Key point 10-09.03. Churches can reduce the risk of liability based on negligent supervision for the sexual molestation of minors by adopting risk management policies and procedures.
Tip. A number of courts, in addressing the question of whether clergy are employees or self-employed for federal income tax reporting purposes, have observed that churches generally exercise relatively little supervision or control over clergy.123 See, e.g., Weber v. Commissioner, 60 F.3d 1104 (4th Cir. 1995).Such cases can be used by churches in defending against negligent supervision claims involving clergy misconduct.
Churches can reduce the risk of liability, based on negligent supervision, for the sexual molestation of minors by adopting risk management policies and procedures. Here is a listing of policies and procedures that some churches have adopted:
1. Two-Adult Policy
Consider adopting a “two-adult” policy. Such a policy simply says that no minor is ever allowed to be alone with an adult during any church activity. This rule reduces the risk of child molestation, and also reduces the risk of false accusations of molestation.
- A church has a policy requiring two adults to work in the nursery. However, the policy does not prohibit children from being in the custody of less than two adults. On a Sunday morning during worship services, one adult temporarily leaves the nursery for ten minutes to speak with another church member. A few days later the parents of one of the infants in the nursery suspect that their child has been molested. Suspicion is focused on the church nursery. Since the two nursery workers cannot prove that they both were present with the child throughout the entire worship service, they cannot “prove their innocence.” The worker who was present in the nursery while the other worker was temporarily absent is suspected of wrongdoing, even though she is completely innocent.
- A church sponsors a campout for young boys. Some of the boys are accompanied by their fathers, but several are not. One tent is occupied by an adult volunteer worker and one boy. This arrangement violates the two-adult rule.
- A youth pastor takes home a group of five teenagers following an activity at church. After taking four of the teenagers to their homes, he is left in his car with a 15-year-old female. This arrangement violates the two-adult rule.
2. No Early Releases of Minors
Only release minors from church activities to the parent or legal guardian who brought them, or to a third person that the parent or guardian has authorized in writing to receive custody of the child. Churches are legally responsible for the safety of a minor from the time they receive custody until the time they return custody of the minor to his or her parent or legal guardian. As a result, a church may be liable for injuries occurring to a child who is released prematurely.
3. Claim Check Procedure
Consider adopting a “claim-check” policy for children in the church nursery. As a parent drops a child off at the church nursery, pin a plastic number on the child’s clothes and give the parent an identical number. Alternatively, several software programs are available that print labels that can be affixed to a child with a copy given to a parent. Inform parents that only those persons presenting the corresponding number will be given custody of children. This policy is designed to prevent the kidnapping of children by noncustodial parents, or by child molesters. Numbers should be assigned on a random basis for each service. Unfortunately, in many churches the nursery is staffed by minors who are inclined to transfer custody to anyone who asks for a child.
4. Greater Scrutiny if Knowledge of Prior Incidents
If an incident of child molestation occurs on church premises, or in the course of a church activity off of church premises, the church’s duty of supervision increases. The church will be held to a higher standard of supervision because of such knowledge. It is important for church leaders to be aware of this, and to be diligent in implementing some or all of the risk management procedures mentioned in this section.
5. Video Technology
The installation of video cameras in strategic locations can serve as a powerful deterrent to child molesters, and can reduce a church’s risk of negligent supervision. Video technology has become affordable for most churches, and should be considered by all churches as both a powerful deterrent and a means of proving or disproving alleged misconduct.
Consider the following uses:
Nursery areas. Video cameras are helpful in a church’s nurseries, since infants and very young children are present who are incapable of explaining symptoms of molestation. In such cases, innocent nursery workers may be suspected who lack the ability to conclusively prove their innocence. Video cameras can be helpful in documenting how symptoms of molestation may have occurred, and in proving the innocence or guilt of nursery workers.
Example. Shortly after returning home from church on a Sunday morning, a father notices evidence that his infant daughter was molested. He becomes very angry and distraught, and immediately calls his pastor to report the incident. He even mentions a particular nursery worker as the likely offender. The pastor meets with the father at church later that afternoon. The church installed a video camera in the nursery a few years ago, and the pastor replays the tape that was made that morning. The tape reveals no acts of molestation. The father is satisfied that the molestation did not occur at church. He takes his daughter to a doctor the next day, and learns that the child was not molested. The “symptoms” of molestation in fact were caused by a skin disorder. The case is resolved to everyone’s satisfaction, because of the video evidence. But consider what might have happened if the church did not have a video camera in the nursery. The father may have been convinced that his daughter was a victim of molestation, and an innocent nursery worker may have been wrongfully accused.
