Sexual Misconduct by Clergy, Lay Employees, and Volunteers

An Ohio court ruled that an employer could not be responsible for a former employee’s acts of child molestation.

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.

Key point 8-23. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.

Key point 10-04. A church may be liable on the basis of negligent selection for a worker's molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Clergy Malpractice

Seduction of Counselees and Church Members

An Ohio court ruled that an employer could not be responsible for a former employee's acts of child molestation on the basis of a failure to report prior suspicions of abuse to civil authorities, but it could be liable on the basis of a positive reference it provided to a prospective employer regarding the employee.

A hospital accepted the resignation of a staff counselor (Ron) due to inappropriate acts with minors, and because of a reference belatedly received from the counselor's prior employer disclosing that Ron had been charged with child molestation years earlier. After Ron's resignation, he continued to communicate with some of the children he had counseled at the hospital. On one occasion, he invited one of these former counselees to spend the weekend with him. The counselee was now 13 years old. The boy's mother had not been informed that Ron no longer worked at the hospital, and so she called his former hospital supervisor to ask what she thought about allowing the boy to spend the weekend with Ron. The supervisor gave a positive reference about Ron, and said that spending time with Ron "would be good." She did not tell the mother about any suspicions concerning Ron or that Ron was no longer employed at the hospital. Based in part on the supervisor's statements, the mother allowed her son to spend the weekend with Ron. That weekend, and over the course of the next few months, Ron gave the boy drugs and sexually molested him. He also threatened the boy with harm if he told anyone what was going on or refused to return for future visits. Eventually, the boy disclosed how he had been molested. Ron was later convicted of crimes relating to the molestation.

The boy's mother later sued the hospital, alleging that it was responsible for Ron's acts on the basis of its failure to report child abuse, negligent hiring, and negligent supervision. A trial court dismissed the lawsuit on the ground that the hospital could not be legally responsible for Ron's actions. The mother appealed.

failure to report child abuse

The mother claimed that the hospital violated the provisions of the state child abuse reporting law and on this basis should be liable for Ron's acts of child molestation. The appeals court acknowledged that the reporting law made most hospital employees mandatory reporters of child abuse if, while acting in their official or professional capacity, "know or suspect" that a child under eighteen years of age has suffered abuse. The mother alleged that the hospital and its employees should have reported their suspicions about Ron, especially after her phone call to Ron's former supervisor concerning whether her son should be allowed to spend time with him. The court ruled that the hospital "did not have a statutory duty to report Ron when he quit his employment. At that time, the hospital had no reason to know or suspect that any particular child was being abused or in danger of being abused by Ron. Therefore, the trial court properly dismissed this claim."

negligent hiring

The mother claimed that the hospital was liable for Ron's acts on the basis of negligent hiring. The court disagreed, "At the time the boy suffered his alleged injuries, an employment relationship did not exist between Ron and the hospital. Additionally, there was no evidence to establish that prior to hiring Ron, the hospital knew or should have known that Ron was incompetent. Therefore, the mother has failed to establish a claim of negligent hiring or retention."

liability for providing a positive reference

The mother also claimed that the hospital was liable for Ron's acts on the basis of the positive reference that Ron's former supervisor provided to her. She relied on section 323 of the Restatement of Torts (an authoritative legal treatise), that provides, "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if the harm is suffered because of the other's reliance upon the undertaking."

The court observed that the theory of recovery under section 323 is that "when one undertakes a duty voluntarily, and another reasonably relies on that undertaking, the volunteer is required to exercise ordinary care in completing the duty." The court concluded,

One of the theories of recovery the mother has set forth in her complaint is that [Ron's former supervisor] gratuitously offered a recommendation to her regarding a former employee of the hospital, Ron …. Once the supervisor decided to give a recommendation about Ron, she was required to exercise due care in giving the recommendation. The mother believes that the supervisor did not exercise due care, resulting in injury to the minor child.

. This case is significant for three reasons. First, the court concluded that an employer's duty to report child abuse ends with the termination of an employee. As a result, the hospital in this case could not be liable for Ron's future acts of molestation on the basis of information it received following Ron's termination indicating that he had molested a child. Second, the court ruled that an employer cannot be liable for negligent hiring of an employee who molests a child after the termination of his employment. Third, and perhaps most importantly, the court concluded that an employer may be liable for providing a positive reference on a former employee when the employer has acquired information (since the employee's termination) suggesting that he poses a risk of harm. The court bases this conclusion on section 323 of the Restatement of Torts, The court stressed that an employer is under no obligation to respond to a request for a reference on a former employee, but, if it agrees to do so, it is required "to exercise due care in giving the recommendation." The appeals court ruled that the trial court had erred in rejecting this basis of liability. Douglass v. Salem Community Hospital, 794 N.E.2d 107 (Ohio App. 2003).

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