Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Legal Developments

Law Against Clergy-Counselee Sexual Relationships is Constitutional

Minnesota Supreme Court rules state law against sexual relationships within clergy-counselee relationships doesn’t violate the religion clause.

Church Law and Tax Report

Law Against Clergy-Counselee Sexual Relationships is Constitutional

Minnesota Supreme Court rules state law against sexual relationships within clergy-counselee relationships doesn’t violate the religion clause.

Key point 8-12.5. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

The Minnesota Supreme Court ruled that a state law making it a felony for clergy to engage in sexual contact with counselees in the course of spiritual counseling did not violate the First Amendment’s nonestablishment of religion clause (“Establishment Clause”). A Catholic priest (the “defendant”) heard a woman’s confession and agreed to serve as her regular confessor. A friendship developed between them, and they often spent time together in various social contexts. They shared their personal concerns and struggles and often talked for hours about theological matters. The relationship eventually involved sexual contact, which occurred biweekly for a year until the woman disclosed the relationship to church officials and eventually to the police.

The defendant was charged with criminal sexual conduct under a state law that states, in part:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:

(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:

(i) the sexual penetration occurred during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or

(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense.

Following a trial, the jury convicted the defendant for sexual conduct occurring “during the course of a meeting” where religious advice or assistance was sought or received in private. A state appeals court ruled that the statute did not, at least on its face, violate the First Amendment since it incorporated “neutral standards” that would not necessarily result in “excessive entanglement of government and religion in all cases.” However, the court concluded that, as applied to the defendant, the statute was unconstitutional because religion was excessively entangled in his trial. The state supreme court agreed to determine whether the clergy-sexual-conduct statute violated the First Amendment’s Establishment Clause.

The court’s ruling
The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” The United States Supreme Court has ruled that the Establishment Clause forbids state action that: (1) lacks a secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters excessive entanglements with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971) (the “Lemon test“). State action violates the Establishment Clause if any of the three prongs of the Lemon test is violated.

Secular Purpose
The first prong of the Lemon test requires that state action have a secular purpose. The defendant claimed that the clergy-sexual-conduct statute did not have a secular purpose because it regulated “only the conduct of clergy” and treated “clergy members separately from other counselors.” The court disagreed, and concluded that the statute had a legitimate secular purpose, namely “to protect Minnesota citizens from sexual exploitation.”

Primary Effect
The second prong of the Lemon test examines whether a statute has the primary effect of advancing or inhibiting religion. The defendant claimed that the clergy-sexual-conduct statute inhibits religion. The court agreed that the clergy-sexual-conduct statute has an incidental effect on clergy members “because it covers behavior committed by clergy within the scope of the clergy-parishioner relationship.” But a law is not unconstitutional merely because it incidentally or indirectly inhibits religion. The question instead is whether the statute has the primary effect of inhibiting religion:

The clergy-sexual-conduct statute’s primary effect is to protect individuals that the legislature deems vulnerable, and it covers only those clergy who choose to use their position as a clergy member, or who hold themselves out as a clergy member, to enter into sexual relationships with vulnerable individuals. The statute does not impose burdens on becoming or remaining a clergy member of any religion, and it does not prevent individuals from seeking religious or spiritual aid, advice, or comfort or otherwise interfere with efforts to seek such assistance. And, because the statute covers relationships in which a parishioner is seeking any type of “religious or spiritual advice, aid, or comfort,” regardless of the substance of that “advice, aid, or comfort,” the statute does not interfere with the practice of any particular religious doctrine or only certain religions.

The defendant insisted that the clergy-sexual-conduct statute violates the Establishment Clause because it directly targets clergy. The court disagreed. The court referred to a previous case in which the United States Supreme Court upheld a statute that funded a program to prevent teenage pregnancy, even though part of the program specifically identified religious organizations as institutions receiving funding. Bowen v. Kendrick, 487 U.S. 589 (1988). The Supreme Court held that the statute did not have the primary effect of advancing religion, in part, because similar standards applied to other organizations, which reflected the statute’s maintenance of neutrality between religion and nonreligion. Similarly, the Minnesota court concluded that the clergy-sexual-conduct statute

specifically addresses religion through its prohibition of certain conduct committed by members of the clergy. But the inclusion of religious actors does not violate the Establishment Clause because the limitation on members of the clergy is part of a larger statutory scheme that regulates the behavior of those involved in certain sexual relationships—relationships for which the legislature has determined there is a power imbalance between the parties … . The clergy-sexual-conduct statute not only criminalizes certain sexual relationships between clergy and parishioners, but it could also criminalize certain sexual relationships for physicians, psychologists, nurses, chemical dependency counselors, social workers, marriage and family therapists, mental health service providers, or others persons who provide psychotherapy; government and private correctional employees; and masseuses … . The legislature did not single out clergy members because of their affiliation with a religious group. Instead, the legislature identified the existence of a power imbalance between clergy members (or purported clergy members) and their parishioners in certain situations—similar to power imbalances created between other professionals and their clients.

Excessive Government Entanglement with Religion
The third prong of the Lemon test prohibits state action that excessively entangles the government with religion. Under this prong, “a state may not inquire into or review the internal decision making or governance of a religious institution.” However, “no entanglement problem exists when civil courts use neutral principles of law—rules or standards that have been developed and are applied without particular regard to religious institutions or doctrines—to resolve disputes even though those disputes involve religious institutions or actors.” The court concluded:

The clergy-sexual-conduct statute does not create an excessive entanglement with religion because it applies neutral principles of law and regulates only secular aspects of clergy-parishioner relationships … . Under the statute, the State must prove the complainant sought or received “advice, aid, or comfort” from a clergy member. But “advice, aid, [and] comfort” are secular concepts that a jury or court can assess without delving into religious doctrine.

The court rejected the defendant’s argument that the clergy-sexual-contact statute, even if constitutional on its face, was unconstitutional as applied to him.

What This Means For Churches:

Note the following key points:

  1. The following 12 states have laws that specifically make sexual contact between a minister and a counselee a crime: Arkansas, Connecticut, Delaware, Iowa, Minnesota, Mississippi, New Mexico, North Dakota, South Dakota, Texas, Utah, and Wisconsin. The Minnesota Supreme Court’s ruling supports the constitutionality of these laws.
  2. Several states have laws that make sexual contact between a “psychotherapist” and a counselee a crime, and do not specifically define “psychotherapist” to include a member of the clergy. However, the definition of “psychotherapist” under some of these laws may be broad enough to include a member of the clergy.
  3. Every state has enacted laws making it a crime to engage in nonconsensual sexual contact with another person. These laws constitute another potential basis of criminal liability for ministers who engage in sexual contact with a counselee or member of their congregation. A typical statute makes it a felony for anyone to “engage in sexual contact with another person without consent of that person.”
  4. Every state has enacted a law making assault and battery a crime. These laws constitute another potential basis of criminal liability for ministers who engage in nonconsensual sexual contact with a counselee or member of their congregation.
  5. Church insurance policies exclude any claims based on intentional or criminal misconduct. As a result, ministers who are prosecuted for a sexual offense involving a counselee or member of their congregation ordinarily cannot expect the church insurance company to pay for a legal defense.
  6. There are many other consequences of clergy sexual misconduct. To illustrate, clergy who engage in such behavior may have to register as a sex offender under state law; and, churches and denominations increasingly are revoking the ministerial credentials of ministers who engage in such behavior. Removal of ministerial credentials generally is motivated by several considerations, including the protection of others, the scriptural standards for ministry, accountability, and an avoidance of legal liability for a minister’s future misconduct.
  7. Clergy who engage in inappropriate sexual behavior with other church employees may be liable for sexual harassment under state or federal law. State v. Wenthe, 839 N.W.2d 83 (Minn. 2013).