Restrooms. Church restrooms present a unique risk of molestation for both infants and older children. After all, they are frequented by children, they are easily accessible, and they often are in remote locations or are not adequately supervised. A video camera in a hallway outside a restroom that is frequented by minors can be a powerful deterrent to child molesters. It also will provide church leaders and local authorities with evidence in the event that a minor is molested in a church restroom.
6. An Adequate Number of Qualified Adults
Any activity involving minors should be staffed with an adequate number of qualified adults. This will help to demonstrate that the church exercised reasonable care in the supervision of minors, and reduce the risk of liability based on negligent supervision in the event that a minor is molested.
Tip. It is often helpful to contact other institutions for assistance with staffing ratios. For example, some churches base their adult to child ratio in the nursery to what the state requires of licensed day care facilities. You may also contact the Red Cross, Salvation Army, or similar organizations. Such meaningful comparisons are called “benchmarking,” and they help to establish the reasonableness of church practices. The point is this: if you can demonstrate that you based your adult to child ratio on the established practices of other similar organizations in your community, then this will be a strong defense in the event you are accused of liability (for an injury to a child) on the basis of negligent supervision.
7. Off-site activities
Be especially careful of off-site activities such as field trips and camping. These outings can be difficult to control. It is essential that an adequate number of adults are present. While on the trip, precautionary measures must be implemented to assure adequate supervision of the group. For example, some churches group children in pairs, always keep the entire group together, and have frequent “roll calls.” Once again, you can call other community-based organizations for guidance.
As noted above, church restrooms present a unique risk of molestation. They are frequented by children, they are easily accessible, and they often are in remote locations that are not adequately supervised. Church leaders can take steps to reduce this risk. Consider the following:
- Video technology. Using video cameras outside of church restrooms is a powerful deterrent to molesters, and provides the church with helpful evidence in the event of an allegation of molestation. This precaution is described above.
- Designated restrooms. Restrict young children’s restroom breaks to restrooms that have limited access to adults, if this is possible.
- Two-adult rule. Have two adults accompany children in groups to the restroom, whenever possible. Do not allow one adult to take one or more children to the restroom.
- “Half doors.” Consider installation of “half doors” that will permit adults to have partial vision into restrooms used by young children.
- Architecture. Unauthorized access to nursery areas by outsiders should be discouraged or prevented by the physical layout. Many churches accomplish this with counters staffed by an adult worker or attendant.
- State regulations. State regulations that apply to licensed childcare facilities ordinarily do not apply to church nurseries, but they will contain a wealth of information that may be useful in adopting policies to reduce the risk of molestation and other injuries. Further, compliance with selected regulations can be cited as evidence that your church should not be legally responsible on the basis of negligent supervision for such incidents.
- Parental notification. Churches should discourage parents from allowing their children to wander around unaccompanied on church property. This notification can take place in parents’ meetings, in church bulletins or newsletters, or through direct appeals prior to or during worship services. Children who wander unaccompanied on church property often were sitting with a parent during a worship service and were permitted to leave (usually to go to the restroom). In other words, unaccompanied children wandering around on church premises often do so with their parents’ permission. Parents should be encouraged to accompany their children to the restroom or any other destination, and not let them leave the service unattended.
- Restricting access. The risk of liability can be reduced by restricting access to unsupervised restrooms where molestation may occur. If possible, lock doors to cut off access to remote and unused areas of the church.
- Ushers. A church can exercise supervision over its restrooms by having ushers observe access to them during services. For example, if a young child leaves a service to use a restroom, ushers should be alert to others entering the restroom while the minor is present. If an older child or adult enters the same restroom while the unaccompanied minor is present, this is a potential risk that must be addressed. If the minor does not exit the restroom within a brief period of time, an usher may wish to enter the restroom until the minor leaves. Some churches have restrooms that can only accommodate one person, and that can be locked from the inside. Such facilities can reduce the risk of molestation so long as an usher ensures that a minor enters a vacant restroom alone, the door is locked behind him or her, and no one is permitted access to the room until the minor exits. By following such precautions, it soon will be apparent that the church is monitoring access to restrooms, and this will reduce the risk of molestation.
