Child Abuse – Part 1

Church Law and Tax 1989-05-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Church Law and Tax 1989-05-01 Recent Developments

Child Abuse

A recent California appeals court ruling will be of interest to churches and religious denominations that conduct scouting programs. The court ruled that the Boy Scouts of America (BSA) was not responsible for the homosexual molestation of two young boys by a scoutmaster. The mother of the two boys learned in 1984 that her sons had been repeatedly molested by the scoutmaster during the course of scouting activities. She sued the BSA, alleging that it (1) was responsible for the conduct of the scoutmaster on the basis of the “respondeat superior” theory, and (2) it was negligent in failing to discover that the scoutmaster “had been discharged from the Air Force for improper sexual conduct and had also been convicted … of child abuse in another situation.” A trial court dismissed the case against the BSA, and the mother appealed. A state appeals court affirmed the trial court’s order dismissing the case. It acknowledged that “under the doctrine of respondeat superior, a principal or employer is liable for the wrongful acts of its agent or employee committed … within the scope of the employment.” However, it noted that for the conduct of an agent or employee to fall within the “scope of employment,” the conduct either had to be “(1) required by or incidental to the duties of the agent or employee and hence not a substantial deviation from those duties for personal reasons, or (2) could reasonably have been foreseen by the principal or employer in any event.” The court concluded that a scoutmaster’s homosexual assaults upon young boys satisfied neither of these tests. The court cited with approval previous California decisions rejecting church liability for acts of sexual molestation perpetrated by a church custodian and a Sunday School teacher. The court observed: “Sexual misconduct between a scoutmaster and his charges is so unusual and startling that it is equally unfair to hold BSA liable under the doctrine of respondeat superior for damages caused by that activity.” The court likewise rejected the mother’s claim that BSA was liable for failing to adequately investigate and supervise the scoutmaster. While such facts may have rendered the BSA liable to the victims, they did not render the BSA liable to the mother. And, since the mother was the only party named as a plaintiff in the case, the court had no alternative but to dismiss this allegation as well. In other words, the court left open the question of whether or not the actual victims of sexual molestation could sue the BSA on the basis of its alleged failure to adequately investigate or supervise scoutmasters who had a history of molestation and deviant sexual conduct. The fact that this critical issue was left unresolved reduces significantly the comfort that this case otherwise might have brought to church and denominational scouting programs in California (and to some extent in other states). Churches and denominational agencies that operate scouting programs must continue to exercise extreme care in selecting and supervising workers (both volunteer and compensated). At a minimum, this will mean confirmation of the identity of any previously unknown applicant (through an identification card, such as a state driver’s license, containing a photograph of the applicant); documented reference checks; contacting previous churches with which the applicant claims to have been associated; an appropriate application form; contacting the local social services agency for any available information; never leaving minors in the custody of one adult; and refusing to hire anyone whom you have reasonable cause to believe is unfit. A feature article in a future issue of Church Law & Tax Report will address in detail the issue of church liability for acts of sexual molestation occurring on church premises or during church activities. The article will outline steps that churches can take to reduce the risk of such a tragedy occurring. Cordts v. Boy Scouts of America, Inc., 252 Cal. Rptr. 629 (Cal. App. 3rd Dist. 1988).

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