Key point 10-04.02. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.
This section reviews court decisions in which a church or other religious organization was found not liable on the basis of negligent selection for a worker’s acts of child molestation. Note that some courts have concluded that the First Amendment’s “nonestablishment of religion” and “free exercise of religion” clauses prevent the civil courts from resolving negligent selection claims involving clergy misconduct.
- A federal appeals court ruled that an archdiocese was not responsible for the alleged molestation of a minor by a priest.64 Tichenor v. Roman Catholic Church, 32 F.3d 953 (5th Cir. 1994). The victim claimed that the archdiocese should have known that the priest had a history of sexual improprieties and that he would continue to pursue those activities when under its employ. He insisted that a minimal background check would have revealed the priest’s pattern of sexual activity with minors. The court, in rejecting this argument, observed, “The record, however, permits of no conclusion that the [archdiocese] suspected that [the priest] had engaged in sexual improprieties or might do so in the future. It is doubtful that the archdiocese … knew anything about [his] darker side. [He] was diligent in guarding his secrets. He did not disclose his extracurricular activities to anyone at any time in the course of his employment and, from his perspective, with good reason. No tangible evidence in the form of a criminal history or discipline exists that would have been uncovered in a background check.”
- A California court ruled that a Catholic church was not responsible on the basis of negligent hiring for a priest’s acts of child molestation, since it had not been aware of any similar incidents of misconduct at the time the priest was employed.65 Roman Catholic Bishop v. Superior Court, 50 Cal. Rptr.2d 399 (Cal. App. 1996).The court acknowledged that “an employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” However, the court qualified this rule by noting that “one who employs another to act for him is not liable … merely because the one employed is incompetent, vicious, or careless. If liability results it is because, under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business in hand. … Liability results … not because of the relation of the parties, but because the employer … had reason to believe that an undue risk of harm would exist because of the employment.” The court noted that the harm the victim suffered was criminal sexual abuse of a minor by her priest. It observed, “There is nothing in the record to indicate [the priest] had a criminal history or had been previously implicated in sexual abuse of a minor. Thus the church could not have had antecedent knowledge of [his] purported criminal dangerousness.” That is, evidence that the priest had engaged in sexual misconduct with adults did not necessarily make him a risk to children. The court observed that the victim failed to prove any facts “showing an undue risk of harm that [the priest] would commit criminal child sexual abuse if he were employed by the church.” But even if evidence of sexual misconduct with adults would be relevant in evaluating a priest’s risk of committing similar acts upon children, the church “had no actual knowledge of [his] sexual activity with [her] or anyone else until it heard [her] mother’s report and [the priest’s] admissions.” In other words, the church could not be responsible for the priest’s molestation of the victim on the basis of negligent hiring if it had no knowledge of any prior misconduct by the priest at the time he was hired or ordained. The court further noted that “the legal duty of inquiry [the victim] seeks to impose on the church as an employer would violate the employee’s privacy rights. Privacy is a fundamental liberty implicitly guaranteed by the federal Constitution and is explicitly guaranteed under the California Constitution as an inalienable right. The right encompasses privacy in one’s sexual matters and is not limited to the marital relationship. Although the right to privacy is not absolute, it yields only to a compelling state interest. Here there was no compelling state interest to require the employer to investigate the sexual practices of its employee. Moreover, the employer who queries employees on sexual behavior is subject to claims for invasion of privacy and sexual harassment. Similarly [the victim’s] contention that the church should have required [the priest] to undergo a psychological evaluation before hiring him is unavailing. An individual’s right to privacy also encompasses mental privacy. We conclude the church did not fail to use due care in hiring [the priest].”
- A federal court in Kentucky ruled that a national church was not liable on the basis of negligent selection for a missionary’s sexual molestation of a minor. The court noted that “an employer can be held liable when its failure to exercise ordinary care in hiring or retaining an employee creates a foreseeable risk of harm to a third person.” It concluded that the national church was not negligent since the missionary’s wrongful acts were not foreseeable: “The evidence of record of this matter demonstrates that the church required candidates for its missionary program to complete an involved application process and undergo multiple levels of screening by various church officers. The evidence further reveals that missionaries, once selected, continued to meet regularly for interviews with church officers during their tenure in the missionary program. Finally, the unrefuted evidence shows that the church did not receive information at any time during the application or training process or prior to [the missionary’s] alleged encounter with [the victim] that would lead [church leaders] to believe that he had ever or would ever commit a sexual act with a child. Plaintiff has marshaled no evidence to suggest that the national church knew or should reasonably have known that he was somehow unfit to serve as a missionary or that his placement or retention of a missionary created an unreasonable risk of harm to [the victim] or that any such information came to light prior to the national church learning of the [molestation] at which time the church terminated his service as a missionary.”66 Olinger v. Corporation of the President, 521 F.Supp.2d 577 (E.D. Ky. 2007).
- A Louisiana appeals court ruled that a church-affiliated hospital was not liable on the basis of negligent selection for the sexual misconduct of an employee who had been thoroughly screened and supervised. The hospital hired a male nursing assistant for a psychiatric ward after conducting a thorough background check that showed no criminal record and no unfavorable references from former employers. After working for six months, this employee raped a 16-year-old girl. The victim sued the hospital. The appeals court concluded that the hospital could not be liable for the assault on the basis of negligent hiring, because of the thorough nature of its pre-employment investigation.67 Samuels v. Southern Baptist Hospital 594 So.2d 571 (La. App. 1992).
