Key point 10-05. A church may be liable on the basis of negligent selection for a worker’s molestation of an adult if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.
In recent years, several churches have been sued as a result of sexual contact by clergy with adults. Most of these cases have involved sexual contact with church employees or with counselees. Nearly all of the cases have involved sexual contact between male clergy and adult female employees or counselees. The personal liability of ministers for engaging in such acts is addressed in a previous chapter.83 See §4-11, supra.This section will address the question of whether the minister’s employing church can be legally responsible for the minister’s acts on the basis of its negligent selection of the minister.
As noted earlier in this chapter, the term negligence refers to conduct that creates an unreasonable risk of foreseeable harm to others. It connotes carelessness, heedlessness, inattention, or inadvertence. Negligent selection of a minister means that the church failed to act responsibly and with due care in the selection of a minister who later engages in some form of foreseeable misconduct. To illustrate, assume that a church hires a minister without any background check, and fails to discover that the minister had been dismissed by another church because of committing adultery with two women. A year later, it is discovered that the minister has engaged in adultery with a married woman in the course of marital counseling. The woman sues the church, claiming that the minister’s conduct caused her emotional and psychological harm, and that her church is legally responsible for the minister’s acts on the basis of negligent selection. She insists that had church leaders contacted the other church they would have discovered the minister’s background and would not have hired him.
Church leaders can take relatively simple yet effective steps to significantly reduce the likelihood of such incidents occurring. This section will review some of the more significant reported court rulings, and then suggest a number of preventive measures that any church can implement in order to reduce the risk of such incidents.
Tip. No one understands or appreciates risk better than insurance companies. Risk evaluation is their business. As a result, it is very important to observe that a number of church insurance companies have reduced the insurance coverage they provide for sexual misconduct, and in some cases they have excluded it entirely. Some companies are suggesting that these incidents are excluded under the provision in most policies excluding damages based on intentional, criminal conduct (most acts of sexual molestation involve criminal activity). Church leaders should immediately review their church liability insurance policy to determine whether the church has any coverage for acts of sexual misconduct, and if so, whether such coverage has been limited in any way. If you fit within either category, the risk management recommendations in this chapter are of even greater relevance.