Church Not Liable for Sexual Abuse of Counseled Woman

Federal court rules church not responsible for actions of deacon.

Church Law and Tax Report

Church Not Liable for Sexual Abuse of Counseled Woman

Federal court rules church not responsible for actions of deacon.

Key point 10-10.2. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.

A federal court in Wyoming ruled that a church and diocese were not liable on the basis of negligent training or negligent supervision for a church worker’s sexual abuse of a woman he was counseling. In 1991, a man (“Gary”) became interested in becoming a deacon for a Roman Catholic Diocese. He discussed his interest with the bishop, and ultimately applied to a deacon training program. As part of his application, Gary submitted various materials, including letters of recommendation and a report from a psychological evaluation. Nothing in his materials raised any red flags so the bishop accepted him into the deacon training program. During his training, no one ever expressed any concerns about him to the bishop.

In 1996, Gary finished his training, and he was ordained as a deacon. He was assigned to a local church within the diocese. The bishop retired a few years later, but during the entire time he knew Gary, no one ever expressed any concerns about him.

A few years after Deacon Gary was ordained, a church member (the plaintiff) lost two members of her family in a tragic accident. She turned to her church to help her cope with the loss. She met with her pastor, who referred her to Gary for bereavement counseling. The plaintiff and Gary remained friends over the next several years. In 2007, their relationship became sexual, even though Gary was married to another woman at the time.

Although their sexual relationship was consensual, the plaintiff came to believe that Gary is a sexual perpetrator who “groomed” her for sex from the very start of their relationship, and that this grooming process culminated in his sexually abusing her starting in 2007. She was never able to inform church leaders of the affair. The pastor later testified that he was never aware of any sexual relationship between the plaintiff and Gary. He also testified that no one ever expressed any concerns to him about Gary.

Despite feeling sexually abused by Gary, the plaintiff stayed in the relationship until it completely unraveled in 2008 when Gary allegedly became physically abusive.

Several years later, the plaintiff sued the church, diocese, and various church officials (the “church defendants”) claiming that they negligently trained and supervised Gary, and were vicariously liable for his sexual abuse.

Vicarious Liability

The plaintiff claimed that the church defendants were vicariously liable for Gary’s actions on the basis of the legal doctrine of respondeat superior. This doctrine imposes liability on employers for the negligent acts of their employees committed in the course of their employment. The court rejected this claim on the ground that Gary was not acting within the scope of his employment when he allegedly sexually abused the plaintiff. It noted that “an employee’s conduct is within the scope of employment only if it (1) is the type of conduct the employee was hired to perform, (2) occurs within the authorized time and space limits, and (3) is intended, at least in part, to serve the employer.” In this case, Gary’s alleged sexual abuse of the plaintiff did not fall within the scope of his employment:

Sexually abusing parishioners is not the type of conduct Gary was hired to perform; it was not part of his job description. And … nothing in the record indicates that his conduct was motivated by anything other than a desire to satisfy his own sexual impulses. Thus, his sexual abuse of the plaintiff was outside the scope of his employment and the church defendants can’t be held vicariously liable for that conduct. [This] conclusion is consistent with the conclusion of virtually every court that has addressed this issue.

Negligent Training and Supervision

The plaintiff also claimed the church defendants were directly liable to her for negligently training and supervising Gary as a church deacon. The court noted that both of these negligence claims require showing that the church defendants “knew or should have known of Gary’s propensity for sexual abuse.” However, the plaintiff “has no evidence to support such a showing. Thus, the Court is constrained to conclude that the church defendants are entitled to summary judgment on her negligence claims as well.”

The court noted that an essential element of a negligent training claim is that “the employer knew or should have known about a specific problem requiring a specific training addressed to that problem.” Similarly, in the case of a negligent supervision claim, a plaintiff must establish that “the employer knew or should have known of the employee’s propensity for the conduct that caused the injury before the injury occurred.” The “critical element” in both negligent training and negligent supervision claims is “the employer’s prior knowledge of the agent’s propensities to create the specific danger resulting in damage.”

In this case, this means that “a necessary element for both of the plaintiff’s negligence claims is that the church defendants knew or should have known about Gary’s propensity for sexual abuse. But she has no evidence to support that element of her claims so those claims necessarily fail and the church defendants are entitled to summary judgment.”

