Sexual Misconduct by Clergy and Church Workers – Part 2

A New York court ruled that a school could be liable on the basis of negligent supervision for the molestation of a seventh-grade student by a school counselor.

Church Law and Tax2001-09-01

Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key pointNegligence as a Basis for Liability 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.Negligence as a Basis for Liability 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.

A New York court ruled that a school could be liable on the basis of negligent supervision for the molestation of a seventh-grade student by a school counselor. A man (“Ray”) was hired as a counselor by a public middle school. A seventh-grade student (the “victim”) was acquainted with Ray because they attended the same church. Ray was authorized by school policy to issue passes to students in order to secure their release from class to go to his office. Ray issued passes to the victim to secure his release from class. During a six-month period, Ray sexually abused the victim student both in his office and at the child’s home. The victim’s mother sued the school, claiming that it was responsible for her son’s injuries on the basis of negligent supervision, negligent hiring, and breach of implied contract. The school asked the court to dismiss the lawsuit on the ground that the mother had produced no evidence of any prior knowledge of similar acts by Ray or any propensity he might have had to engage in such conduct. A court agreed with the school and dismissed the case. It began its opinion by noting that “a necessary element of a cause of action for negligent hiring is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury …. Plaintiff’s claim of negligent hiring must fail as plaintiff has offered no proof that the [school] had any knowledge of the propensity of Ray to commit sexual abuse on children or that a more thorough background check would have uncovered this knowledge.”

However, the court refused to dismiss the negligent supervision claim against the school. It observed, “For approximately six months a seventh grade child was regularly excused from class in order to meet with a [school counselor] in his office behind closed doors …. It was admittedly against professional expectations for the counselor’s door to be closed while a student was inside his office.” The school argued that it could not be liable on the basis of negligent supervision since it had no prior knowledge of similar acts of misconduct by Ray. The court disagreed, noting that “here we have a seventh grade child meeting behind closed doors with an adult … for a six month period …. The potential danger to the child under the circumstances of this case can be reasonably foreseen and could have been prevented by adequate supervision of the school.”

Application. What is the relevance of this case to church leaders? Consider two points. First, the court concluded that the school could not be liable for Ray’s actions on the basis of negligent hiring because (1) it had no prior knowledge of similar misconduct by Ray, and (2) a more thorough background check would not have revealed such information. This suggests that schools and churches may be liable for allowing a person to work (as an employee or volunteer) with minors if they either (1) have actual knowledge that the person had previously engaged in sexual misconduct involving minors, or (2) could have acquired such knowledge had they performed a thorough background check. Second, the court ruled that the school could be liable on the basis of negligent supervision because it allowed the victim to meet with the counselor in his office behind closed doors over a period of six months. This ruling suggests that churches are exposed to potential liability when they allow a minor to meet in private with an adult worker on church premises. Such contacts are fairly common in churches. Church leaders must recognize that not only do such contacts create legal risk to the church in the event of inappropriate behavior, but they also expose the adult to the risk of false accusations. Murray v. Research Foundation, 707 N.Y.S.2d 816 (Sup. Ct. 2000).

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