Key Point 10-05.2 Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

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.

A Mississippi court ruled that a school was not liable for the molestation of a minor student by a teacher since it had insufficient evidence of the teacher’s wrongful conduct to intervene. A teacher at a public middle school (the “defendant”) developed a mentoring relationship with an adolescent girl (the “victim”), which was approved of and encouraged by her mother who was divorced and appreciated a “father figure” in her daughter’s life. The defendant had no prior criminal record, no history of sexually harassing students, was in fact highly regarded by school officials, and had a reputation as a capable and caring teacher.

The defendant began paying more attention to the victim because of their mentoring relationship. It was not unusual for him to call her at home, take her to church, or attend dance recitals and other extra-curricular activities. The victim’s mother had complete trust in the defendant, and later claimed that he gave her no indication that his relationship with the victim was anything more than “fatherly” attention. Eventually, the defendant began having sexual contact with the victim on numerous occasions. They increasingly communicated with each other through email, phone calls, and handwritten notes. Because of the illicit and illegal nature of the relationship, the defendant and victim both concealed it. The defendant often stressed the importance of keeping their relationship a secret, and that if the truth were disclosed he would lose his job, wife and daughter.

The school principal first heard about the possibility of the defendant’s inappropriate conduct through an unsubstantiated rumor from the school secretary that the defendant and victim were involved in an inappropriate relationship. The principal immediately confronted the defendant and asked about the truthfulness of the rumor. The defendant vehemently denied any wrongdoing. The principal warned him that even a mere rumor could ruin a teacher’s career. The principal believed the defendant. In any event, there was no substantiated evidence beyond this one rumor to prove otherwise. The principal did not receive any other complaints or rumors from anyone else regarding the situation, including other students, teachers, or any of the victim’s family members.

The relationship was finally exposed when the victim’s sister found some discarded love letters from the defendant to the victim in the trash. The mother was told about the letters, obtained her daughter’s email password, and read the impassioned emails between her daughter and the defendant and was infuriated by the defendant’s breach of trust. The mother claimed it was at this time she first realized the defendant’s relationship with her daughter was not innocent. With copies of the emails in hand, the mother went to the defendant’s house, confronted him in front of his wife and demanded his resignation from the school. The teacher complied and gave the principal his resignation, claiming it was over some “stupid emails.”

The victim’s mother sued the defendant and school. The claims against the defendant were later settled out of court, and the case against the school proceeded to trial. The mother claimed that the school was responsible for the defendant’s wrongful acts on the basis of negligent training, negligent retention, and failure to comply with the state child abuse reporting law. The court ruled in favor of the school, and the mother appealed.

Negligent retention

The court noted that “an employer will be liable for negligent retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness …. A plaintiff must prove the defendant had either actual or constructive knowledge of an employee’s incompetence or unfitness before the employer will become liable for the negligent retention of an employee who injures a third party.” The court defined constructive notice as “information or knowledge of a fact imputed by law to a person (although he may not actually have it), because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.”

Did the school have actual or constructive knowledge that the defendant represented a risk of harm to minors? No, concluded the court:

From the evidence and testimony in the record, the trial court was correct in finding there was no actual notice to prove the school knew of the affair. The school had one uncorroborated rumor about a possible inappropriate relationship between the defendant and victim which was initiated by the school secretary and told to the principal. There was no tangible evidence of the affair until the discarded notes and emails were found. School computers were not used for this correspondence nor were school telephones used for phone calls. All of the physical contact occurred [off of school property]. Understandably, because of its illicit nature, the couple did not inform anyone of their relationship. Also understandably, the victim’s mother did not inform anyone at the school about the relationship because she was under the impression it was innocent. The mother presented no evidence that any employee or official at the school knew of the relationship either, except the isolated rumor by the school secretary. There were no complaints, formal or informal, lodged at the school or alleged by any individual. In retrospect, it is easier to see the signs of inappropriateness in the defendant’s actions, but at the time they were occurring, there was insufficient proof to claim the school was negligent in not taking action.

