Criminal Records Searches

Summary

The importance of conducting criminal records checks on volunteers and employees who have unsupervised access to minors is reinforced by two recent Supreme Court rulings upholding the constitutionality of “Megan’s laws.” The Court noted that sex offenders “are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” The fact that the Supreme Court has recognized this fact makes it more likely that other courts will view criminal records checks as a minimum standard of care when selecting workers. This conclusion is reinforced by the fact that over the last few years several youth-serving charities have started conducting criminal records checks on volunteers who work with minors. This article will review the Supreme Court’s recent rulings, summarize the many kinds of criminal records checks that are available, review how the courts have viewed criminal records checks, and provide church leaders with several factors to consider in deciding whether to perform criminal records checks, and if so, on whom and what kind.

“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.” From a federal General Accounting Office report.

“In order to protect children, volunteer agencies must currently depend on a convoluted, disconnected, and sometimes duplicative series of checks that leave children at risk.” From the introduction to the National Child Protection Improvement Act.

Should churches perform criminal records checks? If so, on whom? These are questions that increasingly are being asked by church leaders. The reasons are obvious. Highly-publicized incidents of sexual misconduct in churches have heightened the awareness of many church leaders to the issue of protecting children, while at the same time the media has publicized recent decisions by many national youth-serving charities to require criminal records checks for volunteers who work with minors. For many, these developments have made a strong case for conducting criminal records checks on anyone having unsupervised access to minors on church property, in church vehicles, or during church activities and programs.

This article will provide church leaders with a comprehensive review of criminal records checks, and will address the following topics:

state “Megan’s Laws” that establish sex offender registries in all 50 states
two recent decisions by the United States Supreme Court upholding the constitutionality of Megan’s Laws
the 5 different kinds of criminal records checks
fingerprint technology
the National Child Protection Act
the Volunteers for Children Act
the PROTECT Act of 2003
how to interpret criminal records
what the courts have said about criminal records checks
should your church conduct criminal records checks (11 factors to consider)

Megan’s Laws

Megan Kanka was a 7-year-old New Jersey girl who was sexually assaulted and murdered in 1994 by a neighbor who, unknown to the victim’s family, had prior convictions for sex offenses against children. This heinous crime prompted the New Jersey legislature to enact a law requiring mandatory registration of sex offenders and public notification of their whereabouts. The law was called “Megan’s Law,” in honor of Megan Kanka. Pressure soon mounted to have such laws enacted in other states. Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which conditioned certain federal law enforcement funding on a state’s enactment of a sex offender registration law. The end result was that by 1996 every state, the District of Columbia, and the federal government had enacted some variation of Megan’s Law.

The constitutionality of Megan’s Laws has been challenged in a number of cases, with mixed results. Some argue that these laws violate convicted sex offenders’ right of privacy, or constitute a continuing form of “punishment” that persists long after an offender has completed a prison sentence and therefore violate the Constitution’s “double jeopardy” clause (citizens cannot be twice placed in jeopardy for the same offense). The United States Supreme Court issued two decisions earlier this year that affirm the constitutionality of these laws. This is good news for churches, because in many states it means that church leaders can check to see if applicants for volunteer youth work are registered sex offenders by simply going to a government-sponsored website. This article will review the two Supreme Court rulings, assess the relevance of Megan’s Laws to churches, and review other options that churches have in conducting criminal records checks.

Case #1: Smith v. Doe

Alaska’s version of Megan’s Law, like similar laws in other states, had two components. First, the law requires any “sex offender or child kidnapper who is physically present in the state” to register, either with the Department of Corrections (if the individual is incarcerated) or with the local law enforcement authorities (if the individual is not incarcerated). Prompt registration is mandated. If still in prison, a covered sex offender must register within 30 days before release; otherwise he must do so within a working day of his conviction or of entering the state. The sex offender must provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver’s license number, information about vehicles to which he has access, and postconviction treatment history. He must permit the authorities to photograph and fingerprint him.

