Key point 10-04.3. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.
A federal court in New York addressed the issue of appropriate restrictions to impose on a felon who had been convicted of possession of child pornography.
Background
A man convicted in federal court of possessing and receiving child pornography was later released on several conditions.
The man twice violated terms of his supervised release, once in 2021, and again in 2022, due to possessing devices that could access the internet. After the 2021 violation, a special condition was added to his supervised release: he could not have deliberate contact with any child under 18 years of age, and he could not loiter within 100 feet of schoolyards, playgrounds, arcades, or other places frequented by children under 18.
In 2023, the defendant asked a court for permission to attend church or other religious services on a regular basis.
He also asked to be allowed to have lunch with his adult son, adult daughter-in-law, and granddaughter.
The government, in anticipation of prosecuting the defendant’s 2022 violation, indicated it did not object to the defendant attending religious services on the condition that the man prepared, and the probation department approved, a safety plan for his attendance.
The government also did not object to the defendant having lunch with his adult son, adult daughter-in-law, and granddaughter, even though the defendant’s probation officer objected.
The court granted the defendant’s requests—under certain conditions.
“The Probation Department’s request for an adequate safety plan before [the defendant] attends religious services is a sufficiently tailored precaution that adequately preserves [his] fundamental rights to associate and to exercise his religion while also protecting the public,” the court concluded.
The court relied upon an earlier case in which “the Probation Department’s requirements that a defendant convicted of receiving child pornography be accompanied to church by an adult with his pastor’s knowledge were permissible precautions that properly balance public safety and individual liberty interests.” United States v. Hernandez, 209 F. Supp. 3d 542, 546 (E.D.N.Y. 2016).
The court granted the defendant’s request to attend church “on the condition that he provides a safety plan that is approved by his Probation Officer—a condition that his Probation Officer has previously explained to him.”
But the court then noted that the defendant’s request to have lunch with his family, including his granddaughter, “is a more difficult question.” The court recognized
that [the defendant] has a fundamental right to maintain contact with family. On the other hand, the Court is concerned about the safety of his granddaughter given his track record. According to the Probation Officer, his treatment provider reports that he has struggled in group and individual therapy sessions, minimizes concerning behaviors, and externalizes blame. That behavior is consistent with the fact that in the relatively short period of time that he has been out of prison, he has violated supervised release conditions on two separate occasions, the last just months after he was released from a halfway house as punishment for his first violation… .
That said, the defendant was convicted of possession of child pornography, not physically molesting a child. . . . ’
[The defendant] is proposing lunch in a public location with the granddaughter and both of her parents. That request is granted on the condition that he, at no time, is allowed unsupervised contact with his granddaughter and that, at all times during the lunch, either his son or his daughter-in-law is present.
What this means for churches
Churches often struggle with choosing precautions to implement to protect minors from abuse on church premises and during church activities.
Churches may be liable for incidents of child abuse on the basis of negligence, which means a failure to exercise reasonable care.
What is reasonable can be a difficult question to answer. But it is often helpful to invoke policies of government agencies in defining reasonableness since government policies are presumptively reasonable, and that’s what makes cases such as this one important.
Churches that align their policies and practices to thousands of government agencies, including public schools, go a long way toward demonstrating they exercise reasonable care. Efforts to go above and beyond the minimum standards set by government agencies, of course, are often wise for ministry purposes.
The court concluded that the following precautions were sufficient to allow a felon convicted of possession of child pornography to attend church and interact with minor relatives:
Attending religious services so long as he prepares, and the Probation Department approves, a safety plan for his attendance and be accompanied to church by an adult with his pastor’s knowledge of the defendant’s crimes.
Lunch with his adult son, adult daughter-in-law, and granddaughter, so long as the lunch was in a public place and that, at all times during the lunch, either his son or his daughter-in-law was present with the granddaughter.
It is also worth noting the types of conditions placed upon the defendant’s supervised released, and underscores why a church should discuss such conditions with a probation department upfront to fully understand the situation:
- “The defendant shall not have deliberate contact with any child under 18 years of age, unless approved by the U.S. Probation Office.”
- “The defendant shall not loiter within 100 feet of schoolyards, playgrounds, arcades, or other places regularly frequented by children under the age of 18.”
- Barring the possession of a device with internet access.
Of course, appropriate restrictions for interacting with convicted child abusers should be reviewed by church leadership and an attorney.
United States v. Almonte, 2023 U.S. Dist. LEXIS 92633 (S.D.N.Y. 2023).
