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.
* A federal court in Nebraska ruled that two churches were not responsible on the basis of negligent hiring or supervision for a pastor’s sexual molestation of his minor daughter since the acts of molestation, which spanned nine years, occurred in the family home rather than on church property. An adult female (Julie) sued two churches in which her father (Pastor John) had served as pastor, claiming that they were responsible on the basis of negligent hiring and supervision for her father’s sexual molestation of her when she was a minor. Julie claimed that her father, while serving as senior pastor of the two churches, molested her on multiple occasions beginning when she was three years old and continuing until she was twelve. The church defendants conceded that Julie had been sexually molested by her father when he was serving as pastor at each church, but insisted that they were not guilty of negligence.
Julie made the following allegations in support of her claims against the church: (1) In 1973 Pastor John had sexually molested a 14-year-old babysitter. (2) In or about 1975 Pastor John engaged in a consensual, extramarital affair with an adult parishioner in a church in Indiana where he served as pastor. (3) In 1976 Pastor John accepted a pastoral position in a church in Missouri where he engaged in a consensual, extramarital affair with an adult parishioner. (4) In 1979 Pastor John served as pastor of a church in Nebraska. In 1980, rumors circulated that Pastor John had engaged in inappropriate conduct with a 14-year-old girl. The girl submitted a report to the local police claiming that Pastor John had exposed himself to her and attempted to touch her leg. Other than the report to the police, the only other persons that the girl told of these events were two of her friends. She never informed anyone at Pastor John’s church about his behavior. The police never contacted Pastor John about these allegations, and no charges, arrests or convictions resulted. (5) In 1981 Pastor John exposed himself to an adult seamstress whom he had hired to make a swimsuit. He was charged and convicted of this crime. (6) Later in 1981, another teenage girl informed a detective that Pastor John had sexually molested her. The detective’s report stated that the girl informed him that some members of the Nebraska church learned of some of the previous incidents of sexual misconduct committed by Pastor John. (7) In 1981, while serving as pastor of the Nebraska church, Pastor John engaged in a consensual, extramarital affair with an adult parishioner. In December of 1981, Pastor John resigned his position at the Nebraska church.
In 1982, some members of the Nebraska church who thought that Pastor John had been “mistreated” formed another church and asked Pastor John to be their pastor. He agreed to do so, and served this church for nearly three years. There was no investigation conducted by the founders of this church into Pastor John’s past.
Julie claimed that her father sexually molested her on multiple occasions from 1976 through 1984. She claimed the abuse began when she was three years old and that the abuse occurred in Indiana, Missouri, and Nebraska.
Negligent hiring and supervision
The court began its opinion by observing:
The courts typically utilize a “knew or should have known” standard to determine whether an employer is negligent in either hiring or supervising an employee. Indeed, Nebraska law holds that a person charged with negligence must have had knowledge of or be reasonably chargeable with knowledge that the act or omission occasioned danger to another.
The court noted that Julie was alleging that her father “engaged in sexual intercourse and other inappropriate sexual contact with his prepubescent daughter, beginning when she was age three and continuing through age twelve.” It concluded that this conduct was “the essence of the unusual behavior known as pedophilia” according to the Diagnostic and Statistical Manual of Mental Disorders (“pedophilia involves sexual activity with a prepubescent child, generally age 13 years or younger”).
The court assumed that the church defendants “had a duty to exercise due care in hiring and supervising [Pastor John] in order that they not put a pedophile in the pulpit.” It also assumed that the churches “had a duty to warn the congregation of reasonably foreseeable harms from their employee had they known he was a pedophile.” The court conceded that the church defendants either knew or should have known of some of Pastor John’s previous incidents of misconduct. But, the court concluded that the churches could not be liable on the basis of negligent hiring or supervision for Pastor John’s acts. It concluded:
The problem for [Julie] is that facts which might raise a “red flag” about a risk of inappropriate sexual conduct with teenage females or adult women would not cause reasonably prudent churches to worry that someone would engage in the very different and aberrant behavior of molesting small children. Indeed, [Pastor John’s] wife had no such clue or concern. Thus, the church defendants breached no “duty” to protect the plaintiff from her father …. To the extent plaintiff seeks to impose liability for negligent supervision, she must of necessity assert that the churches had a duty to supervise their employee-minister in his own home. However, a church’s obligation to supervise its employee-minister does not extend to close supervision of the minister’s conduct in his own home, even if that home is provided by the church, as the minister retains rights of privacy and quiet enjoyment in the home …. [Pastor John’s] secret and ongoing abuse of [his daughter] in the privacy of the family home or during a family outing is unrelated to any negligent act or omission of the churches regarding him. No matter what the churches might have done, they could not have protected the plaintiff from the claimed predations of her father.
Application. This case is important for four reasons. First, it graphically illustrates the importance of performing pre-employment background checks on church staff members, and making prudent decisions based on the results. Most if not all of Pastor John’s previous sexual indiscretions could have been discovered by the Nebraska churches had they conducted a reasonable background check.
Second, the court stressed that a church cannot be liable on the basis of negligent hiring or negligent supervision unless it “knew of should have known” of prior conduct by an employee placing others at risk. This is a significant holding, that has been recognized by many other courts. Whenever a church worker harms another person, the argument can always be made that the church is liable for the worker’s acts on the basis of negligent supervision since the injury would not have happened if the church had done a better job of supervision. This would become a rule of absolute liability but for the clarification that churches cannot be liable on the basis of negligent supervision for a worker’s harmful acts unless it knew or should have known (in the exercise of reasonable care) that the worker posed a risk of the kind of harm that resulted. This is a critical clarification.
Third, this is one of the few cases to define the term pedophilia. This is a term that is often used incorrectly. The Diagnostic and Statistical Manual of Mental Disorders, quoted by the court, defines pedophilia as a sexual preference for prepubescent minors (generally age 13 years or younger). The various allegations of sexual misconduct by Pastor John suggest that the court’s diagnosis was in error, since it is far from clear that he had a sexual preference for prepubescent minors.
Fourth, the court concluded that the churches could not be liable on the basis of negligent hiring or supervision for a pastor’s acts of sexual misconduct occurring in the privacy of his home. Anonymous, 2006 WL 1401680 (D. Nebr. 2006).