If the offender was convicted of a single, “nonaggravated” sex crime, he must provide annual verification of the submitted information for 15 years. If he was convicted of an “aggravated” sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. The offender must notify his local police department if he moves. A sex offender who knowingly fails to comply with the Act is subject to criminal prosecution.

The information is forwarded to the Alaska Department of Public Safety, which maintains a central registry of sex offenders. Some of the data, such as fingerprints, driver’s license number, anticipated change of address, and whether the offender has had medical treatment afterwards, is kept confidential. The following information is made available to the public:

the sex offender’s or child kidnapper’s name, aliases, address, photograph, physical description, description, license and identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with [the update] requirements … or cannot be located.

The Act does not specify the means by which the registry information must be made public. Alaska has chosen to make most of the nonconfidential information available on the Internet.

Two Alaska residents (John Doe I and John Doe II) were convicted of sexual abuse of a minor, an aggravated sex offense. John Doe I had sexually abused his daughter for two years, when she was between the ages of 9 and 11; John Doe II sexually abused a 14-year-old child. Both were released from prison in 1990 and completed rehabilitative programs for sex offenders. Although convicted before the passage of Alaska’s Megan’s Law, both John Doe I and John Doe II were covered by it. After the initial registration, they were required to submit quarterly verifications and notify the authorities of any changes. Both individuals filed a lawsuit in federal court seeking to have the Alaska Megan’s Law declared unconstitutional on the ground that it amounted to “retroactive punishment” in violation of the federal Constitution’s ban on “ex post facto” laws. An ex post facto law is one that makes the punishment for a crime more severe than was possible at the time that a criminal act was committed. The ninth circuit court of appeals agreed that the Alaska Megan’s Law violated the ex post facto clause, by “punishing” sex offenders more severely than was permitted at the time of their offenses. The case was appealed to the United States Supreme Court.

The Supreme Court concluded that the Alaska Megan’s Law did not violate the ex post facto clause, because its registration and public notification provisions were not “punitive” and therefore did not represent additional punishment for convicted sex offenders. It noted that the law’s “nonpunitive” purpose was “public safety, which is advanced by alerting the public to the risk of sex offenders in their community.” The Court further explained that “Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is frightening and high.” The Court quoted from a U.S. Department of Justice study: “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997).

The Court rejected the argument that the State of Alaska, by placing its sex offender registry on the Internet, was “punishing” such offenders by disseminating the information to the world. The Court noted that information about criminal convictions is already public. In addition, it cited another study showing that 38% of sex offenses “took place in jurisdictions other than where the previous offense was committed.”

Case #2: Connecticut Department of Public Safety v. Doe

A self-proclaimed “non-dangerous sex offender” filed a lawsuit challenging the constitutionality of Connecticut’s sex offender registry law, which required the state to post a sex offender registry containing sex offenders’ names, addresses, photographs, and descriptions on an Internet website and to make the registry available to public.

Connecticut’s “Megan’s Law” applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. Covered offenders must register with the state upon their release into the community. Each must provide personal information (including his name, address, photograph, and DNA sample); notify the state of any change in residence; and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases; those convicted of sexually violent offenses must register for life.

The statute requires the state to compile information gathered from registrants and publicize it. In particular, the law requires the state to create a sex offender registry on an Internet website. The state’s website enables citizens to obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name. A disclaimer on the first page of the website contains the following notice, “The state has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.”

A convicted sex offender claimed that public disclosure of the convictions of registered sex offenders violated the constitutional right to “due process of law” because offenders were not given a hearing to determine whether they were “currently dangerous.” The United States Supreme Court, in a unanimous decision, rejected this argument and ruled that the Connecticut “Megan’s Law” was constitutional. The Court began its opinion by noting that “sex offenders are a serious threat in this nation …. The victims of sex assault are most often juveniles,” and “when convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sex assault.” The Court noted that Connecticut, like every other state, “has responded to these facts by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders.”