In addition, ushers should be instructed to be alert for minors leaving services or wandering around unaccompanied on church property. Ushers should be informed of the risks associated with such behavior, and should be prepared to confront the minor and direct him or her back to a parent or supervised children’s activity.
9. Encouraging Parents to Accompany Their Children
Churches can reduce the risk of liability based on negligent supervision by encouraging parents of younger children to accompany their child to youth programs and activities.
10. Prevent Access to Remote Areas
Acts of child molestation on church premises often occur in remote, unsupervised rooms or areas. A church can reduce its risk of liability based on incidents of molestation occurring in such locations by restricting access to them. If possible, lock vacant rooms that are not being used, or exercise supervision over them. For example, the church could designate a board member or other responsible adult to roam throughout the church during worship services. Such a policy will deter potential molesters, and will help to demonstrate that the church is exercising reasonable care in the supervision of its premises.
Install shatterproof windows in all doors to classrooms and other areas that are frequented by minors. This will reduce isolation and make it easier to supervise activities.
12. Supervision of Known Molesters
What should church leaders do when they learn that a known child molester is attending their church? This is a complex question. The presence of such a person on church premises creates a substantial risk to the church. If the person molests a child on church premises, or during an off-site church activity, the church will be faced with a very difficult case to defend. The church will need to demonstrate that it exercised a high degree of care and vigilance in the supervision of the individual. Here are some points that may help in making an informed decision:
1. According to the FBI profile on “preferential molesters,” pedophiles who molest pre-adolescent children (generally, under the age of 13) should be considered “incurable,” predatory and highly promiscuous. The profile indicates that pedophiles often molest well over one hundred children over the course of their lives. Such persons present churches, and young children in a congregation, with one of the highest known risks of both physical harm and civil liability.
In the case of a sex offender who committed one or more offenses many years ago, and who has had an impeccable reputation ever since, some church leaders are inclined to “err on the side of mercy” and allow the person to attend the church with little if any supervision. The same is true for offenses that church leaders deem “superficial.” In either event, remember that if the person is a pedophile, the passage of time will have little relevance to his propensity to molest minors today.
2. Conduct a criminal records check. Church leaders must be fully informed regarding the person’s criminal background. If the person has lived in one state for his entire adult life, then a state check may suffice. But, if he has lived in more than one state, then a national check or multiple state checks must be pursued. A search of all 50 state sex offender registries is also essential. This can be done on the U.S. Department of Justice website, NSOPW.gov. Registry searches are often bundled with national criminal database searches performed by commercial vendors.
3. If the individual is on probation, track down his probation officer and ask about the conditions that have been imposed on him. In some cases, such persons are not even allowed to attend church. If the probation officer says that the person is free to attend church, ask the officer if he or she would recommend that you allow him to attend your church, and if so, under what conditions. Obtain this information in writing, or, if that is not possible, make a detailed written account of what the officer tells you.
4. When a church allows a convicted child molester to resume normal activities within a church, this exposes the church and church board members to substantial monetary damages in a civil lawsuit. If the person should ever have sexual contact with a minor on church premises, or in the course of church activities, the church would face a jury that would be incredulous that such a person was allowed to return to the church. This would be especially true if the person was allowed to have any involvement with children in the church, but it could apply even if the person was not officially involved in youth or children’s programs. The bottom line is that the public will no longer tolerate such behavior. What’s more, they are outraged by it, and they often express that outrage in their judgments (including punitive damages).
5. A church may face possible punitive damages if a convicted child molester was allowed to resume normal activities within a church and then molested another child. Such damages are not covered by the church’s insurance policy, and so the assets of the church (building, vehicles, general fund, etc.) would all be exposed.
6. Churches have three options in dealing with a registered sex offender.
First, they can do nothing. This option is common, but not advisable.