Legal Developments

Church Is Liable for Molestation of Minor

Despite no prior incidents of misconduct, duty of care should have been enforced

Church Law and Tax Report

Church Is Liable for Molestation of Minor

Despite no prior incidents of misconduct, duty of care should have been enforced

Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

A Washington court ruled that a church could be liable for the molestation of a minor by a volunteer in the church’s scouting program, even without knowledge of prior incidents of misconduct by the volunteer. In the early spring of 1977, a stranger (the “defendant”) began attending a church. He was personable, but gave only a vague explanation of “what he did and who he was and where he came from.” The defendant offered to volunteer with the church’s Boy Scout troop, and the church leadership decided to accept him as a volunteer. The defendant quickly assumed substantial responsibilities for the troop’s activities, though he was never officially registered with the Boy Scouts of America. He conducted scout meetings every week, took the scouts on camping trips, and helped them earn their merit badges.

An adult male (the “victim”) claimed that the defendant began sexually molesting him in 1977, about a week after they met. The incidents occurred in various places, including the defendant’s home during sleepovers, in his car in the church parking lot, or during campouts. The defendant also molested at least two other scouts during scouting events and sleepovers. One of these other victims informed his mother, who reported the abuse to church leaders the same day. She was told not to call the police and that church leaders would “take care of it.” The church leaders tried to contact the defendant, who left town the same night. The church conducted a parents meeting. Parents were instructed to discuss the defendant with their sons. Questioned by his parents, the plaintiff denied that the defendant had molested him. He did not tell friends or siblings about it either.

In 2011, the plaintiff sued the church, regional and national agencies of the church, and the BSA. The plaintiff alleged that the defendants had a duty to protect him from the criminal acts of the defendant. He claimed that they failed in their duty in various ways: by failing to check into the defendant’s background, by allowing him to supervise the children in isolated settings without another adult present, and by failing to train scoutmasters or warn scouts and their families about the danger of sexual abuse in scouting.

The trial court dismissed the lawsuit on the ground that the defendants owed no duty to protect minors from a danger of which they were unaware. The victim appealed.

A state appeals court reversed the trial court’s dismissal of the case and ordered the case to proceed to trial.

The court’s ruling

On appeal, the defendants claimed that none of them owed a duty of protection to the plaintiff because they did not possess prior specific knowledge that the defendant posed a threat to boys. But the court ruled that such knowledge is not necessary to establish a duty of care. Instead, a duty of care can arise solely on the basis of a “protective relationship” such as that between a church or scouting program and minors in their custody. In such cases, all that is required is “knowledge of the general field of danger within which the harm occurred.” The court continued:

As a matter of public policy, the protection of children is a high priority. In general, therefore, we find churches (and other religious organizations) subject to the same duties of reasonable care as would be imposed on any person or entity in selecting and supervising their workers, or protecting vulnerable persons within their custody, so as to prevent reasonably foreseeable harm.

However, the court noted that a duty of care arising from a protective relationship “is limited by the concept of foreseeability.” That is, “the duty is to anticipate dangers which may reasonably be anticipated, and to then take precautions to protect children in its custody from such dangers … . A defendant’s actual knowledge of the particular danger is not required if the general nature of the harm is foreseeable under the circumstances. Therefore, even if there was no evidence that the church knew about specific past incidents of child sexual abuse in scouting, we would decline to decide as a matter of law that sexual abuse by adult scout volunteers was unforeseeable by the church.” The court noted that the plaintiff produced evidence that the danger of sexual abuse by an adult volunteer was one the church reasonably should have anticipated.

The court concluded: “We reverse as to the church and remand for trial. The church had a protective relationship with the victim. From this relationship, a duty arose to take reasonable precautions to protect children in the church’s care from foreseeable hazards, a category that may include the risk of child sex abuse by scout leaders. This duty does not depend on the church having prior knowledge that its volunteer scout leader was a molester.”

What This Means For Churches:

This case is important because it illustrates that a church may be liable for a volunteer worker’s acts of child molestation, even if it conducted a reasonable background check and had no knowledge of any prior acts of sexual misconduct by the volunteer. This is because foreseeability of harm is not necessary to impose a legal duty of care upon a church that has entered into a “protective relationship” with a minor. The protective relationship itself is all that is required for a church to have a duty of protection toward minors in its custody. The court did clarify that a church’s liability for acts of child molestation involving minors in its protective custody only extended to foreseeable harm, but it concluded that, in this context, all that was required was foreseeability of the “general nature of the harm,” such as the sexual abuse of minors by adult volunteers. N.K. v. Corporation of Presiding Bishop, 307 P.3d 730 (Wash. App. 2013).

Legal Developments

Church Not Responsible for Rape of Teenage Girl by Camp Worker

Court says church and camp exercised sufficient care in selection and supervision of worker.

Church Law and Tax Report

Church Not Responsible for Rape of Teenage Girl by Camp Worker

Court says church and camp exercised sufficient care in selection and supervision of worker.

Richard R. Hammar

A North Carolina appeals court ruled that a church was not responsible on the basis of negligence for the rape of an adolescent camper by an adult worker at a church camp. The court concluded that the church and camp had exercised sufficient care in the selection and supervision of the worker to rebut the allegation of negligence. A 16-year-old female (the “victim”) attended a summer camp owned and operated by a national religious denomination and a regional affiliate (the “church defendants”). On the last night of camp, an activity called “the Game” was conducted. The purpose of the Game was for campers to sneak around camp staff members through a wooded area, in the dark, and ring a bell located at the top of a hill. The Game was restricted to senior high campers. All participants were required to play with partners for safety purposes. The victim and a friend were partners, and at some point during the evening they met two male camp staff members. The victim’s friend and one of the staff members left together, leaving the victim and the other staff member. The victim claimed that the staff member raped her.

After this incident, the victim returned to a camp dining hall. She did not report what happened to anyone at the camp or make any complaint regarding the assault until several months later. When confronted with the allegation, the assailant initially denied the sexual encounter but later claimed the encounter was consensual.

The victim and her father sued the church defendants, claiming they were responsible for the rape on the basis of negligence in their hiring, retention, and supervision of the staff member. In addition, the complaint alleged the defendants negligently failed to provide the victim with a safe environment when it conducted the Game. Plaintiffs also alleged that, as a result of defendants’ negligence, the victim suffered severe emotional distress. A trial court dismissed the claims against the church defendants, and the plaintiffs appealed.

The appeals court began its opinion by noting that negligence requires proof that a defendant owed the plaintiff a duty of reasonable care, and a breach of that duty. The court agreed with the plaintiffs that the church defendants owed the victim a duty of care:

We hold that camps and their employees have a duty to their campers to exercise the same standard of care that a person of ordinary prudence, charged with the duty of supervising campers, would exercise under the same circumstances. Moreover … this duty of care is relative to the camper’s maturity. Thus, the foreseeability of harm to the individual camper is the relevant test which defines the extent of the duty to safeguard campers from the dangerous acts of others.

The plaintiffs insisted that the church defendants breached this duty of care in the following ways: (1) the Game occurred in a wide, heavily wooded area; (2) the Game occurred late at night; (3) adult camp staff participated in the Game with minor campers; and (4) the executive director, assistant director, and camp director did not supervise the Game.

But, the court pointed out, there were several facts supporting the church defendants’ claim that they did not breach a duty of care:

At the time the Game was played, the victim was 16 years old. Defendants specifically restricted the Game to senior high campers and required them to be with a partner while playing the Game for safety purposes. In addition, adult camp counselors and staff members were present as participants in and supervisors of the Game. These procedural safeguards adequately establish that defendants acted reasonably in their supervision of the Game, particularly in light of the maturity level of the senior high campers who participated in it. Thus, defendants did not breach their duty to the victim by conducting the Game.

The plaintiffs also claimed that the church defendants were negligent because they failed to adequately train the staff member who raped the victim. Specifically, they alleged that defendants (1) failed to have written rules prohibiting relationships between staff and campers; (2) failed to teach the assailant and staff that they should never be alone with a camper; and (3) failed to communicate that certain types of interactions with campers were prohibited. To support their allegations, the plaintiffs submitted an affidavit from a summer camp consultant and author of a book explaining the best practices for camp staff. The affidavit states:

The policies and procedures [of defendants’ camp] are below the standard of care applicable to a summer camp and do not conform to industry best practices. They do not include a clear statement prohibiting a staff member from being alone with a camper, and they demonstrate a disregard for the principle that at least two staff members must be present when working with campers. There was a clear lack of training and ongoing culture of improving and learning with an emphasis on the safety of children or the inappropriateness of staff to camper relationships.

