Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.
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.
Key point 6-08. State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.
A Massachusetts court ruled that a church was not liable for the molestation of a child by a church nursery worker since it had no prior knowledge of any similar conduct. Upon learning that her minor son had been sexually molested by a volunteer babysitter during a church meeting, a parent (the “plaintiff”) sued a church and its pastor and board members (the “defendants”) on the following three grounds:
Negligence in failing to protect her son from the known dangerous propensities of the perpetrator.
Failure to report her son’s abuse to the civil authorities.
Gross negligence in failing to warn other church members of known dangerous propensities of the perpetrator.
A trial court dismissed all of the plaintiff’s claims, and she appealed. A state appeals court affirmed the dismissal of the lawsuit.
Negligence
The plaintiff insisted that the defendants breached their duty to protect her son from the criminal acts of the volunteer because such acts were “reasonably foreseeable.” The court noted that “while the possibility that criminal conduct will occur is always present in our modern society, liability for the criminal acts of third parties exists where there is a reasonable expectation that the defendant should anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff from harm.” The plaintiff failed to introduce any evidence showing that the defendants were aware “of any past sexual transgressions with children” by the volunteer. The court also noted that the volunteer was not registered as a sex offender in Massachusetts.
The court rejected the plaintiff’s argument that the defendants breached a “fiduciary duty” by not doing more to investigate the volunteer. The court noted that “church membership does not establish the type of relationship to the plaintiff from which a fiduciary duty could possibly arise under civil law.” The court also ruled that a fiduciary duty did not arise on the basis of a “special duty” arising out of “existing social values and customs.” The court noted that the plaintiff had not produced any evidence of church practices regarding “screening volunteer babysitters at informal church (or other) functions,” and, that “in the absence of such evidence, no rational jury could find for the plaintiff on a theory of special duty.” The court concluded that there was no evidence “tending to show that in 2004, when these events occurred, there was a community consensus that volunteer babysitters in churches or other religious organizations would have to be screened.”
The court acknowledged that the church had adopted a “two adult” policy, which the plaintiff claimed the defendants violated. However, the court concluded that?”the record reflects only that [the volunteer], not the defendants, violated the rule by following the [victim] into the bathroom.”
The plaintiff claimed that she assumed that the church performed criminal background checks on volunteers. But even if this were true, the court concluded that “such a check would not have revealed any sexually based offense.”
Failure to report child abuse
The plaintiff also asserted that the defendants breached a duty to report the abuse of the victim for 16 days after first learning about it. The court ruled that the defendants’ 16-day delay in reporting the victim’s abuse, while technically a violation of the statutory duty to report child abuse in a timely fashion, did not make the defendants liable for the volunteer’s acts.
Gross negligence
The court ruled that the defendants had no knowledge of any prior acts of child molestation by the volunteer, and as a result could not be liable on the basis of gross negligence for his acts.
What This Means For Churches:
This case is instructive for the following reasons:
- The church, pastor, and board members were not liable for the volunteer’s acts since they had no knowledge of prior acts of child molestation that he committed. It is imperative that churches screen volunteers who will work with minors, and not use anyone with a history of molesting children.
- The court concluded that the volunteer, rather than the church, had violated the church’s two-adult policy and so it could not be liable for the volunteer’s acts on the basis of a violation of the policy. This extraordinary conclusion should not cause any church to be lax in monitoring and enforcing a two-adult policy, since it is likely that many other courts will reject this aspect of the court’s opinion.
- The court ruled that the church could not be liable for failing to perform a criminal records check since even if it had done so “such a check would not have revealed any sexually based offense.”
- The defendants’ failure to comply with state child abuse reporting requirements did not make them liable for the volunteer’s acts. Doe v. Corporation, 964 N.E.2d 370 (Mass. App. 2012).
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