Sexual Misconduct by Clergy, Lay Employees, and Volunteers

An Ohio court ruled that a church and denominational agency could be sued on the basis of negligent retention and breach of a fiduciary duty for the sexual misconduct of a minister.

Church Law and Tax2005-05-01

Sexual misconduct by clergy, lay employees, and volunteers

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.
Seduction of Counselees and Church Members

Key point 10-13.1. A few courts have found churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, the church or agency is found to be vicariously liable for the minister’s breach of a fiduciary duty, but in others the church or agency is found to have breached a fiduciary duty that it had with the victim.

Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.

* An Ohio court ruled that a church and denominational agency could be sued on the basis of negligent retention and breach of a fiduciary duty for the sexual misconduct of a minister. An adult male (Dennis) claimed that when he was a minor he was sexually molested more than 300 times by a priest. The acts occurred in various places including the church, a rectory, and hotels. Many took place on church-sponsored youth trips. Dennis sued his church and diocese (the church defendants) claiming that they were responsible for the priest’s acts on the basis of negligent selection, negligent retention, negligent supervision, and breach of fiduciary duty.

negligent hiring

A trial court dismissed the negligent selection claim on the basis of a decision by the state supreme court barring any negligent selection claims unless a lawsuit recounts facts demonstrating that an employer was actually aware of an employee’s dangerous propensities. Vague references to what an employer should have known are not sufficient. The trial court concluded that the negligent selection claim had to be dismissed because it did not satisfy this standard.

negligent retention

The court noted that an employer may be liable on the basis of negligent retention for injuries caused by an employee if the employer knew or should have know that the employee might engage in such conduct. Dennis insisted that this standard was established by the fact that he was in the priest’s room in the church rectory “hundreds of times until 11:00 PM, and, on dozens of occasions, until 2:00 AM.” The court agreed, noting that the church defendants’ “failure to intervene in the priest’s actions, despite their alleged constructive knowledge of them, allegedly permitted the abuse to continue and is the cause of the injuries.”

negligent supervision

The court concluded that the church defendants could be liable for the priest’s acts on the basis of negligent supervision, but not on the basis of “respondeat superior” since the priest’s acts were so blatant a “violation of trust and of a religion’s moral code” that they were not in furtherance of the priest’s duties.

breach of fiduciary duty

The court noted that the church defendants allowed the priest to supervise and coach youth activities. And, “because it is reasonable to claim the church had a duty to protect the participants in its youth program from its agents, the lawsuit … is sufficient to state a claim” for breach of fiduciary duty.

The church defendants argued that they could not be liable for breaching a fiduciary duty since they were not legally required to report child abuse (“mandatory reporters”) under state law. The court acknowledged that the church defendants were not mandatory reporters, but concluded that this was irrelevant to liability based on negligent retention. It pointed out that the lawsuit alleged that “despite numerous opportunities to discover the abuse, the church ignored the hundreds of acts of abuse which occurred not only in its rectory, but even in its [sanctuary]. Dennis has stated a cause of action for breach of fiduciary duty when the church had constructive notice of the abuse.

Application. This case is important for one reason. It demonstrates the vital importance of acting upon known or suspected cases of sexual misconduct involving clergy, lay employees, or volunteers. A failure to do so may expose a church to liability based on negligent retention. Note that this form of liability is distinct from negligent selection or negligent supervision. The fact that a church exercises adequate care in selecting an employee or volunteer does not end the church’s exposure to liability for that person’s acts. The church may be liable on the basis of negligent retention for failing to respond to information suggesting that the person constitutes a risk of harm to others; and, it may be liable on the basis of negligent supervision for failing to adequately supervise the person or its own premises and activities. Mills v. Deehr, 2004 WL 1047720 (Ohio App. 2004).

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