The court noted that the consultant’s opinion was based “solely on his review of the camp’s written policies and procedures,” and that “several of defendants’ staff members testified that they were orally instructed that two staffers must be present at all times when dealing with campers and that they were also warned to be very careful about any physical or romantic relationships with campers.” Most importantly, the assailant himself submitted an affidavit in which he stated that he knew his conduct with the vicitm was “against camp policies,” and “inappropriate and prohibited.” In summary, while the consultant’s affidavit “may create an issue of fact regarding whether defendants had an adequate written policy regarding sexual relationships between camp staff and campers, it does not establish that no such policy existed. On the contrary, the undisputed evidence is that camp staff members were made aware that sexual relationships with campers were prohibited.”

The court noted that prior to his employment, the assailant provided a personal disclosure indicating he had no criminal convictions, that he had never been dismissed, suspended, or asked to resign from a job, and that he had never had a complaint lodged against him for sexual molestation, abuse, or harassment. Additionally, the church defendants checked the National Sex Offender Registry to ensure he was not disqualified from employment. Defendants also received a favorable recommendation in a telephone interview with a trusted reference. Finally, the assailant was hired in 2007 and his employment was very positive that summer. Based on the prior investigation, and his positive performance in 2007, he was re-hired for the summer of 2008 (the summer that the rape occurred).

The court concluded:

Taken together, this undisputed evidence demonstrates as a matter of law that defendants acted reasonably in its training and hiring of the assailant and that his conduct which harmed the victim was unforeseeable by defendants … . Defendants did not breach their duty of care to the victim by failing to maintain a safe environment at the camp. There was no evidence which would have allowed defendants to anticipate the assailant’s actions towards the victim or take additional reasonable steps to prevent them. Since there are no genuine issues as to any material facts, the trial court properly granted defendants’ motion for summary judgment.

What This Means For Churches:

This case is instructive, for it illustrates the kinds of precautions that churches, camps, and youth-serving charities can take to satisfy their duty of care in the selection of youth workers and the supervision of youth activities. In summary, the court concluded that the church defendants had not breached their duty of care to the victim, and therefore were not responsible on the basis of negligence for the staff member’s conduct, because of the following factors:

The church defendants restricted the Game to senior high campers.

Participants in the Game were required to be with a partner.

Adult camp counselors and staff members were present as participants in, and supervisors of, the Game.

While the camp’s written policies and procedures may have been inadequate, several staff members testified they were orally instructed that two staffers must be present at all times when dealing with minor campers.

Adult camp staffers were orally warned to avoid any physical or romantic relationships with minor campers.

The church defendants used a written application when selecting adult camp staff, which asked applicants to disclose (1) any criminal convictions; (2) if they had ever been dismissed, suspended, or asked to resign from a job; and (3) if they had ever had a complaint lodged against them for sexual molestation, abuse, or harassment.

The church defendants checked the National Sex Offender Registry to ensure adult camp staffers were not registered sex offenders.

The church defendants received a favorable recommendation in a telephone interview with a trusted reference.

The assailant had a track record. He had been hired for the previous camp season, giving the church defendants an opportunity to assess his fitness and suitability for working with minors. His performance was exemplary, with no hint of misconduct. Nowlin v. Moravian Church in America, 745 S.E.2d 51 (N.C. App. 2013).

Legal Developments

Church Not Liable for Sexual Abuse of Counseled Woman

Federal court rules church not responsible for actions of deacon.

Church Law and Tax Report

Church Not Liable for Sexual Abuse of Counseled Woman

Federal court rules church not responsible for actions of deacon.

Key point 10-10.2. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.

A federal court in Wyoming ruled that a church and diocese were not liable on the basis of negligent training or negligent supervision for a church worker’s sexual abuse of a woman he was counseling. In 1991, a man (“Gary”) became interested in becoming a deacon for a Roman Catholic Diocese. He discussed his interest with the bishop, and ultimately applied to a deacon training program. As part of his application, Gary submitted various materials, including letters of recommendation and a report from a psychological evaluation. Nothing in his materials raised any red flags so the bishop accepted him into the deacon training program. During his training, no one ever expressed any concerns about him to the bishop.

In 1996, Gary finished his training, and he was ordained as a deacon. He was assigned to a local church within the diocese. The bishop retired a few years later, but during the entire time he knew Gary, no one ever expressed any concerns about him.

A few years after Deacon Gary was ordained, a church member (the plaintiff) lost two members of her family in a tragic accident. She turned to her church to help her cope with the loss. She met with her pastor, who referred her to Gary for bereavement counseling. The plaintiff and Gary remained friends over the next several years. In 2007, their relationship became sexual, even though Gary was married to another woman at the time.

Although their sexual relationship was consensual, the plaintiff came to believe that Gary is a sexual perpetrator who “groomed” her for sex from the very start of their relationship, and that this grooming process culminated in his sexually abusing her starting in 2007. She was never able to inform church leaders of the affair. The pastor later testified that he was never aware of any sexual relationship between the plaintiff and Gary. He also testified that no one ever expressed any concerns to him about Gary.

Despite feeling sexually abused by Gary, the plaintiff stayed in the relationship until it completely unraveled in 2008 when Gary allegedly became physically abusive.

Several years later, the plaintiff sued the church, diocese, and various church officials (the “church defendants”) claiming that they negligently trained and supervised Gary, and were vicariously liable for his sexual abuse.

Vicarious Liability

The plaintiff claimed that the church defendants were vicariously liable for Gary’s actions on the basis of the legal doctrine of respondeat superior. This doctrine imposes liability on employers for the negligent acts of their employees committed in the course of their employment. The court rejected this claim on the ground that Gary was not acting within the scope of his employment when he allegedly sexually abused the plaintiff. It noted that “an employee’s conduct is within the scope of employment only if it (1) is the type of conduct the employee was hired to perform, (2) occurs within the authorized time and space limits, and (3) is intended, at least in part, to serve the employer.” In this case, Gary’s alleged sexual abuse of the plaintiff did not fall within the scope of his employment:

Sexually abusing parishioners is not the type of conduct Gary was hired to perform; it was not part of his job description. And … nothing in the record indicates that his conduct was motivated by anything other than a desire to satisfy his own sexual impulses. Thus, his sexual abuse of the plaintiff was outside the scope of his employment and the church defendants can’t be held vicariously liable for that conduct. [This] conclusion is consistent with the conclusion of virtually every court that has addressed this issue.

Negligent Training and Supervision

The plaintiff also claimed the church defendants were directly liable to her for negligently training and supervising Gary as a church deacon. The court noted that both of these negligence claims require showing that the church defendants “knew or should have known of Gary’s propensity for sexual abuse.” However, the plaintiff “has no evidence to support such a showing. Thus, the Court is constrained to conclude that the church defendants are entitled to summary judgment on her negligence claims as well.”

The court noted that an essential element of a negligent training claim is that “the employer knew or should have known about a specific problem requiring a specific training addressed to that problem.” Similarly, in the case of a negligent supervision claim, a plaintiff must establish that “the employer knew or should have known of the employee’s propensity for the conduct that caused the injury before the injury occurred.” The “critical element” in both negligent training and negligent supervision claims is “the employer’s prior knowledge of the agent’s propensities to create the specific danger resulting in damage.”

In this case, this means that “a necessary element for both of the plaintiff’s negligence claims is that the church defendants knew or should have known about Gary’s propensity for sexual abuse. But she has no evidence to support that element of her claims so those claims necessarily fail and the church defendants are entitled to summary judgment.”

For their part, the church defendants “produced evidence that they never had any knowledge of Gary’s propensity for sexual abuse.” The plaintiff admitted under oath that she never notified them or anyone else about Gary’s sexual abuse. The bishop testified that no one ever expressed any concerns to him about Gary, much less concerns about sexual abuse. And the pastor testified that no one ever expressed any concerns or made any allegations of sexual improprieties against Gary to him or anyone in church leadership. He also testified that he had no knowledge of the plaintiff’s sexual relationship with Gary.

The court concluded, “In short, the church defendants have produced evidence demonstrating that they neither knew nor should have known about Gary’s propensity for sexual abuse and the plaintiff has produced nothing to the contrary. Her claims for negligent training and supervision thus fail because she has no evidence to support that necessary element of her claims.”

