Child Abuse Reporting

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

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

The New Hampshire Supreme Court ruled that church leaders who failed to report allegations of child abuse could not be sued by the victims on the basis of their failure to report.

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

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

The child abuse reporting law

The plaintiffs argued on appeal that the plain language of the child abuse reporting law required the elders to report the suspected child abuse to law enforcement authorities, and so their failure to report rendered them liable for the plaintiffs' injuries. The court conceded that the reporting law specifies that 'any priest, minister, or rabbi or any other person having reason to suspect that a child has been abused or neglected shall report the same in accordance with this chapter.' However, the court concluded:

[The reporting law] did not give rise to a civil remedy for its violation. Failure to comply with the statute is a crime and anyone who knowingly violates any provision is guilty of a misdemeanor. The reporting statute does not, however, support a private right of action for its violation. Even assuming, without deciding, that the elders had an obligation to report suspected child abuse to law enforcement authorities, the plaintiffs have no cause of action for damages based on the elders' failure to do so. Accordingly, we need not decide whether the church elders qualify as 'clergy' for purposes of the religious privilege.

'Common law duty' to report child abuse

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

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

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

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

Breach of a fiduciary duty

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

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

Injuries Caused by Volunteers’ Negligence

Organizations can be held responsible for acts of their employees, but not volunteers.

Church Law and Tax1994-07-01Recent Developments

Personal Injuries – On Church Property or During Church Activities

Key point: Under the “respondeat superior” doctrine, employers are responsible for the negligent acts of employees committed within the course of their employment. However, this principle does not apply to the acts of self-employed persons.

The Supreme Court of New Hampshire ruled that a church was not responsible for injuries caused by the negligent driving of a volunteer church worker. A man operating a motorcycle sustained permanent injuries when he was struck by a car driven by a church volunteer. The volunteer was a certified public accountant and elected member of the church finance committee, and at the time of the accident was in the process of delivering church financial records to the church treasurer. The motorcycle operator sued the church, arguing that it was responsible for the volunteer’s negligence on the basis of the respondeat superior doctrine. Under this doctrine, employers are liable for the negligent acts of employees committed within the scope of their employment. The trial court dismissed the lawsuit, ruling that the volunteer “was performing services for the church as an independent contractor. She was not an employee of the church and the church had no control over her actions on the day of the accident, or any other day …. Therefore, the [church] is not vicariously liable for the alleged negligence of [the volunteer].” The motorcycle operator appealed, and the state supreme court ruled in favor of the church. The supreme court began its opinion by noting that the question in this case was whether or not to extend the respondeat superior doctrine to volunteer workers. The court did not see any reason why the respondeat superior doctrine should not be applied to volunteer workers, but it insisted that this could occur only if “the community would consider the person an employee.” The court noted that the trial judge had concluded that the volunteer in this case would not be considered an employee by the community: “[A]lthough the church may have had control over the tasks assigned to [the volunteer], it had no right to control the physical performance or the details of the accounting services she performed. To carry the plaintiff’s argument to its logical conclusion could result in a client of a certified public accountant being liable for the accountant’s negligent driving while delivering the client’s tax return.” As a result, the court concluded that the respondeat superior doctrine did not apply in this case, and accordingly the church was not legally responsible for the injuries caused by the volunteer’s negligent driving. Boissonnault v. Bristol Federated Church, 1994 WL 214688 (N.H. 1994).

See Also: Vicarious Liability | Negligence as a Basis for Liability – Defenses

Officers, Directors and Trustees

Church Law and Tax 1989-09-01 Recent Developments Officers, Directors, and Trustees Richard R. Hammar, J.D.,

