Pastor, Church & Law

§ 10.04.04

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Key point 10-04.04. The courts have generally ruled, in recent years, that homosexuals are no more likely than heterosexuals to molest children. Churches may be liable for the sexual misconduct of any employee or volunteer, regardless of sexual orientation, on the basis of negligence in the selection, retention, or supervision of that person.

Does the use of homosexual adults as volunteers in a church's youth or children's program expose the church to an increased risk of liability? A number of courts have ruled, in recent years, that homosexuality does not disqualify someone from working with minors. Consider the following illustrative cases:

(1) Doe v. British Universities N.A. Club, 788 F. Supp. 1286 (D. Conn. 1992)

A federal district court in Connecticut rejected the argument that child molestation was a "foreseeable consequence of sexual orientation," noting that there was not "one scintilla of credible evidence to suggest that homosexuals pose a greater risk of committing sexual molestation, assault, or criminal conduct than heterosexuals" and that "to find otherwise would be to hold that homosexuals are predisposed towards molesting or sexually assaulting minor males simply by virtue of their sexual orientation. The court cannot and will not adopt such a position absent sufficient evidentiary support."

(2) Kendrick v. East Delavan Baptist Church, 886 F. Supp. 1465 (E.D. Wis. 1995)

A church hired a full-time teacher at its private school. The teacher removed a young boy (the victim) from class and disciplined him on at least ten occasions. On four of these occasions, the teacher engaged in sexual contact with the victim. The victim never informed either his parents or any church or school officials about the teacher's behavior. Two months before the end of the teacher's tenure at the school, the school administrator received complaints from the parents of another boy regarding inappropriate behavior by the same teacher. The administrator immediately launched an investigation of these charges under the direction of the church board. He interviewed the teacher and the boy whose parents made the accusations, held a number of meetings with the parents and the church board, and ultimately concluded that the allegations involving the teacher could not be "proved or disproved."

The boy's parents were not satisfied with this result, and they continued to demand the teacher's removal. It was at this time that the administrator heard a rumor that the teacher had "had some problem with homosexuality" prior to his employment by the church. In response to this rumor, the administrator contacted the church-affiliated college the teacher had attended, and was informed that the teacher had been temporarily dismissed from the college for a brief period after confessing that he had engaged in homosexual activity on a weekend retreat. Another round of meetings occurred involving the teacher, the administrator, and the president of the college. The three agreed that, even though no wrongdoing by the teacher had been proven, the best way to resolve the controversy was for the teacher to resign. He immediately did so — both as a teacher and as a member of the church.A church hired a full-time teacher at its private school. The teacher removed a young boy (the victim) from class and disciplined him on at least ten occasions. On four of these occasions, the teacher engaged in sexual contact with the victim. The victim never informed either his parents or any church or school officials about the teacher's behavior. Two months before the end of the teacher's tenure at the school, the school administrator received complaints from the parents of another boy regarding inappropriate behavior by the same teacher. The administrator immediately launched an investigation of these charges under the direction of the church board. He interviewed the teacher and the boy whose parents made the accusations, held a number of meetings with the parents and the church board, and ultimately concluded that the allegations involving the teacher could not be "proved or disproved."

When the victim was twenty years old, he sued the church claiming that it was legally responsible for the teacher's misconduct. The victim claimed that the church was responsible for his injuries on the following grounds, including negligent selection. The victim insisted that the administrator's failure to more adequately screen the teacher prior to hiring him was the cause of his injuries since the administrator would not have hired the teacher had he more thoroughly checked his academic and work history and discovered that he had been temporarily suspended from college for "homosexual activity." The court disagreed:

[T]here is a complete lack of evidence in the record regarding any connection between engaging in homosexual activity (whether or not one identifies himself as a homosexual) and pedophilic behavior. There is no evidence in the record to indicate that the incident at [college] involved children. Based on this, it seems clear that, had [the administrator] learned of this information prior to [the time he hired the teacher] he would not have breached a duty of care to protect students had he hired [the teacher]. And if hiring [the teacher] under such circumstances would not have constituted a breach of duty, then hiring him without the benefit of such information cannot … be considered a cause in fact of the [victim's] harm. Even assuming, then, that a more thorough background check would have uncovered this information, a [jury] would have no logical basis for concluding that, based on issues relating to sexual orientation, [the administrator] would have found [the teacher] to be unfit to teach, or an increased risk to children.