The court noted an additional problem with the plaintiff’s negligent supervision claim: “She has no evidence that Gary’s alleged acts of sexual abuse took place on the church defendants’ property … . An employer has a duty to supervise an employee acting outside the scope of employment only if the employee is on the employer’s premises or using the employer’s [personal property]. Here, the plaintiff can’t point to any facts showing that Gary’s acts of sexual abuse took place on the church defendants’ property. Her negligent supervision claim thus fails for that reason as well.”

What This Means For Churches:

The most important aspect of this case is the court’s analysis of the plaintiff’s negligent training claim. Churches, denominational agencies, and even seminaries, occasionally are sued for an employee’s wrongful acts on the basis of negligent training. This case demonstrates that negligent training claims cannot succeed unless a plaintiff, at a minimum, is able to establish that a church knew of an employee’s propensity to commit wrongful acts, failed to provide adequate training to address that propensity, and this failure contributed to the plaintiff’s injuries. 2013 WL 1791023 (D.Wyo. 2013).

Key point 10-05. A church may be liable on the basis of negligent selection for a worker’s molestation of an adult if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

Legal Developments

Boy Scouts Had Legal Duty to Disclose Molestation

Its failure to do so could expose liability for individual acts of molestation.

Key point 10-13.1. A few courts have found churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, the church or agency is found to be vicariously liable for the minister's breach of a fiduciary duty, but in other cases, the church or agency is found to have breached a fiduciary duty that it had with the victim.

A federal district court in Idaho ruled that the Boy Scouts of America had a legal duty to disclose to the public the risk of child molestation in scouting programs, and that its failure to do so could expose it to liability for individual acts of molestation. An adult male (the "plaintiff") was a member of a church-based Boy Scouts troop when he was a minor during the years 1965 through 1971. He claimed that he was repeatedly sexually abused by his scoutmaster on various overnight trips and day trips. Only the plaintiff and scoutmaster participated on some of these trips, which typically involved fishing and searching for campsites for the troop.

In 2008, when he was 55 years old, the plaintiff sued national and regional organizations of the Boy Scouts of America (BSA), and the church that hosted his former scout troop. He claimed that the BSA organizations and church knew about the danger of abuse. But instead of disclosing this danger to him, they promoted scouting as a safe, trustworthy, and fun activity for boys. According to the plaintiff, the BSA organizations and church also represented that the perpetrator was a trusted youth leader worthy of his scoutmaster role, despite knowing that he had previously molested another boy.

In short, the plaintiff asserted that the BSA organizations, and host church, had a relationship of trust and confidence that imposed upon them a "duty to disclose" the general danger of child molestation inherent in scouting.

The plaintiff's lawsuit claimed that the BSA "has always had a known problem with adult volunteers abusing scouts." In the early 1900s, the BSA began keeping "Ineligible Volunteer Files" on individuals banned from volunteering in scouting. The "Perversion" category contains the most files and comprises any type of sexual misconduct, including child abuse. Before the plaintiff became a Scout, the BSA had compiled "thousands of incidents of child abuse" within scouting involving its adult volunteers. And by the time the plaintiff joined scouting, BSA was creating approximately 40 to 60 Perversion files each year.

The plaintiff further claimed that the BSA and church had specific notice that the perpetrator was a child molester and danger to children. In 1964, a church member told a church official that his son, a scout in the same troop, had also been molested by him. The church official allegedly responded that he would "take care of it." And a week later, he told the father that he "had taken care of it."

The plaintiff's lawsuit asserted that the BSA organizations, and host church, were liable for the scoutmaster's acts on the basis of "constructive fraud." The court explained this basis of liability as follows: "An action in constructive fraud exists when there has been a breach of a duty arising from a relationship of trust and confidence, as in a fiduciary duty … . To prove constructive fraud, a party must prove the existence of a confidential relationship. When a confidential relationship is found to exist, the one in whom confidence was reposed may be held to a higher standard of disclosure and fairness than in an arm's-length relationship."

In short, the plaintiff asserted that the BSA organizations, and host church, had a relationship of trust and confidence that imposed upon them a "duty to disclose" the general danger of child molestation inherent in scouting. Their failure to do so amounted to constructive fraud.

The court concluded that a confidential relationship existed between the plaintiff and the BSA organizations and host church, based on four factors:

(1) he was a minor child when he was allegedly abused; (2) he was an active and regular participant in camping trips and other activities provided through a church-sponsored organization; (3) he was strongly encouraged by the church to participate in those camping trips and activities; and (4) the church allegedly knew of the specific danger that the scoutmaster posed. Also, the church taught the plaintiff to respect and trust his church and scout youth leaders. And presumably, his parents trusted the scoutmaster enough, in his role as a church and scout leader, to allow him to take the plaintiff on overnight camping trips and individual day trips. On these scouting trips, the parents entrusted the perpetrator to ensure their son's safety and act as his caretaker.

What This Means For Churches:
This case is important for two reasons. First, the court insinuated that the church and BSA organizations could be liable for a 50-year-old case of child molestation because at, or prior to, the time the victim became involved in scouting they failed to "disclose" to him, and more generally to the public, that child molestation by scoutmasters was a risk that parents should consider before allowing their children to participate in scouting. This extraordinary conclusion will expose youth-serving charities to liability for their actions decades ago based on modern-day standards of proper care.

Second, the court concluded that the pastor could be viewed as an "agent" of the national and regional BSA organizations, and as a result, the father's disclosure to a church official that his son had been molested by the same scoutmaster who molested the plaintiff could be imputed to the BSA organizations, even though they lacked any direct knowledge of the incident. Doe v. Presiding Bishop, 2012 WL 3782454 (D. Idaho 2012).

Legal Developments

Church Not Liable for Molestation

Church had no prior knowledge of molestation by nursery worker.

Church Law and Tax

Church Not Liable for Molestation

Church had no prior knowledge of molestation by nursery worker.

Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

Key point 6-08. State and federal laws provide limited immunity to uncompensated officers and directors of churches and other charities. This means that they cannot be personally liable for their ordinary negligence. However, such laws contain some exceptions. For example, officers and directors may be personally liable for their gross negligence or their willful or wanton misconduct.

A Massachusetts court ruled that a church was not liable for the molestation of a child by a church nursery worker since it had no prior knowledge of any similar conduct. Upon learning that her minor son had been sexually molested by a volunteer babysitter during a church meeting, a parent (the “plaintiff”) sued a church and its pastor and board members (the “defendants”) on the following three grounds:

Negligence in failing to protect her son from the known dangerous propensities of the perpetrator.
Failure to report her son’s abuse to the civil authorities.

Gross negligence in failing to warn other church members of known dangerous propensities of the perpetrator.

A trial court dismissed all of the plaintiff’s claims, and she appealed. A state appeals court affirmed the dismissal of the lawsuit.

Negligence

The plaintiff insisted that the defendants breached their duty to protect her son from the criminal acts of the volunteer because such acts were “reasonably foreseeable.” The court noted that “while the possibility that criminal conduct will occur is always present in our modern society, liability for the criminal acts of third parties exists where there is a reasonable expectation that the defendant should anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff from harm.” The plaintiff failed to introduce any evidence showing that the defendants were aware “of any past sexual transgressions with children” by the volunteer. The court also noted that the volunteer was not registered as a sex offender in Massachusetts.

The court rejected the plaintiff’s argument that the defendants breached a “fiduciary duty” by not doing more to investigate the volunteer. The court noted that “church membership does not establish the type of relationship to the plaintiff from which a fiduciary duty could possibly arise under civil law.” The court also ruled that a fiduciary duty did not arise on the basis of a “special duty” arising out of “existing social values and customs.” The court noted that the plaintiff had not produced any evidence of church practices regarding “screening volunteer babysitters at informal church (or other) functions,” and, that “in the absence of such evidence, no rational jury could find for the plaintiff on a theory of special duty.” The court concluded that there was no evidence “tending to show that in 2004, when these events occurred, there was a community consensus that volunteer babysitters in churches or other religious organizations would have to be screened.”