For their part, the church defendants “produced evidence that they never had any knowledge of Gary’s propensity for sexual abuse.” The plaintiff admitted under oath that she never notified them or anyone else about Gary’s sexual abuse. The bishop testified that no one ever expressed any concerns to him about Gary, much less concerns about sexual abuse. And the pastor testified that no one ever expressed any concerns or made any allegations of sexual improprieties against Gary to him or anyone in church leadership. He also testified that he had no knowledge of the plaintiff’s sexual relationship with Gary.

The court concluded, “In short, the church defendants have produced evidence demonstrating that they neither knew nor should have known about Gary’s propensity for sexual abuse and the plaintiff has produced nothing to the contrary. Her claims for negligent training and supervision thus fail because she has no evidence to support that necessary element of her claims.”

The court noted an additional problem with the plaintiff’s negligent supervision claim: “She has no evidence that Gary’s alleged acts of sexual abuse took place on the church defendants’ property … . An employer has a duty to supervise an employee acting outside the scope of employment only if the employee is on the employer’s premises or using the employer’s [personal property]. Here, the plaintiff can’t point to any facts showing that Gary’s acts of sexual abuse took place on the church defendants’ property. Her negligent supervision claim thus fails for that reason as well.”

What This Means For Churches:

The most important aspect of this case is the court’s analysis of the plaintiff’s negligent training claim. Churches, denominational agencies, and even seminaries, occasionally are sued for an employee’s wrongful acts on the basis of negligent training. This case demonstrates that negligent training claims cannot succeed unless a plaintiff, at a minimum, is able to establish that a church knew of an employee’s propensity to commit wrongful acts, failed to provide adequate training to address that propensity, and this failure contributed to the plaintiff’s injuries. 2013 WL 1791023 (D.Wyo. 2013).

Key point 10-05. A church may be liable on the basis of negligent selection for a worker’s molestation of an adult 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 10-05.2. 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.

What Church Treasurers Should Know About “Conversion”

Conversion has a much different meaning from a legal perspective.

Kenyon v. Abel, P.3d (Wyo. 2002)

Background. As a church treasurer, you may think that you know everything there is to know about conversion. After all, isn't it simply a matter of an unbeliever coming to faith in the redemptive work of Christ? While this may be true theologically, the word "conversion" has an entirely different meaning from a legal perspective, and this is the meaning that is addressed in this article.

A recent case. Whenever property is donated to a church, there is a possibility of a mistake in the valuation of that property by either the donor or the church. The tax code has greatly reduced the risk of overvaluations of donated property through more rigorous substantiation requirements. But occasionally, donated property may be substantially undervalued, and this can lead to unexpected consequences, as a recent case illustrates.

A woman (Ruth) was a friend of the artist Bill Gollings, whose works were known for their accurate portrayal of the Old West. Sometime before his death in 1932, Gollings gave one of his paintings to Ruth. The painting depicted a Native American on a white horse in the foreground with several other Native Americans on horses in the background traveling through a traditional western prairie landscape. The painting remained in Ruth's home until her death in 1999. At that time, the painting had a market value of $15,000.

After Ruth's death, her sole heir (Ron) inherited all of her personal belongings, including the painting. Ron sorted through Ruth's belongings and selected various items he kept for himself. All of the remaining items were donated to a local church or taken to an antiques dealer for auction, depending on their value. The painting was packed in a box marked for delivery to Ron's home. However, this box was inadvertently picked up with the donated items by the church. Unaware of the paintings value, the church priced it at $25 and offered it for sale in a thrift store that it operated. The painting was immediately purchased for $25 by a third party (Mike).

Ron later discovered that the box containing the painting was not among those delivered by the moving company to his home. He later learned that the painting had gone to the church and was purchased by Mike. When he asked Mike to return the painting, Mike replied that he had "no knowledge" of the painting. Unsuccessful in his attempts to talk with Mike about the painting, Ron filed a lawsuit in which he sought possession of the painting. Mike insisted that he was a "good faith purchaser" of the painting under the Uniform Commercial Code (UCC). The trial court concluded that Ron never intended to give the painting to the church, and therefore he was entitled to possession of the painting under either the common law doctrines of gift or conversion, or the UCC. Mike appealed.

