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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).
  • A Colorado court ruled that a minister and a denominational agency could be sued by a woman with whom the minister had sexual contacts.[85] Winkler v. Rocky Mouton Conference, 923 P.2d 152 (Colo. App. 1995). A woman (the victim) attended a church for a few years, and began to volunteer her services for a variety of activities including the remodeling of a classroom. She engaged in these volunteer services on the recommendation of a therapist who suggested that she work in a "safe environment" to overcome her fears of the workplace. The victim's volunteer work caused her to come in contact with her minister after normal working hours. On one occasion the minister approached her while she was remodeling a classroom, began caressing her back, and told her, "I love you Dianne, you mean so much to me." A few days later, the minister called the victim into his office where the two of them sat next to each other on a small couch. The minister again caressed her and expressed his love for her. Following a third incident, the victim informed two other women in the church about the minister's behavior, and one responded, "Oh my God, not you too." A few months later a denominational agency with which the church was affiliated held a meeting in response to a formal complaint it had received regarding the minister's conduct. Six women attended this meeting, and all described similar incidents of unwelcome verbal comments and physical contact involving the minister. As a result of this meeting, the minister was suspended. The victim later sued her church and a denominational agency on the basis of several theories of liability, including negligent hiring of the minister. She alleged that the agency had been made aware of at least one prior act of sexual misconduct involving the minister, and was aware that he had a problem with alcohol abuse. The court ruled that the agency could be liable on the basis of negligent hiring, despite the agency's argument that the ordination and discipline of ministers is an ecclesiastical matter involving theological concerns over which the civil courts cannot exercise jurisdiction. The court noted simply that neither the minister nor the agency claimed that the minister's "method of communicating with parishioners by touching, hugging, and expressing affection was based on any religious tenet or belief."
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