The court acknowledged that the church had adopted a “two adult” policy, which the plaintiff claimed the defendants violated. However, the court concluded that?”the record reflects only that [the volunteer], not the defendants, violated the rule by following the [victim] into the bathroom.”

The plaintiff claimed that she assumed that the church performed criminal background checks on volunteers. But even if this were true, the court concluded that “such a check would not have revealed any sexually based offense.”

Failure to report child abuse

The plaintiff also asserted that the defendants breached a duty to report the abuse of the victim for 16 days after first learning about it. The court ruled that the defendants’ 16-day delay in reporting the victim’s abuse, while technically a violation of the statutory duty to report child abuse in a timely fashion, did not make the defendants liable for the volunteer’s acts.

Gross negligence

The court ruled that the defendants had no knowledge of any prior acts of child molestation by the volunteer, and as a result could not be liable on the basis of gross negligence for his acts.

What This Means For Churches:

This case is instructive for the following reasons:

  1. The church, pastor, and board members were not liable for the volunteer’s acts since they had no knowledge of prior acts of child molestation that he committed. It is imperative that churches screen volunteers who will work with minors, and not use anyone with a history of molesting children.
  2. The court concluded that the volunteer, rather than the church, had violated the church’s two-adult policy and so it could not be liable for the volunteer’s acts on the basis of a violation of the policy. This extraordinary conclusion should not cause any church to be lax in monitoring and enforcing a two-adult policy, since it is likely that many other courts will reject this aspect of the court’s opinion.
  3. The court ruled that the church could not be liable for failing to perform a criminal records check since even if it had done so “such a check would not have revealed any sexually based offense.”
  4. The defendants’ failure to comply with state child abuse reporting requirements did not make them liable for the volunteer’s acts. Doe v. Corporation, 964 N.E.2d 370 (Mass. App. 2012).

    5. Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2013 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Church Not Responsible for Sexual Abuse of a Minor

Assailant fully to blame for disregarded church’s safety policies.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax

Court Rules Church Not Responsible for Sexual Abuse of a Minor

Assailant fully to blame; disregarded church’s safety policies

Sexual misconduct by clergy, lay employees, and volunteers

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.

Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on First Amendment considerations.

A Massachusetts court ruled that a national and regional church were not responsible for the sexual abuse of a minor. A minor (the “victim”) was sexually molested by an adult male (the “assailant”) who was acting as a volunteer babysitter during a monthly church group meeting. The offender was convicted of two counts of assault and battery and indecent assault and battery on a child.

The victim sued a national denomination, and its regional agency (the “church defendants”), claiming that they were responsible for his injuries on the basis of negligence, gross negligence, and a failure to report child abuse to civil authorities. A trial court dismissed all claims against the church defendants, and the victim appealed.

Negligence

The court rejected the victim’s claims that the church defendants were legally responsible for his injuries on the basis of negligence. It noted that “while the possibility that criminal conduct will occur is always present in our modern society, liability for the criminal acts of third parties exists where there is a reasonable expectation that the defendant should anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff from harm.”

The court noted that the church defendants were unaware of any past sexual transgressions with children by the assailant, and had “no knowledge that he had prior criminal convictions for, or a history of, sexual abuse of children.” The court acknowledged that the assailant was not registered as a sex offender in Massachusetts, although years before he had been convicted of a sexual offense in Maine (but that conviction had been vacated).

The victim claimed that someone had warned two church members, many years before, about the assailant’s dangerous propensities, but the two church members could not recall receiving these warnings and there was no independent corroboration that they were ever given.

The court noted that a local pastor was aware that the assailant had been on probation for an “altercation” with his sister ten years before, but this information was never reported to the church defendants.

Fiduciary Relationship

The victim claimed that a “fiduciary relationship” existed between him and his church by virtue of church membership that imposed upon the church defendants an affirmative duty of care that they violated. The court disagreed, noting that “church membership does not establish the type of relationship to the plaintiff from which a fiduciary duty could possibly arise under civil law.”

A Special Duty

The victim also claimed that the church defendants’ negligence was established by their violation of a community-based standard of care in the selection and supervision of babysitters. While the court conceded that a special duty may find its source in existing social values and customs, it concluded that the victim had “failed to provide evidence as to the standard customs or procedures for … screening volunteer babysitters at informal church (or other) functions. In the absence of such evidence, no rational jury could find for the plaintiff on a theory of special duty.”

The court concluded that the church defendants had not breached a “community” standard of care in the selection and screening of volunteer babysitters.

The court noted that there was “no evidence tending to show that in 2004, when these events occurred, there was a community consensus that volunteer babysitters in churches or other religious organizations would have to be screened …. In the absence of some evidence that the members of the [church] relied on the church to screen babysitters at that time, or as noted above, that screening of volunteers was so widespread that reliance could otherwise be inferred, we must conclude that this claim fails as a matter of law.”

The victim’s mother testified that she assumed that the church performed criminal offender record information checks on volunteers, but the court noted that “such a check would not have revealed any sexually based offense.”

Two-Adult Policy

The victim claimed that the assailant was able to molest her because of the local church’s violation of its “two-adult policy” which generally forbade an adult from having unsupervised access to a minor. The court acknowledged that the church had adopted a two-adult policy, but concluded that “only the assailant, not the defendants, violated the rule by following him into the bathroom.”

Intentional Infliction of Emotional Distress

The victim claimed that the church engaged in intentional infliction of emotional distress by allowing the assailant to continue attending services, albeit under direct supervision, while he continued to attend the same church. This “re-victimization of the victim” caused recurring emotional distress.

The court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving this claim. It noted that the First Amendment “places beyond the court’s jurisdiction disputes involving church doctrine, canon law, polity, discipline, and ministerial relationships,” and it concluded:

The decision to allow the assailant access to the church grounds and the reasons therefore inherently involves an assessment of his relationship with the church, and involve the secular review of ecclesiastical discipline and church doctrine. As such, we are prohibited from assigning liability to such actions

The court noted that the victim had actually encountered the assailant only once on church property since he molested him, and it concluded that, even apart from the First Amendment considerations, the facts did not sufficiently make out a claim for intentional infliction of emotional distress:

While it is undisputed that the assailant returned to the church after the victim made the defendants aware of the inappropriate touching, the victim offers no evidence that defendants intended this single visual encounter … to occur, or that they should have known it likely to occur, or that it could be viewed as extreme and outrageous. While this court neither questions nor seeks to minimize the traumatizing effect of the incident on the victim, our analysis must be confined to the undisputed facts in the record in the context of the elements of this cause of action. We must conclude that the defendants’ actions do not constitute intentional infliction of emotional distress as matter of law.

What This Means For Churches:

There are several aspects to this ruling that are instructive for church leaders. Consider the following:

  1. The court stressed that churches, like any other youth-serving organization, are not liable on the basis of negligent selection for the molestation of a minor by an employee or volunteer unless they know, or in the exercise of reasonable care should have known, of prior misconduct suggesting that the person posed a risk of harm to others. In this case, none of the church defendants were aware of any previous incidents of sexual misconduct by the assailant, and this meant that they were not responsible for his actions.

    Note that the assailant’s prior record was not pristine. He had been convicted of a sexual offense in Maine years before, but this conviction had been vacated and presumably was not directly accessible by the church defendants. And, he had been on probation for an “altercation” with his sister 10 years before, but this information was never reported to the church defendants.

  2. The court noted that the assailant was not registered as a sex offender in Massachusetts. If he had been, this could easily have been discovered by the church defendants, who would likely have been found liable for his actions unless they implemented sufficient safeguards to protect other children from him.
  3. The court concluded that the church defendants had not breached a “community” standard of care in the selection and screening of volunteer babysitters at informal church functions, since the victim had failed to prove that any such duty existed at the time of his abuse in 2004. The court concluded that there was “no evidence tending to show that in 2004, when these events occurred, there was a community consensus that volunteer babysitters in churches or other religious organizations would have to be screened.”
  4. The court concluded that the failure to conduct a criminal records check on a volunteer children’s worker does not support a finding of negligence if such a check would not have revealed any “sexually based offense.”
  5. Many churches have adopted “two-adult policies” prohibiting a child from being in the custody of one adult on church premises or in the course of a church activity. The victim in this case claimed that the church violated this policy since the assailant molested the victim in a vacant bathroom. The court acknowledged that the church had adopted a two-adult policy, but concluded that “only the assailant, not the defendants, violated the rule by following him into the bathroom.”
  6. This is the first case to address the use of “conditional attendance agreements” by churches. Such agreements, which are utilized by a majority of churches in this country, allow sex offenders to attend church under strict conditions. In some cases, churches choose not to use such agreements and to exclude a sex offender from church property and activities. This is often due to the particularly heinous nature of the person’s prior crimes, or his continued inclusion on a sex-offender registry, or because one or more of the person’s victims continues to attend the church and church leaders believe that it would be inappropriate to force victims to encounter their assailant recurrently at church.