Furthermore, there was insufficient constructive notice of the inappropriate relationship to claim the school should have known of the affair. The defendant had no prior history of wrongdoing and had a good reputation with the principal who knew him personally from when he was a student. There was no indication that the defendant would be an unfit or incompetent teacher either when they hired him or after he began teaching. He had a good reputation … and there is nothing indicative about his past actions or actions at the time of his employment at the school that would rise to the level of giving constructive notice to the school of his transgressions. Further, many of his acts were under the guise of innocence, such as his tutoring of the victim and her babysitting of his child. Importantly, the victim’s mother approved of and gave permission for most of the instances when the couple was together …. The principal was dealing with limited information that did not include knowledge of the extra tutoring, rides home from sporting events, church and softball excursions, phone calls, emails, notes, and the mentoring relationship.

The court also ruled that the school acted appropriately in retaining the defendant until the emails were discovered and he resigned. Once the school learned of the extent of the defendant’s misconduct, it “did not exhibit indifference. The principal testified that if the defendant had not resigned he would have been fired.”

Child Abuse Reporting

The mother insisted that the school was liable for the defendant’s wrongful acts on the basis of the school’s failure to comply with the state child abuse reporting law. The court disagreed, for four reasons. First, it pointed out that the Mississippi child abuse reporting law specifies that “any … public or private school employee or any other person having reasonable cause to suspect that a child is a neglected child or an abused child, shall cause an oral report to be made immediately by telephone or otherwise and followed as soon thereafter as possible by a report in writing to the Department of Human Services.” The statute defines an “abused child” as “a child whose parent, guardian or custodian or any person responsible for his care or support” committed the abuse. The court noted that while the defendant “was surely an employee of the school … we fail to see how he could ever be considered a person responsible for the victim’s care or support.”

Second, the reporting duty only arises when a mandatory reporter has reasonable cause to suspect that abuse has occurred, and school officials did have sufficient evidence of wrongdoing to have reasonable cause to suspect that the defendant had abused the victim. In this regard, the court noted that “there was no evidence which proves the school’s officials were aware of the inappropriate relationship until after the defendant resigned.” The court also noted that “an unsubstantiated rumor carries significantly less credibility than a formal accusation, and there were no formal accusations in this case.” In addition, the rumor did not involve any indication of “fondling or sexual involvement between the victim and defendant,” but rather “only the possibility of an inappropriate relationship.”

Third, even if school officials “shirked their duty” to report sexual involvement of a teacher with a student, by the time they had sufficient knowledge to report the behavior the defendant had already resigned and the relationship had ended. Reporting to law enforcement officials at the time of the rumor “would not have alleviated any of the defendant’s prior wrongdoings, or any alleged current or potential future damages claimed by the victim.”

Application. This case is important for the following reasons:

1. It illustrates the danger inherent in unsupervised “mentoring” relationships between adults and minors. Such arrangements occur in many churches, and they should always be viewed as involving a high degree of risk. Churches should never consider the establishment of such relationships without (1) conducting thorough background checks on the adult mentors; (2) the creation of appropriate boundaries; and (3) obtaining and following the guidelines used by other charities (such as Big Brothers/Sisters) that utilize mentoring relationships between adults and minors.
2. The court concluded that school officials’ awareness of a rumor of an inappropriate relationship between a teacher and a minor student was not enough to make the school liable on the basis of negligent retention for the teacher’s acts of molestation. The court noted that there was no tangible evidence of the affair until the discarded notes and emails were found; school computers and telephones were not used to facilitate the relationship; all of the acts of molestation occurred off of school premises; the defendant had no prior history of wrongdoing, and had an excellent reputation; and, because of its illicit nature, the couple did not inform anyone of their relationship.
3. The court rejected the mother’s claim that school officials violated a state child abuse reporting law since the reporting duty only applied to an “abused child,” and the victim in this case did meet the statute’s definition of an abused child since she was not abused by someone “responsible for her care or support.” Several other states define reportable child abuse in this same way, and this illustrates the importance of church leaders being familiar with their state’s requirements.
4. The court also rejected the mother’s claim that school officials violated their duty to report child abuse since an unsubstantiated rumor did not create the reasonable suspicion of abuse necessary to trigger a duty to report. The court concluded that “an unsubstantiated rumor carries significantly less credibility than a formal accusation.”
5. The court concluded that mandatory child abuse reporters cannot be liable for failing to report abuse when they don’t learn of the abuse until after the abuse is disclosed and the offender’s wrongful acts terminated. Doe ex rel. Brown v. Pontotoc County School District, 957 So.2d 410 (Miss. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, March/April 2008.