The Court concluded that “the fact that the offender seeks to prove—that he is not currently dangerous—is of no consequence under Connecticut’s Megan’s Law. As the state’s website explains, the law’s requirements turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. No other fact is relevant to the disclosure of registrants’ information. Indeed, the disclaimer on the website explicitly states that a sex offender’s alleged nondangerousness simply does not matter. In short, even if the offender could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders—currently dangerous or not—must be publicly disclosed …. [A]ny hearing on current dangerousness is a bootless exercise.”

The Court referred to one of its previous rulings in which it observed,

Sex offenders are a serious threat in this Nation. In 1995, an estimated 355,000 rapes and sexual assaults occurred nationwide. Between 1980 and 1994, the population of imprisoned sex offenders increased at a faster rate than for any other category of violent crime. As in the present case, the victims of sexual assault are most often juveniles. In 1995, for instance, a majority of reported forcible sexual offenses were committed against persons under 18 years of age. Nearly 4 in 10 imprisoned violent sex offenders said their victims were 12 or younger. When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.

The Importance of These Cases

The Supreme Court’s recent rulings are important for four reasons.

(1) Applying the registration and public notification requirements of a state “Megan’s Law” to sex offenders who were convicted prior to the enactment of the law does not violate the Constitution’s ex post facto clause, because these requirements do not constitute “punishment.”

(2) Megan’s Laws do not violate the “due process” rights of convicted sex offenders by not providing each offender with a hearing to determine if he or she is a sufficient threat to society to be included on the public registry.

(3) In the Smith case the Court quoted from a U.S. Department of Justice study: “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” It is significant that the Supreme Court has publicly recognized the risk that sex offenders present to innocent victims when they reenter society following their incarceration. Some church leaders have allowed known child molesters to work with minors in an official position, believing that they should be given a “second chance” or that the church is obligated to “show mercy” to repentant persons. The Supreme Court’s decision in the Smith case makes this a high risk gamble, because victims of any repeat offenses who sue their church will likely base liability in part on the Supreme Court’s ruling in the Smith case. That is, the church ignored warnings coming from the highest levels of government concerning the risk that known sex offenders pose to innocent children.

(4) Not only is it common for sex offenders to engage in repeat offenses, but such offenses often are committed in different states. In the Smith case 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.

Different Kinds of 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.

(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:

(1) Contact the appropriate county agency (often the sheriff’s department) and request a criminal records check.

(2) Use a fee-based criminal records check service that will conduct a check for you.

Key point. These two options for conducting county criminal records checks are discussed more fully in the section of this article addressing state criminal records checks.

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).

(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.

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.

According to U.S. Department of Justice statistics, more than 59 million individual offenders were in the criminal history files of the state central repositories in 2000. In comparison, the repositories held only 30.3 million subjects in their criminal history files in 1984, and 42.4 million in 1989.

There is enormous variation in the extent to which state central repositories have automated their criminal history records. State repositories have been making rapid progress in the last decade in automating their criminal history files. Eighteen state repositories in 1995 reported that 100% of their criminal history records were automated. By 1999, 40 states reported that more than 75% of their criminal history records were automated, compared to 26 states in 1992. By 1999, only 5 jurisdictions had automated less than 50% of their files and only 2 states lacked any automated criminal history records. Overall, about 53 million of the estimated 59 million criminal history records maintained by the state repositories nationwide were automated as of 2000. In addition, the states have made a significant investment in the automation of criminal fingerprint files. Every state now operates or has access to automated fingerprint technology.

The accuracy and completeness of criminal history records is the single most serious problem in criminal record information systems. A recent government survey found that in 32 states representing 64% of the nation’s population, only 60% of arrests within the past 5 years had final dispositions recorded. In addition, about one-half of the state-reported criminal history records maintained by the FBI do not have final dispositions. The inaccuracy of arrest and disposition data also is a problem. Of the few in-depth audits or reviews of the accuracy of the information maintained by state and federal criminal record repositories, most found unacceptable levels of inaccuracies.

