the Navy until his honorable discharge in 1978. His record contains an “Office Separation Questionnaire” completed by the defendant in which he indicated that he was asked to resign on suspicion of “homosexual tendencies” and possession and sale of drugs.

• The defendant had a prior conviction for driving while intoxicated.

The scouting defendants cited the following evidence in opposition to the mother’s claims:

• One of the defendant’s direct supervisors testified that he had received no complaints about the defendant’s job performance or his suitability for working with minors.

• Another scouting executive testified that he “never detected anything to suggest that the defendant was unfit for a scouting position.”

• A third scouting official testified that after the defendant’s molestation of the victim was revealed, he had “wracked his brain” for warning signs that he might have observed in the defendant, but could recall no reason to suspect that the defendant was a danger to children. However, this executive did recall that the defendant frequently took photographs at scout events. Photography was not part of his duties as district executive, and scouting officials were unsure why he was taking the photos of young boys.

• The defendant had never been employed by the national scouting organization (Boy Scouts of America) and had ceased to be employed by the regional organization in February of 2006, several months before the first incident of sexual molestation occurred during the overnight trip.

A trial court dismissed the lawsuit. It concluded that neither the national, nor the regional, scouting organization were guilty of negligent hiring and retention because, first, the national organization never had employed him and, second, the regional organization no longer employed him when he inflicted the injuries for which the mother sought relief. Second, the court determined that the scouting defendants “adequately executed all voluntary protective measures that they undertook.” The mother appealed.

The appeals court’s decision

The appeals court affirmed the dismissal of the negligence claims against the national scouting organization. It noted that “Illinois law recognizes a cause of action against an employer 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.” The court concluded that the national scouting organization could not be liable on the basis of negligent hiring or retention since “there is no indication in the record that any employment relationship existed between it and the defendant.” The court concluded:

In fact, the scouting professionals who were queried on the matter unequivocally maintained that the defendant was employed by [the regional scouting organization], not BSA. Plaintiff claims, however, that BSA was “inextricably intertwined” with the regional organization in the process leading to the defendant’s hiring, as BSA acted as “the clearinghouse for local councils” and had the “final say over any hire.” Thus, according to plaintiff, BSA “effectively hired the defendant.” We disagree. We know of no “effective” employment relationship under Illinois law except that which is determined by the following factors: “the right to control the manner in which the work is performed; the right to discharge; the method of payment; whether taxes are deducted from the payment; the level of skill required to perform the work; and the furnishing of the necessary tools, materials, or equipment.” While no one single factor is considered determinative, the right to control the work is considered to be the predominant factor. Plaintiff does not discuss these factors, and it is apparent that the most significant factor, namely, the right to control the work, weighs against finding an employment relationship between BSA and the defendant. He reported to the regional organization, not BSA. Therefore, we hold that, as a matter of law, BSA was not the defendant’s employer for purposes of the tort of negligent hiring and retention.

The court acknowledged that the regional scouting organization was the defendant’s employer, however it stressed that the injuries to the victim “occurred after the defendant voluntarily terminated his employment.” The mother “has cited no authority, Illinois or otherwise, for holding an employer liable, under the tort of negligent hiring and retention, for an employee’s post-termination acts. Our own research has disclosed no Illinois decision where a negligent-hiring-and-retention claim was based on post-termination acts.” Further, the court observed:

Liability for negligent hiring arises only when a particular unfitness of an applicant creates a danger of harm to a third person which the employer knew, or should have known, when he hired and placed this applicant in employment where he could injure others. This language suggests that the purpose of the tort is to prevent injuries that occur during the term of employment and, consequently, suggests that the employer’s duty of care does not extend beyond the cessation of employment.

The court noted that even if Illinois law extended liability for negligent hiring and retention to post-employment actions, the mother had failed to prove that the scouting organizations were negligent.

