Key point 10-04.03. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.
Incidents of sexual misconduct involving minor victims can be devastating to the victim, the victim's family, the offender, the church leadership, and the church itself. The good news is that churches can significantly reduce the risk of such incidents by taking a few simple precautions. Here is a summary of eight risk management strategies:
1. A Written Application Form
Churches can significantly reduce their risk of legal liability for negligent selection (and the likelihood that an incident of abuse or molestation will occur) by having every applicant for youth work (volunteer or compensated) complete a "screening application." At a minimum, the application should ask for the applicant's name and address, the names of other youth-serving organizations in which the applicant has worked as an employee or volunteer, a full explanation of any prior criminal convictions, and the names of two or more references. The application should be completed by every applicant for any position involving the custody or supervision of minors. The application should also be completed by current employees or volunteers having custody or supervision over minors.
There is some confusion regarding the need to ask applicants (who will be working with minors) if they were sexually molested when they were a minor. The confusion stems from a 1991 decision by the Alaska Supreme Court. Broderick v. King's Way Church, 808 P.2d 1211 (Alaska 1991). The court concluded that adults who experienced sexual abuse as children are more likely to become child abusers than the general population. It quoted from an article on child abuse:
"One of the predisposing conditions [to child sexual abuse] that has been of considerable interest to clinicians and researchers is an experience of sexual abuse in childhood. Being sexually victimized as a child is a common experience for adult sex offenders and mothers of victims of sexual mistreatment. Moreover, childhood experiences of sexual abuse have been found at higher rates among those who victimize or are mothers of victims than in comparison groups."
No other court has followed this decision, and so only in Alaska should churches ask applicants for youth or children's work if they were abused as minors. Churches in other states should consult with an attorney regarding the use of such a question on their application forms.
2. Contact References
Having current or prospective employees and volunteers complete an application form does not significantly reduce a church's risk of negligent selection. Significant risk reduction occurs if the church takes the following additional steps:
- If an applicant is unknown to you, confirm his or her identity by requiring photographic identification (such as a state driver's license). Child molesters often use pseudonyms.
- Contact each person and organization listed as a reference in the application, and request a written reference. If you do not receive back the written reference forms, then contact the references by telephone and prepare a written memorandum noting the questions asked and the reference's responses. Show the date and method of the contact, the person making the contact, the reference's identity, and a summary of the reference's remarks. Such forms, when completed, should be kept with an applicant's original application. They should be kept permanently.
There are two basic kinds of references: personal and institutional. Personal references are persons that an applicant lists on his or her application. Usually, church leaders are not familiar with such references, and so they are of limited value. Further, the FBI profile of preferential child molesters states that one of the characteristics of pedophiles is that their only adult friends tend to be other pedophiles. This further diminishes the value of personal references.
The best reference is an institutional reference. This is a reference from another institution where the applicant has worked with minors either as a paid employee or an unpaid volunteer. Obviously, obtaining a positive reference from one or more other institutions that have actually observed the applicant interact with minors is the gold standard in screening prospective youth and children's workers. Some applicants have not worked with other youth-serving institutions in the past, and so no institutional reference is available. In such cases, a church's only option is to obtain personal references. However, risk can be reduced by limiting personal references to members of the church.
For pastoral applicants, the best reference will be from a denominational office with which the church is affiliated. If the church is not affiliated with a denomination, then the best reference will be from board members in other churches in which the applicant has served.
For nonminister employees and volunteers, the best references will be from other churches or charities in which the applicant has worked with minors. Examples include Boy Scouts, Girl Scouts, Big Brothers/Big Sisters, Boys/Girls Clubs, YMCA, Little League, Catholic Charities, public or private schools, youth sports, or other churches or religious organizations. Seek a reference from every such organization in which the applicant has served. Your application form should ask applicants to list all such organizations, including contact information.
- Be sure you are aware of any additional legal requirements that apply in your state. For example, a number of states have passed laws requiring church-operated childcare facilities to check with the state before hiring any applicant for employment to ensure that each applicant does not have a criminal record involving certain types of crimes. You will need to check with an attorney for guidance.
- The church must treat as strictly confidential all applications and records of contacts with churches or other references. Such information should be marked "confidential," and access should be restricted to those few persons with a legitimate interest in the information.
Churches should keep the following additional considerations in mind when preparing a screening procedure:
The screening procedure should apply to all workers —both compensated and volunteer. Acts of molestation have been committed by both kinds of workers.
- The screening procedure should apply to new applicants as well as current workers. Obviously, churches need to use some common sense here. For example, if your 4th grade Sunday school teacher is a 60-year-old woman with 25 years teaching experience in your church, you may decide that reference checks are unnecessary. The highest risks involve male workers in programs that involve overnight or unsupervised activities. Persons in this category should be carefully screened.
- If the screening application and reference forms seem overly burdensome, consider the following:
(1) Your church liability insurance policy may exclude or limit coverage for acts of child molestation. If so, you have a potentially large and unbudgeted, uninsured risk. Reducing this risk is worth whatever inconvenience might be generated in implementing a screening procedure. Just ask any member of a church in which such an incident has occurred.
(2) The screening procedure is designed primarily to provide a safe and secure environment for the youth of your church. Unfortunately, churches have become targets of child molesters because they provide immediate and direct access to children in a trusting and often unsupervised environment. In order to provide some protection for the youth of your church against such persons, a screening procedure is imperative.
(3) The relatively minor inconvenience involved in establishing a screening procedure is a small price to pay for protecting the church from the devastation that often accompanies an incident of molestation.
(4) The resistance to screening will diminish as more charities screen volunteer workers.
(5) Think of the screening procedure in terms of risk reduction. A church is free to hire workers without any screening or evaluation whatever, but such a practice involves the highest degree of legal risk. On the other hand, a church that develops a responsible screening procedure has a much lower risk.
(6) The services of an attorney should be solicited in drafting an appropriate screening form to ensure compliance with state law. It is also advisable that such forms be shared with a church's insurance company for its comments. You also should consider sharing your form with the state agency that investigates reports of child abuse.
(7) Obtain copies of the application forms used by the Boy Scouts, Big Brothers, and similar organizations. As a result of numerous lawsuits, these organizations have developed effective application forms. Review these forms, and use them as resources when preparing your own forms. The state agency responsible for investigating reports of child abuse may have application forms for you to review, and may be willing to review the application forms that churches prepare.
Case study. A Georgia court ruled that a church that hired a youth worker without checking the references listed in his employment application could be liable on the basis of negligent hiring for the workers' sexual molestation of a minor. Allen v. Church, 761 S.E.2d 605 (Ga. App. 2014).