Although the FBI has proposed model criminal history record formats over the years, adoption of a uniform criminal history record 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.

Key point. The U.S. Department of Justice has stated that “formats in use vary so greatly that it is probably true that no two state criminal history record formats are identical and many of them are not even similar.”

States place few or no restrictions on the dissemination of conviction records, and a number of states do not restrict the dissemination of arrest records less than 1 year old. Nonconviction records, however, including records of cases with no disposition recorded after the passage of a year or longer, are restricted in most states and in some states may not be disseminated at all for noncriminal justice purposes or may be disseminated only for limited and specifically defined purposes.

There are two ways for your church to conduct state criminal records checks:

(1) 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.

(2) Use a fee-based criminal records check service that will conduct a check for you. There are hundreds of 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 see the companies that are used by national youth-serving charities. For example, the Boy Scouts of America began conducting criminal records checks on all new volunteer workers in 2003, and chose a company called Choicepoint (also known as Screennow). You can access the Choicepoint website directly, or with a link provided on our website, ScreenChurchStaff.com. 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% 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.

(3) Megan’s Laws

The Supreme Court’s recent decisions upholding the constitutionality of state “Megan’s Laws” makes this kind of criminal records check a viable option. 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.
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, church leaders should never view a sex offender registry check as the only screening procedure that is necessary. At best, 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, 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.
You can quickly find links to the Megan’s Law sex offender registries of all 50 states on the following website: https://klaaskids.org. Just click on your state and you will be directed to information that is specific to your state, including the name and telephone number of a contact person you can call with any questions; a summary of the kinds of sex offenders who are required to register; and, a link to search the registry via the internet (if available).
(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 very different kinds of “national” criminal records checks:
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.
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.
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.

In summary, the role of the FBI as a provider of national criminal records checks is changing. The current approach is for states to send only “first arrest” information to the FBI, which will use the data to keep current the Interstate Identification Index. States will collect any subsequent criminal history information on the offenders, and will make offenders’ entire criminal histories and related information available for queries from other states or from authorized federal entities. This process will spare state repositories and the FBI from maintaining costly duplicate records, and will provide greater access to state-level criminal history information, which is generally more accurate than that maintained at the federal level. Under this approach, the FBI will maintain these systems:

The Interstate Identification Index, which will permit authorized organizations to determine whether any state or federal repository maintains a criminal history record about a particular individual.
The National Fingerprint File, which will provide positive identification of all offenders indexed in the national system.

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, which authorized certain youth-serving charities to conduct national criminal records checks using FBI records. This important legislation is summarized later in this article. It is this legislation that enables churches to have access to FBI records in screening persons who will work with minors.

Key point. More than half of the 13 million fingerprint cards submitted to the FBI in a recent year were for noncriminal justice background checks. The increased background check duties strained the capacity of many repositories to meet their responsibilities. Agencies mailing fingerprint cards to the FBI in 1998, for example, waited an average of 72 days for a response. Meanwhile, a growing backlog of unprocessed prints surpassed 750,000.

