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.
A Utah court ruled that a national church was not liable for the molestation of two minors by a local church leader despite the fact that it had received reports for more than 30 years concerning the leader's acts of child abuse, and had failed to report these allegations to civil authorities as required by the state child abuse reporting law.
For many years, a man (George) was a lay leader in a local church and also served as a scout leader in a Boy Scout troop hosted by the church. Over the course of nearly 30 years the denomination with which the church was affiliated (the "national church") received numerous complaints from members that George was sexually abusing children, though none of these complaints alleged that the abuse was occurring on church property or in the course of church activities. Two of George's victims were Jane and John. In 1976, George enticed Jane, who was then 13 years old, into his home where he molested her. He sexually abused John (Jane's son) between 1993 and 1996 when John was 5 or 6 years old.
In 2001 Jane learned of news reports that led her to believe that the national church had prior knowledge of George's propensities to sexually abuse children. Her investigation of these reports prompted her to sue George on the basis of his molestation of both herself and her son, and the national church on the basis of negligence, breach of fiduciary duty, and emotional distress. Jane alleged that the national church did nothing in response to the numerous complaints it had received over the course of nearly 40 years concerning George, and actively concealed his sexual abuse from its members and secular authorities. Moreover, the national church allowed George to continue to serve as scout leader.
A trial court dismissed all claims against the national church on the ground that no special relationship existed between it and the victims, and therefore it had no duty to protect them from George. The victims appealed.
duty to warn
Did the national church have a legal duty, as Jane insisted, to warn her and her brother about George's prior acts of child sexual abuse? The court noted that the traditional rule is that no one has a legal duty to warn others of impending harm, unless a "special relationship" exists with either the potentially dangerous person or a victim. It rejected Jane's contention that such a relationship existed between the national church and George. It pointed out that a special relationship generally applies only to a person or entity having "custody and control" over another, since under these circumstances it should be expected that the person or entity exerting the custody and control would warn others of potential dangers. But, such a relationship simply did not exist between the national church and George. The court noted that George was not an employee of the national church, he was not a minister, and none of the acts of abuse occurred on church property or during a church activity or in connection with George's role as a scout leader.
The court conceded that the national church had the authority to remove George as a lay leader in his church, and to excommunicate him, but these facts alone were "insufficient to establish that the national church had custody and control over him. As a result, the court concluded that no special relationship existed between the national church and George that would give rise to a duty on the part of the national church to warn Jane and her son about George. The court concluded, "Because the national church did not have custody or control over George, the plaintiffs' claim that it had thirty years of notice that he was uniquely dangerous is irrelevant. Although his history certainly suggests that it was foreseeable that he would sexually abuse other minor church members, the state supreme court has emphasized that foreseeability of harm, by itself, is unrelated to whether a special relationship exists."
The court also rejected Jane's argument that a special relationship existed between the national church and herself and her son that gave rise to a duty to warn since they were church members at risk of harm by a suspected child molester. Once again, the court pointed out that a special relationship would only arise if the national church exercised custody and control over Jane and her son when they were molested. The court concluded that "if a church lacks custody, it has no protective obligation and no special relationship exists."
The court acknowledged that the national church's president wielded considerable authority and had "the power to greatly minimize the harm George was causing." However, the court noted that "the ease with which a party may fulfill a duty is irrelevant to whether a special relationship exists because that question assumes a party already has a duty." The court concluded, "The sexual abuse in this case was unconnected to the national church and did not occur while plaintiffs were in the national church's custody. Accordingly, we also reject plaintiffs' argument that church membership alone was sufficient to establish a special relationship between the national church and plaintiffs that created a duty on the national church's part to warn plaintiffs about George."
failure to report child abuse
Jane and her son claimed that national church officers who were apprised over the course of 30 years of George's acts of child abuse had a legal duty to report the abuse to civil authorities pursuant to the state child abuse reporting law, and that their failure to do so allowed many children, including themselves, to be molested. They claimed that the national church should be liable on this basis for George's acts of molestation. The court disagreed. It conceded that Utah law provides for criminal sanctions for failing to report suspected child sexual abuse. However, "when a statute makes certain acts unlawful and provides criminal penalties for such acts, but does not specifically provide for a private right of action, we generally will not create such a private right of action." In other words, the child abuse reporting law did not contain a provision allowing molested children to sue mandatory reporters who failed to report prior abuse committed by the person who molested them, and any such basis of civil liability would have to be created by the legislature rather than the courts.
Application . This case is important for the following reasons. First, the court refused to impose a "duty to warn" upon a denominational agency despite reports stretching back more than 30 years that a church member holding a position of leadership in an affiliated church had repeatedly molested children. A duty to warn, the court concluded, only arises when a "special relationship" exists, and such a relationship did not exist between the national church and either the offender or the victims. This conclusion will be surprising if not shocking to some, and it certainly should not be viewed as a model for others to emulate. Courts in other states may well not agree with this conclusion. And, even if they do, church leaders should realize that while they may not have a legal duty to warn potential victims absent a special relationship, they may have an ethical duty to do so. Also, note that even under this court's reasoning a special relationship will arise between a national church and its clergy, and in any case involving custody or control over a perpetrator or victim (e.g., minors at a church-operated camp).
Second, the court refused to hold the national church liable for the molestation of the plaintiffs on the basis of its failure to comply with its child abuse reporting obligation under state law. The plaintiffs claimed that if church officials had complied with their duty to report the numerous allegations of child abuse concerning George, then he would have been apprehended and would never have been able to molest them. This is a compelling argument, but it was rejected by the court on the ground that "when a statute makes certain acts unlawful and provides criminal penalties for such acts, but does not specifically provide for a private right of action, we generally will not create such a private right of action." Note, however, that some state child abuse reporting laws have specifically created a private right of action which allows victims to sue mandatory reporters for failing to report abuse. See a summary of the child abuse reporting laws for all 50 states. Doe v. The Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 98 P.3d 429 (Utah App. 2004).
