Liability for Positive References

Churches can face liability for recommending former employees known for misconduct.

Doe v. McLean County Unit District, 2014 WL 6607487 (Ill. App. 2014)

Two female second grade students (the "victims") were sexually abused by their teacher ("Randy") at a public elementary school. The teacher was arrested and prosecuted on several counts of aggravated criminal sexual abuse. The victims' parents (the "plaintiffs") sued the public school district where Randy had previously been employed, as well as a state education agency. The plaintiffs claimed that the former school district was legally responsible for Randy's abusive acts on the following grounds:

They willfully and wantonly and with deliberate indifference allowed Randy to be transferred to the school where he molested the victims without revealing knowledge of prior sexual abuse; and

They violated mandatory child abuse reporting requirements under state law.

In support of their lawsuit, the plaintiffs claimed that the previous school district in which Randy had been employed was aware as early as 2002 that he was using school computers for accessing child pornography, and had engaged in numerous incidents of inappropriate sexual contact with young children. But, district officials refused to report his conduct to the state, and transferred him to another school district without any disclosure of his previous wrongful acts. It was while teaching at a school in this district that Randy met the victims and molested them.

Child Abuse Reporting Law

The plaintiffs claimed that had the officials in Randy's former school district reported his incidents of abuse, the victims would not have been abused by him since he never would have been hired as a teacher in the school where he met them.

The court noted that the state child abuse reporting law makes "all school personnel" mandatory child abuse reporters, and makes mandatory reporters subject to criminal liability (a misdemeanor) for failure to report. However, the reporting law "does not expressly provide for a cause of action for damages brought by a child who is abused as a result of a mandatory reporter's failure to report."

The court, in rejecting the plaintiffs' contention that the child abuse reporting law gave victims of abuse the right to sue mandatory reporters who fail to report, observed:

We must determine whether implying a private right of action is necessary to provide an adequate remedy for violations of the statute. It is this factor that is an insurmountable hurdle to plaintiffs' claim. Civil liability may indeed provide an extra incentive to report, but it certainly is not necessary when a violation for failing to report is remedied by the imposition of criminal sanctions. The legislature has clearly and explicitly set forth the consequences of initial and subsequent violations of [the reporting law]. Our supreme court has noted that it has "implied a private right of action under a statute only in cases where the statute would be ineffective, as a practical matter, unless such an action were implied." That is not the case here. Because the legislature expressly provided for the filing of criminal charges against a mandatory reporter who fails to report, it cannot be said that a civil action for monetary damages is necessary to provide an adequate remedy for a violation. The threat of facing criminal charges for failing to report abuse not only serves as an effective means of enforcement of a reporter's duty, but as a deterrent as well, making an action for civil damages unnecessary for remedial purposes.

The court acknowledged that "no mandatory reporter in this case has been prosecuted for his or her failure to report the sexual abuse by Randy. Because criminal charges are the exclusive means of enforcement for a violation of [the reporting law] it is important that violations be punished or else the purpose of the statute will remain unfulfilled. This is especially true since the legislature has not expressed an intent to provide that violations are subject to monetary damages."

The court concluded:

As a matter of public policy, it is imperative for mandatory reporters to fulfill their reporting duties. In fact, reporting abuse or suspected abuse is the most effective way to protect a child from a cycle of abuse or from a chronic abuser. If it appears criminal charges are inadequate to encourage mandatory reporters to fulfill their duty to report, maybe civil liability is necessary. However, it is not our duty to impose such sanctions or to engage in this policy determination. Only the legislature can evaluate the epidemic in our society and determine if the language of the statute effectively satisfies the legislative intent. That is not for this court to determine.

The court noted that its decision was in line with "the majority of courts in other states."

Failure to Disclose Randy's History of Abusing Children

The plaintiffs also alleged that the defendant officials at the previous school district where Randy was employed were responsible for his molestation of the victims because of their concealment of Randy's dangerous propensities when transferring him to a school in another district. In particular, the parents claimed that:

The defendant school officials created a risk of harm by falsely representing that Randy had taught at his previous school for the entire 2004-05 school year, when in fact he was removed from the classroom due to sexual abuse of his students.

Randy's teacher-on-student sexual abuse was never reported by the previous school district in his severance agreement, or letter of reference.

Defendant school officials created the false impression that Randy's severance from his former school was routine by entering into a severance agreement without reference to his misconduct.

The court concluded that Randy's previous school, and its officials, could be liable for his molestation of the victims in his new school, only if they (1) "willfully and wantonly produced false information" to Randy's new school, or (2) willfully and wantonly concealed truthful information from the new school upon its request for information. The court continued:

Plaintiffs' allegations that defendants produced and maintained false information in Randy's employment file would only give rise to a duty if the false information was submitted to [Randy's new school] … . The allegations regarding Randy's computer use do not support a duty on defendants' behalf. The foreseeability of injury element is lacking between Randy's viewing of pornography and sexually abusing his students. The conduct which gives rise to a duty in this case is any act performed by any defendant with a conscious disregard of plaintiffs' well-being which misstated or concealed his or her knowledge of Randy's sexual abuse and was provided to [Randy's new school].

The court stressed that the defendant officials at Randy's prior school "did not have an affirmative duty to warn [the other school] of Randy's misconduct." Rather, defendants had a duty, if the other school sought information regarding Randy's fitness as a teacher, to provide accurate information. The court observed: "If plaintiffs can allege any defendant who knew of Randy's sexual abuse misstated information, with a conscious disregard for the victims' welfare, regarding the sexual abuse and provided the same to [officials at Randy's new school], then they have successfully alleged a cause of action."

The court concluded: "We must protect children from sex offenders. [Randy's prior school] and every one of its administrators and teachers who knew of his abuse failed not only the victims and their parents, but every child who had been in his class in both schools."

Relevance to Church Leaders

This case is instructive for clarifying two issues of fundamental importance to church leaders: (1) civil liability of mandatory child abuse reporters for failing to report abuse; and (2) liability for providing positive references on former employees who were guilty of misconduct. These issues are covered in greater detail in my article, “Clergy Abuse Reporting and the Clergy Privilege.”

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