Church Law and Tax 1989-09-01 Recent Developments

Officers, Directors, and Trustees

Can an officer or trustee of an unincorporated religious organization legally sell the organization’s property? No, concluded the New Hampshire Supreme Court. In 1957, the Benedictine Sisters was organized in Bedford, New Hampshire as a nonprofit corporation. In 1977, the corporation was dissolved by the secretary of state for failure to file an information return and fee. Some seven years later, in 1984, Sister Simonis (the mother superior and former president of the nonprofit corporation) entered into a contract with a local real estate broker to sell him 8 of the 40 acres owned by the Benedictine Sisters. The broker was not represented by an attorney, and made no effort to verify the authority of Sister Simonis to execute the contract on behalf of the Sisters. While the broker was seeking city approval to subdivide the 8 acres into a real estate development, Sister Simonis notified the city and real estate broker that she wished to cancel the agreement. The broker sued the Sisters for damages, and requested a court order compelling the enforcement of the agreement. Sister Simonis argued that the agreement could not be enforced because (1) the Benedictine Sisters no longer existed as a corporation, (2) whether or not the Sisters existed as a corporation, Sister Simonis had acted outside her authority in executing the sales agreement, and (3) enforcement of the agreement would cause undue hardship. The broker maintained that even if the corporation had ceased to exist, the Sisters constituted an unincorporated association and as such had legal authority to enter into a sales contract. A trial court and state appeals court ruled in favor of the Sisters, and the broker appealed the case to the state supreme court which also ruled in favor of the Sisters. The court emphasized that Sister Simonis had no actual or implied authority to sign contracts whether the Benedictine Sisters was a corporation or an unincorporated association. It added: “Trustees or similar officers of unincorporated religious organizations must have the consent of their organization in order to convey its property …. [We] see no evidence that Sister Simonis had obtained any authorization or consent for the proposed land sale from any membership group.” The court further noted that the broker made no attempt to verify the corporation’s existence or the authority of Sister Simonis to sign the contract, and observed that “when a … broker signs a purchase and sale agreement without making any attempt to verify either the existence of the corporation with which he is contracting, or the authority of the person with whom he is dealing … he fails to exercise reasonable diligence.” The court acknowledged that the broker could sue Sister Simonis individually, but added that “we doubt the technical or practical merit of such a claim in light of the fact that the defendant would be an eighty-year-old nun who had long before taken a vow of poverty.” This case is significant for three reasons. First, it illustrates the fact that in many states a nonprofit corporation may cease to exist if it fails to file periodic reports (accompanied by a fee) with the state. These requirements typically apply only to organizations that are incorporated under the state “General Nonprofit Corporation Act” (which has been adopted by most states). However, many churches incorporate under this Act, and the corporate status of many such churches has lapsed inadvertently because of failure to file periodic reports with the secretary of state’s office. Neither Sister Simonis nor the Benedictine Sisters was aware, in 1984, that the corporate status of the Sisters had terminated seven years earlier. Churches that have incorporated under the General Nonprofit Corporation Act (sometimes referred to as the Model Nonprofit Corporations Act) should contact the secretary of state’s office in their state capital to confirm that they are in fact corporations in good standing. Many will discover that they are not. Second, the case demonstrates that a single officer or trustee of an incorporated or unincorporated church cannot sign legal documents on behalf of the church without authorization. Third, the case demonstrates that an individual officer or trustee who unsuccessfully attempts to sell church property to a third party can be personally sued for damages incurred by the third party as a result of the unsuccessful sale. Shakra v. Benedictine Sisters of Bedford, 553 A.2d 1327 (N.H. 1989).

See also Personal injuries—on church property or during church activities, Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989).

Related Topics:

Court Ruled Land Sales Contract Executed by a Church Secretary and Treasurer Were Not Legally Enforceable

Is a land sales contract executed by a church secretary and treasurer legally enforceable? No,

Is a land sales contract executed by a church secretary and treasurer legally enforceable? No, concluded the Supreme Court of New Hampshire.

The court observed that the officers of a corporation "have only those powers conferred on them by the bylaws of the corporation or by the resolution of the directors." Neither the bylaws of the church nor any resolution by the board vested the secretary and treasurer with authority to enter into contracts on behalf of the church.

It is a good practice for churches to periodically review their charter, constitution, bylaws, and board minutes and resolutions to determine the appropriate method of authorizing and executing legal documents. Any variance from the authorized practice can lead to unwelcome legal difficulties in the future. Daniel Webster Council v. St. James Association, 553 A.2d 329 (N.H. 1987)

Internal Revenue Service


Your chances of being audited by the IRS are highest (2.61%) in Nevada and lowest (0.47%) in Rhode Island, according to recently released IRS data. The five states with the highest audit risk are Nevada, Alaska, Utah, Wyoming, and California. The five states with the lowest risk are Rhode Island, Kentucky, Indiana, Massachusetts, and New Hampshire. The national average in 1986 was 1.1%, down from 2.3% in 1975. The IRS plans to audit 1.23% of all individual income tax returns in 1987, and 1.32% in 1988.

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