Key Point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states.
Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.
Ministers may face criminal and civil liability for failing to report child abuse.
Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege.
An Oregon court ruled that while a youth pastor was an “agent” of his employing church, the church was not responsible for his molestation of a minor on the basis of agency since the molestation did not occur in the course of the agency relationship.
Background
In the fall of 2014, when “M” was 12 years old, she began attending the church’s youth
group at the suggestion of a friend.
The youth group was run by Seth, who had begun working as the church’s youth pastor the previous June. Adult assistants would also attend youth group meetings and would assist with smaller breakout group discussions.
That same fall, Seth allowed 18-year-old Michael, who had graduated from high school the previous June, to continue attending the youth group as an adult assistant.
A predatory pattern of behavior
At trial, M testified that she first met Michael in person at the youth group in the fall of 2014 and that their communication on social media began after that meeting.
She further testified that she was at times in the same small group as Michael and shared personal information with the group, but that they never interacted one-on-one or unsupervised during any youth group meetings.
She testified that she confided things to Michael in their online interactions.
Michael claimed that in the youth group he was supposed to be a “role model, leader, and teacher” for the children and that it was a position of responsibility and trust.
In that role, he would participate in small group discussions.
Michael testified that he did not have any specific recollection of meeting M before she attended the youth group. He said that he did not have any recollection of interacting with her online before meeting her at the youth group. He also said that they had met by November 2014.
Michael also testified that he met and became friends with M while at youth group and that, if he had not met M at youth group, he did not think he would have had sex with her.
Sometime in November 2014, a leader in another youth program told Seth that “L,” a 14-year-old girl, had reported that Michael had driven her home alone from Seth’s youth group and kissed her without her consent.
L also reported that Michael sat next to her one night at youth group and caressed her thigh.
Michael admitted to kissing L, but maintained the kiss was consensual and denied any other conduct.
Seth shared the information with the other pastors of the church but did not otherwise report the incident. Michael was suspended from attending youth group from December 2014 to February 2015.
For the remainder of 2014, M and Michael continued to communicate by social media in a friendly way.
In January or February 2015, that communication became sexual in nature when, as M testified, Michael would bring up “more sexual stuff.”
After Michael returned to youth group, he also saw M there most every Wednesday, but they did not interact one-on-one. On social media, Michael and M exchanged photos and Michael convinced M to send him photos and videos of her engaging in sex acts.
In June 2015, the two engaged in a sexually explicit video call and chat, during which M agreed to have sex with Michael.
He went to her house when her parents were not at home and the two had sex. The following month, M’s mother discovered the sexually explicit chat between Michael and M.
She took M to the police station, and M told the police about her interactions with Michael, who ultimately pleaded guilty to criminal sexual misconduct.
M’s mother sues the church
Plaintiff, as M’s guardian, sued the church, alleging that the church was vicariously liable for Michael’s actions against M that constituted battery, invasion of privacy, false imprisonment, and intentional infliction of emotional distress.
Plaintiff alleged claims of direct liability against the church for negligent infliction of emotional distress and five specifications of negligence related to the church’s failure to properly respond to and warn others about Michael after learning of his behavior with M, through her guardian (the plaintiff).
Two of the main points of contention at trial were whether Michael’s conduct occurred within the scope of his agency for the church as a youth group assistant and whether any negligence on the part of the church caused M’s harm.
The jury’s conclusions
The jury found that Michael was an agent of the church but that none of his acts that were within the scope of that agency led to, or resulted in, a battery of M or an invasion of M’s privacy.
The jury further found that the church was negligent in allowing Michael to return to the youth group after his suspension, but that the church’s negligence did not cause damage to M.
The trial court entered a judgment dismissing plaintiff’s claims against the church, and this ruling was affirmed on appeal.
Four important points for churches
(1) Failure to report child abuse
The church’s pastors were informed of L’s accusation that Michael had molested her but they chose not to report the information to the authorities pursuant to the state child abuse reporting law.
This failure exposed the church to potentially significant civil damages. Further, in several states, a pastor’s failure to report child abuse subjects him or her to personal liability under the state child abuse reporting law. The lesson is clear—resolve any doubts in favor of reporting reasonably suspected abuse.
(2) The “two-adult rule”
On at least one occasion, Michael allegedly drove L home alone following a church youth group activity. Such an arrangement violates a fundamental principle of risk management—no minor is ever left alone with one unrelated adult on church property or during an off-campus church activity. This principle is often referred to as the “two-adult rule”. Violating this rule can result in liability on several grounds, including negligent supervision.
(3) Social media
The court noted the extensive use of social media by Michael and M, which included exchanging nude photos. In addition, Michael convinced M to send him photos and videos of her engaging in sex acts. It was the discovery by M’s mother of a sexually explicit chat between Michael and M that led to his arrest.