(3) Porter v. Harshfield, 948 S.W.2d 83 (Ark. 1997)

The Arkansas Supreme Court ruled that homosexuality "in no way" indicates that a person is a higher risk of committing a sexual assault. While this case involved an employee of a medical clinic, the court's ruling is relevant to all employers including churches and other religious organizations. A radiologist hired a male medical technician to work in his clinic. The technician sexually assaulted a male patient while performing an ultrasound examination for possible gallbladder problems. The patient sued the doctor, claiming that he was responsible for the technician's actions on the basis of negligent hiring since he (1) failed to contact the hospital where the technician previously had worked to find out why he left; and (2) was aware that the technician was a homosexual. The court repeatedly rejected the victim's assertion that homosexual orientation renders a person a higher risk of committing sexual assaults. It concluded that evidence of the technician's homosexuality was not enough to make the doctor guilty of negligent hiring. It noted that "we know of no" connection "between sexual orientation and a predisposition to commit sexual assault."

(4) Dale v. Boy Scouts of America, 734 A.2d 1196 (N.J. 1999)

The New Jersey Supreme Court ruled that the Boy Scouts of America violated a state public accommodations law by barring homosexuals from serving as scout leaders. This ruling was later reversed by the United States Supreme Court (see next case). However, the case is relevant because it represents a unanimous decision by a state supreme court that homosexuals pose no greater risk of molestation or harm to minors than heterosexuals. To illustrate, one of the court's justices, in a concurring opinion, observed:

[A] lesbian or gay person, merely because he or she is a homosexual, is no more or less likely to be moral than a person who is a heterosexual. Accordingly … there is no reason to view a gay scoutmaster, solely because he is a homosexual, as lacking the strength of character necessary to properly care for and impart BSA humanitarian ideals to the young boys in his charge. … Another particularly pernicious stereotype about homosexuals is implicit in Boy Scouts' arguments: the sinister and unspoken fear that gay scout leaders will somehow cause physical or emotional injury to scouts. The myth that a homosexual male is more likely than a heterosexual male to molest children has been demolished.

The concurring justice cited the following articles in support of his conclusion:

• Carole Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 PEDIATRICS 41 (1994) (concluding that most child abuse appears to be committed by situational child abusers who present themselves as heterosexuals)
• Nicholas Groth & H. Jean Birnbaum, Adult Sexual Orientation and Attraction to Underage Persons, 7 ARCHIVES SEXUAL BEHAV. 175 (1978) (concluding that "homosexuality and homosexual pedophilia are not synonymous [and] that the adult heterosexual male constitutes a greater sexual risk to underage children than does the adult homosexual male")
• Gregory M. Herek, Myths About Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 L. & SEXUALITY 133 (1991) (citing studies and concluding that "it appears from these studies that gay men are no more likely than heterosexual men to molest children")
• David Newton, Homosexual Behavior and Child Molestation: A Review of the Evidence, 13 ADOLESCENCE 29 (1978) (surveying data concerning male homosexuality and child molestation and concluding that "there is no reason to believe that anything other than a random connection exists between homosexual behavior and child molestation").

The concurring justice concluded: "In light of this evidence, the belief that a gay scoutmaster poses a risk to young boys because of his sexual orientation is patently false, and cannot in any way bolster Boy Scouts' First Amendment defense. Accordingly, it must be rejected as an unfounded stereotype."

(5) Boy Scouts of America v. Dale, 530 U.S. 640 (2000)

The United States Supreme Court ruled, by a vote of 5-4, that a New Jersey civil rights law requiring the Boy Scouts to use a gay activist as a scout leader violated the Boy Scouts' First Amendment right of association. When scouting officials learned from a newspaper article that one of their scoutmasters was a homosexual activist, they terminated his services, explaining that the Boy Scouts "specifically forbid membership to homosexuals." The former scoutmaster sued the Boy Scouts claiming that it had violated a New Jersey "public accommodations" law by dismissing him. The New Jersey law prohibits, among other things, discrimination on the basis of sexual orientation in places of public accommodation.

The Supreme Court conceded that the public perception of homosexuality in this country has changed, and that homosexuality "has gained greater societal acceptance." However, "this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not. … [T]he fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view."

This case is significant because four of the Court's nine justices saw no reason why homosexual men should not be allowed to oversee adolescent males in scouting programs, and the other five justices did not specifically address the issue.