The final candidates for a church position should be interviewed. This will provide the church with an opportunity to inquire into each applicant's background and make a determination as to each person's suitability for the position under consideration.
Higher risk individuals (e.g., single males) and persons applying for higher risk positions (e.g., boys groups, scouting groups, camps, overnight or largely unsupervised activities involving either male or female children or adolescents) should be interviewed by a staff member who has been trained to identify child molesters. Law enforcement personnel and local offices of state agencies responsible for investigating reports of child abuse often have materials that can be used to train the staff member who will conduct interviews. These resources should be utilized.
4. Six Month Rule
Churches can reduce the risk of sexual molestation of minors by adopting a policy restricting eligibility for any volunteer position involving the custody or supervision of minors to those persons who have been members in good standing of the church for a minimum period of time, such as six months. Such a policy gives the church an additional opportunity to evaluate applicants, and will help to repel persons seeking immediate access to potential victims.
5. Screening Minor Workers
Using children's workers who are under 18 years of age is a common church practice. However, note the following considerations:
1. The younger the worker's age, the greater the risk to the church. A church must exercise reasonable care, some courts have said a "high" degree of care, in the selection and supervision of children's workers. Obviously, using workers who are 10 years of age in a church nursery will expose the church to greater risk than using someone who is 17.
2. It is imperative that at least one adult be present at all times if minors are used as volunteer workers in any program or activity involving minors. Ideally, two adults should be present, so that if one of them must be absent temporarily, the other will be there.
3. If a minor is injured, the church may be legally responsible on the basis of negligence if the injury resulted from the church's failure to exercise a reasonable degree of care in the selection or supervision of its workers. Courts often look to the practices of local charities, and sometimes national charities, in establishing a reasonable standard of care. As a result, it is often helpful for church leaders to contact other youth-serving charities in the area to ascertain their practices and policies on specific issues. Using local affiliates of national charities is the best practice. If you would like to use minors to work with younger children, ask some of these other charities about their response to this question. Do they use minors as volunteer workers in programs involving younger children? If so, what limits to they impose, and what policies have they enacted? By aligning your church's practices to that of several charities, you will go a long way in demonstrating that your church exercised a sufficient degree of care and therefore was not negligent.
4. Every church should carefully screen children's workers. But, how is this done? You obviously cannot perform criminal records checks on persons under 18 years of age, and even for persons who are 18 or 19 a criminal records check will have limited significance. You really need to approach the screening of adolescents in a different manner. Here are two options.
First, obtain two to three reference letters from persons who have seen the applicant interact with other minors (this would include church workers, coaches, school teachers, scout leaders, etc.). You want an opinion from such persons about the applicant's suitability for working with minors. Obviously, if you receive two to three references from such persons, you have very compelling evidence that you exercised reasonable care in the selection process, and in the final analysis, this is the standard by which you will be judged if your church is sued for the molestation of a child by an adolescent worker. The bottom line is that you cannot conduct criminal records checks on such persons, but you must take other steps to demonstrate reasonable care.
Second, "benchmark." That is, contact local youth-serving charities such as the public school district, Boy/Girl Scouts, YMCA, Boys/Girls Clubs, etc. and ask them what screening they use for adolescent workers. Be sure to make a record of each contact. By basing your screening policy on "community practice" you will be reducing your risk of liability based on negligent screening.
5. One final point. If you compensate minors who work with children in your church, then you need to be aware that you may need to pay them the minimum wage (under state or federal law, whichever is greater), and that state or federal child labor laws may apply. Both of these issues need to be carefully addressed to ensure compliance with the law.
6. Criminal Records Checks
In this section, we will review the various kinds of criminal records checks that are available to church leaders when screening employees and volunteer workers.
Different Kinds of Criminal Records Checks
(1) county criminal records checks
Every county maintains records of criminal convictions. In fact, most experts believe that county criminal records databases are by far the most accurate because they contain the records of all court convictions and orders that may or may not get transmitted to state or federal repositories. While county criminal records may be the most accurate, they only cover a very limited geographical area. A person may live in a one county and have been convicted of a crime in a neighboring county. A criminal records check of county records in the county of residence would disclose a "clean" record. Further, many persons have lived in different counties, and so conducting a criminal records check of only the current county of residence may fail to disclose a criminal record.
There are two ways for your church to conduct county criminal records checks:
- Contact the appropriate county agency (often the sheriff's department) and request a criminal records check.
- Use a fee-based criminal records check service that will conduct a check for you.
The effectiveness of county checks can be increased by performing checks in multiple counties. For example, if an applicant for youth work discloses his counties of residence for the last several years, and a church conducts criminal records checks in each of those counties, the effectiveness of this type of screening increases (as does the cost).
CAUTION. The increasing mobility of the population generally makes county records checks a poor tool for screening youth and children's workers.
(2) state criminal records checks
The sex offender registries required by state "Megan's Laws" are a form of state criminal records check. But, in most states church leaders also can access general criminal records information that is not limited to sexual offenses. Both kinds of checks should be performed, and most commercial search firms include both in their searches.
State-level criminal history records are collected, maintained, and disseminated by "state central repositories," which are agencies or bureaus within state governments. These repositories are often housed within the state police or a cabinet-level agency with public safety and criminal justice responsibilities, such as the Department of Law Enforcement or the Department of Public Safety. All 50 states and the District of Columbia have established central repositories for criminal history records.
Criminal history information includes information about any arrests, along with available "disposition data." Disposition data often include information about "final" dispositions, including police decisions to drop all charges, prosecutor decisions to not prosecute the cases, and trial court dispositions. Where court action results in a conviction, the criminal history record should show the sentence imposed and information about correctional reception and release.
Some repositories include information about pretrial release or confinement and "nonfinal" or "interim" dispositions, such as prosecutor decisions to file, modify, or drop charges referred by the police.
While some state repositories collect comprehensive arrest and disposition information about misdemeanor offenses, most repositories collect information only about the most serious classes of misdemeanor offenses. This lack of comprehensive misdemeanor arrest and disposition data has been identified as one of the major deficiencies in state criminal history record systems.