The court's ruling. A state appeals court began its opinion by noting that "the key to resolving this dispute is determining whether or not the painting was voluntarily transferred from Ron to the church." The court agreed with the trial court's conclusion that the Ron never intended to give the painting to the church. It relied on Ron's testimony that (1) his aunt often expressed to him the importance of the painting and her desire that it remain in the family's possession; (2) the painting had a lot of value to him and the family beyond its monetary worth because of his family's personal relationship with the artist; and (3) his aunt rejected at least one offer to buy the painting for $5,000.

Further, the court noted that on the day the painting was packed for moving, there was considerable confusion in Ruth's home as her nephew attempted to sort through all of her possessions as quickly as possible so that he could return to his home in another state and go back to work. It was amidst this confusion that a church employee came to the house to pick up items that were being donated to the church. The employee inadvertently picked up the painting along with the donated items, and took them to the church. Ron insisted that he did not intend to include the painting with the goods that were meant to go to the church, and had no idea that the painting had been taken by someone from the church. Upon returning home and finding that the painting was missing, Ron immediately traced the painting from the church to Mike.


This evidence convinced the court that Ron had no intention of donating the painting to the church, and so it rejected Mike's argument that possession of the painting had lawfully been transferred to the church by "gift" and therefore the church had the legal authority to sell it at whatever price it chose. The court pointed out that "a valid gift consists of three elements: (1) a present intention to make an immediate gift; (2) actual or constructive delivery of the gift that divests the donor of dominion and control; and (3) acceptance of the gift by the donee." The court concluded, "The pivotal element in this case is the first one: whether an intention to make a gift existed. We agree with the trial court that Ron did not have any intent to donate the painting to the church. Therefore, the trial court correctly ruled that the transfer of the painting to the church did not constitute a valid gift."


The court then turned its attention to the legal doctrine of "conversion." It noted that "conversion occurs when a person treats another's property as their own, denying to the true owner the benefits and rights of ownership." To establish a conversion, one must show that:

(1) he had legal title to the converted property; (2) he either had possession of the property or the right to possess it at the time of the conversion; (3) the defendant exercised dominion over the property in a manner which denied the plaintiff his rights to use and enjoy the property; (4) in those cases where the defendant lawfully, or at least without fault, obtained possession of the property, the plaintiff made some demand for the property's return which the defendant refused; and (5) the plaintiff has suffered damage by the loss of the property.

The court concluded that the sale of the painting constituted conversion by the church, since (1) as the heir to his aunt's estate Ron had legal title to the painting; (2) Ron possessed the painting at the time it was removed from his aunt's residence; (3) the church exercised dominion over the property in such a manner that denied Ron the right to enjoy and use the painting, i.e., it sold the painting; (4) Ron demanded the return of the painting from Mike, who refused to do so and denied any knowledge of it; and (5) Ron has suffered damages through the loss of a valuable asset without compensation. As a good faith purchaser of converted property, Mike was also a converter and was liable to the true owner. This is so because a converter has no title whatsoever (i.e., his title is void) and, therefore, nothing can be conveyed to a bona fide purchaser for value.

The court stressed that its conclusion that the church had converted the painting "is not to imply any wrongdoing on the part of the church, which the record indicates acted entirely in good faith. A conversion is predicated on a deprivation of an owner's right to exercise dominion over his property and not on any specific intent to commit a wrongful act."


Mike sought to escape the consequences of the common law doctrines of gifts and conversion by arguing that the UCC is the controlling law. He claimed that under the UCC he was entitled to ownership of the painting since he was a "good faith purchaser" of it. The court disagreed, noting that "the good faith of a purchaser is not a defense to an action for conversion under the common law or the UCC if the true owner never consented to the transfer of the goods to the person from whom the good faith purchaser bought them."

What this means for churches

Church treasurers should be familiar with the legal doctrine of conversion. Stated simply, conversion occurs whenever one deprives another of lawful possession of his or her property, even if through ignorance or inadvertence. The court in this case concluded that the church converted Ron's painting by accepting possession of it without Ron's knowledge, even though it had no way of knowing that it was not Ron's intent for the church to have it. If the church sold converted property to an innocent purchaser having no knowledge of the church's conversion, the purchaser also became a converter. Whoever is in control of property through conversion (whether the church or a subsequent purchaser) can be legally compelled to transfer possession of the converted property back to the rightful owner.

