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. 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. Ministers may face criminal and civil liability for failing to report child abuse.
Key point 10-04. A church may be liable on the basis of negligent selection for a worker's molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.
Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.
Key point 10-04.3. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.
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 Pennsylvania court ruled that a church was not liable for its pastor's molestation of a young girl since it exercised reasonable care in screening him.
This case provides an excellent review of the legal issues and potential liability associated with the selection of minister. A church was in need of a pastor, and began considering several candidates. One candidate ("David") was asked by the church to complete a questionnaire and submit a videotaped sermon. He also submitted a resume and list of 14 references, including former church employers, elders, and members. David had had no criminal record and had never been investigated for the commission of a crime.
Members of the church's pastoral search committee contacted every one of the 14 references and received favorable information and positive recommendations. None of the references provided any information suggesting that David had ever committed a criminal act or had a history of improper sexual conduct. The pastoral search committee then asked David to visit the church and conducted a lengthy interview with him, which also did not produce any information that would have suggested that he was unsuitable for the ministerial position.
The church also gave serious consideration to several other candidates for the pastoral position, some of whom were also interviewed. Ultimately, however, the church hired David. During David's employment with the church, he lived with his wife and their two minor children in a private residence that they owned. The church had no ownership in or control over the use of the residence.
David's 8-year-old daughter soon struck up a friendship with a 7-year-old girl ("Amy") who lived in the same neighborhood. Amy was often at David's house and sometimes attended David's church. She participated occasionally in other church activities, including an elementary level "after school program" called King's Kids. However, she and her mother maintained their membership in a Roman Catholic Church, and Amy attended a parochial school. David began to sexually abuse Amy. The abuse continued for about a year. All incidents of abuse occurred at David's house except on one occasion when some of the abuse may have occurred in Amy's home. None of the abuse occurred on church premises.
After a year of abusing Amy, David attempted suicide. He later confessed that he had been sexually abusing Amy and pled guilty to numerous counts of rape, involuntary deviate sexual intercourse and aggravated indecent assault. He was sentenced to a term of 14 to 62 years in a state penitentiary.
Amy and her parents (the "plaintiffs") sued David's church, claiming that it (1) negligently failed to report suspected child abuse in violation of state law; (2) was liable for David's acts on the basis of negligent hiring, supervision, and retention; (3) was responsible on the basis of "respondeat superior" for David's acts; and (4) was responsible for David's "ministerial malpractice." A trial court dismissed all claims against the church, and the plaintiffs appealed.
Failure to report child abuse
The plaintiffs claimed on appeal that two church employees, and David himself, failed to comply with the state's child abuse reporting requirement, and this failure should be "imputed" to the church. The Pennsylvania child abuse reporting law states: "Persons who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made … when they have reasonable cause to suspect, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child."
Plaintiffs argued that a few months before David began molesting Amy he told two church employees (a church secretary and a youth group teacher) that he suspected that Amy might be a victim of abuse either by her own father or by unidentified "boys" in her neighborhood. Neither employee, nor David himself, reported this alleged child abuse.
The court rejected the plaintiffs' claim that this evidence made the church legally responsible for David's acts of molestation. It acknowledged that the two church employees were mandatory child abuse reporters under state law, but it insisted that they did not have a legal duty to report Amy's alleged abuse since they did not have "reasonable cause to suspect" that she had been abused "where the only information they ever had on the subject was a comment by [David] concerning his own passing suspicions, which he did not support by reference to any specific evidence of abuse." The court concluded: "[B]eyond a mere unsupported assertion … plaintiffs have offered nothing to indicate that a failure by [the two church employees] to report [David's] own completely unsupported statement regarding abuse of [Amy] by others was in any way the proximate cause of plaintiffs' injuries, which arose from [David's] own abuse. There is nothing to suggest that a report of such an unfounded suspicion, which was apparently untrue, would have had any effect on [David's] own abuse of [Amy] or the damages caused thereby."
As to the plaintiffs' claim that the church was liable on the basis of negligence for David's failure to report his own criminal conduct, the court observed that "we can only respond that such an interpretation of the statute is clearly unreasonable and not within the intended scope or purpose of the [child abuse reporting law]. There is nothing in the law to suggest that it was intended to require self-incrimination by persons who are themselves committing child abuse and we doubt that the statute would pass constitutional muster if it did."
The plaintiffs asserted that the church inadequately investigated David's background and personal behavior before hiring him. Although conceding that the church required David to complete an extensive questionnaire, interviewed him at length and discussed his suitability with all 14 references that he provided, the plaintiffs insisted that the church "should have investigated further." They claimed that the church should have questioned the 14 references "more closely" and should have asked additional questions of David himself concerning his prior sexual behavior. If the church had done so, the plaintiffs argued, it would have discovered that David had a homosexual affair while in high school, had made a subtle advance on his wife's younger brother more than ten years prior to his employment by the church, had exposed himself from the window of his previous home, and may have abused his own son.