The accuracy and completeness of criminal history records is the single most serious problem in criminal record information systems. The comprehensive Attorney General's Report on Criminal History Background Checks states:
Most private employers' demand for criminal history background checks is currently met by private sector enterprises that provide professional background screening services and/or commercial databases that aggregate criminal records that are available to the public from government agencies. The commercial databases are not complete because not all states, and not all agencies within individual states, make their records available to such databases; nor does the FBI make its federal or state criminal records available to such databases. In addition, the information in the commercial databases may only be updated periodically. The commercial databases may also be missing important disposition information that is relevant to a conviction record's use for employment suitability purposes, such as sealing and expungement orders or entry into a pre-trial or post-trial diversion program. Checks of these databases are based not upon positive, biometric identification (such as fingerprints), but upon personal identifiers such as names and other information that can help confirm a person's identity. Nevertheless, these databases provide a source of information that is significantly broader than going to individual county courthouses in the counties where an applicant indicates that he or she has lived. Professional background screening services also provide overall screening services to employers, performing the function of going to all appropriate data sources, whether primary sources (such as a courthouse) or secondary sources (such as public and private databases) to gather criminal history records and other information, such as financial history, that an employer may be seeking to evaluate a candidate. These services also assist in obtaining the current status of a record at the primary source when it may not necessarily be reflected in a database.
Although the FBI has proposed model criminal history record formats over the years, adoption of a uniform format has never occurred. State and federal repositories have been left to adopt their own record formats and approaches concerning the types of offenses that should be included on criminal history records and the types of information about these offenses that should be included. Not surprisingly, this has resulted in considerable diversity in the formats of the criminal history records presently generated by the state repositories, as well as in the content of these records. For example, while virtually all repositories attempt to obtain and record information about all felony offenses, there is diversity concerning the types of misdemeanor offenses, if any, included on criminal history records. Moreover, there are considerable differences in the way state penal codes designate particular offenses as felonies or misdemeanors. There is also diversity concerning the types of case processing information obtained and recorded by the repositories. While some repositories attempt to obtain little more than arrest charges and final dispositions, other repositories record other information, including bail and pretrial release data, pretrial detention data, prosecutor charge modifications, and correctional admission and release data.
There are two ways for your church to conduct state criminal records checks:
- Contact the appropriate state agency and request a criminal records check. In most states, you have the choice of obtaining a "name" or "fingerprint" check. The information required to obtain a check using a person's name (and not fingerprints) varies from state to state. Some states charge a fee, while others do not. Some states allow you to submit a request for a criminal records check on an official website, while others do not. Some states require the signature of the person whose criminal record is being searched, while others do not. Also, the criminal record that is searched (arrests, convictions, incarceration, release) varies from state to state. A check using a person's name is usually faster than a fingerprint check, but it is also more prone to error and misidentification.
- Use a fee-based criminal records check service that will conduct a check for you. There are many such services available on the Internet, and their services and fees vary. Many of these companies are reputable. A good way to select a company is to find the companies that are used by national youth-serving charities. Using a company that has been selected by reputable national charities to conduct criminal records checks for youth workers is evidence that your church exercised reasonable care in the selection of workers.
Keep in mind that a state check only covers criminal records maintained by one state. It is common for churches to have applicants for children's or youth ministry positions who have lived in more than one state in recent years. In such a case, you should consider conducting a criminal records check in each state of residence, or a national check.
Key point. In a 2003 ruling upholding the constitutionality of state "Megan's Laws," the United States Supreme Court noted that not only is it common for sex offenders to engage in repeat offenses, but such offenses often are committed in different states. The Court referred to one study that found that 38 percent of all repeat sex offenses "took place in jurisdictions other than where the previous offense was committed." This is an important observation, since it shows that county or even state criminal records checks may not detect a criminal past.[ 74] Smith v. Doe, 538 U.S. 84 (2003).
(3) History of Federal sex offender registration and notification
Prior to 1994, there was no federal law governing sex offender registration and notification in the United States. Beginning with the Jacob Wetterling Act in 1994, Congress started to address the issue, and passed a series of bills from 1996—2003 to enhance, clarify and strengthen the provisions of the Wetterling Act. In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), which fully revamped the federal standards for sex offender registration and notification, and repealed the federal standards outlined in the Wetterling Act. Since 2006, a number of bills have added to SORNA's provisions.
Summarized below are some of the major federal laws:
Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (1994)
Enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, the Wetterling Act (1) established baseline standards for states to register sex offenders; (2) required address verification every 90 days for sexually violent offenders an annually for all other offenders; (3) required sexually violent offenders to register for life and all other offenders to register for 10 years; (4) provided for discretionary public notification procedures when necessary to protect the public.
Megan's Law (1996)
By the mid-1990s, some states had implemented the discretionary public notification procedures called for in the Wetterling Act. Congress passed the federal Megan's Law, amending the Wetterling Act, in the following ways: (1) mandated public disclosure of information about registered sex offenders when required to protect the public; (2) provided that information collected under state registration programs could be disclosed for any purpose permitted under state law.
Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998
As part of a larger appropriations bill, certain sections amended portions of the above two laws as follows: (1) Required registered offenders who change their state of residence to register under the new state's laws; (2) required registered offenders to register in the states where they work or go to school if those states were different from their state of residence; (3) directed states to participate in the National Sex Offender Registry.
Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act (2003)
The Protect Act of 2003 was a comprehensive bill intended to strengthen law enforcement's ability to investigate and prosecute violent crimes against children. The bill required states to maintain a website containing registry information, and required the Department of Justice to maintain a website with links to each state website.
Adam Walsh Child Protection and Safety Act (2006)
Wholly rewrote the federal standards for sex offender registration and notification. The law (1) created a new baseline of sex offender registration and notification standards for jurisdictions to implement; (2) directed the Department of Justice to establish the Dru Sjodin National Sex Offender Public Website (www.NSOPW.gov) that provided for one point of access to search all state sex offender registry websites.
In 2003, the United States Supreme Court issued two decisions upholding the constitutionality of state "Megan's Laws" requiring sex offenders to register with the state and making these registries accessible by the public. Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003); Smith v. Doe, 538 U.S. 84 (2003). These registries are now a viable option in a church's screening procedures. What's more, in most states these checks can be done for free online without the knowledge or consent of the person you are checking. As a result, an increasing number of churches are checking their state sex offender registry for anyone who will have unsupervised access to minors. But church leaders should be aware of four limitations associated with these checks:
- Sex offender registries only include convictions for specified sex crimes. Other crimes (kidnapping, murder, assault, etc.) are also relevant in making a decision regarding the suitability of a person to have access to minors.
- Sex offender registries only contain criminal convictions after a specified date (which in many states is fairly recent).
- Sex offender registries only include criminal records in one state. However, the NSOPW.gov website maintained by the U.S. Department of Justice allows users to search the sex offender registries of one state, selected states, or all states.