Second, a church can condition the sex offender’s church attendance on signing a “conditional attendance agreement” that imposes various conditions, which may include the following:The offender will not work with minors in any capacity in the church.The offender will not work with minors in any capacity in the church.The offender will not transport minors to or from church, or any church activity.The offender will not attend any youth or children’s functions while on church property, except for those involving his or her own child or children, and only if in the presence of a chaperone.The offender will not attend any youth or children’s functions while on church property, except for those involving his or her own child or children, and only if in the presence of a chaperone.The offender will always be in the presence of a designated chaperone while on church property. This includes religious services, educational classes, activities, and restroom breaks. The chaperone will meet the offender at the entrance of the church, and accompany the offender on church premises until returned to his or her vehicle.A single violation of these conditions will result in an immediate termination of the offender’s privilege to attend the church.A single violation of these conditions will result in an immediate termination of the offender’s privilege to attend the church.The conditional attendance agreement option will not be available unless the church’s insurer is informed and confirms that coverage will not be affected.The conditional attendance option will not be available unless the offender’s probation officer (if any) approves it.
- The conditional attendance option will not be available unless the offender’s probation officer (if any) approves it.
- The offender will not transport minors to or from church, or any church activity.
- The offender will always be in the presence of a designated chaperone while on church property. This includes religious services, educational classes, activities, and restroom breaks. The chaperone will meet the offender at the entrance of the church, and accompany the offender on church premises until returned to his or her vehicle.
- The conditional attendance agreement option will not be available unless the church’s insurer is informed and confirms that coverage will not be affected.
Key point. A conditional attendance agreement reduces risk, but does not eliminate it.
Third, a church can adopt a policy of total exclusion, meaning that the offender is not permitted to attend church services or activities. This option is advisable if (1) for any reason the conditional attendance option is not feasible or enforceable, (2) the offender’s crimes are so serious that exclusion is the only appropriate option, or (3) one of more of the offender’s victims attends the church.
The selection of one of these three options will depend on the circumstances of each case. It is advisable to have an attorney assist in choosing the most appropriate option.
7. Members of a church board can be personally liable if a jury concludes that they acted with gross negligence. It takes very little imagination to foresee a jury concluding that church board members who allow a convicted sex offender to have unrestricted access to church property have acted with gross negligence.
8. Churches that choose an option other than total exclusion should check with the church’s insurance company to determine if this decision will affect coverage for future claims.
9. A question that often arises is whether church leaders should inform the congregation that a registered sex offender is attending services. This will not be an issue if a church elects the “exclusion” option, since the offender will not be allowed on church premises. If the chaperone or “conditional attendance” options are selected, or if a church chooses to impose no restrictions on such persons, then the issue of congregational notification should be considered. There are various approaches that a church can take. One approach is for the church board to appoint a committee to draft a sex offender policy that details conditions that will apply to known sex offenders who desire to attend the church. This policy is then presented to the church membership at an annual or specially called meeting for consideration, modification, and approval. This approach has several advantages:The policy becomes the property of the membership.Members have the opportunity to make their views known prior to adoption of the policy.Members are apprised of the terms of the policy, and as a result are less likely to react emotionally and irrationally when they learn that a known sex offender is attending the church.
Of course, a church’s membership may elect to adopt a policy of total exclusion, but this is unlikely if the committee is broadly based and includes persons who are widely respected for their judgment and spiritual maturity.
Key point. One psychiatrist who has worked extensively with pedophiles has recommended that a pedophile never be allowed to attend a church unless he first discloses his orientation (and criminal record, if applicable) to the entire church congregation. In so doing, he places everyone on notice of the potential risk, and becomes accountable to the entire membership.
10. Some church leaders believe that if they obtain a written opinion from a licensed psychotherapist that the individual does not pose a risk of sexually molesting minors (or adults) in the church, then the church can go ahead and allow the person to attend church without limitation other than a ban on any youth or children’s ministry. This approach should not be used without the approval of the church’s attorney.
11. Draft a policy addressing the church’s response to registered sex offenders attending the church, and have it adopted by the congregation during an annual or special business meeting. This would allow the membership to discuss this issue in a rational manner.
In making a final decision, there will always be those in church leadership who will urge mercy and restoration. That’s fine. These are biblical principles. But the Bible also speaks to issues of accountability and protection of the innocent. Jesus’ harshest words were directed at those who would “cause one of these little ones who believes in me to stumble.” He also said that the “second great commandment” is to love one’s neighbor as oneself. How can church leaders even begin to think they are taking this commandment seriously when they allow a convicted sex offender to have unrestricted access to the church?
