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Risk Management

§ 10.07.03
Key point 10-07.03. Churches can reduce the risk of liability based on negligent retention for sexual misconduct involving adult or minor victims by adopting risk management policies and procedures.

How can churches reduce the risk of liability based on negligent retention of a minister or lay worker who engages in inappropriate conduct with an adult or child? While churches cannot eliminate this risk, they can take steps to reduce it. Consider the following:

1. Investigate

Whenever a church leader receives credible information suggesting that a church employee or volunteer may represent a risk of harm to others, an immediate and thorough investigation should be initiated. Remember this—once such information is received, the church is "put on notice" of the risk and may be legally responsible on the basis of negligent retention for future acts of misconduct by the church worker if it does nothing to investigate or respond to the information. The investigation should include a thorough review of the accusation. This ordinarily will include some or all of the following procedures:

  • Interviews with the victim (and the victim's family, if the victim is a minor).
  • Interviews with the alleged perpetrator (and the perpetrator's family, if the perpetrator is a minor).
  • Collection of corroborating evidence, such as (1) witnesses; (2) other victims; or (3) documentary evidence including letters and photos.
  • Consultation with the church's insurance agent.
  • Consultation with the church's attorney.
  • Consultation with the denominational officers.
  • Consultation with other churches or charities in which the alleged perpetrator has worked, to identify whether any similar acts of misconduct have occurred. If so, this tends to prove a pattern, and supports the inference that the victim's account is correct.
  • If the alleged misconduct constitutes a crime, conduct a criminal records check to determine if the worker has a history of such acts. If so, this tends to prove a pattern, and supports the inference that the victim's account is correct.
  • If the alleged misconduct constitutes child abuse under state law, then church leaders must comply immediately with applicable reporting requirements. By reporting the alleged abuse to the state, the church ordinarily is relieved of any obligation to launch its own investigation. State social services agencies generally prefer that churches refrain from conducting their own independent investigation of child abuse allegations since such preemptive and unprofessional investigations often compromise the integrity and effectiveness of the state's own investigation. A church may suspend an employee or volunteer who is accused of child abuse, pending the outcome of the state's investigation.
Key point. Many churches are associated with denominations that are empowered to investigate allegations of pastoral misconduct. If this is the case, the accusations should be turned over immediately to denominational officials.
Key point. Churches that ignore allegations of wrongdoing by a pastor or lay worker face a number of risks in addition to negligent retention. These include (1) liability based on "ratification" of the minister's actions; (2) punitive damages; and (3) possible personal liability for members of the church board if their conduct is grossly negligent.
2. Restrictions

If the church's investigation results in credible evidence to support the victim's allegations, then the church can reduce its risk of negligent retention by imposing appropriate restrictions on the alleged wrongdoer. The nature and extent of such restrictions will vary depending on a number of circumstances, including the nature and severity of the alleged wrongs and the strength of the evidence. If a church ignores credible evidence of wrongdoing and imposes no restrictions on the alleged wrongdoer, it is exposed to liability based on negligent retention from the time it learned of the allegations.

Key point. Here is an excellent question to ask when evaluating a church's risk of negligence (in hiring, retention, or supervision): How would a jury view our actions? Would it conclude that our actions were reasonable? If such a conclusion is not certain, then the risk of negligence exists.
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