- Sex offender registries are not easily accessible by the public in some states. For example, in some states the sex offender registry is maintained by law enforcement agencies, and the public can review the registry only by contacting such an agency.
As a result, while a national sex offender registry (NSOPW.gov) search is essential and imperative, it should not be viewed as the sole screening tool used in screening youth workers. It is one component in an overall screening strategy that includes an application, interview, reference checks, and possibly other criminal records checks.
In most states, accessing the sex offender registry is simple and easy. You simply go to a state-sponsored website, type the name of a person, and click "search."
Key point. If you do a sex offender registry search, be sure that you retain a copy of the results even if a person's name is not listed on the registry. This will document that you performed a search, which will be relevant evidence in the event that your church is later sued on the basis of "negligent selection" for the molestation of a child by that person.
Key point. What do you do if you discover that your state sex offender registry contains the name of an applicant for youth ministry? First, you need to be absolutely sure that the registry identified the same person as the one you were investigating. In some cases, the registry will contain other personal identifying information (address, phone number, photo, etc.) that will confirm a person's identity. If not, then call the telephone number listed on the registry website, and ask for additional information.
(4) "national" criminal records checks
In a highly mobile society such as ours, with persons moving frequently between states, it is clear that county or even state criminal records checks are of limited value. Many see "national" criminal records checks as the ideal form of screening. It is important to distinguish between three different kinds of "national" criminal records checks:
(1) Some private companies that offer "national" criminal records checks do nothing more than search the sex offender registries maintained by every state pursuant to "Megan's Laws." Such checks are of very limited value, because they only determine if a person is a registered sex offender (in one or more states). As noted previously, sex offender registries only include convictions for specified sex crimes; they only contain criminal convictions after a specified date (which in many states is fairly recent); and are not easily accessible in all states, meaning that a "national" search of sex offender registries may not cover all 50 states.
(2) Some private companies that offer "national" criminal records checks review the criminal records repositories maintained by states. Some of these companies only review records that are available online (which omits some states). These checks are more effective than searches of state sex offender registries because they provide more complete coverage of criminal records and are not limited to recent convictions. However, some states do not permit access to their criminal records database by private, non-governmental entities such as churches or private screening companies. In a case upholding the constitutionality of state "Megan's Laws," the Supreme Court referred to one study that found that 38% of all repeat sex offenses "took place in jurisdictions other than where the previous offense was committed." This is an important observation, for two reasons. First, it shows that county or even state criminal records checks may not detect a criminal past; and second, it suggests that churches should consider performing multi-state or national criminal records checks.
(3) The FBI maintains a national criminal records database, but it is accessible only by designated state agencies. Private companies cannot perform these checks, although church leaders often do not understand this. These checks are addressed in the next section.
(5) FBI criminal records checks
Prior to 1971, the means of obtaining access to a national search was by application to the FBI, which, under congressional authorization dating back to 1924, maintained criminal record files containing fingerprints and arrest and disposition information pertaining to federal and state offenders. Most search applications were handled by mail and required manual processing by FBI personnel. In 1971, the FBI's National Crime Information Center (NCIC) implemented an online interstate computerized system called the Computerized Criminal History (CCH) Program. Like the FBI manual system, CCH was a "national repository" system; that is, full criminal history records for federal and state offenders from participating states were maintained in the FBI's centralized database. The system was used for both criminal justice and noncriminal justice purposes. Applications for searches for authorized noncriminal justice purposes required the submission of fingerprint cards by mail to the FBI.
The CCH system continued to operate throughout the 1970s even though state participation was poor, due primarily to objections to the cost and difficulty of maintaining duplicate files on state offenders at both the state and federal levels. The FBI's centralized files were continued during this period, and the agency began automating them in 1974. Most state officials preferred the development of a "decentralized" national criminal history record system; that is, a system that would not require the continuance of a duplicative national repository of state offender records, but that instead would undertake to strengthen the state repositories and provide the means of tying them together into a viable interstate system relying on state-maintained records.
Prior to the 1970s, it was generally conceded that most of the existing state repositories lacked the technology to participate in such a program. By the end of that decade, however, substantial progress had been made in improving existing state repositories. Recognizing this progress, the U.S. Department of Justice and state officials approved the Interstate Identification Index concept in 1978. This database is an interstate computer network that allows national criminal history record searches to determine if a person has a record anywhere in the country. The Index is designed to tie automated criminal history record databases of state central repositories and the FBI together into a national system by means of an "index-pointer" approach. Under this approach, the FBI maintains an automated master name index, referred to as the National Identification Index (NII), which includes names and identifying data concerning all persons whose automated criminal history records are available by means of the Interstate Identification Index. If a search of this index indicates that an individual has a criminal record, the index will "point" the inquiring agency to the FBI or to one or more of the state repositories from which the record or records may be obtained. The inquiring agency may then obtain the records directly from the indicated sources.
The FBI also maintains the National Fingerprint File (NFF), a database of fingerprints relating to an arrested or charged individual maintained by the FBI to provide positive identification of persons listed in the Interstate Identification Index. The major advantage of the Index approach is the shift from reliance on FBI-maintained state offender records for national search purposes to reliance on state-maintained records for such purposes. The two main advantages are: (1) criminal history records maintained by the state repositories are more accurate and complete than state offender records maintained by the FBI, and (2) if state repositories provide record responses for national search purposes, the FBI can discontinue the maintenance of its files of state offender records.
FBI criminal records have historically been available only to law enforcement agencies. In recent years, private employers have argued that they should be entitled to obtain criminal history record information for background checks on prospective employees who will be placed in sensitive positions handling substantial amounts of money or other valuable assets or, even more importantly, caring for vulnerable populations such as children or elderly persons. In response, Congress passed legislation in the 1980s permitting federally held criminal history record information to be released for employment background checks for positions at certain kinds of banking institutions and securities organizations. Congress later mandated FBI criminal records checks of persons wanting to purchase handguns (the "Brady Bill"), and made these records accessible to public housing agencies in screening applicants for public housing. In 1993, Congress enacted the National Child Protection Act  42 U.S.C. § 5119a. as a bold new attack against the molestation of children in "youth serving" organizations. The most important provision in the Act specifies:
A state may have in effect procedures (established by state statute or regulation) that require qualified entities designated by the state to contact an authorized agency of the state to request a nationwide [FBI] background check for the purpose of determining whether a provider has been convicted of a crime that bears upon the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.
qualified entities and providers
The Act permits "qualified entities" that are designated by the states to obtain nationwide criminal records checks. The Act defines a qualified entity as "a business or organization, whether public, private, for-profit, not-for-profit, or voluntary that provides child care or child care placement services. …" There is little doubt that this definition includes churches that operate child care or preschool facilities. But does it also include churches that do not operate a school or preschool, but that offer Sunday school, nursery services, and other youth activities and programs involving supervision or instruction of minors? The Act does not address this question directly, but it does define the term "child care" to include "the provision of care, treatment, education, training, instruction, supervision, or recreation to children by persons having unsupervised access to a child."