criminal records check	advantages	disadvantages	comments
county records	the most accurate criminal records check	limited geographical coverage requires consent of applicant	more effective for persons who have lived and worked in the same county for several years doing multiple county checks increases their effectiveness, but at a higher cost
sex offender registry of one state	in most states these checks can be done online no cost consent of applicant not required fast	• of limited value because only convictions for certain sex crimes committed after a specified date are listed	• limited value, but easy and cheap, so many churches use these checks as one component of a screening program (often in conjunction with other kinds of criminal records checks)
state criminal records check	coverage of an entire state not limited to sex crimes	not as accurate as county checks errors are common (especially if fingerprints are not checked) not accessible by churches in all states may require fingerprints limited geographical coverage requires consent of applicant may take weeks or months to receive results	more effective for persons who have lived and worked in the same state for several years doing multiple state checks increases their effectiveness, but at a higher cost
“national” check of all or most state sex offender registries	most state registries are available online and can be checked quickly and for free provides greater protection than checking one state’s registry	of limited value because only convictions for certain sex crimes committed after a specified date are listed” most churches do not have the time to conduct these searches (a private company must be used on a fee basis)	limited value, but easy and cheap checking dozens of state registries for several persons is time-consuming
“national” check of all or most state criminal records	greater geographical coverage not limited to sex crimes	not as accurate as county checks errors are common (especially if fingerprints are not checked) not accessible by churches in all states may require fingerprints most churches do not have the time to conduct these searches (a private company must be used on a fee basis) requires consent of applicant may take weeks or months to receive results	• many experts view this as the most effective criminal records check currently available
“national” check of FBI database	greater geographical coverage not limited to sex crimes	not as accurate as county checks errors are common (because states often do not transmit complete information) not directly accessible by churches requires fingerprints requires consent of applicant may take weeks or months to receive results	• many experts view this as a very effective criminal records check

The National Child Protection Act

In 1993, Congress passed the National Child Protection Act 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 child care 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 child care; 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 child care

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 child care.” This definition is so broad that it undoubtedly includes a much longer list of individuals, including custodians and spouses or friends of child care 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 child care positions require criminal history checks. As noted above the Act contains a very broad definition of a child care “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 child care 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 child care 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
training
supervision

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.

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.

Key point. 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.

The PROTECT Act

In 2003 Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (the “PROTECT Act”). This legislation contains several provisions relating to the protection of children, including a “pilot program” that will allow selected charities to request FBI criminal records checks over an 18-month trial period. Participating charities include the Boys and Girls Clubs of America, and charities that are a part of the National Mentoring Partnership or National Council of Youth Sports. These charities may request a combined total of 100,000 FBI checks during the 18-month trial period. Each check will require the submission of “ten print” fingerprints. Criminal records checks must be processed within 14 days. The National Center for Missing and Exploited Children makes a determination whether the criminal history record information received in response to the criminal history background checks indicates that a person has a criminal history record that renders him or her unfit to provide care to children based upon criteria established jointly by the National Center for Missing and Exploited Children, the Boys and Girls Clubs of America, the National Mentoring Partnership, and the National Council of Youth Sports. The National Center for Missing and Exploited Children shall convey that determination to the organizations making requests. A fee of up to $18 per search may be assessed.

Each volunteer who is the subject of a criminal history background check under this section is entitled to contact the Attorney General to initiate procedures to (1) obtain a copy of their criminal history record report; and (2) challenge the accuracy and completeness of the criminal history record information in the report.

The Attorney General is required to conduct a feasibility study within 6 months to examine: (1) the current state of fingerprint processing at the state and local level; (2) the intent of the states concerning participation in a nationwide system of criminal background checks to provide information to qualified entities (as defined by the National Child Protection Act, as explained previously in this article); (3) the number of volunteers, employees, and other individuals that would require a fingerprint-based criminal background check; (4) the ability of the FBI to process multiple requests for criminal background checks; (5) the fees charged by the FBI, states and local agencies, and private companies to process fingerprints and conduct background checks; (6) the existence of “model” or best practice programs which could easily be expanded and duplicated in other states; (7) the extent to which private companies are currently performing background checks and the possibility of using private companies in the future to perform any of the background check process, including, but not limited to, the capture and transmission of fingerprints and fitness determinations; (8) the cost of development and operation of the technology and the infrastructure necessary to establish a nationwide fingerprint-based and other criminal background check system; (9) the extent to which states currently provide access to nationwide criminal history background checks to organizations that serve children; and (10) any privacy concerns that may arise from nationwide criminal background checks. The Attorney General will make specific recommendations to Congress concerning “recommendations for amendments to the National Child Protection Act and the Volunteers for Children Act so that qualified entities can promptly and affordably conduct nationwide criminal history background checks on their employees and volunteers.”

