Pastor, Church & Law

Resource. For comprehensive training for church leaders, staff, and volunteers, see R. Hammar, Reducing the Risk: A Child Sexual Abuse Awareness Program (by the publisher of this text).

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.

In recent years, several churches have been sued as a result of the sexual molestation of minors by church workers on church property or during church activities. Common examples include the molestation of children and adolescents by youth pastors, camp counselors, Sunday school teachers, church custodians, volunteer youth workers, and others. In many of these cases, the victim alleges either or both of the following two theories: (1) the church was negligent in hiring the offender without adequate screening or evaluation, or (2) the church was negligent in its supervision of the offender. The second of these theories (negligent supervision) is discussed later in this chapter.

As noted above, the term negligence refers to conduct that creates an unreasonable risk of foreseeable harm to others. It connotes carelessness, heedlessness, inattention, or inadvertence. It is important to recognize that churches are not "guarantors" of the safety and well-being of children. They are not absolutely liable for every injury that occurs on their premises or in the course of their activities. Generally, they are responsible only for those injuries that result from their negligence.

Negligent selection simply means that the church failed to act responsibly and with due care in the selection of workers (both volunteer and compensated) for positions involving the supervision or custody of minors. Victims of molestation who have sued a church often allege that the church was negligent in not adequately screening applicants. The typical church hires just about anyone who expresses an interest in working in a volunteer capacity with the youth in the church. Even applicants for compensated positions are not screened by many churches. Often, when an incident of molestation occurs the senior minister is later asked to testify in court regarding steps that the church took to prevent the incident. The victim's lawyer asks, "What did you or your staff do to prevent this incident from occurring —what procedures did you utilize to check the molester's background and suitability for work with children?" All too often, the minister's answer is "nothing." The jury's reaction to such a response is predictable.

A single incident of abuse or molestation can devastate a church. Parents often become enraged, the viability of the church's youth and children's programs is jeopardized, and church leaders may be blamed for allowing the incident to happen. But far more tragic is the emotional trauma to the victim and the victim's family, and the enormous potential legal liability the church faces.

There is good news, however. Church leaders can take relatively simple yet effective steps to significantly reduce the likelihood of such an incident occurring. This chapter will review some of the more significant reported court rulings, and then suggest a number of preventive measures that any church can implement in order to reduce the risk of such incidents.

Tip. No one understands or appreciates risk better than insurance companies. Risk evaluation is their business. As a result, it is very important to observe that a number of church insurance companies have reduced the insurance coverage they provide for sexual misconduct, and in some cases they have excluded it entirely. Some companies are suggesting that these incidents are excluded under the provision in most policies excluding damages based on intentional, criminal conduct (most acts of sexual molestation involve criminal activity). Church leaders should review their church liability insurance policy to determine whether the church has any coverage for acts of sexual misconduct, and if so, whether such coverage has been limited in any way. If you fit within either category, the risk management recommendations in this chapter are of even greater relevance.