Juarez v. Boy Scouts of America, Inc., 97 Cal.Rptr.2d 12 (Cal. App. 2000)
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 10-09.2. 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 California court ruled that the Boy Scouts was legally responsible for the molestation of a scout by a scout leader because the victim and his parents had not been trained to recognize and defend against sexual assaults.
This case is of direct relevance to any charity, including churches, having youth programs. An adult male (Mario) sued the Boy Scouts of America (BSA) and the San Francisco Bay Area Council (BAC) alleging that when he was a scout he was repeatedly molested by his scoutmaster. The sexual acts were committed during officially sanctioned scouting events, such as overnight camping trips, and at the scoutmaster's home. Mario also sued the church where his troop held its meetings.
The scoutmaster was later found guilty of the molestation of Mario and several other minors, and was sentenced to prison. Mario claimed that the Scouts and the church were responsible for the damages he sustained as a result of the scoutmaster's actions on the basis of negligence in (1) hiring the scoutmaster without conducting a proper background check; (2) failing to monitor and supervise him so that young male scouts would be protected from sexual molestation; (3) failing to properly manage, oversee, and educate the troop; and (4) doing nothing to stop the scoutmaster from engaging in inappropriate sexual conduct with young male scouts even after they knew or should have known of his deviant propensities.
The scoutmaster had been employed by a public school district as an instructional aide for 18 years without incident. Moreover, he had no prior criminal record or documented history of sexual misconduct. Nor did anything become known during his service as assistant scoutmaster that raised questions about his fitness.
A trial court dismissed the lawsuit against the Scouts and the church, noting that Mario had failed to demonstrate that the Scouts or the church had any notice of the scoutmaster's propensities, or that any such evidence was available to them. Therefore, because the scoutmaster's propensity to molest children "was not discoverable before he molested plaintiff," the alleged "inadequacy of background investigation, supervision, training" was not a legal cause of Mario's harm. Mario appealed.
A state appeals court agreed with the trial court that the Scouts and the church could not be liable for the scoutmaster's acts on the basis of negligent hiring. It noted that "an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee's unfitness before hiring him."
Mario cited evidence demonstrating the scoutmaster's "deviant sexual proclivities." This evidence included the scoutmaster's entertaining members of the troop at his home and the alleged suspicion of one of his neighbors that something inappropriate was going on. However, the court concluded that "it is undisputed that none of these incidents resulted in any complaints or reports being made to the Scouts that would have alerted them that [the scoutmaster's] continued retention as a scoutmaster might pose an unreasonable risk of harm to minors."
The court quoted from a previous case, "It is not enough to allege that the sexual misconduct was conceivable. The plaintiff must allege facts showing that it was foreseeable, i.e., facts from which it can be inferred that the [church] must have known that [the molester] was engaging in, or wished to engage in, acts of sexual misconduct with a minor." The court concluded, "While the undisputed facts show with certainty that [Mario] was seriously harmed by [the scoutmaster's] misconduct, those same undisputed facts establish that there was nothing in [the scoutmaster's] background and nothing that was made known to the Scouts during his tenure as scoutmaster … that could be deemed a specific warning that [he] himself posed an unreasonable risk to minors."
The court noted that "there can be no liability for negligent supervision in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised."
Duty to train Youth Leaders, Minors, and Parents
Mario claimed that if the adult leaders in his troop had received training on how to prevent and detect sexual abuse, and if he had been warned and educated about how to handle such a situation, the sexual molestations would have been prevented. The court agreed that the Scouts had a duty to train both leaders and minors concerning the risks of sexual molestation, and the failure to do so could be a basis for legal liability.
The court acknowledged that the Scouts had established a comprehensive "Youth Protection Program" designed to educate adult volunteers, parents, and the scouts themselves in the detection and prevention of sexual molestation by volunteers associated with scouting. This program contained many components, including a video and a 24-page removable insert in the Boy Scout Handbook entitled "How to Protect Your Children from Child Abuse and Drug Abuse: A Parent's Guide."
Mario's troop never received a copy of the video, and the Boy Scout Handbook that was given to Mario when he joined the troop was in English, not Spanish. Since Mario had recently moved to the United States from Honduras and could not read English, the handbook was unintelligible to him. Mario testified that "no one from [the Scouts] ever talked to me or other Boy Scouts in my presence about how to protect ourselves from sexual molestation from our scoutmaster …. I did not know the proper responses to repel and rebuff my scoutmaster's illegal sexual advances." The court concluded:
With the privilege of being able to contribute directly to the moral and spiritual development of millions of American youths comes some legal responsibility. In light of the record in this case, we soundly reject any contention that the Scouts could avoid all legal responsibility to incorporate into their program information designed to prevent a significant risk of harm to the youths it serves on the ground that any burden imposed would be too onerous. We are persuaded that recognizing a legal duty of care will have beneficial consequences for the community as a whole, which vastly outweighs the slight burden imposed on the Scouts.
The court also ruled that a "special relationship" existed between the Scouts and the minors they serve, and that this relationship imposed upon the Scouts a duty to prevent "harms caused by the intentional or criminal conduct of third parties." The court quoted with approval from a previous case: "The mission of youth organizations to educate children, the naivetéof children, and the insidious tactics employed by child molesters dictate that the law recognize a special relationship between youth organizations and the members such that the youth organizations are required to exercise reasonable care to protect their members from the foreseeable conduct of third persons."
Application. What is the relevance of this case to church leaders? Consider the following points:
1. The decision of a California appeals court is not binding in any other state, and is not binding on trial courts in California that are in a different "district." Further, it is not binding on other California appeals courts, or the California Supreme Court. However, note the following: (1) A case such as this will be seized upon by plaintiffs' attorneys as a new and promising way to hold churches and other charities absolutely liable for any act of sexual misconduct, no matter how unforeseeable and regardless of the care exercised in the selection and supervision of the perpetrator. After all, few if any churches train children to resist sexual assaults by their Sunday School teachers or other adult leaders, and so if such a duty is recognized by the courts it would have the effect of making churches liable no matter how careful they were in selecting and supervising workers. (2) The California Supreme Court may reverse or modify this case on appeal.
2. If your church is currently providing training to children and their parents concerning how to respond to attempted molestation, continue doing so. Of course, very few churches provide this kind of training. If you are not doing so now, then you should follow the progress of the California case on appeal. If your church is in California, then you should check with an attorney to see if the ruling summarized in this article applies to you.
3. If other courts recognize a duty to train minors and their parents concerning the appropriate response to sexual assaults, then church leaders should be prepared to begin offering this training. Initially, the best place to look for resources will be other local charities, including Boys and Girls Scouts, Big Brothers, Big Sisters, and the public schools. If you base your training on the training provided by one or more of these organizations, this will be evidence that you satisfied your duty to train.
4. The California ruling is an important development with a potentially huge impact on churches. We will be monitoring the progress of this case on appeal, and the reaction of courts in other states. At some point our review of existing precedent may prompt us to recommend that churches engage in the kind of training mandated by the California court.