It is doubtful that many churches will qualify for this pilot program. However, the pilot program will determine the feasibility of federal legislation that may make the FBI criminal records accessible to a greater number of charities, including churches. We will be monitoring this program carefully, and we will alert our readers to any proposed legislation that may result.

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 article) 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.

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.

Set forth below are summaries of several court decisions addressing criminal records checks by non-religious organizations. These cases 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 an employer knows of a person’s propensity to engage in conduct that may injure others. 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.

Case 1. In holding that an employer was not liable for an employee’s assault, a New York court concluded, “An employer is under no duty to inquire as to whether an employee has been convicted of crimes in the past. Liability will attach on such a claim only when the employer knew or should have known of the employee’s violent propensities. Here, there is no evidence that the employer knew of its employee’s violent propensities, nor is there any indication that anything transpired that would have alerted it to the possibility that an assault would take place.” Yeboah v. Snapple, Inc., 729 N.Y.S.2d 32 (Sup, Ct. 2001).

Case 2. A bakery employee was attacked and severely injured by a temporary worker who had been supplied by an employment agency to perform unskilled manual labor. The victim sued the employment agency, claiming that it was liable for the assailant’s behavior on the basis of negligent hiring because it conducted a criminal records check on the assailant only in one county (where he had lived for the previous four years) and failed to discover criminal convictions in a neighboring county in the same area. A Texas court dismissed the case, but a state appeals court reversed this decision and ordered the case to proceed to trial. It concluded that the victim should be allowed to prove that the employment agency was negligent in conducting a criminal records check in only one county. Wise v. Complete Staffing Services, 56 S.W.2d 900 (Tex. App. 2001).

Case 3. While driving a delivery truck, a driver stopped to “stretch his legs,” wandered to an apartment complex, and sexually assaulted a woman. The victim sued the trucking company for the negligent hiring of the driver. She argued that the company had a duty to check the driver’s criminal background and that such an investigation would have revealed a history of sexually predatory behavior, thereby making his assault foreseeable. A Texas court ruled that the trucking company had no such duty. It held that while the company had a duty to the driving public to employ competent drivers, the duty did not require the company to conduct independent investigations into its employees’ nonvehicular criminal backgrounds. Guidry v. National Freight, Inc., 944 S.W.2d 807 (Tex. App. 1997).

Case 4. An Ohio court ruled that an employer cannot be liable on the basis of negligent hiring for an employee’s sexual harassment of another employee on the ground that it failed to conduct a criminal records check at the time of hire. The court concluded, “The victim implies that the employer was negligent in its hiring of the offender because it failed to investigate his criminal background, which she alleges would have revealed a prior conviction for assault. However, the evidence presented demonstrated that the offender denied that he had any felony convictions in his job application and he denied that he had been convicted of any offense other than a minor traffic violation in his application for a fidelity bond. The employer was under no duty to conduct a criminal background check. Steppe v. Kmart Stores, 737 N.E.2d 58 (Ohio App. 1999).

Case 5. The Supreme Court of Virginia ruled that an apartment building owner was not responsible on the basis of negligent hiring for the sexual assault of a female tenant by a male maintenance supervisor. In rejecting the victim’s claim that the building owner’s failure to conduct a criminal records check when it hired the assailant was proof of negligent hiring, the court observed, “The owner did not investigate the assailant’s prior criminal record, if any; under these facts, he was not obligated to do so in the exercise of reasonable care. In the employment application, the assailant represented that he had ‘absolutely never engaged’ in 34 types of criminal behavior, except traffic violations. Additionally, in the application he also denied conviction ‘in the past seven years’ of 28 listed felonies. The victim dwells on a part of the opening statement of the owner’s attorney. He said that a criminal records check would have disclosed that he wrote a bad check for $1.29 and another for $9 when he was 20 years of age. Even if this can be considered part of the evidence in the case, it is the only indication in the entire record that the assailant had been convicted of non-traffic offenses. Even if the owner had learned of these petty offenses, it would not have been alerted to the fact that he would engage in criminal sexual activity.” Southeast Apartments Management, Inc. v. Jackman, 513 S.E.2d 395 (Va. 1999).

