Former Scout Leader Sued for Molestation

Court rules scouting organization is not responsible.

Church Law and Tax Report

Former Scout Leader Sued for Molestation

Court rules scouting organization is not responsible.

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 10-04.3. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

An Illinois court ruled that a scouting organization was not responsible for the molestation of a young boy by a former scout leader. A minor boy (the “victim”) was sexually molested by a scout leader. The victim’s mother sued the scout leader (the “defendant”) for assault and battery, and the national and regional scouting organizations (the “scouting defendants”) for negligent hiring and negligent retention of the perpetrator. The mother’s lawsuit alleged that the victim met the defendant while participating in a local scout troop; that the victim often spent time alone with the defendant at the latter’s home and other locations; and, that the defendant engaged in multiple sexually deviant acts with the victim over the course of 10 months.

The first incident occurred in February 2006, when the victim accompanied the defendant on an overnight trip and they shared the same bedroom at a hotel. The victim’s mother consented to this trip because the defendant had been in scouting for several years and she had no suspicions about him and trusted him.

The mother claimed that the national and regional scouting organizations were “negligent in the manner that [they] screened, hired, retained, and supervised the defendant when [they] knew or should have known that he posed a threat of sexual abuse to children.” She further claimed that the scouting defendants “failed to conduct background checks on new or existing scouting leaders, employees, agents, volunteers, agents or apparent agents or more carefully screen scout leaders who did not then and never had sons in scouting.”

The mother’s lawsuit cited the following evidence in support of her claims of negligent hiring and retention:

• A scouting volunteer who attended the same church as the defendant testified to his suspicions about the defendant. He noted that the defendant was involved in the youth program and manifested “an inordinate amount of interest” in young boys at church. The volunteer observed that the defendant would “hug the kids, and pick them up, if they were small enough, and rub up against them.” He also testified that the defendant acted suspiciously at the YMCA where the volunteer’s two minor sons were part of a swim team. The defendant would position himself in the locker room so that he could “watch,” in one of the mirrors, the boys change clothes. The volunteer assumed that it was because of the flexibility of the defendant’s job that he was able to be at the YMCA on afternoons when the boys’ swim team was practicing.

• The same volunteer further claimed that the defendant displayed all of the “warning signs” of which scout volunteers are admonished as part of their training. In particular, volunteers are given “the name of the scout executive and his direct phone number so that if you ever saw anything that was inappropriate that was going on, you were supposed to call directly to him.” The volunteer conceded that he did not share his concerns with scouting officials because he did not have a “smoking gun” that the defendant was molesting boys.

• The defendant had served in the Navy until his honorable discharge in 1978. His record contains an “Office Separation Questionnaire” completed by the defendant in which he indicated that he was asked to resign on suspicion of “homosexual tendencies” and possession and sale of drugs.

• The defendant had a prior conviction for driving while intoxicated.

The scouting defendants cited the following evidence in opposition to the mother’s claims:

• One of the defendant’s direct supervisors testified that he had received no complaints about the defendant’s job performance or his suitability for working with minors.

• Another scouting executive testified that he “never detected anything to suggest that the defendant was unfit for a scouting position.”

• A third scouting official testified that after the defendant’s molestation of the victim was revealed, he had “wracked his brain” for warning signs that he might have observed in the defendant, but could recall no reason to suspect that the defendant was a danger to children. However, this executive did recall that the defendant frequently took photographs at scout events. Photography was not part of his duties as district executive, and scouting officials were unsure why he was taking the photos of young boys.

• The defendant had never been employed by the national scouting organization (Boy Scouts of America) and had ceased to be employed by the regional organization in February of 2006, several months before the first incident of sexual molestation occurred during the overnight trip.

A trial court dismissed the lawsuit. It concluded that neither the national, nor the regional, scouting organization were guilty of negligent hiring and retention because, first, the national organization never had employed him and, second, the regional organization no longer employed him when he inflicted the injuries for which the mother sought relief. Second, the court determined that the scouting defendants “adequately executed all voluntary protective measures that they undertook.” The mother appealed.