13. Small Groups
The fact that a church promotes small group meetings exposes it to potential liability for injuries that occur to children who are being supervised. Those injuries may arise in a number of ways, and could include child molestation by a volunteer worker, parent, or an older child; personal injuries occurring during games, “horseplay,” or fighting; choking; or poisoning. All of these risks can be greatly reduced if a church adopts certain safeguards, including the following:
- Use at least two volunteer workers to oversee the children. One worker is unacceptable. If only one worker shows up for a particular meeting, then a member of the small group will have to assist in the supervision of children, or the meeting must be canceled.
- Segregate the children into different groups based on age, if possible, with two volunteer workers in each group (risks increase dramatically if “power inequity” exists, such as older children being grouped together with preschoolers).
- Volunteer workers should be adults. The risk of injury and molestation increases moderately if one adult and one adolescent worker are used together; and the risk increases dramatically if only minors are used to supervise children. One obvious solution is to have parents themselves take turns serving as supervisors for the children.
- Volunteer workers must be screened (application, reference checks, criminal records check).
- If young children (preschoolers) are present, the area where they will be supervised should be thoroughly inspected prior to each meeting to remove any toxic or dangerous substances or devices.
- Individual members of the small group should make unannounced and periodic visits to the area where children are being supervised.
- Older children should be encouraged to report any inappropriate behavior that occurs during these meetings.
- Restroom breaks present a significant risk. Appropriate safeguards will depend on the layout of the home and the age of the children. Children must not be allowed to wander off to a restroom alone, or with one or more older children. The best practice would be to contact parents and have them escort their child to the restroom. Most other responses will create unacceptable risks. Some cases of child molestation occurring in private homes during small group meetings have involved children wandering off to unsupervised areas of the home.
There have been cases of children being sexually molested, or injured, during small group meetings in members’ homes, so this is a risk that churches must take seriously. Safeguards must not be viewed as “nuisances” to be ignored, but rather as essential measures to ensure the safety and well-being of vulnerable children. If meaningful and effective precautions cannot be implemented, then the church has no alternative but to discontinue childcare at these meetings.
14. Follow Policies
It is absolutely essential to familiarize youth workers with the church’s policies and to be sure that these policies are followed. At a minimum, this should be part of an orientation process for all new workers (both paid and volunteer). Periodic training sessions are also desirable to reinforce nursery policies.
15. Review of Policies
It is a good practice to have your risk management procedures reviewed periodically by a local attorney and by your church insurance agent. Such a review will help to ensure that your policies are current and effective.
16. The Protecting Young Victims from Sexual Abuse Act of 2017
In 2018, the public was stunned by revelations of sexual molestation of young athletes by coaches, trainers, and others associated with USA Gymnastics, USA Swimming, and USA Taekwondo. These and other revelations of the sexual molestation of minors engaged in athletic training and performance led to the near-unanimous enactment by Congress, in 2018, of the Protecting Young Victims from Sexual Abuse Act of 2017.
The Act does not directly affect churches that do not participate in interstate or international amateur athletic competition. Its purpose, as stated in its preamble, is to “mandate the reporting of child abuse in organizations that work with amateur athletes; strengthen civil remedies for all victims of sexual abuse; and clarify the duties of national governing bodies (NGBs), such as USA Gymnastics, regarding allegations of sexual abuse.” An “amateur athlete” is defined by the Act as “an athlete who meets the eligibility standards established by the national governing body or paralympic sports organization for the sport in which the athlete competes.”
While many churches will not be directly impacted by the Act, every church will be indirectly affected by the “best practices” and “standards of care” embodied in the Act. The Act will be relevant in assisting church leaders in establishing or updating their own child protection and abuse reporting procedures. Church leaders often are frustrated by the lack of concrete guidance in establishing such policies, and so efforts by other charities, and most importantly by the federal and state governments, to formulate child protection policies can be helpful, at least indirectly, to churches, in the following two ways:
- the Act provides church leaders with helpful guidance in drafting their own child abuse policies, and
- it provides a benchmark or standard that churches can follow to help defend against child abuse claims alleging negligence in the selection and supervision of workers.
Caution. Because of the ambiguity in some key terms in the Act, its direct application to churches will not be clear in some cases. Church leaders should consult with legal counsel if in doubt as to their church’s coverage under the Act.
