Sexual Misconduct by Clergy and Church Workers – Part 1

An Arizona court ruled that restrictions placed on a child molester by the terms of his probation were violated when the molester attended a church retreat and stayed in a tent with a 13-year-old child.

Church Law and Tax 2001-11-01

Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key point. In some cases, child molesters are given probation instead of imprisonment, subject to various conditions. If such a person attends a church, it is important for church leaders to be apprised of such conditions so that they can help to ensure that they are followed.

An Arizona court ruled that restrictions placed on a child molester by the terms of his probation, and that prohibited him from having any association with minors, were violated when the molester attended a church retreat and stayed in a tent with a 13-year-old child. A young man (“Scott”) was indicted for sexual abuse arising from an incident in which he rubbed the breasts of a 13-year-old girl. A few months later, he pled guilty to aggravated assault, a class 6 felony. The trial court suspended the imposition of sentence and placed Scott on supervised probation for a period of 36 months. A special condition of Scott’s probation was that he “abide by all written sex offender regulations of probation.” One such regulation provides that a probationer “not initiate, establish, or maintain contact whatsoever with any child (under the age of 18) nor attempt to do so except under circumstances approved in advance and in writing by the probation officer.”

Scott requested permission from his probation officer to attend a weekend church retreat. He informed the probation officer that he would be riding to California with a father and son, ages 51 and 31, and that he would be camping with these two men during the retreat. The probations officer contacted the associate pastor of Scott’s church to explain the circumstances of Scott’s probation and to determine whether, in light of that information, the pastor was comfortable with having Scott attend the retreat. The probation officer’s conversation with the pastor left her with the impression that the pastor would be attending the retreat and that he would act as “somewhat of a chaperone” for Scott. As a result, the probation officer gave Scott permission to attend the retreat “provided that he not be around children.” She specifically instructed him that, if children were present at the retreat, he was not to play with them, sit with them, or speak with them.

When Scott returned from the retreat, he told his probation officer that “everything went fine.” The next day, however, the probation officer received a telephone call from the pastor, who informed her that he had not attended the retreat and that he had learned that Scott had driven to California with a married couple and their three minor children. The pastor also reported that, contrary to Scott’s claim that he would be camping with a man and his adult son, Scott had in fact shared a tent with a man and his thirteen-year-old son. The pastor further advised the probation officer that Scott had been observed during the retreat playing with children on a swing set outside the presence of other adults. When confronted by his probation officer, Scott admitted the truth of the pastor’s allegations. He also told her that, while on the retreat, he had seen a group of approximately five children “wandering around the public restroom” without adult supervision, that he had decided to act as the children’s “protector,” supervising them for approximately fifteen minutes. Scott further admitted that a young boy, who was not affiliated with the church group, had approached him and eventually asked him to meet his father. Agreeing, Scott accompanied the boy to the boy’s campsite, where the boy’s father told Scott to stay away from that father’s children. The weekend retreat was not the first time that Scott had run afoul of the terms of his probation. One year earlier, his probation was modified to include ninety days confinement in a jail after his probation officer observed him in a public park, past the hour of his curfew, wearing a cowboy hat bearing the words “Sex Machine.”

Relying on the information that she received from the pastor and from Scott, the probation officer filed a petition to revoke Scott’s probation for a violation of the probation conditions since during the weekend retreat he had “initiated, established, and maintained contact with minors.” Scott opposed the revocation of his probation on the ground that the conditions preventing him from having any contact with minors were unenforceable because they unjustly prohibited his “innocent physical presence” among minors and thereby violated his constitutional rights, including his right to the free exercise of his religion. The trial court found that Scott had violated the terms of his probation. It placed Scott on “intensive probation” and extended his probationary period by 55 days. Scott appealed.

A state appeals court rejected Scott’s arguments, and affirmed the trial court’s conclusion that he had violated the terms of his probation. It observed,

In addressing Scott’s claim that the [probation regulations] violate his own constitutional rights, we begin by determining the effect his probationary status has on his argument. To remain at liberty under a suspended sentence is not a matter of right but a matter of grace. As a result, a probationer is subject to restriction of his constitutional rights to a greater degree than would be permissible outside the criminal-justice system …. Courts have consistently upheld imposition of conditions of probation that restrict a defendant’s freedom of speech and association when those conditions bear a reasonable relationship to the goals of probation …. A reasonable relationship clearly exists between [the regulation’s] requirement that Scott not have unsupervised or unchaperoned contact with children and the goals of rehabilitating him and protecting the public from any further criminal acts he might commit. We therefore reject his challenge to the regulation. Although restrictive of Scott’s ability to be merely present with minors in conventional places such as schools, shopping malls, churches, sporting events, or social events, the regulations are not so unreasonable that they violate the broad discretion given to the trial court in setting terms of probation.

Application. This case suggests that pastors and lay church leaders who learn that a person who attends their church has been charged with a sexual offense in the past (especially one involving minors) should ascertain if the person is on probation, and if so, the conditions of the probation. Contact the person’s probation officer to be sure you have the most current restrictions. The nature of the conditions in many cases will determine the church’s response. For example, if the conditions prohibit the person from having any contact with minors (as was true in this case), then church leaders may decide that compliance with this condition is impossible at most church functions. On the other hand, if the conditions permit the person to be with minors in the presence of a chaperone, then church leaders will need to decide if they are willing to comply with this condition. In some cases, it may be difficult to assign a chaperone to such a person at all times while he is on church premises or involved in a church activity. State v. Scott, 13 P.3d 1200 (Ariz. App. 2000).

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