It is likely that the operation of a Sunday school, nursery, and many if not most kinds of youth and children's programs would constitute "the provision of education, training, instruction, supervision, or recreation to children." As a result, it is likely that a church is a "qualified entity" even if it does not operate a school or a formal childcare or preschool program. This interpretation is reasonable, and furthers the purposes of the legislation.
It is also important to review the Act's definition of the term provider, since a qualified entity may request an FBI criminal background check to determine if a provider has been convicted of a crime that bears upon that person's fitness to have responsibility for the safety and well-being of children. The Act defines the term provider as a person who
(1) is employed by or volunteers with a qualified entity; owns or operates a qualified entity; or has or may have unsupervised access to a child to whom the qualified entity provides childcare; and
(2) seeks to be employed by or volunteer with a qualified entity; seeks to own or operate a qualified entity; or seeks to have or may have unsupervised access to a child to whom the qualified entity provides childcare
There is no question that this definition will include the vast majority of persons who work with minors in a church. Note also that the law defines a provider as someone who "has or may have unsupervised access to a child to whom the qualified entity provides childcare." This definition is so broad that it undoubtedly includes a much longer list of individuals, including custodians and spouses or friends of childcare workers. Indeed, it is so broad that it could be interpreted to include any person who enters church property or attends any church activity. Clearly, this was not the intention of Congress, and it will be up to the courts to clarify the meaning of the term provider.
The Act makes it clear that the states specify which types of childcare positions require criminal history checks. As noted above the Act contains a very broad definition of a childcare "provider," but the committee report explaining the Act emphasizes that
[not] all occupations and volunteer positions within that broad definition merit the time and expense of criminal history records checks. There are other means available to protect children from abuse, including the checking of prior employment history and character references and proper training and supervision of employees and volunteers. The committee expects that the states, in deciding which types or categories of positions require criminal history background checks, will consider the degree to which a particular position or childcare activity offers opportunities to those who would abuse children. The committee expects that the states will find, for example, that positions involving long-term or ongoing contact with children in one-on-one situations merit criminal history record checks and that positions that involve infrequent direct contact or contact only in group settings do not merit such checks. The bill as amended leaves that decision to the respective states.
This language is critical, for it can be interpreted as establishing two levels of scrutiny in screening youth workers:
level 1 —criminal records check
This level is required of those childcare workers (providers) designated by state law. The committee report suggests that this level of screening be performed for "positions involving long-term or ongoing contact with children in one-on-one situations."
level 2 —other screening methods
This level, according to the committee report, includes one or more of the following kinds of activities:
- check prior employment history
- check references
The committee report suggests that this level of screening be performed for "positions that involve infrequent direct contact or contact only in group settings."
procedure for checking criminal records
The Act establishes minimum requirements for state procedures for background checks. It clarifies that:
- Such checks must be based on fingerprints.
- A qualified entity may not request a background check of a provider unless the provider first provides a set of fingerprints and completes and signs a statement that (1) contains the name, address, and date of birth of the provider; (2) represents that the provider has not been convicted of a crime or, if the provider has been convicted of a crime, contains a description of the crime and the particulars of the conviction; (3) notifies the provider that the qualified entity may request a background check; (4) notifies the provider of the provider's "due process" rights (described below); and (5) notifies the provider that prior to the completion of the background check the qualified entity may choose to deny the provider unsupervised access to a child to whom the qualified entity provides child care.
- Providers must be informed by qualified entities that they have the right: (1) to obtain a copy of any background check report; and (2) to challenge the accuracy and completeness of any information contained in any such report and obtain a prompt determination as to the validity of such challenge before a final determination is made by the state agency regarding the provider's suitability for working with children.
- The designated state agency, upon receipt of a background check report lacking final disposition data (that is, no indication of how a criminal charge was resolved) shall conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data.
- The designated state agency shall make a determination whether the provider has been convicted of a crime that bears upon his or her fitness to have responsibility for the safety and well-being of children and shall convey that determination to the qualified entity.
- The actual criminal record on a provider will not be conveyed to the qualified entity, but only an indication from the designated state agency whether the individual has been convicted of or is under pending indictment for a crime that bears upon his or her fitness to have responsibility for the safety and well-being of children.
Volunteers for Children Act (1998)
The National Child Protection Act had two flaws that prevented it from accomplishing its noble objective. First, it required states to enact implementing legislation giving nonprofit youth-serving organizations access to FBI criminal records checks. Second, it did not require the states to enact such legislation. Unfortunately, only a few states did so. As a result, churches and other youth-serving organizations (Red Cross, Boy/Girl Scouts, Boys/Girls Clubs, Big Brothers/Sisters, Little League, Salvation Army, etc.) were unable to obtain FBI criminal records checks. They were left with the options of (1) doing no criminal records checks, (2) doing criminal records checks using county courthouse records, or, in some states (3) doing criminal records checks using state criminal records.
The benefits of doing a national criminal records check were unavailable. This is the reason that the Volunteers for Children Act was enacted —to enable youth-serving organizations in all states to conduct FBI criminal records checks.
The Volunteers for Children Act remedied the flaws in the National Child Protection Act by amending it to read:
In the absence of state [implementing legislation] a qualified entity [designated by the state] may contact an authorized agency of the state to request nationwide criminal fingerprint background checks.
A 1997 General Accounting Office (GAO) report concluded that "national fingerprint-based background checks may be the only effective way to readily identify the potentially worst abusers of children, that is the pedophiles who change their names and move from state to state to continue their sexually perverse patterns of behavior."
In summary, the Volunteers for Children Act allows churches to obtain FBI criminal records checks if they meet the definition of a "qualified entity" under state law. However, churches may not contact the FBI directly to obtain criminal records checks. They must proceed through a designated state agency (usually the state police).
The Volunteers for Children Act did not help significantly because it did not address three key limitations on the use of national criminal records checks by churches: (1) checks are available only through a designated state agency; (2) high cost; and (3) lengthy response times. Clearly, there was a need for additional legislation in order for the National Child Protection Act to fulfill its lofty objectives.
