Key point 10-13.1. A few courts have found 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, the church or agency is found to be vicariously liable for the minister's breach of a fiduciary duty, but in other cases, the church or agency is found to have breached a fiduciary duty that it had with the victim.
A federal district court in Idaho ruled that the Boy Scouts of America had a legal duty to disclose to the public the risk of child molestation in scouting programs, and that its failure to do so could expose it to liability for individual acts of molestation. An adult male (the "plaintiff") was a member of a church-based Boy Scouts troop when he was a minor during the years 1965 through 1971. He claimed that he was repeatedly sexually abused by his scoutmaster on various overnight trips and day trips. Only the plaintiff and scoutmaster participated on some of these trips, which typically involved fishing and searching for campsites for the troop.
In 2008, when he was 55 years old, the plaintiff sued national and regional organizations of the Boy Scouts of America (BSA), and the church that hosted his former scout troop. He claimed that the BSA organizations and church knew about the danger of abuse. But instead of disclosing this danger to him, they promoted scouting as a safe, trustworthy, and fun activity for boys. According to the plaintiff, the BSA organizations and church also represented that the perpetrator was a trusted youth leader worthy of his scoutmaster role, despite knowing that he had previously molested another boy.
The plaintiff's lawsuit claimed that the BSA "has always had a known problem with adult volunteers abusing scouts." In the early 1900s, the BSA began keeping "Ineligible Volunteer Files" on individuals banned from volunteering in scouting. The "Perversion" category contains the most files and comprises any type of sexual misconduct, including child abuse. Before the plaintiff became a Scout, the BSA had compiled "thousands of incidents of child abuse" within scouting involving its adult volunteers. And by the time the plaintiff joined scouting, BSA was creating approximately 40 to 60 Perversion files each year.
The plaintiff further claimed that the BSA and church had specific notice that the perpetrator was a child molester and danger to children. In 1964, a church member told a church official that his son, a scout in the same troop, had also been molested by him. The church official allegedly responded that he would "take care of it." And a week later, he told the father that he "had taken care of it."
The plaintiff's lawsuit asserted that the BSA organizations, and host church, were liable for the scoutmaster's acts on the basis of "constructive fraud." The court explained this basis of liability as follows: "An action in constructive fraud exists when there has been a breach of a duty arising from a relationship of trust and confidence, as in a fiduciary duty … . To prove constructive fraud, a party must prove the existence of a confidential relationship. When a confidential relationship is found to exist, the one in whom confidence was reposed may be held to a higher standard of disclosure and fairness than in an arm's-length relationship."
In short, the plaintiff asserted that the BSA organizations, and host church, had a relationship of trust and confidence that imposed upon them a "duty to disclose" the general danger of child molestation inherent in scouting. Their failure to do so amounted to constructive fraud.
The court concluded that a confidential relationship existed between the plaintiff and the BSA organizations and host church, based on four factors:
(1) he was a minor child when he was allegedly abused; (2) he was an active and regular participant in camping trips and other activities provided through a church-sponsored organization; (3) he was strongly encouraged by the church to participate in those camping trips and activities; and (4) the church allegedly knew of the specific danger that the scoutmaster posed. Also, the church taught the plaintiff to respect and trust his church and scout youth leaders. And presumably, his parents trusted the scoutmaster enough, in his role as a church and scout leader, to allow him to take the plaintiff on overnight camping trips and individual day trips. On these scouting trips, the parents entrusted the perpetrator to ensure their son's safety and act as his caretaker.
What This Means For Churches:
This case is important for two reasons. First, the court insinuated that the church and BSA organizations could be liable for a 50-year-old case of child molestation because at, or prior to, the time the victim became involved in scouting they failed to "disclose" to him, and more generally to the public, that child molestation by scoutmasters was a risk that parents should consider before allowing their children to participate in scouting. This extraordinary conclusion will expose youth-serving charities to liability for their actions decades ago based on modern-day standards of proper care.
Second, the court concluded that the pastor could be viewed as an "agent" of the national and regional BSA organizations, and as a result, the father's disclosure to a church official that his son had been molested by the same scoutmaster who molested the plaintiff could be imputed to the BSA organizations, even though they lacked any direct knowledge of the incident. Doe v. Presiding Bishop, 2012 WL 3782454 (D. Idaho 2012).