Sexual Misconduct by Clergy and Church Workers

A Virginia court ruled that an adult male who sexually molested a 15-year-old girl while taking her home from church was in a “custodial” relationship with the girl and therefore was properly convicted of the crime.

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. Failure to Report Child Abuse

Key point 10-11.1. Churches can reduce the risk of liability based on negligent supervision for injuries not involving sexual misconduct by adopting risk management policies and procedures. Negligence as a Basis for Liability

A Virginia court ruled that an adult male who sexually molested a 15-year-old girl while taking her home from church was in a "custodial" relationship with the girl and therefore was properly convicted of the crime of molesting a minor with whom he had a "custodial or supervisory relationship."

A 15-year-old girl (the "victim") frequently was taken to church by the family of one of her friends. She usually would be driven to church by her friend's mother, and would be taken home by her friend's father (the "defendant"). The defendant was the only adult in the car during these trips. He and his wife were the only people who had permission from the victim's mother to take the victim to and from church. On two occasions the defendant stopped the car in an isolated area while driving the victim home from church and sexually molested her. The victim told her mother about these incidents, and a report was filed with the Department of Social Services. The defendant later confessed to the allegations, and he was convicted of a "class 6" felony of molesting a minor over whom he exercised custodial or supervisory control. The defendant appealed his conviction on the ground that his involvement with the victim "consisted only of assisting her in transportation from church," whereas the criminal statute requires a "custodial or supervisory relationship." The court concluded that the defendant did have such a relationship with the victim:

The word "custody" has been defined generally as "[t]he care and control of a thing or person." Additionally, the Supreme Court has rejected limiting the definition of "custody" to legal custody. In its language [the statute] is unambiguous, justifying no limitation of the meaning of "custody" to legal custody. To give it such a restrictive definition would eliminate, among others, teachers, athletic instructors and baby-sitters, all of whom might have temporary custody of children, from the purview of the statute. Accordingly, we hold that the "custodial or supervisory relationship" required [under the criminal statute] is not limited to those situations where legal custody exists. The statute specifically provides that such a relationship "includes but is not limited to the parent, step-parent, grandparent, or step-grandparent." The term also includes those individuals eighteen years or older who have a temporary, custodial relationship with a child, such as, "teachers, athletic instructors and baby-sitters." The child in each instance has been entrusted to the care and control of the supervising adult.

The evidence established that, with the permission of the victim's mother, [the defendant] willingly drove the victim home from church. As the only adult present during these trips [he] had the responsibility for and control of the victim's safety and well-being while she was in his care. His contact with the victim was in the nature of a baby-sitter, i.e., one entrusted with the care of the child for a limited period of time. Indeed, in [his] interview with investigators he acknowledged that he "assumed a custodial or guardianship role over" the victim by transporting her to and from church. The Commonwealth's evidence was sufficient to prove beyond a reasonable doubt that [the defendant] maintained the requisite custodial or supervisory relationship over the victim when he proposed that they have sexual relations and when he sexually abused her.

This case is important for the following reasons:

1. Custodial or supervisory relationships. This is one of the few cases to address the meaning of "custody" and "supervision." These terms are important not only in the context of criminal law, but also in evaluating the definition of "child abuse" that is reportable under state law. The May-June and July-August 2000 issues of this newsletter contained tables summarizing the child abuse reporting laws of all fifty states. One of the features of those tables was each state's definition of reportable child abuse. As a quick review of the tables will illustrate, many states define reportable child abuse restrictively to include only abuse inflicted by parents, guardians, or "custodians." This case suggests that the term "custodian" may be interpreted broadly by the courts to include more than "legal" custodians. A parent who volunteers to drive another's minor child to church may satisfy this definition.

2. The "two-adult" rule. For many years we have recommended that churches institute a two-adult rule in all activities involving minors. Such a rule does not require that two adults be present at all times when minors are present (few churches would have enough adult staff or volunteers to do so). Rather, it means that one child is never alone with one adult. Individual children must always be in the presence of two or more adults. This case illustrates the risks associated with a deviation from this important standard. While churches cannot dictate how children are brought to church, they certainly can make recommendations to parents. And, church leaders can implement and enforce a two-adult rule in all church-sanctioned activities and programs. This case demonstrates the importance of doing so. Krampen v. Commonwealth, 510 S.E.2d 276 (Va. App. 1999).

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