    7. In this case, the assailant was permitted to continue attending the church following the disclosure of his offense, subject to strict conditions. And, he encountered the victim on at least one occasion, which served as the basis for the victim’s emotional distress claim. The court concluded that it was barred by the First Amendment guaranty of religious freedom from resolving this claim, noting that “the decision to allow the assailant access to the church grounds and the reasons therefore inherently involves an assessment of his relationship with the church, and involve the secular review of ecclesiastical discipline and church doctrine. As such, we are prohibited from assigning liability to such actions.” Doe v. Corporation, 964 N.E.2d 370 (Mass. App. 2012).

    * See also “Employment practices,” Keen v. Miller Environmental Group, Inc., 702 F.3d 239 (5th Cir. 2012), in the Recent Developments section of this newsletter.

    Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2013 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Court Applies “Ministerial Exception” to Church Discrimination Case

Employee discrimination claim left to church’s decision.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Court Applies “Ministerial Exception” to Church Discrimination Case

Employee discrimination claim left to church’s decision.

Richard R. Hammar, J.D., LL.M., CPA

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

Key point 8-12.1. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination, but not from the other prohibited forms of discrimination.

Key point 8-12.4. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. The Act permits religious organizations to discriminate in employment decisions on the basis of religion. This exemption permits such organizations to discriminate on the basis of moral or scriptural standards so long as they do consistently and not in a way that adversely impacts employees who are members of a group that is protected under an applicable state or federal discrimination law.

A California appellate court ruled that it was barred by the “ministerial exception” from resolving the discrimination claims of a church preschool director who was terminated on the basis of her decision to live with her boyfriend without the benefit of marriage. A preschool operated by a Lutheran church required its teachers to sign a document prior to the start of each school year setting forth professional expectations. The preschool director (the “plaintiff”), who had teaching responsibilities, was required to sign the form. The plaintiff knew the school was “Bible-based.” Although teachers were not required to attend the church, or be Lutheran (the plaintiff is Catholic) they were required to be practicing Christians “involved in a church-based setting on a regular basis.”

The parents of students did not have to be Lutherans, but they, too, had to be practicing Christians.

As director of the preschool, the plaintiff made the classroom arrangements, helped hire teachers, and scheduled their hours and classroom assignments. She also processed the applications for incoming students and made sure the school complied with state mandates. Every week she gave a tour of the preschool to parents of prospective students. During the tour she talked to the parents about the “Christian-based, Bible-based values of the school.” She wanted the parents to understand that if they sent their children to the school, they could expect their children to receive a “Christian education” and Biblebased “Christian values.”

Every week the teachers participated in devotions. They read from a devotional book, took prayer requests from the group, and prayed for each other. As a teacher, the plaintiff taught religion to the preschoolers as a part of the regular curriculum. She spoke to the children about Jesus on a daily basis. Two or three times a week she taught a Bible story in conjunction with the theme being taught that week. The plaintiff claimed that the Christian themes she introduced related to Christianity in general and “not specifically to Lutheran doctrine or teachings.” On occasion when the need to discipline a child arose, she would “bring in some theme from a Bible story or a teaching of Christianity.”

Every Wednesday the preschool classes and their teachers attended chapel for about half an hour. The plaintiff was in charge of the chapel service three to four times a school year. The responsibility of reading a Bible story or performing some other act of religious teaching during chapel rotated among the teachers. The plaintiff led her class in prayer each day: at the beginning of each day, before each meal, and at the end of each day. The plaintiff estimated she spent one hour a week teaching religion, another hour leading the children in prayer, and the remainder of the time she spent teaching—other than those times she was in charge of the chapel service—was spent on “secular subjects, including such things as: numbers and counting; the alphabet and letter concepts; basic science; small motor control; large motor control; social, emotional, physical and language skills; and computer skills.”

The plaintiff was married when she applied to the school for a teaching position. She subsequently divorced and gave birth to a child fathered by her boyfriend. While she was pregnant, she told representatives of the church that she intended to get married, but was not ready to do so just yet. She returned to the school for the following school year. She stated that she believed the school would not punish her for having had a baby out of wedlock. She lived with her boyfriend prior to having the baby, but did not know whether the principal of the school was aware they were living together.

Eventually, the church’s pastor met with the plaintiff. They discussed her living with her boyfriend and he asked whether she intended to marry him. The plaintiff said she and her boyfriend intended to get married, but did not know when. She understood that her living arrangement was “contrary to the religious and moral beliefs of the church.” The plaintiff knew before she became pregnant that living with boyfriend was contrary to the teachings of the Bible.

The school terminated the plaintiff’s employment for living with her boyfriend and raising their son together without being married, a “failure to adhere with the professional expectations of the teaching staff in that her living arrangements were contrary to the religious beliefs of the church and school.”

The plaintiff sued the church, alleging that the church terminated her employment based upon her marital status, in violation of Title VII of the Civil Rights Act of 1964. The court entered judgment in the church’s favor on the ground that the church is a religious institution, and that the plaintiff’s employment was terminated because she violated a church precept. The plaintiff appealed.

Title VII

The plaintiff insisted that “the law does not allow the church to discriminate against non-ministerial employees based on gender or marital status.” But the court pointed out that Title VII does not bar employment discrimination based on marital status, and that the plaintiff failed to cite any law declaring a public policy against marital status discrimination.

The trial court found the church terminated the plaintiff’s employment because she violated a church precept. According to the church, the plaintiff’s employment was terminated not because she had a baby out of wedlock, and not because she remained unmarried, but because she continued to live with her boyfriend in a sexual relationship while unmarried. The court concluded that the evidence supported the church’s position:

After the plaintiff’s marriage ended, she lived with her boyfriend and became pregnant. There is no evidence the school’s principal or the church knew of the plaintiff’s living situation at that time. The church did not terminate her employment for being pregnant. Neither did it fire her when she had the baby out of wedlock. In fact, she gave birth to her son in June 2007 and went back to teaching at the beginning of the next school year, 2007-2008. The plaintiff testified she knew she would not be punished for having had a baby. It was only at the end of 2008, when the principal became aware that parents of children at the school knew of and were talking about the plaintiff living with her boyfriend and raising their child out of wedlock, that the plaintiff was informed by the school that she had to make a choice. The plaintiff knew she was expected to live by the teachings of the Bible and that her living arrangement was “contrary to the religious and moral beliefs of the church.”

Had the plaintiff decided to marry her boyfriend, the church would have been satisfied. But the church would also have been satisfied and the plaintiff would have kept her job even if she decided against marrying him. She could have moved out of their shared residence. In fact, after the plaintiff explained to the school board her hesitancy to remarry, one of the school board members specifically asked her, “Why do you have to live with him?” What the church could not allow was to have the plaintiff, its face and representative to the students and parents of the students who attended its school, to continue living in what it considered a sinful manner. In other words, if the plaintiff stopped living with her boyfriend she could continue in her job. That being the case, the evidence at trial indicates her employment was terminated based upon a matter of religion, not her sex and not her having had a baby out of wedlock.