This case demonstrates the risks of allowing youth pastors to communicate using social
media (email, text messaging, and so on) with minors. Youth pastors who engage in sexually explicit text messaging (“sexting”) expose their employing church to significant liability based on negligence and other grounds.
Some churches have banned youth pastors and volunteers from communicating with individual minors using social media and have informed parents of this policy.
Texts and emails going to multiple students (such as members of the youth group) containing scheduling information and other items of common interest are of a sufficiently low risk that some churches allow them.
Some church leaders consider an outright ban on social media use by youth pastors to communicate with individual members of the youth group to be excessive and unwarranted.
Before rejecting such a policy, church leaders should consider contacting their local public school district office to see what, if any, policy it has adopted for the use of social media by teachers to contact students.
Many school districts have adopted policies banning teachers from using social media to contact students.
If so, this will provide a strong incentive for churches to do likewise. And note that, by aligning its practices to those of a public school (an agency of the state), a church will significantly reduce its risk of being found liable for a youth pastor or leader’s use of social media to engage in sexual misconduct.
Pastors who use social media to seduce minors into having sexual contact should realize that not only can this result in legal liability for the church, but also criminal liability for the pastor.
Note the following examples.
- A pastor was convicted of several sexual offenses involving his sexual solicitation and molestation of a minor, and sentenced to a minimum prison term of 186 years. 2010 WL 10409 (N.C. App. 2010).
- A youth pastor (the “defendant”) was sentenced to five years in a state prison as a result of various sexual offenses with a minor female (the “victim”), including sexually explicit text messages exchanged between the youth pastor and the minor female. State v. Duvall, 776 N.W.2d 301 (Iowa App. 2009).
- A court used sexually explicit text messages between a youth pastor and a female member of the youth group to corroborate her account of sexual exploitation. The court sentenced the pastor to a prison sentence of four years to life. 2009 WL 1476934 (Colo. App. 2009).
A youth pastor sent several sexually explicit emails to a female adolescent in the church’s youth group. The victim told her mother about the emails. After reviewing the messages, the mother contacted the police. The youth pastor was found guilty on six counts of communicating with a minor for immoral purposes, a class C felony under state law. State v. Haack, 2010 WL 4216705 (Wash. App. 2010).
- A volunteer youth leader in a local church was sentenced to eight years in prison on each of two counts of sexual assault in the first degree and contributing to the delinquency of a minor.
Among the several items of evidence introduced at trial by the prosecution were several sexually explicit text messages from the defendant that the mother of one of the victims found on a cell phone. Cluck v. State, 2009 WL 1362863 (Ark. App. 2009).
(4) Agency
The jury found that Michael was an agent of the church. But the jury concluded none of his acts leading to or resulting in a battery of M were within the scope of that agency.
This is a significant ruling since, if Michael was deemed to be an agent of the church, then the church would be vicariously liable for all his acts committed within the scope of the agency relationship (apart from any negligence on its part).
Liability can be avoided if (1) the pastor is not an agent of the church, or (2) the pastor’s wrongful acts were not committed within the scope of an agency relationship. The church in this case was found not liable for the pastor’s acts on the ground that they were not committed within the scope of the agency relationship.
Beyond the agency relationship between a pastor and church, several lawsuits in recent years allege the act of issuing credentials to ministers, and the retention authority to discipline or dismiss a minister for misconduct constitutes sufficient grounds to make the denomination liable for the minister.
It is true that licensing and ordination often are handled by denominational agencies. But in most cases, a denominational agency retains no authority to supervise or control the day-to-day activities of ordained or licensed ministers. In some instances, for instance, a church’s governing documents do not delegate day-to-day supervisory authority to a denomination.
Nevertheless, some courts have ruled that a minister is an agent of his or her denomination. Such rulings expose denominations to significant liability since:
- A denomination becomes a virtual guarantor of the conduct of all of its ministers for any injuries caused by an affiliated minister in the course of the agency relationship.
- Liability is strict and absolute. No amount of care by the denomination will absolve it of liability.
- In larger regional and national denominations, employing hundreds, or even thousands, of ministers means the potential risk is truly massive and poses an existential threat.
- In many of these cases, a denomination is sued for injuries occurring decades earlier. Often, the injury occurred before the pastor and other church leaders were even born.
- Often, the church cannot find the liability insurance policy it had at the time of the injury, meaning that it will be responsible for finding and compensating its own attorney. This unbudgeted expense can be significant, especially if the case drags on for years.
A strong defense a denomination can raise in response to this potential liability is the so-called “bar association analogy.” In other professions, such as law and medicine, professional organizations bestow licensing credentials on practitioners, but they are not liable for acts of malpractice or misconduct committed by those practitioners. Civil courts are beginning to recognize this principle.
Doe v. First Christian Church, 537 P.3d 954 (Ore. App. 2023).