(6) Doe v. Liberatore, 478 F.Supp.2d 742 (M.D. Pa. 2007)

A federal court in Pennsylvania, in a case involving the molestation of an altar boy by a priest, stressed that "it does not follow that a homosexual is more likely than a heterosexual to prey on minors of the same sex. As such, standing alone [the priest's] homosexual behavior with adults would be irrelevant as to the issue of whether the church defendants had notice that he had a propensity to sexually abuse a minor male." While the court concluded that Allen's homosexuality did not make the church defendants liable on the basis of negligent selection, it did conclude that his "grooming" behavior with an adult homosexual was relevant in assessing the church defendants' response to similar behavior involving a minor, since such behavior (which included gifts, overnight trips, and spending the night at the church rectory) indicated the likelihood of sexual contact.

Key point. These cases do not suggest that churches are legally required to employ homosexuals as volunteer or compensated youth workers. Rather, they suggest that churches that choose to utilize homosexuals as children's and youth workers are not exposing minors or themselves to an elevated risk so long as they do a proper background check that discloses no information suggesting that the person poses a risk of harm to minors.

In conclusion, few if any courts in recent years that have concluded that homosexuality makes someone unfit to work with minors. The current state of the law seems to be that churches can treat homosexuals the same way they treat heterosexuals. That is, you can allow them to work with minors so long as you exercise reasonable care in selecting and supervising them, and respond promptly to any allegations or incidents of misconduct. Regardless of someone's sexual orientation, this means that a church should adopt the same precautions that are mentioned in this chapter.

Also, note that unpaid volunteers are not protected by any state or federal employment discrimination law. So, if a church decides that it simply does not want to allow homosexuals to work with minors, then it is free to do so. No court has ever found a church liable for doing so. Several states prohibit employers from discriminating against employees on the basis of sexual orientation, but so far each of these laws contains a broad exemption for religious organizations.[82] See generally §8-21.2, supra.

Pedophilia

The term pedophile is widely used but poorly understood. Often, it is used synonymously with child molester, or even homosexuality. The American Psychiatric Association's current Diagnostic and Statistical Manual of Mental Disorders (DSM-V-TR) identifies the following "diagnostic criteria" for pedophilia:

A. Over a period of at least 6 months, an equal or greater sexual arousal from prepubescent or early pubescent children than from physically mature persons, as manifested by fantasies, urges, or behaviors.

B. The individual has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or impairment in social, occupational, or other important areas of functioning.

C. The individual must be at least 18 years of age and at least 5 years older than the children in Criterion A.

This definition implies that pedophiles are both promiscuous and predatory. These characteristics were noted in Child Molesters: A Behavioral Analysis (2010), by former FBI agent Kenneth Lanning. He notes:

Although a variety of individuals sexually abuse children, preferential-type sex offenders, and especially pedophiles, are the primary acquaintance sexual exploiters of children. A preferential-acquaintance child molester might molest 10, 50, hundreds, or even thousands of children in a lifetime, depending on the offender and how broadly or narrowly child molestation is defined. Although pedophiles vary greatly, their sexual behavior is repetitive and highly predictable. …

Those with a definite preference for children (i.e., pedophiles) have sexual fantasies and erotic imagery that focus on children. They have sex with children not because of some situational stress or insecurity but because they are sexually attracted to and prefer children. They have the potential to molest large numbers of child victims. For many of them their problem is not only the nature of the sex drive (attraction to children), but also the quantity (need for frequent and repeated sex with children). They usually have age and gender preferences for their victims.

The Association for the Treatment of Sexual Abusers website states: "Offenders who seek out children to victimize by placing themselves in positions of trust, authority, and easy access to youngsters can have hundreds of victims over the course of their lifetimes. One study found that the average number of victims for non-incestuous pedophiles who molest girls is 20; for pedophiles who prefer boys, over 100."

Church leaders should also be aware that pedophilia generally is considered to be incurable, and very difficult to control. In addition, pedophiles have a high recidivism rate, meaning that those who are convicted and sentenced to prison are likely to revert to such behavior upon their release. The Association for the Treatment of Sexual Abusers website states that "predatory pedophiles, especially those who molest boys, are the sex offenders who have the highest recidivism rates. Over long follow-up periods, more than half of convicted pedophiles are rearrested for a new offense."

Key point. In summary, it is important for church leaders to understand the definition of pedophilia, since this condition is associated with several characteristics including (1) promiscuity; (2) predatory behavior; (3) incurability; and (4) high recidivism rates.