- A federal district court in Michigan ruled that a church school and various church agencies were not liable on the basis of negligent hiring, supervision, or retention, for the sexual molestation of a minor student by a priest. 68 Isely v. Capuchin Province, 880 F. Supp. 1138 (E.D. Mich. 1995).In rejecting the victim’s claim that the school and church agencies had been guilty of “negligent hiring,” the court observed, “Questions of hiring and retention of clergy necessarily will require interpretation of church canons, and internal church policies and practices. It is well-settled that when a court is required to interpret canon law or internal church policies and practices, the First Amendment is violated because such judicial inquiry would constitute excessive government entanglement with religion. … [An] inquiry into the decision of who should be permitted to become or remain a priest necessarily would involve prohibited excessive entanglement with religion. Therefore [the victim’s] claims of negligence predicated upon a negligent hiring theory will be dismissed.” The court further observed that even if there was not a constitutional bar to recognizing a negligent hiring claim in this case, this claim would still have to be dismissed since “there was absolutely not a shred of evidence in the record that either the [school or any church agency] had any notice of the abuse proclivities of [the offending priests] prior to their ‘hiring’ of them as priests or teachers. …”
- A Minnesota court ruled that a church and denominational organization were not legally responsible on the basis of negligent hiring for a pastor’s acts of child molestation.69 M.L. v. Magnuson, 531 N.W.2d 831 (Minn. App. 1995).The molester served as pastor of a church and was accused of sexually abusing numerous young boys during his tenure. He admitted abusing some of the children, including a 10-year-old boy (the “victim”). The victim later sued the pastor and his former church. The court defined “negligent hiring” as “the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of employment, it should have been foreseeable that the hired individual posed a threat of injury to others.” In ruling that the church had not been negligent in hiring the pastor, the court observed, “There is no evidence [the church] had actual knowledge of [the pastor’s] propensities to commit sexual abuse before he was hired. Moreover, it would have been contrary to the evidence for the jury to have concluded that [the church] should have learned of [his] propensities through reasonable investigation. The regional church body had direct knowledge that [the pastor] had sexually abused a child two years before he was hired by [the church]. But it is undisputed that the regional church did not tell [the church] about this incident and took no action against [the pastor] that might have been discovered by [the church]. The record does not permit an inference that [the church] could have learned about [the pastor’s] propensities from the regional church, which was unwilling to disclose this information voluntarily. … [T]he trial court suggested that if [the church] had simply called [the pastor’s] previous employer it might have learned that [he] had been accused of sexual abuse at that church. If this search is reasonably seen as a part of the hiring process in this church organization in 1964, a proposition we do not review, we find no evidence in the record to show that [the pastor’s] previous employer was aware of any accusations of sexual abuse against him. [The victim] has not presented any evidence of another source that [the church] might reasonably have investigated to discover [the pastor’s] dangerous propensities, so the jury could not have determined that [it] negligently hired [him].”
- A federal court in New York ruled that a Catholic archdiocese was not responsible on the basis of negligent hiring, supervision or retention for the sexual misconduct of a priest, since it had no knowledge of prior wrongful acts.70 Bouchard v. New York Archdiocese, 719 F.Supp.2d 255 (S.D.N.Y. 2010).
- A Pennsylvania court ruled that a church was not liable for its pastor’s molestation of a young girl since it exercised reasonable care in screening him. Although conceding that the church required the pastor to complete an extensive questionnaire, interviewed him at length and discussed his suitability with all 14 references that he provided, the victim’s parents insisted that the church “should have investigated further.” They claimed that the church should have questioned the 14 references “more closely” and should have asked additional questions of the pastor himself concerning his prior sexual behavior. If the church had done so, the parents argued, it would have discovered that he had a homosexual affair while in high school, had made a subtle advance on his wife’s younger brother more than ten years prior to his employment by the church, had exposed himself from the window of his previous home, and may have abused his own son. The court conceded that employers have a duty “to exercise reasonable care in selecting, supervising and controlling employees.” However, it insisted that employers cannot be liable unless “it is shown that the employer knew or, in the exercise of ordinary care, should have known of the necessity for exercising control of his employee.” The court reviewed the facts cited by the parents as proof of the church’s alleged failure to exercise reasonable care in the selection, supervision, and retention of the pastor, and concluded: “We find that [the church’s screening process] was reasonably thorough under the circumstances present at the time. … He fully cooperated in the application and interview process. He had no criminal record and had never been arrested or investigated for any crime, sexual or otherwise. In addition … the church contacted every reference [he] provided, which included people who had knowledge of him in his previous ministerial positions and throughout his military service. Not a single person contacted provided information that would have given a reasonable person any hint that his sexual propensities needed to be investigated further. All of the references expressed very positive sentiments regarding [the pastor] personally as well as his suitability for the senior minister position. Lastly, even if the church members who were engaged in the hiring process had inquired further of [the pastor] himself regarding his past personal behavior, he testified that he might well not have revealed anything negative since he was both anxious to get the job and in a state of denial.”71 R.A. v. First Church of Christ, 2000 WL 232599 (Pa. Super. 2000).