• 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.
Negligence as a Basis for Liability
* A New York court ruled that a person was not disqualified from driving a school bus containing minors because of a 21-year-old rape conviction. In 1981, an adult male (Carl) was charged for the rape of a 27-year-old woman. He was 30 years old at the time of the offense. Carl later pled guilty to the lesser charge of sexual abuse in the first degree, a Class D Violent Felony, and was sentenced to nine months in the county jail. In 1997 Carl obtained a commercial drivers license (CDL) and began driving a school bus transporting adults who were either physically or mentally disabled. In 2002 Carl applied for a job as a school bus driver with a school. This job would have involved driving minor students to and from school. At the time, Carl was 52 years of age, had been married to his current wife for five years, and had a son and daughter (ages 32 and 30) from a previous marriage.
The evaluations submitted by Carl in support of his application for employment show that he represents a “low to moderate” risk for sexual recidivism. An evaluation provided by a psychologist concludes that persons in the low-moderate risk category have a 21% risk of re-offending in the six years following their conviction. The psychologist’s report notes that Carl has had 21 years since his offense and has maintained a positive and productive lifestyle.
A court ruled that Carl was qualified to serve as a school bus driver for minors. It noted that a state law specifies that any person convicted of Sexual Abuse First Degree shall be permanently disqualified from driving a school bus with passengers who are minors. However, the disqualification may be waived if five years have expired since the person was discharged or released from a sentence of imprisonment. The court pointed out that in this case “more than five years (i.e., twenty-one years) have expired since Carl was discharged from his 1981 jail sentence.” Further, “the court having had the opportunity to observe the demeanor and credibility of the applicant while on the witness stand and after having considered the history and character of this applicant, the circumstances surrounding the crime for which he was convicted, to and including the ages of both the applicant and victim at the time of the incident, the applicant’s lack of any further criminal history or proof of re-offending for a period of over twenty-one years, the court determines that the applicant has sustained his burden of showing that his 1981 conviction will have no bearing on his ability or fitness to operate a bus transporting persons under the age of twenty-one or persons of any age who are mentally or physically disabled.”
Application. As this case illustrates, some courts are willing to consider the passage of time following a criminal conviction for a sexual offense, and the absence of any similar offenses since the prior conviction, as evidence suggesting that the person no longer poses a significant risk of committing similar crimes in the future. Not all courts would agree with this conclusion, and even this court stressed that its decision was based on the passage of 21 years since the previous conviction and an impeccable record since that time. While this case suggests that in some cases churches may be able to consider using convicted felons in some volunteer or paid positions if a significant length of time has elapsed since the prior conviction (with no further history of repeat offenses), our recommendation is that church leaders not take this risk without the advice of legal counsel. People v. Smith, 2003 WL 21673964 (County Ct. 2003).
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