Inaction and Cover-up Create Significant Liability in Sexual Misconduct Case

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

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 church employee (Jon) ran a church-based program (the “academy”) offering afternoon,  weekend, and summer singing and dancing classes. 

He also directed the academy’s dance team, which consisted of a group of ten standout dancers. They traveled to other states to perform. 

One member of the dance team was a minor (the “victim”). Because of his participation on the dance team, the victim spent a lot of time with Jon, who became a mentor and a friend. 

The victim’s mother described the mentorship as “a natural thing.” Sometimes Jon and the victim went to see a movie or grab a meal.

In July 2009, when the victim was 17 years old, he participated in an overnight church dance team trip supervised by Jon. 

Jon shared a hotel suite with a handful of boys, including the victim. One night, while everyone slept, Jon crept to the victim’s bed, reached under the covers, and fondled him. The next day, Jon confessed to Brian, an adult chaperone (who was a volunteer and former pastor). 

Brian counseled Jon on ways to tame his “dark thoughts.”

In July 2010, shortly after the victim turned 18, the dance team traveled to another overnight event. 

As before, Jon shared a suite with a handful of boys, including the victim. 

Again, Jon crept over to the victim’s bed while everyone slept, and fondled him under the covers. 

The next day, Jon again confessed to Brian. Brian suspected the victim was not asleep when Jon touched him.

The next day Brian—and two members of the pastoral staff—met with Jon. 

Jon explained what had happened the night before. The church leaders sent Jon to counseling. 

They told him he was not to be alone with any minors.

The church leaders did not report that information to the victim, his parents, parents in the church community, or the police. 

They did not terminate Jon’s employment. 

They did not restrict Jon’s access to children.

In 2014, the victim talked to his parents. The parents confronted Jon, who told them about the 2009 and 2010 incidents, as well as his subsequent conversations after each incident with church leaders, and the leaders’ decision to send him to counseling.

The victim’s father demanded a meeting with church leaders, and at that meeting church leaders (1) acknowledged that the church mishandled the situation, (2) agreed to fire Jon (he resigned before being terminated), and (3) falsely advised the parents that the accusations had been reported to the police.

The victim and his family disassociated from the church, which had been the focus of their lives. They sued the church on the following grounds:

The lawsuit was set for trial in August of 2021, but a trial court dismissed it based upon procedural and evidentiary arguments made by the church. The victim and his family appealed. The appellate court reversed the trial court’s decision and sent the case back to the trial court. No further information about the case’s status was available as of the date of this publication.

The facts of this case, and the potential legal liability caused by it, illustrate several scenarios that can lead to significant liability for a church. 

Consider the following:

Both acts of molestation happened on overnight trips involving minors.  

Such trips pose a significant risk to churches because (1) they are inherently difficult to supervise, (2) they are often targeted by pedophiles, and (3) monetary damages awarded by juries can be substantial and well above insurance coverage limits. 

Churches can do many things to reduce the risks associated with such trips. 

First, align your precautions with those taken by local public schools and youth-serving agencies, including youth sports teams, regarding sleeping arrangements and overnight trips. This can help with establishing the church’s exercise of care, which may help reduce potential vulnerabilities for children and also help demonstrate the church’s efforts to match its practices with other community institutions. This step also may help negate a claim involving negligence. 

Second, contact your local police department, child abuse reporting agency, church insurance company, and denominational offices for additional information and guidance.

Document in writing every conversation with every agency to include who you spoke with, when you spoke with them, and the response each representative offered.

And third, avoid “power imbalances” when establishing sleeping arrangements. Many believe that having only minors of the same age in a room (no ‘power imbalances”) may be the least risky arrangement. The risk goes up with the addition of older children or an adult. Relatedly, also evaluate what the maximum number of minors in each room should be. Again, check with the public school district and reputable charities to learn from their examples.

Jon and the victim “met socially outside of the academy’s activities to see a movie or grab a meal.” Such unsupervised and often spontaneous meetings exposed the church to potential risk. It also exposedthe adult to founded or unfounded accusations of misconduct. Such liaisons should be discouraged or prohibited unless a second adult is continually present.

Jon met with members of the pastoral staff and explained his actions regarding his abuse of the victim The church chose not to report the abuse to authorities.

The church’s decision not to report may have violated state child abuse reporting laws.  It also  needlessly exposed other adolescents to the risk of abuse. And finally, it exposedthe church to the risk of liability based on negligence.

The church’s leaders did not immediately terminate Jon’s employment following his confession. They did not restrict his access to children, but they told him he was not to be alone with any minors. Members of the pastoral staff then later lied to the parents about filing an incident report with the police, which had not been done.

Placing a known or credibly accused child molester in a position involving immediate access to minors is one of the most significant legal risks that a church can take. That is because it may constitute gross negligence. 

Church leaders should be familiar with the concept of gross negligence for the following three reasons:

(1) Punitive damages. Courts can award “punitive damages” for conduct that amounts to gross negligence. Punitive damages are damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is particularly reprehensible and outrageous. This does not necessarily mean intentional misconduct. Punitive damages often are associated with reckless conduct or conduct creating a high risk of harm. 

To illustrate, in one case, a punitive damage award was based on the fact that church officials repeatedly and knowingly placed a priest in situations where he could sexually abuse boys. The church also failed to supervise him and disclose his sexual problem. 

Clearly, church officials did not intend for the priest to molest anyone. But, under the circumstances, the jury concluded that the church’s actions were sufficiently reckless to justify an award of punitive damages. 

Church leaders must understand that reckless inattention to risks can lead to punitive damages, and that such damages may not be covered by the church’s liability insurance policy. 

It is critical to note that many church insurance policies exclude punitive damages. 

This means that a jury award of punitive damages represents a potentially uninsured risk. 

Accordingly, it is critical for church leaders to understand the basis for punitive damages, and to avoid behavior which might be viewed as grossly negligent. 

(2) Loss of limited immunity under state law. State and federal laws provide uncompensated officers and directors of nonprofit corporations (including churches) with immunity from legal liability for their ordinary negligence. This is an important protection. However, such laws do not protect officers and directors from liability for their gross negligence. 

(3) Personal liability. Church leaders who are guilty of gross negligence are more likely to be sued personally than if their behavior is merely negligent. Indifference by church leaders to information that clearly demonstrates improper behavior by a staff member or volunteer worker can be viewed by a court as gross negligence, and this will make it more likely that the church leaders will be sued personally.

So how can churches and church leaders reduce the risk of such tragic outcomes and liabilities? My 14-step plan for churches provides a comprehensive approach. 

Key point. Look at these precautions as ways to protect minors rather than as a risk management tool. If your goal is risk reduction, compliance is likely to suffer. Compliance is higher and of longer duration when leaders are motivated primarily by a desire to protect minors. 

John Doe v. Church, 2023 WL 3476834 (Cal. App. 2023).