Sexual misconduct by clergy, lay employees, and volunteers
Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.
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 10-13.2. Several courts have refused to hold 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, this result is based on First Amendment considerations.
A Massachusetts court ruled that a national and regional church were not responsible for the sexual abuse of a minor. A minor (the “victim”) was sexually molested by an adult male (the “assailant”) who was acting as a volunteer babysitter during a monthly church group meeting. The offender was convicted of two counts of assault and battery and indecent assault and battery on a child.
The victim sued a national denomination, and its regional agency (the “church defendants”), claiming that they were responsible for his injuries on the basis of negligence, gross negligence, and a failure to report child abuse to civil authorities. A trial court dismissed all claims against the church defendants, and the victim appealed.
The court rejected the victim’s claims that the church defendants were legally responsible for his injuries on the basis of negligence. It 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 court noted that the church defendants were unaware of any past sexual transgressions with children by the assailant, and had “no knowledge that he had prior criminal convictions for, or a history of, sexual abuse of children.” The court acknowledged that the assailant was not registered as a sex offender in Massachusetts, although years before he had been convicted of a sexual offense in Maine (but that conviction had been vacated).
The victim claimed that someone had warned two church members, many years before, about the assailant’s dangerous propensities, but the two church members could not recall receiving these warnings and there was no independent corroboration that they were ever given.
The court noted that a local pastor was aware that the assailant had been on probation for an “altercation” with his sister ten years before, but this information was never reported to the church defendants.
The victim claimed that a “fiduciary relationship” existed between him and his church by virtue of church membership that imposed upon the church defendants an affirmative duty of care that they violated. The court disagreed, noting that “church membership does not establish the type of relationship to the plaintiff from which a fiduciary duty could possibly arise under civil law.”
A Special Duty
The victim also claimed that the church defendants’ negligence was established by their violation of a community-based standard of care in the selection and supervision of babysitters. While the court conceded that a special duty may find its source in existing social values and customs, it concluded that the victim had “failed to provide evidence as to the standard customs or procedures for … screening volunteer babysitters at informal church (or other) functions. In the absence of such evidence, no rational jury could find for the plaintiff on a theory of special duty.”
The court concluded that the church defendants had not breached a “community” standard of care in the selection and screening of volunteer babysitters.
The court noted 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 …. In the absence of some evidence that the members of the [church] relied on the church to screen babysitters at that time, or as noted above, that screening of volunteers was so widespread that reliance could otherwise be inferred, we must conclude that this claim fails as a matter of law.”
The victim’s mother testified that she assumed that the church performed criminal offender record information checks on volunteers, but the court noted that “such a check would not have revealed any sexually based offense.”
The victim claimed that the assailant was able to molest her because of the local church’s violation of its “two-adult policy” which generally forbade an adult from having unsupervised access to a minor. The court acknowledged that the church had adopted a two-adult policy, but concluded that “only the assailant, not the defendants, violated the rule by following him into the bathroom.”
Intentional Infliction of Emotional Distress
The victim claimed that the church engaged in intentional infliction of emotional distress by allowing the assailant to continue attending services, albeit under direct supervision, while he continued to attend the same church. This “re-victimization of the victim” caused recurring emotional distress.
The court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving this claim. It noted that the First Amendment “places beyond the court’s jurisdiction disputes involving church doctrine, canon law, polity, discipline, and ministerial relationships,” and it concluded:
The decision to allow the assailant access to the church grounds and the reasons therefore inherently involves an assessment of his relationship with the church, and involve the secular review of ecclesiastical discipline and church doctrine. As such, we are prohibited from assigning liability to such actions
The court noted that the victim had actually encountered the assailant only once on church property since he molested him, and it concluded that, even apart from the First Amendment considerations, the facts did not sufficiently make out a claim for intentional infliction of emotional distress:
While it is undisputed that the assailant returned to the church after the victim made the defendants aware of the inappropriate touching, the victim offers no evidence that defendants intended this single visual encounter … to occur, or that they should have known it likely to occur, or that it could be viewed as extreme and outrageous. While this court neither questions nor seeks to minimize the traumatizing effect of the incident on the victim, our analysis must be confined to the undisputed facts in the record in the context of the elements of this cause of action. We must conclude that the defendants’ actions do not constitute intentional infliction of emotional distress as matter of law.
What This Means For Churches:
There are several aspects to this ruling that are instructive for church leaders. Consider the following:
- The court stressed that churches, like any other youth-serving organization, are not liable on the basis of negligent selection for the molestation of a minor by an employee or volunteer unless they know, or in the exercise of reasonable care should have known, of prior misconduct suggesting that the person posed a risk of harm to others. In this case, none of the church defendants were aware of any previous incidents of sexual misconduct by the assailant, and this meant that they were not responsible for his actions.
Note that the assailant’s prior record was not pristine. He had been convicted of a sexual offense in Maine years before, but this conviction had been vacated and presumably was not directly accessible by the church defendants. And, he had been on probation for an “altercation” with his sister 10 years before, but this information was never reported to the church defendants.
- The court noted that the assailant was not registered as a sex offender in Massachusetts. If he had been, this could easily have been discovered by the church defendants, who would likely have been found liable for his actions unless they implemented sufficient safeguards to protect other children from him.
- The court concluded that the church defendants had not breached a “community” standard of care in the selection and screening of volunteer babysitters at informal church functions, since the victim had failed to prove that any such duty existed at the time of his abuse in 2004. 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 concluded that the failure to conduct a criminal records check on a volunteer children’s worker does not support a finding of negligence if such a check would not have revealed any “sexually based offense.”
- Many churches have adopted “two-adult policies” prohibiting a child from being in the custody of one adult on church premises or in the course of a church activity. The victim in this case claimed that the church violated this policy since the assailant molested the victim in a vacant bathroom. The court acknowledged that the church had adopted a two-adult policy, but concluded that “only the assailant, not the defendants, violated the rule by following him into the bathroom.”
- This is the first case to address the use of “conditional attendance agreements” by churches. Such agreements, which are utilized by a majority of churches in this country, allow sex offenders to attend church under strict conditions. In some cases, churches choose not to use such agreements and to exclude a sex offender from church property and activities. This is often due to the particularly heinous nature of the person’s prior crimes, or his continued inclusion on a sex-offender registry, or because one or more of the person’s victims continues to attend the church and church leaders believe that it would be inappropriate to force victims to encounter their assailant recurrently at church.
In this case, the assailant was permitted to continue attending the church following the disclosure of his offense, subject to strict conditions. And, he encountered the victim on at least one occasion, which served as the basis for the victim’s emotional distress claim. The court concluded that it was barred by the First Amendment guaranty of religious freedom from resolving this claim, noting that “the decision to allow the assailant access to the church grounds and the reasons therefore inherently involves an assessment of his relationship with the church, and involve the secular review of ecclesiastical discipline and church doctrine. As such, we are prohibited from assigning liability to such actions.” Doe v. Corporation, 964 N.E.2d 370 (Mass. App. 2012).
* See also “Employment practices,” Keen v. Miller Environmental Group, Inc., 702 F.3d 239 (5th Cir. 2012), in the Recent Developments section of this newsletter.
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