The appeals court’s decision

The appeals court affirmed the dismissal of the negligence claims against the national scouting organization. It noted that “Illinois law recognizes a cause of action against an employer for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons.” The court concluded that the national scouting organization could not be liable on the basis of negligent hiring or retention since “there is no indication in the record that any employment relationship existed between it and the defendant.” The court concluded:

In fact, the scouting professionals who were queried on the matter unequivocally maintained that the defendant was employed by [the regional scouting organization], not BSA. Plaintiff claims, however, that BSA was “inextricably intertwined” with the regional organization in the process leading to the defendant’s hiring, as BSA acted as “the clearinghouse for local councils” and had the “final say over any hire.” Thus, according to plaintiff, BSA “effectively hired the defendant.” We disagree. We know of no “effective” employment relationship under Illinois law except that which is determined by the following factors: “the right to control the manner in which the work is performed; the right to discharge; the method of payment; whether taxes are deducted from the payment; the level of skill required to perform the work; and the furnishing of the necessary tools, materials, or equipment.” While no one single factor is considered determinative, the right to control the work is considered to be the predominant factor. Plaintiff does not discuss these factors, and it is apparent that the most significant factor, namely, the right to control the work, weighs against finding an employment relationship between BSA and the defendant. He reported to the regional organization, not BSA. Therefore, we hold that, as a matter of law, BSA was not the defendant’s employer for purposes of the tort of negligent hiring and retention.

The court acknowledged that the regional scouting organization was the defendant’s employer, however it stressed that the injuries to the victim “occurred after the defendant voluntarily terminated his employment.” The mother “has cited no authority, Illinois or otherwise, for holding an employer liable, under the tort of negligent hiring and retention, for an employee’s post-termination acts. Our own research has disclosed no Illinois decision where a negligent-hiring-and-retention claim was based on post-termination acts.” Further, the court observed:

Liability for negligent hiring arises only when a particular unfitness of an applicant creates a danger of harm to a third person which the employer knew, or should have known, when he hired and placed this applicant in employment where he could injure others. This language suggests that the purpose of the tort is to prevent injuries that occur during the term of employment and, consequently, suggests that the employer’s duty of care does not extend beyond the cessation of employment.

The court noted that even if Illinois law extended liability for negligent hiring and retention to post-employment actions, the mother had failed to prove that the scouting organizations were negligent.

First, on the issue of the hiring of the defendant, the only information that plaintiff claims the scouting organizations would have uncovered had they fulfilled their duty to carefully screen applicants was (1) the defendant’s discharge from the Navy for suspected homosexuality and drug activity and (2) his DWI. In her briefs, plaintiff does not articulate how such facts would have made it reasonably foreseeable that the defendant would sexually molest young boys. Rather, plaintiff merely insinuates that the presence of a “young man” in the car with [the defendant] when he was arrested for DWI indicated some sexual impropriety. The “young man” was, in fact, 18 years old. Plaintiff’s insinuation is simply unwarranted … .

On the issue of negligent retention, plaintiff contends that the negligence consisted of the regional scouting organization’s inaction after the volunteer informed a scout leader of how the defendant behaved in the locker room at the YMCA … . We cannot agree … . The defendant’s conduct at the YMCA was not so clearly prurient, and did not signal such an immediate danger to scouts, as to warrant depriving him of any opportunity to explain himself. Such an explanation might have reasonably persuaded the scouting organizations that his actions were wrongly perceived.

What This Means For Churches:

This case is directly relevant to church leaders for the following reasons:

First, the court concluded that youth-serving organizations are not liable for the post-termination acts of volunteers and employees that do not occur during sanctioned activities. The defendant voluntarily terminated his employment with the regional scouting organization prior to his molestation of the victim, and those acts did not occur during sanctioned scouting activities.