Here are some ways that the recent legislation will assist churches:
- One of the key features of this legislation is mandatory child abuse reporting by a long list of “covered individuals” and “covered professionals.” The reporting obligation is triggered by the awareness of facts “that give reason to suspect that a child has suffered an incident of child abuse, including sexual abuse.” The underlying assumption is that one of the best ways to attack and diminish the scourge of child abuse is through a robust reporting requirement. The lesson for church leaders is the importance of compliance with child abuse reporting laws. All 50 states enumerate categories of persons who are under a legal duty to report abuse to designated civil authorities. In most states, such “mandatory reporters” must report both actual and reasonably suspected cases of child abuse. Failure to do so is a crime (usually a misdemeanor).
- The Act allows minor victims to sue their perpetrators for 14 criminal offenses that cover sexual abuse acts and exploitation of minors as well as human trafficking crimes. It also clarifies that once a victim has established a harm occurred, the court will presume $150,000 in monetary damages. Punitive damages also may be awarded when warranted.
- Persons who are legally required to report child abuse are subject to criminal prosecution for failure to do so. Criminal penalties for failing to file a report vary, but they typically involve short prison sentences and small fines.
- The Act provides that “national governing bodies” (i.e., an amateur sports organization that is recognized by the United States Olympic Committee) shall perform several duties, including the development and enforcement of the following policies:
1. requiring all adults authorized by a national governing body or a member of a national governing body to interact with a minor or amateur athlete at an amateur sports organization facility or at any event sanctioned by a national governing body or a member of a national governing body, to report facts that give reason to suspect child abuse, including sexual abuse, as required by relevant Federal or State law, to law enforcement authorities and other appropriate authorities, including an entity designated by the corporation to investigate and resolve such allegations;
2. procedures to ensure that covered individuals are instructed to avoid one-on-one situations with any amateur athlete who is a minor (other than such an athlete for whom the covered individual is a legal guardian) at an amateur sports organization facility, at any event sanctioned by a national governing body, or any event sanctioned by a member of a national governing body, without being observable or interruptible by another adult; and
3. oversight procedures, including regular and random audits, not to exceed once a year, conducted by subject matter experts unaffiliated with the national governing body, of all members and adults described in subparagraph (A) to ensure that policies and procedures developed under this paragraph are followed correctly and that consistent training is offered and given to all members regarding prevention of sexual abuse.
These are excellent policies, and “best practices,” for churches to follow.
17. The Louis Freeh Report
In 2011, the Board of Trustees of Penn State University appointed a Special Investigations Task Force under the direction of Special Investigative Counsel and former FBI director Louis Freeh to perform an independent, full and complete investigation of:
- The alleged failure of Pennsylvania State University personnel to respond to, and report to the appropriate authorities, the sexual abuse of children by Jerry Sandusky;
- The circumstances under which such abuse could occur in University facilities or under the auspices of University programs for youth.
In addition, the Special Investigative Counsel was asked to provide recommendations regarding University governance, oversight, and administrative policies and procedures that will better enable the University to prevent and more effectively respond to incidents of sexual abuse of minors in the future.
The Task Force, which included former federal prosecutors and FBI agents, was the most competent and professional body ever assembled to formulate risk management strategies to reduce the risk of child molestation in child-serving charities. Its findings will almost certainly be cited by attorneys representing victims of child molestation in attempting to demonstrate negligence on the part of churches, schools, and other youth-serving charities in not implementing or updating procedures to adequately protect minors. For this reason, it is important for church leaders to be familiar with the Task Force’s recommendations, and to use them in implementing, or revising, appropriate procedures and safeguards.
The Task Force eventually promulgated several recommendations, including the following:
- Continue to benchmark the University’s practices and policies with other similarly situated institutions, focus on continuous improvement and make administrative, operational or personnel changes when warranted.
- Update, standardize, centralize, and monitor background check procedures.
- Require updated background checks for employees and volunteers at least every five years.
- Review periodically all University policies for relevance, utility and necessity, and modify or rescind as appropriate.
- Increase the physical security and access procedures in areas frequented by children or used in camps and programs for children.
- Require and provide abuse awareness and mandatory reporter training.
- An organization’s governing documents should provide for board rotation and staggered voting.
- Board members’ terms should be limited.
- The board should be continually informed by church leadership of existing and potential legal and financial risks.