by Richard R. Hammar, J.D., LL.M., CPA

Court Decisions Recognizing Negligent Selection Claims

§ 10.05.01
Key point 10-05.01. Some courts have found churches liable on the basis of negligent selection for the sexual misconduct of a church worker involving another adult if the church failed to exercise reasonable care in the selection of the worker.

This section summarizes court decisions in which a church or other religious organization was found liable on the basis of negligent selection for a minister's sexual contacts with an adult.

Case Studies
  • The Colorado Supreme Court ruled that a denominational agency was responsible, on the basis of negligent hiring and supervision, for a pastor's sexual misconduct. A local church board employed a new pastor, who later engaged in a sexual relationship with a woman in the course of marital counseling. At the time the new pastor was hired, the denominational agency failed to provide the church board with any of the information about the pastor contained in its personnel files. Included in the pastor's personnel file were reports of psychological examinations that were conducted as a result of his seeking ordination. These reports indicated that he had problems with depression, low self-esteem, and possessed a "sexual identification ambiguity." The woman claimed that the denominational agency's failure to disclose this information, and its consent to the employment of the pastor by the congregation, amounted to negligent hiring. The state supreme court agreed. It concluded, "[The pastor's] duties included counseling and close association with parishioners at the church. The diocese was in possession of a psychological report which concluded that [the assistant pastor] has a "sexual identification ambiguity." Another psychological report indicated that [the pastor] had a problem with depression and suffered from low self-esteem. An expert testified that a large number of clergy who have sexual relationships with their parishioners do so partially as a result of suffering from depression and low self-esteem. [The pastor's] struggle with his sexual identity and his problems with depression and low self-esteem put the diocese on notice to inquire further whether [the assistant pastor] was capable of counseling parishioners. These reports gave the diocese a reason to believe [the pastor] should not be put in a position to counsel vulnerable individuals and that he might be unable to handle the transference phenomenon. The failure to communicate this knowledge to the vestry and subsequent placement of [the pastor] in the role of counselor breached the diocese's duty of care to [the victim]."[84] Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993).

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