The court conceded that employers have a duty "to exercise reasonable care in selecting, supervising and controlling employees." However, it insisted that employers cannot be liable unless "it is shown that the employer knew or, in the exercise of ordinary care, should have known of the necessity for exercising control of his employee." The court reviewed the facts cited by the plaintiffs as proof of the church's alleged failure to exercise reasonable care in the selection, supervision, and retention of David, and concluded:
Our review convinces us that, despite lengthy and thorough discovery, plaintiffs have produced nothing that could lead a jury reasonably to conclude that [the church's] failure to act with reasonable care in hiring or supervising [David] legally caused the injuries plaintiffs have suffered. As to the church's hiring process, we find that it was reasonably thorough under the circumstances present at the time. We do not agree that the church had a duty specifically to inquire about all of David's prior sexual conduct in an attempt to ascertain if, for example, he had ever had a homosexual liaison or abused a child. David was apparently a happily married man with a stable family. He fully cooperated in the application and interview process. He had no criminal record and had never been arrested or investigated for any crime, sexual or otherwise.
In addition, as noted above, the church contacted every reference David provided, which included people who had knowledge of David in his previous ministerial positions and throughout his military service. Not a single person contacted provided information that would have given a reasonable person any hint that David's sexual propensities needed to be investigated further. All of the references expressed very positive sentiments regarding David personally as well as his suitability for the senior minister position. Lastly, even if the church members who were engaged in the hiring process had inquired further of David himself regarding his past personal behavior, he testified that he might well not have revealed anything negative since he was both anxious to get the job and in a state of denial.
The plaintiffs also argued that the church was negligent in failing to supervise David closely enough to discover that he was abusing a young girl in his neighborhood. They pointed to an alleged rumor that David was having an extramarital affair and certain comments he made regarding his excessive interest in pornography as a much younger man. This information should have alerted the church that David needed to be watched more closely. Once again, the court rejected the plaintiffs' position:
We also find nothing in the record that could lead a jury reasonably to conclude that the church failed to supervise or control David or that any better supervision or control would have prevented the abuse of Amy. There is no evidence of conduct by David of which the church was aware that would have led it even remotely to suspect that David was a pedophile who was abusing a small girl who lived in his neighborhood. This is particularly true given that none of the abuse occurred on church property. The fact that there might have been an unsubstantiated rumor that David was having an extramarital affair or that he mentioned to some church members that as a young man he had an excessive interest in pornography could not possibly have put the church on suspicion that he was abusing a child in his home.
The plaintiffs insisted that because some of David's housing expenses were covered by a housing allowance the church paid him as part of his compensation, this converted his home into "church property" and as a result all of the acts of molestation that occurred there were on "church premises," making the church fully liable. The court disagreed, noting that David and his wife were the legal owners of the home and that the church had no right to supervise or control the premises. The court also rejected the plaintiffs' argument that the home should be treated as "church property" because prayer meetings and Bible studies occasionally were conducted there. It noted simply that "these occasional private religious meetings do not transform the home into church premises."
The plaintiffs argued that the church was responsible for the pastor's acts of molestation on the basis of the legal doctrine of respondeat superior. Under this doctrine, an employer generally is responsible for the acts of employees committed within the scope of their employment. In rejecting this basis of liability, the court observed, "Nothing about David's sexual abuse of Amy had any connection to the kind and nature of his employment as a minister. None of the abuse occurred at his place of employment. Nor was his abusive behavior actuated by any purpose of serving the church. As David himself testified at his deposition, he was not Amy's spiritual advisor and was certainly not acting as such when he was abusing this helpless seven year old girl …. It is not reasonable to conclude that David's conduct should have been anticipated by his employer. Furthermore, it was outside the scope and nature of his employment."
In rejecting the plaintiffs' argument that the church was legally responsible for David's "ministerial malpractice," the court observed, "Our research confirms that ministerial malpractice is not a recognized cause of action in this Commonwealth or elsewhere in the nation. We reject the plaintiffs' invitation to expand the existing bases of tort liability to include such a claim."
Application. There are many aspects of this case that are of direct relevance to all church leaders, including important insights into what constitutes "reasonable suspicion" of child abuse; the importance of adequately screening pastoral candidates; and the relevance of rumors and other kinds of hearsay evidence in evaluating a church's duty of supervision. Perhaps the most important lesson of this case is the importance of adequately screening pastoral candidates. Had the church not done so thorough a job in screening David it might have been found liable on the basis of negligent selection for his awful misdeeds. R.A. v. First Church of Christ, 2000 WL 232599 (Pa. Super. 2000).