Key point 10-07.01. Some courts have found churches liable on the basis of negligent retention for the sexual misconduct of ministers and other church workers on the ground that the church was negligent in retaining the offender after receiving credible information indicating that he or she posed a risk of harm to others.
Some courts have concluded that churches can be sued on the basis of negligent retention for the sexual misconduct of ministers and other church staff.
Case studies
- A federal appeals court concluded that two female church employees could sue the minister who had seduced them since he had “held himself out” as a qualified marital counselor.96 Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir. 1998).However, the court dismissed all of the employees’ claims against the church, including negligent retention. The court acknowledged that “an employer that negligently retains in his employ an individual who is incompetent or unfit for the job may be liable to a third party whose injury was proximately caused by the employer’s negligence.” However, to prove negligent retention, the two women had to show that the church “knew or should have known that [the former minister’s] conduct as a supervisor or counselor presented an unreasonable risk of harm to others.” The court concluded that there was no evidence that the church “know or should have known” that the former minister was engaging in marital counseling or that he was likely to engage in sexual misconduct or disclose confidences as a marriage counselor.
- An Indiana court ruled that the First Amendment does not prevent a woman from suing her church and a denominational agency on account of injuries she suffered as a result of being molested by her pastor when she was a minor.97 Konkle v. Henson, 672 N.E.2d 450 (Ind. App. 1996).The woman claimed that the pastor began molesting her when she was seven years old, and that the molestation continued until she was 20. The woman sued her church and the regional and national denominational agencies with which her church was affiliated. The court concluded that the national church was not liable on the basis of negligent retention for the actions of the pastor. It observed, “The [national church], which is only affiliated with the local church and [regional agency] through its constitution and judicial procedures, was not informed. The evidence … does not indicate that [the woman] invoked the judicial procedures, which is the only mechanism by which the [national church] could have taken action against [the pastor]. According to the judicial procedures, the [regional agency] forms a committee to investigate alleged misconduct upon the submission of a complaint signed by two or more persons. Only after this investigation is completed and the [regional agency] determines that the evidence warrants a trial does the [national church] become involved. [The woman] has not alleged … that she or anyone else ever filed a complaint against [the pastor] with the [regional agency]. Therefore, the [national church] could not have disciplined [the pastor]. Accordingly, we conclude that because the evidence does not show that the [national church] was aware of [the pastor’s] actions, summary judgment in favor of the [national church] is proper on [the woman’s] claims for negligent … retention.”
- A Minnesota court ruled that the First Amendment nonestablishment of religion clause did not prevent it from resolving a negligent retention claim against a church as a result of a pastor’s sexual relationship with a female church member. The court acknowledged that “an employer has the duty to refrain from retaining employees with known dangerous proclivities,” and that an employer may be liable for negligent retention when “during the course of employment, it becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge or reassignment.” The court concluded that the First Amendment did not bar resolution of this claim: “A court need evaluate only what the church knew or should have known about the pastor’s propensity to engage in sexual penetration with persons who sought spiritual or religious advice from him, and, if there was such knowledge, whether it acted reasonably to prevent such conduct. The issue is not negligent retention as it relates to the pastor’s provision of spiritual advice. The issue … is whether the church acted reasonably after it became aware or should have become aware of any problems with the pastor sexually penetrating persons being privately given spiritual advice, aid, or comfort. This inquiry does not pose any risk of entanglement with religious doctrine or procedure and no burdening of religious practice.” 98 Olson v. First Church of Nazarene, 661 N.W.2d 254 (Minn. App. 2003). Accord Doe v. Redeemer Lutheran Church, 531 N.W.2d 897 (Minn. App. 1995).
- An Ohio court ruled that a church and denominational agency could be sued on the basis of negligent retention for the sexual misconduct of a minister. The court noted that an employer may be liable on the basis of negligent retention for injuries caused by an employee if the employer knew or should have known that the employee might engage in such conduct. The victim insisted that this standard was established by the fact that he was in the priest’s room in the church rectory “hundreds of times until 11:00 PM, and, on dozens of occasions, until 2:00 AM.” The court agreed, noting that the church defendants’ “failure to intervene in the priest’s actions, despite their alleged constructive knowledge of them, allegedly permitted the abuse to continue and is the cause of the injuries.“99 Mills v. Deehr, 2004 WL 1047720 (Ohio App. 2004).
- The Pennsylvania Supreme Court ruled that a church and diocese could be legally responsible on the basis of negligent retention for a priest’s repeated acts of child molestation occurring off of church premises. The court concluded: “Here [the diocese] knew for certain that [the priest] had a propensity for pedophilic behavior and was aware of several specific instances of such conduct. [It] knew that placing him in a position in which he would have contact with children would afford [him] ample opportunity to commit further acts of abuse, which would likely result in extreme harm to the children under his supervision. Knowing all of this [the diocese] had a duty to take appropriate precautions to prevent him from molesting any more children, e.g., by assigning him to a position in which he would not have any contact with children, by ensuring that he sought treatment for his disorder, or by terminating his employment altogether. [The diocese], however, did not attempt to prevent the foreseeable harm, and instead undertook a course of conduct that increased the risk that [the priest] would abuse … children. [Its] inaction in the face of such a menace is not only negligent, it is reckless and abhorrent.”100 Hutchinson v. Luddy, 1999 WL 1062862 (Pa. 1999).