First, on the issue of the hiring of the defendant, the only information that plaintiff claims the scouting organizations would have uncovered had they fulfilled their duty to carefully screen applicants was (1) the defendant’s discharge from the Navy for suspected homosexuality and drug activity and (2) his DWI. In her briefs, plaintiff does not articulate how such facts would have made it reasonably foreseeable that the defendant would sexually molest young boys. Rather, plaintiff merely insinuates that the presence of a “young man” in the car with [the defendant] when he was arrested for DWI indicated some sexual impropriety. The “young man” was, in fact, 18 years old. Plaintiff’s insinuation is simply unwarranted … .

On the issue of negligent retention, plaintiff contends that the negligence consisted of the regional scouting organization’s inaction after the volunteer informed a scout leader of how the defendant behaved in the locker room at the YMCA … . We cannot agree … . The defendant’s conduct at the YMCA was not so clearly prurient, and did not signal such an immediate danger to scouts, as to warrant depriving him of any opportunity to explain himself. Such an explanation might have reasonably persuaded the scouting organizations that his actions were wrongly perceived.

What This Means For Churches:

This case is directly relevant to church leaders for the following reasons:

First, the court concluded that youth-serving organizations are not liable for the post-termination acts of volunteers and employees that do not occur during sanctioned activities. The defendant voluntarily terminated his employment with the regional scouting organization prior to his molestation of the victim, and those acts did not occur during sanctioned scouting activities.

Second, this case demonstrates that national youth-serving organizations, including religious denominations, ordinarily cannot be liable on the basis of negligent hiring or retention for the wrongful acts of workers in local affiliates.

Third, the mother mentioned the defendant’s frequent photographing of young boys as evidence that he might be a pedophile. The court did not respond to this argument. Perhaps it should have. The FBI “profile” of child molesters (“Child Molesters: A Behavioral Analysis”) lists several characteristics of pedophiles, but notes that taking frequent photos of children is perhaps the most telling characteristic: “This includes photographing children fully dressed. One pedophile bragged that he went to rock concerts with 30 or 40 rolls of film in order to photograph young boys. After developing the pictures he fantasized about having sex with the boys. Such a pedophile might frequent playgrounds, youth athletic contests, child beauty pageants, or child exercise classes with his camera (i.e., 35mm, video, digital).” The FBI profile continues:

Collecting this material may help them satisfy, deal with, or reinforce their compulsive, persistent sexual fantasies. Some child erotica is collected as a substitute for preferred but unavailable or illegal child pornography.

Collecting may also fulfill needs for validation. Many preferential sex offenders collect academic and scientific books and articles on the nature of their paraphilic preferences in an effort to understand and justify their own behavior. For the same reason, pedophiles often collect and distribute articles and manuals written by pedophiles in which they attempt to justify and rationalize their behavior. In this material pedophiles share techniques for finding and seducing children and avoiding or dealing with the criminal-justice system.

Preferential sex offenders get passive validation from the books and articles they read and collect. Many preferential sex offenders swap pornographic images the way boys swap baseball cards. As they add to their collections, they get strong reinforcement from each other for their behavior. The collecting and trading process becomes a common bond. Preferential sex offenders get active validation from other offenders, some victims, and occasionally from undercover law-enforcement officers operating “sting” operations. The Internet makes getting active validation easier than ever before. Fear of discovery or identification causes some offenders to settle only for passive validation.

The need for validation may also partially explain why some preferential sex offenders compulsively and systematically save the collected material. It is almost as though each hour spent on the Internet and each communication and image is evidence of the value and legitimacy of their behavior. For example one offender sends another offender a letter or E-mail enclosing photographs and describing his sexual activities with children. At the letter’s or E-mail’s conclusion he asks the recipient to destroy the letter or E-mail because it could be damaging evidence against him. Six months later law enforcement finds the letter or E-mail—carefully filed as part of the offender’s organized collection. Offenders’ need for validation is the foundation on which proactive investigative techniques (e.g., stings, undercover operations) are built, and it is also the primary reason they work so often. In a letter or during Internet correspondence an offender states that he suspects the recipient is an undercover law-enforcement officer and asks for assurances that the recipient is not. The recipient who is in fact an undercover officer sends a reply assuring the offender that he is not. The offender accepts his word and then proceeds to send child pornography and make incriminating statements.