The National Child Protection Improvement Act was introduced in the United States Senate in 2001. It would have allowed churches and other youth-serving charities to conduct FBI criminal records searches directly, without going through a state agency. In addition, the legislation mandated that such checks be at no cost (for volunteer workers), and that a records search be conducted within 15 days. This legislation only attracted minimal support, and died in committee.
In 2017, the Child Protection Improvement Act was introduced in Congress. It would have amended the National Child Protection Act of 1993 to establish a voluntary national criminal history background check system and criminal history review program for certain individuals who, related to their employment, have access to children, the elderly, or individuals with disabilities, and for other purposes. This legislation was passed by the Senate and was pending in the House at the time of publication of this text.
How to Interpret Criminal Records
Churches that conduct criminal records checks often are at a loss to know how to interpret the results they receive. To illustrate, assume that a church conducts a criminal records check on John, who has applied to work as a volunteer in the church's youth program. Assume that the check results in one or more of the following records:
- a conviction for child molestation that occurred 20 years ago
- an arrest and prosecution for child molestation, with probation
- an arrest and prosecution for child molestation, with no conviction
- an arrest for child molestation, with a plea bargain (John pled guilty to disorderly conduct)
- a conviction for driving while intoxicated
- a conviction for burglary
- a conviction for armed robbery
- a conviction for assault and battery
- a conviction for embezzlement
How should the church respond? Which, if any, of these results would disqualify John from working in the church's youth program? This is a very difficult question. Consider some options:
(1) At a minimum, church leaders should contact the prosecutor's office or the police and ask about the case. Mention that you are considering using the individual in a position in the church that will involve contact with minors. Often, a representative of the prosecutor's office, or a detective or other investigating officer, will respond to inquiries from the church concerning the facts of the case. Such input will be very significant in evaluating an applicant's suitability for working with minors. Remember, there are many reasons why a person may not be convicted of the crime of child abuse or molestation. Often, prosecuting attorneys are consumed with "major" crimes, and do not have the resources to devote to every case of child abuse. In other words, you cannot assume that a person who is charged but not convicted of child abuse poses no risk to your church. Further investigation is imperative in such cases.
(2) Find out if the person is on parole. If so, speak with the person's parole officer. In some cases, persons are released from prison prior to the end of their sentence and placed on parole for a period of time. In order to qualify for parole, a felon ordinarily must agree to a number of conditions. In cases involving sexual offenses with minors, these conditions may include prohibitions on working in any capacity with minors, attending church, or coming within a specified distance from minors.
(3) Most states have enacted laws requiring criminal records checks on any applicant for employment in a public school or state-licensed preschool. State law generally specifies the crimes that disqualify a person from working in these facilities. Some churches use these same lists to determine which crimes will disqualify a person from working with children. These lists generally include more than sexually motivated crimes. For example, many crimes involving assaults or personal injury often are included. Many crimes are not automatic disqualifiers, because they do not necessarily suggest a risk of child abuse or molestation. These often include property offenses.
(4) The federal Volunteers for Children Act (summarized earlier in this section) permits churches and other charities that are designated as "qualified entities" by state law to obtain FBI criminal records checks on persons who will be working with minors. Ten sets of fingerprints must be obtained for each applicant. These are delivered to the designated state agency, which will in turn send them to the FBI. Criminal records checks under the Volunteers for Children Act are not mandatory. Rather, they simply offer another option to screen youth workers. One of the best features of the Volunteers for Children Act is that it relieves churches and other charities of the need to evaluate inconclusive criminal records. The designated state agency reviews the results of the FBI check, and then informs the church or charity whether or not to use the applicant. If an applicant was charged with child molestation but not convicted, or pled guilty to a lesser offense, it is the state's responsibility to determine whether or not the individual should be used. The state does not disclose to the church or charity the nature of the criminal background. Rather, it simply informs the church or charity whether or not it should use the applicant in question. It remains to be seen how many churches will obtain FBI criminal records checks. Obviously, many churches will not want to obtain ten sets of fingerprints on every applicant or worker. However, FBI checks should be viewed as an option that can be used, at a minimum, when an applicant's criminal record is inconclusive.
(5)In some states it is unlawful for employers to make employment decisions about employees or applicants for employment on the basis of "expunged" or "sealed" criminal records.
(6) In some states it is unlawful for employers to make employment decisions about employees or applicants for employment on the basis of arrests. In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) suggested that the use of criminal records checks may violate Title VII of the Civil Rights Act of 1964, which generally prohibits discrimination in employment on the basis of race, color, national origin, gender, or religion, by employers with at least 15 employees that are engaged in interstate commerce. The EEOC noted that a covered employer may be liable for violating Title VII if an otherwise neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity. With respect to criminal records, the EEOC guidance states that "there is Title VII disparate impact liability where the evidence shows that a covered employer's criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity." The EEOC guidance noted that African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population.
Note that Title VII applies to employees, not unpaid volunteers, and the EEOC guidance notes that for an employer to establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, it needs to show that "the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position."
What the Courts Have Said about Criminal Records Checks
No court, in any reported decision, has found a church liable on the basis of negligent selection for the molestation of a child on the ground that the church failed to conduct a criminal records check on the molester before using him to work with children.
A few courts have ruled that a church was not liable on the basis of negligent selection for the molestation of a child by a volunteer worker on the ground that the church conducted a criminal records check on the offender before allowing him to work with children. To illustrate, a Georgia court concluded that a private school was not responsible for the alleged sexual molestation of a 13-year-old girl by a male staff member, because it conducted a criminal records check prior to hiring the staff member that revealed no criminal history. Doe v. Village of St. Joseph, Inc., 415 S.E.2d 56 (Ga. App. 1992).
In addition, a Texas court ruled that a church had a "self-imposed duty" to conduct criminal records checks on youth workers, because of a policy the church had adopted years before. Because the church violated its own policy in selecting a youth worker without performing a criminal records check, it violated this self-imposed duty. However, the court concluded that the church was not legally responsible for the worker's acts of child molestation because even if the church had conducted a criminal records check it would not have discovered any information suggesting that the worker posed a threat to children. Frith v. Fairview Baptist Church, 2002 WL 1565664 (Tex. App.-Dallas 2002).
Criminal records checks tend to prove that a church was not negligent in selecting a youth worker. However, churches should not assume that such checks are the only method of screening to be employed. Application and reference checks (especially from other organizations in which an applicant has worked with minors) are essential.
