Sexual Misconduct by Clergy, Lay Employees, and Volunteers – Part 5

A federal appeals court ruled that a national denominational agency and one of its local districts were not liable for the sexual molestation of a minor by one of their pastors.

Church Law and Tax2005-07-01

Sexual misconduct by clergy, lay employees, and volunteers – Part 5

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.

Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.
Negligence as a Basis for Liability

* A federal appeals court ruled that a national denominational agency and one of its local districts were not liable for the sexual molestation of a minor by one of their pastors, since they were aware of no previous incidents or allegations suggesting that the pastor might engage in such behavior. A pastor (Pastor Fred) was ordained with the Lutheran Church-Missouri Synod (the “Synod”) and retired from the active ministry while serving as senior pastor of a church in New York. The Synod is divided into various geographical Districts, each of which furthers the work of the Synod at the local level. The “Atlantic District” exercises jurisdiction over churches in New York. A few years after his retirement, Pastor Fred moved to Massachusetts to join his son in the real-estate business. His name was transferred from the roster of ordained ministers in the Atlantic District to the New England District. Pastor Fred began attending a Lutheran church in Massachusetts and sometimes assisted the full-time pastors by delivering sermons and conducting services in their absence. During this period of time, Pastor Fred met an adolescent male (Michael) who attended the same church. Over the course of the next year, Pastor Fred sexually assaulted Michael on several occasions at his home and at Michael’s home.

After becoming an adult, Michael sued the Synod and the Atlantic District in federal court, claiming that they were responsible for his injuries on the basis of negligent retention an negligent supervision. He alleged that Pastor Fred had been forced to resign from his previous pastoral position in New York as a result of his “inappropriate behavior” towards female church members, some of whom were minors, and that both the Synod and Atlantic District should have been aware of this behavior and removed him from the ministry. A federal district court dismissed all of Michael’s claims against the church defendants on the ground that he failed to produce any evidence showing that either the Synod or the Atlantic District had notice of Pastor Fred’s alleged proclivities to commit sexual assault, and that any effort by the court to set a standard of care for the maintenance of a clergy roster would violate the first amendment guaranty of religious freedom. Michael appealed.

A federal appeals court noted that a negligent supervision or retention claim requires proof of the following facts: (1) the wrongdoer and defendant were in an employee-employer relationship; (2) the employer “knew or should have known of the employee’s propensity for the conduct which caused the injury” prior to the injury’s occurrence; and (3) the injury was committed on the employer’s premises or with the employer’s property. The court concluded that Michael failed to produce any evidence establishing the second requirement. It concluded that the Synod and Atlantic District were unaware that Pastor Fred “had ever engaged in, or been accused of engaging in, sexual misconduct,” and that Michael “failed to counter this assertion with admissible evidence from which a reasonable juror could infer that the defendants, at any time prior to the [molestation], knew or should have known of [Pastor Fred’s] propensity to assault minors or otherwise to engage in inappropriate sexual conduct.”

The court further noted that the church defendants could not be found liable for Pastor Fred’s behavior because none of the incidents of molestation occurred on church property but instead were committed at his home and at Pastor Fred’s home. Given this admission, Michael “cannot satisfy the third element of a negligent supervision claim—the requirement that the injury must have been committed on the employer’s premises or with the employer’s property.”

Application. This case illustrates two important principles. First, churches generally cannot be liable for the sexual misconduct of a staff member unless they had prior knowledge of incidents or credible allegations indicating that the staff member could engage in such behavior. Conversely, if church leaders do have information suggesting that a person might engage in sexual assaults, then it may be liable for any future assaults on the basis of either negligent supervision or negligent retention. Second, if a staff member’s molestation of a minor occurs off of church property (and not in the course of any official church activity), then it is unlikely that the church can be liable. Ehrens v. Lutheran Church, 385 F.3d 232 (2nd Cir. 2004).

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