Although their brains may tell them not to send child pornography or reveal details of past or planned criminal acts to someone they met online, their need for validation often compels them to do so. They believe what they need to believe. Some of the theme pornography and erotica collected by preferential sex offenders is saved as a souvenir or trophy of the relationships with victims. All child victims will grow up and become sexually unattractive to the pedophile. In a photograph, however, a 9-year-old child stays young forever. This is one reason why many pedophiles date and label their pictures and videotapes of children. Images and personal items become trophies and souvenirs of their relationships—real or fantasized.

The offenders’ needs to validate their behavior and have souvenirs of their relationships are the motivations most overlooked by investigators when evaluating the significance of the pornography and erotica collections of pedophiles and other preferential sex offenders.

The point is clear—church leaders should be wary of any individual who takes pictures of minors in any church activity or event without a reasonable justification (i.e., a parent taking pictures of her child). Doe v. Boy Scouts of America 4 N.E.3d 550 (Ill. App. 2014).

Legal Developments

Church Deacon Secretly Records Teenage Girls in His Bathroom

A 10-year sentence at hard labor stands up in court.

Key point. The use of hidden cameras to secretly record minors undressing in a restroom or locker room may result in criminal liability for the felony of video voyeurism.

A Louisiana court affirmed a sentence of 10 years at hard labor for a church deacon who made video recordings of teenage girls with a camera hidden in a bathroom in his home during a church youth retreat.

The deacon (the "defendant") hosted a weekend church retreat at his home. The retreat was for young female church members. Seven girls attended, all under the age of 17. Prior to their arrival, the defendant installed hidden video cameras in the bathroom the girls would be using during the weekend. During their stay, one of the girls discovered the camera and removed it. She alerted her parents. Several images of the girls had been recorded in various stages of undress and nudity. The authorities were notified.

A search warrant was issued for the residence, revealing pornographic material involving juveniles and adults. These images had been transferred to the defendant's personal computer, which had internet access.

The defendant was ultimately charged with a total of 21 counts. He pled guilty to two counts of video voyeurism in exchange for dismissal of the remaining charges. A pre-sentence investigation was ordered and a sentencing hearing was held in which impact statements were presented to the court on behalf of the defendant and the victims. A report by a psychologist stated that the defendant had been in treatment following discovery of the offenses, and that he suffered from severe depression. The defendant was sentenced to 10 years at hard labor. He appealed, claiming that his sentence was excessive and unreasonable.

In support of his appeal, the defendant noted that he was 55 years old at the time of the offenses and had no criminal history; he was active in his church, and gainfully employed; and, he was a full-time husband and father. The defendant claimed that the sentences placed undue hardship on his wife and family, who have forgiven him and have chosen to support him through this traumatic time. He also noted that he never had possession of or viewed the videos because the cameras were confiscated by one of the victims, and therefore the crime of video voyeurism was not completed.

A state appeals court rejected the defendant's claims, and affirmed the 10-year sentence at hard labor. It concluded: "The trial judge carefully considered the defendant's circumstances and mitigating factors presented by his family, including their statements regarding his good character and church leadership activities, as well as the statements from other church members and victims and their families. Considering the position of trust this defendant enjoyed with his fellow church families and their children and the betrayal of that trust as evidenced by statements from the victims' families during sentencing, [the sentence] was well within the trial judge's discretion. These sentences do not shock our sense of justice in this case, nor are they disproportionate to the severity of the offenses. The court noted that "statements made during sentencing referenced other atrocious activities of the defendant. For example, he taped a camera to his shoe at church to photograph up the girls' skirts." State v. Holmes, 130 So.3d 999 (La.App. 2014).

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