Sexual Misconduct by Clergy and Church Workers – Part 2

An Ohio court ruled that a church could be liable as a result of the molestation of several young children by two adolescent boys who served as volunteer teachers and caregivers.

Church Law and Tax2000-03-01

Sexual Misconduct by Clergy, Lay Employees, and Volunteers

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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 10-07.1. Some courts have found churches liable on the basis of negligent retention for the sexual misconduct of ministers and other church workers on the ground that the church was negligent in retaining the offender after receiving credible information indicating that he or she posed a risk of harm to others.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

Key point 10-17.1. Punitive damages are monetary damages awarded by a jury “in addition to compensation for a loss sustained, in order to punish, and make an example of, the wrongdoer.” They are awarded when a person’s conduct is reprehensible and outrageous. Most church insurance policies exclude punitive damages. This means that a jury award of punitive damages represents an uninsured risk.

An Ohio court ruled that a church could be liable as a result of the molestation of several young children by two adolescent boys who served as volunteer teachers and caregivers. A church operated a preschool and conducted youth services, a Sunday School, and various activities for youth. When the church held a function for adults, the children were somewhere else in the church. According to a church policy, there were to be at least one adult and one youth at each activity for the children. Also, at the Sunday morning service, at the end of the children’s message, the children would leave the sanctuary and go to classrooms.

The Director of Christian Education trained the Sunday school teachers, supervised the church activities, and made sure there was adequate supervision at the worship hour. She also was in charge of the hiring, training, and supervision of the church’s employees, including recruiting them and putting them on the list as caregivers and babysitters.

A number of children in the church were physically and sexually abused during church services and activities over the course of four years by two teenage males who had been hired as “babysitters” by the church. Most of the assaults occurred in the church’s bathrooms, classrooms, and adjacent property. Both of the perpetrators were convicted of several crimes and are serving prison terms.

The parents of some of the minor victims sued the church, claiming that it had been negligent in selecting, retaining, and supervising the two babysitters. At the trial, the evidence demonstrated that on numerous occasions the two babysitters engaged in “violent physical, and appalling sexual” activities with children on church property. The parents claimed that if the church had adequately screened the two babysitters, it would have discovered certain “risk indicators” that would have put it on notice that one of the babysitters (“Scott”) was not suitable to be around young children. The parents noted that Scott was an “emotionally troubled” student and that his school was aware of a letter he had written expressing violent sexual fantasies about a particular girl. In addition, Scott had engaged in a fight at school, and his sister had accused their father of sexually molesting her. The church’s Director of Christian Education testified that she was acquainted with Scott, and referred to him as a “sad little boy.” She also testified that she was not aware that any child had ever been alone with any youth assistant in a classroom, a bathroom, or the woods. To the contrary, “unwritten” church policy provided that there should always be an adult present.

The trial court dismissed the case against the church. In rejecting the parents’ negligent selection claim, the court reviewed the evidence that the Director of Christian Education had known Scott since he was a little boy. She admitted that he was a “sad little boy” who was not socially adept and appeared to need affection. A few years prior to the acts of molestation, the church’s pastor had learned that Scott’s sister had accused their father of sexually abusing her. The parents argued to the court that the church should have checked with Scott’s high school guidance counselor. They asserted that the counselor would have disclosed he thought Scott was a “nerd,” that the school had confiscated a letter that Scott had written about an unspecified sexual fantasy not involving children, and that Scott’s mother had experienced trouble getting him to go to school. The court concluded, however, that the parents “do not explain how the church was supposed to know the guidance counselor had this information or to convince him to give it to them.” As a result, the court ruled that the parents’ allegations were insufficient to support a finding of negligent hiring.

Negligent Selection

The parents appealed the case to a state appeals court. The appeals court agreed with the trial court that the parents failed to prove that a reasonable person in the church’s situation would have understood that the evidence indicated that Scott presented a danger to small children. It noted that the parents “have not shown that the school could have divulged the information to the church prior to the regrettable incident with the children.” As a result, the church could not be liable on the basis of negligent selection.

Negligent Retention and Supervision

On the other hand, the appeals court noted that after Scott had worked with children at the church for some time, it appeared that the church “became aware of problems with his performance.” It concluded that “reasonable minds could differ on the issue of whether this should have influenced the church’s retention and supervision” of Scott. The court noted several factors, including: (1) A complaint by one parent that Scott had played roughly with children. (2) A complaint that Scott let a child sit on his lap. (3) A report that Scott was seen speaking with another teenager when he should have been attending to the children. As a result of the third incident, Scott was forbidden to be around little children, and he was required to repeat “caregiver” classes. Scott’s mother intervened, and the church allowed Scott to assist but only when his mother was the adult caregiver whom he assisted. (4) The court noted that the church had a policy of requiring that an adult be present with the teenage caregivers, but it is clear that Scott and the other offender “managed to circumvent this policy on numerous occasions, with appalling and disastrous results.”

Punitive Damages

The court rejected the church’s claim that it could not be liable for punitive damages. Punitive damages are a form of money damages that a jury can award when a defendant acts with a conscious disregard of the rights and safety of others. The church insisted that in order to demonstrate conduct worthy of a punitive damage award, a plaintiff must show hatred, ill will, a spirit of revenge, outrageous behavior, or willful indifference to the rights and safety of others. The court concluded that reasonable minds “could differ regarding whether [the church’s] conduct demonstrated a conscious disregard for [the victims’] rights and safety having a great probability of substantial harm.”

Application. This case is important for a number of reasons.

1. Nature of offenders. This case illustrates that young children in a church may be sexually assaulted by adolescent volunteer workers within the church. It is common for churches to use adolescents to assist with the care or instruction of younger children. Church leaders must recognize that the use of adolescents involves risks. These risks can be reduced if the adolescents are always used in connection with adult teachers or caregivers.

2. Negligent selection. This case demonstrates that a church will not be liable on the basis of negligent selection for a volunteer worker’s misconduct on the basis of evidence that was not available to it. The court acknowledged that Scott’s guidance counselor at school considered Scott to be a “nerd,” and had confiscated a letter Scott had written expressing an unspecified sexual fantasy not involving children. However, it concluded that this evidence was not sufficient to make the church liable for the victims’ injuries on the basis of negligent selection, since there was no way the counselor would have disclosed this information to the church had it been requested.

3. Negligent retention or supervision. Churches that learn of information suggesting that a current volunteer or employee may pose a danger to others may be liable on the basis of negligent retention or supervision for not dealing appropriately with this information. The court concluded that the church could be liable on this basis.

4. The importance of following policies. The court noted that the church had a policy requiring an adult to be present with teenage caregivers, but that Scott and the other offender “managed to circumvent this policy on numerous occasions, with appalling and disastrous results.” This demonstrated negligent supervision.

5. Punitive damages. The fact that the court allowed the church to be sued for punitive damages is significant. Punitive damages are not covered under any church insurance policy, meaning that a church is responsible for paying them without assistance from an insurer. As a result, church leaders must be especially careful to avoid conduct that could be the basis for punitive damages. Doe v. First Presbyterian Church (USA), 710 N.E.2d 367 (Ohio App. 1998). Negligence as a Basis for Liability

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