If a church obtains possession of property through conversion, and later sells it to a third party at a substantial price, the third party may be able to sue the church for damages if it is later compelled to return the property to the rightful owner. After all, the third party has paid the purchase price to the church, and has been deprived of the property. Such complications indicate the importance of taking steps to insure that donors are knowingly and intentionally transferring possession of their property when they make what appear to be "gifts" to the church. In most cases, churches know the donor personally, and so the problem of conversion is greatly minimized. When dealing with persons who are unknown to you (such as the heirs of a deceased member) it would be prudent to obtain a letter from the donor acknowledging his or her intent to donate the property to the church. Such a letter will minimize the risk of conversion, and the legal complications and liability that may occur if the church subsequently sells converted property to an innocent third party.

School Facility Use

Court rules that school may not forbid the use of its gymnasium for a baccalaureate service.

Church Law and Tax 1994-05-01 Recent Developments

Freedom of Religion

Key point: Public high school baccalaureate services may be permissible on school property if the school has created an “open forum” by allowing other community groups to utilize its facilities.

A federal court in Wyoming ruled that a public high school board of education violated the constitution by forbidding the school gymnasium to be used for a baccalaureate service. A group of graduating students asked school officials for permission to rent the school gymnasium for a private baccalaureate service. The service was to be privately sponsored, open to the public, and completely unrelated to school activities. Participation by graduating seniors would be completely voluntary. After receiving verbal approval for their private baccalaureate service, the students had the graduation announcement changed to identify the place, date and time of the baccalaureate ceremony. The school board, on the advice of the state attorney general, later decided not to allow its gymnasium to be used for a baccalaureate ceremony on the ground that such a use would violate the first amendment’s nonestablishment of religion clause. The students made alternative arrangements, and then sued the school board for violating their constitutional rights of assembly, speech, and religion. With regard to their free speech claim, the students argued that the school had created an “open forum” by allowing a wide variety of other community groups to rent the gymnasium, and therefore it could not deny the same right to the students solely on the basis of the religious content of the ceremony. The school board defended its decision by insisting that the baccalaureate service was not truly voluntary and that the school was involved in the ceremony indirectly because of the following factors: (1) the graduation announcement referred to the ceremony; (2) the school choir and orchestra were to perform at the ceremony (there was additional evidence that members of the choir and orchestra were required to participate in the ceremony under penalty of a failing grade); (3) a letter from the school principal to students and parents informing them of the ceremony; and (4) some 75 percent of graduating students planned to participate in the ceremony (an amount so large that it constituted an indirect form of pressure on students to participate). The court concluded that the school board, by denying students the right to rent school property for a baccalaureate ceremony, violated the students’ constitutional right of free speech. It observed: “The United States Supreme Court has determined that a public school district rule barring use of school facilities by groups whose subject matter has a religious purpose or a religious viewpoint when all other groups are allowed such use violates the first amendment.” It rejected the school board’s argument that the ceremony was not voluntary and included indirect school participation, noting that “although the board’s disassociation from the baccalaureate ceremony could have been more unequivocal, the evidence also clearly demonstrated that baccalaureate was being sponsored by a private group of parents and students and that the event was not being sponsored by the school district itself.” The very fact that the school board was vigorously resisting the efforts of the students to conduct the ceremony on school property “aids in disseminating the message to the community that the board is not endorsing or sponsoring religion by renting [the gymnasium] to the [students] for the purpose of holding a privately sponsored baccalaureate service.” The court referred to the Supreme Court’s recent decision banning prayers at public high school graduation ceremonies, and noted that “it is evident that the dangers to be avoided are state sponsorship and endorsements of activities which compel or coerce participating in a particular religious orthodoxy.” It referred to a statement by one of the Justices in the Supreme Court’s decision that “pointedly suggested a privately sponsored baccalaureate for students who desire to express their religious feelings at the time of their graduation.” Shumway v. Albany County School District, 826 F. Supp. 1320 (D. Wyo. 1993).

See Also: Use of Public Property for Religious Purposes

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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