Cases addressing criminal records checks by non-religious organizations reflect three principles. First, the few courts that have addressed the issue have concluded that employers generally do not have a duty to conduct criminal records checks. Second, a duty to conduct criminal records checks may arise when (1) an employer knows of a person's propensity to engage in conduct that may injure others, or (2) a "special relationship" (i.e., counseling) exists between an organization and victim. Third, criminal records checks that reveal a criminal record cannot be used as proof of negligent hiring if the previous crimes do not suggest that a person is a risk of the specific kind of harm that he later causes.
Key point. In 2012 a California appellate court ruled that a youth-serving charity had a legal duty to perform criminal background checks on employees and volunteers, and could be liable for the sexual molestation of minors by unscreened workers. Doe v. United States Youth Soccer Association, 8 Cal.App.5th 1118 (Cal. App. 2017).
Key point. If you conduct a criminal records check on an applicant, and discover a previous crime, be sure that the crime is listed on the person's application form (assuming that you ask for a description of all prior criminal convictions). If it is not mentioned, then this may indicate fraud. Such a person is an even greater risk than if the crime were disclosed.
7. Other Background Checks
There are other aspects of an applicant's background that can be checked. These include:
- educational background (one of the most common misrepresentations that is made on employment application forms);
- employment (confirming that the applicant worked for prior employers listed on the application form);
- motor vehicle records;
- social security number check (confirms identity and residential history);
- credit history; and
- professional licenses and certifications.
The types of searches selected for any particular applicant will vary depending upon the risks and responsibilities associated with the position.
8. Limit "Second Chances"
Church leaders often "err on the side of mercy" when making employment decisions. This attitude can contribute to a negligent selection claim —if a church gives an applicant a "second chance" despite knowledge of prior sexual misconduct, and the conduct is repeated. What the church views as mercy may be viewed as negligence by a jury.
Should a church hire an applicant for youth work who has been guilty of child molestation in the past? Occasionally, such persons freely admit to a prior incident, but insist that they no longer are a threat because of the passage of time or a conversion experience. There are two options:
- The church could refuse to use the person in any compensated or volunteer position in the church (including, but not limited to, working with minors). This approach eliminates the risk of negligent selection, and it would be appropriate in the case of a pedophile. Pedophiles are persons who are sexually attracted to pre-adolescent children. The FBI "profile" on pedophiles indicates that such persons are "incurable" and predatory. They are always seeking new victims. Obviously, such persons create a significant risk to children and churches.
- The church could encourage such an individual to work in the church, but in a position not involving access to children. This is a reasonable accommodation of the individual's desire to serve the church. A church that permits such an individual to work with children will have a virtually indefensible position should another incident of molestation occur. Some churches have given convicted child molesters a "second chance" by allowing them to work with children —often on the basis that the person has had a religious conversion and no longer is a threat to children. The courts have not been sympathetic to such a defense. To illustrate, one court cited with approval the following testimony of a psychiatrist:
In the years that I have been doing this work, I probably have treated people from every religious denomination. We have seen priests, ministers, rabbis who have engaged in pedophilic [i.e., child molestation] behavior, so attendance at a church or being high up in a religious hierarchy doesn't contraindicate that a person is a [pedophile]. … They tell us that they have repented, that they have found the Lord and no longer have the problem they were accused of having. So we don't see religiosity as solving the problem." Dutchess County Department of Social Services v. G., 534 N.Y.S.2d 64 (N.Y. 1988).
Churches that place a known child molester in a position involving access to children are taking an enormous risk.
9. Prompt reporting of child abuse (known and suspected).
It is imperative for church leaders to comply with their state's child abuse reporting law. Promptly report all known and reasonably suspected cases of child sexual abuse to the designated state agency. In some states, a report must be filed within 24 hours. Know the reporting requirement in your state. Be sure to make a telephone memorandum of your call, and ideally have a second person listening in on the conversation who can sign the memorandum as a witness. Resolve any and all doubts in favor of reporting. Prompt reporting has several advantages:
- It is required by law (for mandatory reporters).
- You avoid criminal liability for failure to report.
- You avoid civil liability in many states for not reporting.
- Reporters are given immunity from liability in every state (except for malicious behavior).
- You protect the current victim from further harm.
- You are placing the abuser's identity in the criminal justice system, making it more likely that this will be flagged to other churches and youth-serving charities seeking a future reference.
- You minimize the risk of public outrage that can be unleashed if your church failed to report the abuse to the state.
10. Promptly address and halt high-risk behaviors.
Often, those who molest minors in churches or church activities have openly engaged in high-risk behaviors, including:
- Minors spend the night in a leader's home.
- An adult leader drives a vehicle with one or more unrelated minors on board, and no other adults.
- An adult goes on day trips with an unrelated minor.
- An adult goes on overnight trips with an unrelated minor.
- A leader spends the night in a hotel with one or more unrelated minors.
- A leader meets one or more minors in malls or other places where minors congregate.
- An adult leader sleeps in a tent with an unrelated minor during a camp out.
These and similar "grooming" behaviors are associated with many incidents of child molestation involving youth and children's ministry leaders and volunteers in churches, and must be promptly confronted and stopped.
The Protecting Young Victims from Sexual Abuse Act of 2017 contains several recommendations regarding the protection of minors in amateur sports competition. To illustrate, the Act provides that all covered individuals and professionals "shall receive periodic training in the obligation to report, as well as in the identification of abused and neglected children." Few states have adopted such a requirement, but it nevertheless is a good idea and best practice which likely will be followed by many states.
Should Your Church Conduct Criminal Records Checks?
There are several factors for church leaders to consider in deciding whether or not to conduct criminal records checks on persons who potentially could have unsupervised access to minors on church property, in church vehicles, or in the course of church activities. These factors include the following:
(1) Only one court (Doe v. Cole, 135 N.E.3d 1 (Ill. App. 2019)) has found a church liable for a youth worker's sexual misconduct solely because it failed to conduct a criminal records check.
(2) Churches are not legally required to conduct criminal records checks unless specifically required by law. To illustrate, in many states church-operated schools and preschools must conduct criminal records checks on employees. And a few states are requiring churches to conduct criminal records checks on volunteers and employees who work with minors. For example. Pennsylvania law requires churches to obtain the following clearances on volunteers who will be working with minors: (1) Report of criminal history from the Pennsylvania State Police (PSP); and (2) Child Abuse History Clearance from the Department of Human Services (Child Abuse). Additionally, a fingerprint based federal criminal history (FBI) submitted through the Pennsylvania State Police or its authorized agent is required if the volunteer has lived outside the Commonwealth of Pennsylvania in the last 10 years. These checks must be repeated every 60 months.