The court noted that Title VII bans employment discrimination based on race, color, national origin, gender, and religion, but exempts religious organizations “from Title VII liability on the basis of religious discrimination.” Under Title VII’s religious exemption, “the decision to employ individuals of a particular religion … has been interpreted to include decisions to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” The court continued:

Whereas a religious organization’s termination of an employee’s employment for becoming pregnant would violate Title VII, terminating the employment because the employee committed adultery—a violation of the religious organization’s requirement that the employee live a life in conformity with the fundamentalist beliefs of the church would not be a violation. In this case, the evidence at trial supports a finding that the plaintiff’s employment was terminated because she was living with her boyfriend in a sexual relationship and was raising their child in that living arrangement, and not because she was a woman or became pregnant or had a baby out of wedlock. As the plaintiff admitted on cross-examination, she understood that “living with [her] child’s father and not being married was contrary to the school and church’s expectation of [her] as a Christian, setting a Christian role model.” The judgment in favor of defendant does not violate any public policy rooted Title VII.

the ministerial exception

The court next addressed the church’s claim that the “ministerial exception” barred civil court resolution of the plaintiff’s claims. The court explained the ministerial exception as follows:

The ministerial exception doctrine is based on the notion a church’s appointment of its clergy, along with such closely related issues as clerical salaries, assignments, working conditions and termination of employment, is an inherently religious function because clergy are such an integral part of a church’s functioning as a religious institution. Therefore, secular courts will not attempt to right wrongs related to the hiring, firing, discipline or administration of clergy. Implicit in this statement of the rule is the acknowledgment that such wrongs may exist, that they may be severe, and that the administration of the church itself may be inadequate to provide a remedy. The preservation of the free exercise of religion is deemed so important a principle as to overshadow the inequities which may result from its liberal application. In our society, jealous as it is of separation of church and state, one who enters the clergy forfeits the protection of the civil authorities in terms of job rights.

Dismissing an Employee for Violation of a Church’s Moral Teachings

Before dismissing an employee for violating the church’s moral teachings, church leaders should ask the following questions:

  1. Is there sufficient evidence to support our decision?
  2. Did we inform the employee, in an employee handbook or other document, that he or she would be subject to dismissal for engaging in behavior in violation of our moral teachings?
  3. How will we describe the basis for our decision? The best description will refer to the church’s doctrinal tenets, and scriptural citations. Stay away from words such as “pregnancy” that can have a “secular” meaning, and that diminish the “religious exemption” available to churches under most federal and state civil rights and employment laws.
  4. How have we treated other employees in the past who were guilty of the same kind of misconduct? Have we treated all employees equally? Or, have we treated some employees less favorably than others? For example, have we dismissed female employees who were guilty of extramarital sexual relations, but only warned or reprimanded male employees guilty of the same behavior? Before dismissing an employee for misconduct, church leaders should review all other known cases involving similar misconduct by other employees. Be sure that an employee who is protected against discrimination by state or federal law is not treated less favorably than other employees in previous cases.
  5. Have we consulted with an attorney before taking final action?

    6. The court explained that the ministerial exception is not limited to churches, but extends to “church-related institutions which have a substantial religious character,” including church-affiliated schools. Further, the exception is not limited to members of the clergy, but encompasses “all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission.” The court concluded that the ministerial exception applied to the plaintiff, and barred consideration of her claims. In particular, it noted that the plaintiff: (1) led the students in prayer at the beginning and end of each day and before each meal; (2) was responsible for leading chapel up to four times a year; (3) regularly taught religion in her classes, including secular classes; (4) participated in weekly devotions with the staff at which they would read a devotional-type book and then take prayer requests and pray for each other; (5) led staff prayers; and (6) conducted tours for parents of student applicants, assuring them of the school’s Christian atmosphere. The court concluded: “The minister is the chief instrument by which the church seeks to fulfill its purpose …. One such purpose is to bring people to the church. The plaintiff fulfilled that function by teaching her preschoolers religion, leading them in prayers every day, and leading chapel services. She taught religion and spread the faith. We find the ministerial exception applies in this matter.”

    What This Means For Churches:

    This case is significant for the following reasons.

    First, it illustrates the importance of accurately describing the basis for terminating an employee. As this case illustrates, there is a critical legal difference between dismissing an employee on account of pregnancy (even if out of wedlock) and dismissing an employee on account of adultery (of which pregnancy is merely evidence). The court acknowledged that dismissing a pregnant employee on account of adultery is permissible under Title VII, though dismissing an employee on account of pregnancy is not. It does not matter that pregnancy out of wedlock violates a church’s religious teachings and values. Title VII does not exempt churches from discrimination based on pregnancy. It does exempt churches from discrimination based on adultery. The takeaway point is the importance of correctly and adequately describing the basis for employee terminations and discipline. To avoid confusion, religious organizations that take an adverse employment action against an employee or applicant for employment as a result of the organization’s moral teachings should word their determination with references to relevant passages from scripture and church doctrine. This will make it more likely that a court will view the decision as a protected form of religious discrimination.

    Second, a number of courts have ruled that Title VII’s exemption of religious organizations from the ban on religious discrimination in employment does not apply if a religious organization uses religion as a “pretext” to discriminate against a member of a protected class. This is a very important qualification. Religious organizations can discriminate in their employment decisions on the basis of religion, but they must be consistent. To illustrate, a church that dismisses only female employees on the basis of extramarital sexual relations could not justify this practice on the basis of the Title VII exemption.

    Third, note that most churches are not subject to Title VII, which only applies to employers that have 15 or more employees and are engaged in interstate commerce. However, many states have their own versions of Title VII, and some churches will be covered under these laws. Fortunately, most of them (like Title VII) exempt religious employers from discrimination based on religion. Some exempt religious employers from all the discrimination prohibitions. Evangelical Lutheran Church, 134 Cal.Rptr.3d 15 (Cal. 2012).

    Key point 8-09.1. Many federal employment and civil rights laws apply only to those employers having a minimum number of employees. In determining whether or not an employer has the minimum number of employees, both fulltime and part-time employees are counted. In addition, employees of unincorporated subsidiary ministries of a church are counted. The employees of incorporated subsidiary ministries may be counted if the church exercises sufficient control over the subsidiary.

Legal Developments

Church Officials Reduce Counseling Payouts for Victim of Abuse

Court denies break of contract allegation against Archdiocese.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Church Officials Reduce Counseling Payouts for Victim of Abuse

Court denies break of contract allegation against archdiocese.

Richard R. Hammar, J.D., LL.M., CPA

Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on First Amendment considerations.

An Indiana court ruled that an Archdiocese was not liable on the basis of breach of contract for reducing the amount of counseling fees it paid on behalf of a woman who had been sexually molested by a priest when she was a minor. In 1999, a 37-yearold woman (the “plaintiff”) and her husband met with several officials of a Roman Catholic Archdiocese to discuss alleged sexual abuse of the plaintiff by a priest when she was a minor. During the meeting, church officials discussed the Archdiocesan policy that provides for the payment of counseling fees and therapy sessions for victims of childhood sexual abuse.

A few months later the plaintiff and her husband again met with church officials and made a demand for $200,000 to compensate for her injuries. In response, the Archdiocese denied liability, but its representatives again explained that it would pay for the plaintiff’s out-of-pocket counseling and treatments. The Archdiocese wrote a letter to the plaintiff indicating that it would pay for therapist and counseling fees as a result of “abuse by a minister of the church.” At some point, the Archdiocese received treatment plans from the plaintiff’s medical providers, and began making payments to them in accordance with church policy. The entire amount of each provider’s bill was paid based on the plaintiff’s representation that she had no health insurance and that she, personally, had paid 100 percent of those expenses. The Archdiocese continued to pay the plaintiff’s counseling fees for many years. On at least one occasion, the church rejected the plaintiff’s claims for additional compensation, but it continued paying her counseling and therapy expenses.

Eight years later, the Archdiocese became concerned that the plaintiff had been in treatment for several years, but, apparently, the treatment plans demonstrated no signs of recovery. As a result, the Archdiocese contacted the plaintiff’s providers and inquired about the treatment plans and the possibility of limiting future payments. A letter from the Archdiocese stated, among other things, that after paying fees of nearly $100,000 for the plaintiff’s care over a period of eight years, a new plan should be implemented. That provider agreed to begin a reduction in the frequency of the plaintiff’s therapy sessions. The Archdiocese mandated that the plaintiff’s psychotherapy sessions be reduced from twice weekly to one session per month.