Second, this case demonstrates that national youth-serving organizations, including religious denominations, ordinarily cannot be liable on the basis of negligent hiring or retention for the wrongful acts of workers in local affiliates.

Third, the mother mentioned the defendant’s frequent photographing of young boys as evidence that he might be a pedophile. The court did not respond to this argument. Perhaps it should have. The FBI “profile” of child molesters (“Child Molesters: A Behavioral Analysis”) lists several characteristics of pedophiles, but notes that taking frequent photos of children is perhaps the most telling characteristic: “This includes photographing children fully dressed. One pedophile bragged that he went to rock concerts with 30 or 40 rolls of film in order to photograph young boys. After developing the pictures he fantasized about having sex with the boys. Such a pedophile might frequent playgrounds, youth athletic contests, child beauty pageants, or child exercise classes with his camera (i.e., 35mm, video, digital).” The FBI profile continues:

Collecting this material may help them satisfy, deal with, or reinforce their compulsive, persistent sexual fantasies. Some child erotica is collected as a substitute for preferred but unavailable or illegal child pornography.

Collecting may also fulfill needs for validation. Many preferential sex offenders collect academic and scientific books and articles on the nature of their paraphilic preferences in an effort to understand and justify their own behavior. For the same reason, pedophiles often collect and distribute articles and manuals written by pedophiles in which they attempt to justify and rationalize their behavior. In this material pedophiles share techniques for finding and seducing children and avoiding or dealing with the criminal-justice system.

Preferential sex offenders get passive validation from the books and articles they read and collect. Many preferential sex offenders swap pornographic images the way boys swap baseball cards. As they add to their collections, they get strong reinforcement from each other for their behavior. The collecting and trading process becomes a common bond. Preferential sex offenders get active validation from other offenders, some victims, and occasionally from undercover law-enforcement officers operating “sting” operations. The Internet makes getting active validation easier than ever before. Fear of discovery or identification causes some offenders to settle only for passive validation.

The need for validation may also partially explain why some preferential sex offenders compulsively and systematically save the collected material. It is almost as though each hour spent on the Internet and each communication and image is evidence of the value and legitimacy of their behavior. For example one offender sends another offender a letter or E-mail enclosing photographs and describing his sexual activities with children. At the letter’s or E-mail’s conclusion he asks the recipient to destroy the letter or E-mail because it could be damaging evidence against him. Six months later law enforcement finds the letter or E-mail—carefully filed as part of the offender’s organized collection. Offenders’ need for validation is the foundation on which proactive investigative techniques (e.g., stings, undercover operations) are built, and it is also the primary reason they work so often. In a letter or during Internet correspondence an offender states that he suspects the recipient is an undercover law-enforcement officer and asks for assurances that the recipient is not. The recipient who is in fact an undercover officer sends a reply assuring the offender that he is not. The offender accepts his word and then proceeds to send child pornography and make incriminating statements.

Although their brains may tell them not to send child pornography or reveal details of past or planned criminal acts to someone they met online, their need for validation often compels them to do so. They believe what they need to believe. Some of the theme pornography and erotica collected by preferential sex offenders is saved as a souvenir or trophy of the relationships with victims. All child victims will grow up and become sexually unattractive to the pedophile. In a photograph, however, a 9-year-old child stays young forever. This is one reason why many pedophiles date and label their pictures and videotapes of children. Images and personal items become trophies and souvenirs of their relationships—real or fantasized.

The offenders’ needs to validate their behavior and have souvenirs of their relationships are the motivations most overlooked by investigators when evaluating the significance of the pornography and erotica collections of pedophiles and other preferential sex offenders.

The point is clear—church leaders should be wary of any individual who takes pictures of minors in any church activity or event without a reasonable justification (i.e., a parent taking pictures of her child). Doe v. Boy Scouts of America 4 N.E.3d 550 (Ill. App. 2014).

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