Case 6. A New York court refused to find a school liable on the basis of negligent hiring for the molestation of a minor by a volunteer art teacher. In rejecting the victim’s claim that the school failed to conduct an adequate criminal records check at the time it started using the volunteer teacher, the court observed, “Whether or not the school could have been more thorough in checking the teacher’s background, his actions do not support a claim of negligent hiring because a routine background check would not have revealed his propensity to molest minors. Plaintiff points to nothing which would have been revealed by checking his criminal history. Having interviewed the teacher and having obtained a reference the school had no duty to investigate further, in the absence of facts which would lead a reasonably prudent person to suspect the prospective volunteer of dangerous propensities.” Koran I v. New York City Board of Education, 683 N.Y.S.2d 228 (Sup. Ct. 1998).

Case 7. A Texas court rejected the argument that an employer was liable on the basis of negligent hiring for a sexual assault on a customer by one of its employees because it failed to conduct a criminal records check. The court observed, “In the present case, the victim claims the employer had a duty to investigate its employee’s criminal background. Such an investigation would have revealed that the employee had three forgery convictions. Whether the employer would have fired the employee had he discovered the forgery convictions is irrelevant. The question is whether the employee’s criminal conduct and the type of harm that befell the victim were foreseeable and presented a risk that the employer was required to guard against by investigating the employee’s criminal background. Under these facts, we hold the conduct and harm were not foreseeable and therefore the employer did not owe the victim a legal duty …. Nor does this case impose on the employer a duty to diligently investigate the employee’s background because of potential contact with particularly vulnerable individuals.” However, the court suggested that an employer has a higher duty of care in selecting persons who will have access to minors, although it did not specify whether or not this would require a criminal records check (and if so, what kind). The court noted that requiring small employers to check “criminal and military records and other sources of such data on all current and prospective employees, would impose a great administrative burden and cost on a small business.” Houser v. Smith, 968 S.W.2d 542 (Tex. App. 1998).

Case 8. An Ohio court refused to find a charity liable on the basis of negligent selection for the sexual molestation of a minor by an instructor. In rejecting the victim’s claim that the charity should have conducted a criminal records check, the court observed, “A claim of negligent hiring exists if a plaintiff establishes, at a minimum, that the employer knew or should have known of the employee’s criminal propensity. The victim has failed to cite authority to support his proposition of law that the charity had a duty to institute a prehiring investigation of the instructor’s criminal background. The victim also has not presented evidence demonstrating that, even if a prehiring investigation was completed, the charity would have known of the instructor’s propensity. Here, the instructor did not have a criminal background regarding this type of act or any other illegal activity.” Kuhn v. Youlten, 692 N.E.2d 226 (Ohio App. 1997).

The Bottom Line: 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) 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.

(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.

(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.”
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 article. 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 article, 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 article 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. A good example is Choicepoint (or its online version, called Screennow). This company has been selected by a number of national and local charities on the basis of their review of the many options.

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.

Key point. Census Bureau statistics released in 2003 show that (1) 120 million (46%) of the nation’s population in 2000 lived in a different home than they did in 1995; (2) 25% moved within the same county, 10% between counties in the same state and 8% between states (3% moved from abroad); (3) Nevada led all states in the mobility of its population, followed by Colorado, Arizona, and California; (4) in 2000, about 60% of the U.S. population lived in the state where they were born (Louisiana, Pennsylvania and Michigan had the highest proportion of residents who lived in the state where they were born).

(7) 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.

(8) 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.

(9) This article 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.

(10) 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 article entitled “How to Interpret Criminal Records” for helpful information in this regard.

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.

(11) 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).

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.