(3) Criminal records checks will reduce a church's risk of being found liable for the negligent selection of youth workers.
(4) The minimum acceptable standard of care in the selection of youth workers appears to be changing. It is possible, if not likely, that the courts someday will find churches liable on the basis of negligent selection for the sexual misconduct of a volunteer or employee having unsupervised access to minors if no criminal records check was performed before the individual was hired. This conclusion is based on several considerations, including the following:
- Over the past few years many national youth-serving charities have begun mandating criminal records checks for volunteers who work with minors. This list includes the Boy Scouts, Little League, and Youth Soccer. As more and more youth-serving charities conduct criminal records checks on volunteers, it is only a matter of time before a court concludes that such checks are a necessary component of "reasonable care" in the selection of youth workers. Such a finding would make it negligent for a church not to conduct such checks.
- The 106th Congress, 2nd session, stated during discussions of the Volunteer Organization Safety Act of 2000 (HR 4424) that: "It is the sense of Congress that to be effective, a background check must be fast, accurate, cost-effective and performed on everyone having regular contact with young people in a youth service organization."
- The federal General Accounting Office noted in a recent study that "national fingerprint-based background checks may be the only effective way to readily identify the potentially worst abusers of children, that is the pedophiles who change their names and move from state to state to continue their sexually perverse patterns of behavior." required by state law), and return it to the appropriate government office.
- A number of courts have suggested that a charity's duty of care in selecting workers is higher when those workers will be working with children. Some of these cases are summarized earlier in this section. While the courts have clearly defined what this "higher" duty of care means in practical terms, it is certainly predictable that one day it will mean the use of criminal records checks in selecting such workers.
- Criminal records checks are relatively inexpensive, and fast.
(5) There is little justification for a church not conducting a sex offender registry search at a minimum, especially in states where these checks are available online, and for free. However, as noted in the table accompanying this section, such checks have serious limitations and should never be regarded as the only screening procedure.
(6) There are different kinds of criminal records checks available. See the table accompanying this section for a summary of the options and the advantages and disadvantages of each option. The best options are an FBI fingerprint check (obtained through your designated state agency which often will be the state police), or a search of multiple state databases using a reputable private company. There are hundreds if not thousands of private companies that will perform criminal records checks for a fee. But, be careful when selecting one. Remember, private companies cannot access the FBI database, and so be wary of companies that offer "national" checks. Ask what they mean by "national." In particular, what criminal records are searched, and in which states. If in doubt, go with a private company that has been selected by national youth-serving charities to conduct their criminal records checks on volunteers.
(7) Remember, not only is it common for sex offenders to engage in repeat offenses, but such offenses often are committed in different states. In a 2003 case upholding the constitutionality of state "Megan's Laws," the United States Supreme Court referred to one study that found that 38% of all repeat sex offenses "took place in jurisdictions other than where the previous offense was committed." This is an important observation, for two reasons. First, it shows that county or even state criminal records checks may not detect a criminal past; and second, it suggests that churches should consider performing multi-state or national criminal records checks.
(8) While it is certainly desirable for churches to adopt policies on certain matters, any deviation from such policies can result in automatic liability. It is common for churches to adopt policies at the urging of an "advocate" within the congregation. But, if the advocate leaves the church, there may be no one with the same commitment to ensuring that the policies are followed. This is especially true of policies relating to the screening and supervision of youth workers. The lesson is clear. If your church has implemented policies for the screening of youth workers, it is imperative that those policies be followed. Any deviation may result in liability based on a breach of your self-imposed duty. It is a good practice for church leaders to periodically review church policies. Are they being enforced? Do we need them? Are changes needed? Should we abandon some policies? If screening policies are not being consistently followed, then steps should be taken immediately to insure that they are consistently followed, or, appropriate modifications must be made.
(9) If your church decides to conduct criminal records checks, be sure that you conduct checks on any person who may have unsupervised access to children. This will include persons who work with minors of any age, but it also will include persons who sometimes are overlooked such as custodians and any church employee.
(10) This section has addressed criminal records checks in the context of the protection of minors. There are other reasons why a church might want to conduct criminal records checks, including for persons who will drive vehicles for the church or who will handle money. Many churches also conduct background checks on the credit history of some job applicants, or confirm their educational background and professional certifications.
(11) Church leaders sometimes are unsure how to interpret a criminal record. For example, does a prior conviction for theft disqualify someone from working with minors? Be sure you review the section in this section entitled "How to Interpret Criminal Records" for helpful information in this regard.
(12) Criminal records checks are not the only step a church should take in screening workers. They are one link in a chain. Keep in mind that most child molesters have no criminal record. Effective protection comes with a multi-faceted approach that includes a suitable application form, reference checks, an interview, criminal records checks, and a six-month rule (volunteers are not allowed to work with children until they have been members of the church for at least six months).
Executive Summary: Criminal Records Checks
No court has found a church liable for a youth worker's sexual misconduct on the ground that it failed to conduct a criminal records check. Criminal records checks will reduce a church's risk of being found liable for the negligent selection of youth workers.
It is possible, if not likely, that the courts one day will find churches liable on the basis of negligent selection for the sexual misconduct of a volunteer or employee having unsupervised access to minors if no criminal records check was performed before the individual was hired. This conclusion is based on several considerations, including the fact that a growing number of youth-serving charities have begun requiring criminal records checks for volunteers who work with minors.
There are several different kinds of criminal records checks. A table in this section summarizes the main options.Churches that decide to conduct criminal records checks often don't know how to begin. A good approach is to follow the practice of other youth-serving charities. Contact the local school district, Boy/Girl Scouts, Big Brothers/Sisters and see what kinds of checks they are performing. Tying your church's policy to the practices of other reputable charities helps to reduce your risk of negligent selection.
Not only is it common for sex offenders to engage in repeat offenses, but such offenses often are committed in different states. Local criminal records checks may not detect a criminal past.
If your church decides to conduct criminal records checks, be sure that you conduct checks on any person who may have unsupervised access to children. This will include persons who work with minors of any age, but it also will include persons who sometimes are overlooked such as custodians and any church employee.
Criminal records checks are not the only step a church should take in screening workers. They are one link in a chain. Keep in mind that most child molesters have no criminal record. Effective protection comes with a multi-faceted approach that includes a suitable application form, reference checks, an interview, criminal records checks, and a 6-month rule (volunteers are not allowed to work with children until they have been members of the church for at least 6 months).