After the reduction in her counseling sessions, the plaintiff sued the Archdiocese, alleging, among other things, that the Archdiocese was in breach of contract. The plaintiff asserted that the reduction in the therapy sessions was against the medical advice of her psychiatrist and therapist. As a result, she maintained that, as a consequence of the Archdiocese’s breach of its agreement to pay for necessary therapy, she suffered pain and suffering, mental anguish, and increased medical expenses. She further claimed that the Archdiocese breached its fiduciary duty to her by failing to fulfill its alleged unconditional promise to pay for her psychological testing in accordance with its own written church policy. As a result, the plaintiff maintained that the Archdiocese should be compelled to continue to pay the amounts that it had initially and voluntarily agreed to make.

A trial court dismissed the case on the ground that the Archdiocese had no legal responsibility to continue paying all of the therapy costs. Instead, it was voluntarily paying for the counseling sessions out of a “moral obligation” to do so. A state appeals court agreed. The court acknowledged that the Archdiocese had a “Policy on Care of Victims Sexual Misconduct” that provided for “appropriate counseling and spiritual direction, as needed” for victims of sexual abuse. However, a portion of the Policy makes it clear that

This statement of policy does not constitute a contractual undertaking of any nature of the payment of any amount to any person, but is an exoteric statement for guidance of the resource team of the Archdiocese. In all cases, the Archdiocese expressly reserves the right to withhold or change the terms of any benefits payable pursuant to this statement of policy or any other arrangement with victims, in the sole discretion of the Archdiocese.

The court noted that one of the requirements of an enforceable contract is “consideration,” meaning that each party receives something of value from the other party in exchange for its agreement to do something. And “a moral obligation to perform an agreement does not provide sufficient consideration to support the enforcement of an agreement nor does it create an enforceable contract.” In this case, “while the letters that the Archdiocese sent to the plaintiff express an intent to assist her with counseling costs, that correspondence does not amount to a contract to provide her unlimited care and treatment at its expense. Therefore, the designated evidence establishes that there was no enforceable contract in this instance, and the plaintiff’s claim fails on this basis.”

The court also rejected the plaintiff’s claim that the Archdiocese breached its fiduciary duty to pay the full amount of her counseling and therapy fees. She asserted that a fiduciary relationship was created when the Archdiocese undertook a duty to pay for the therapy sessions, and the Archdiocese breached its fiduciary duty when it arbitrarily decided that it would no longer pay the entire amount of the counseling sessions. The court disagreed: “Nothing in the record supports a conclusion that there was a fiduciary relationship between Doe and the Archdiocese. The plaintiff did not place any special confidences in the Archdiocese or otherwise seek out a confidential relationship. In fact, she maintained an adversarial relationship and consulted with attorneys to provide her with guidance concerning her dealings with the Archdiocese. Therefore, because no fiduciary relationship existed, there can be no breach of fiduciary duty. As a result, the trial court properly entered summary judgment for the Archdiocese with regard to this claim.”

What This Means For Churches:

Churches occasionally offer to pay counseling expenses of victims of sexual misconduct. This case illustrates that such agreements may be subject to modification or termination if based entirely on moral consideration. The unique facts and circumstances of each case may alter this result, however, and so churches should never modify or terminate an agreement to provide counseling fees without the advice of legal counsel. Doe v. Roman Catholic Archdiocese of Indianapolis, 958 N.E.2d 472 (Ind. App. 2011).

Legal Developments

Can a Denomination Be Held Responsible for a Pastor’s Sexual Misconduct?

The answer hinges on whether the pastor is considered an employee of the denomination.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Can a Denomination Be Held Responsible for a Pastor’s Sexual Misconduct?

The answer hinges on whether the pastor is considered an employee of the denomination.

Richard R. Hammar, J.D., LL.M., CPA

Key point 10-02.1. Employers may be liable on the basis of respondeat superior only for the acts of employees.

Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

A Texas court ruled that a national church was not responsible on the basis of respondeat superior or negligence for a pastor’s sexual misconduct; and, that use of the denominational name in the local church’s name did not impose on the national church any duty to investigate pastors who served its affiliated churches. A woman (the “plaintiff”) claimed that in 1990 several woman in her church complained to the denomination (the “national church”) with which the church was affiliated about their pastor’s sexually inappropriate behavior. The plaintiff claimed that no action was taken. Several years later, the plaintiff claimed that the pastor “engaged in a pattern of egregious physical and sexual abuse against” her when she sought “spiritual counseling” from him. These acts occurred both at the church and in the parsonage “under the guise of pastoral counseling.” The plaintiff claimed that she wrote a letter to the national church “specifically outlining this pattern of abuse” and that the national church appointed two representatives to investigate but took no action.

The plaintiff sued the national church on the basis of the “respondeat superior” doctrine, as well as negligence. The trial court dismissed the claims against the national church, and the plaintiff appealed.

respondeat superior

The legal principle of respondeat superior (the “superior responds”) makes employers liable for the negligent acts of their employees committed in the course of their employment. The plaintiff claimed that the national church was responsible for the pastor’s conduct on this basis since he was an employee and his acts were in the course of his employment. She cited the following facts supporting her claim that the pastor was an employee of the national church:

The court concluded that an employer must have the right to control not only what workers do, but how they perform their tasks, in order for them to be deemed employees. The court concluded that the national church “did not have such a right of control over the details of [the pastor’s] work that it could be liable as an employer for purposes of respondeat superior.”

negligence

The plaintiff asserted that the national church had been informed in 1990 of accusations of sexual misconduct by the pastor, and that these accusations imposed on it a duty to adequately supervise him and protect other women from harm, including informing the congregation of the accusations. Its failure to do so amounted to negligence.

The court concluded that the national church’s knowledge of the accusations of sexual misconduct in 1990 did not make it responsible for the pastor molestation of the plaintiff many years later. It noted that even if the national church had informed the congregation in 1990 of the accusations, this would not have avoided the pastor’s molestation of the plaintiff. It noted that several members of the congregation were aware of the accusations in 1990, and took steps to remove the pastor from office. Further, the 1990 incidents were far less offensive than the acts perpetrated against the plaintiff, and therefore knowledge of the 1990 incidents did not suggest that the pastor would one day commit far more serious infractions.

negligent hiring, supervision, retention, and training

The plaintiff claimed that the national church was responsible for the pastor’s acts on the basis of its negligence in hiring, supervising, retaining, and training him. In rejecting this basis of liability, the court observed:

Negligence in hiring or retention requires that an employer’s failure to investigate, screen, or supervise its employees proximately caused the injuries the plaintiff alleges. An employer is not negligent when there is nothing in the employee’s background that would cause a reasonable employer not to hire or retain the employee. To establish a claim for negligent training, a plaintiff must prove that a reasonably prudent employer would have provided training beyond that which was given and that failure to do so caused his injuries. To establish a claim for negligent supervision, a plaintiff must show that an employer’s failure to supervise its employees caused his injuries. Thus, to be liable for negligent hiring, supervision, retention, or training, a defendant must have been involved in hiring the actor or retaining that actor in its employ.

Because there is no evidence that the national church participated in the hiring or retention of the pastor … or that it retained the requisite control over his day-to-day activities as pastor, summary judgment was proper as to the plaintiff’s negligent hiring, supervision, retention, and training claims …. There is no evidence indicating that … additional training would have prevented the plaintiff’s injuries.

Finally, to the extent the plaintiff argues that the national church should have investigated the pastor’s background before allowing the church to use [the national church’s name] in its name … there is no evidence that the fellowshipping or affiliation with the national church is what drew the plaintiff to attend the church.

What This Means for Churches:

This case is important for the following reasons. First, it illustrates that regional and national churches ordinarily will not be liable for the acts of ministers on the basis of respondeat superior, since an employment relationship does not exist. While there often are some examples of interrelationship between denominational agencies and clergy, these interrelationships generally do not create sufficient control over how clergy perform their tasks to create an employment relationship.

Second, the court concluded that knowledge of inappropriate behavior many years ago will not necessarily impose a duty on a church to take measures to prevent far more serious offenses today.

Third, the court concluded that a denominational agency that does not “hire” clergy or exercise control over their “day-to-day activities” is not responsible on the basis of negligent hiring, supervision, retention, or training for their wrongful acts.

Fourth, the court concluded that the use of a denomination’s name in a local church’s name does not, in itself, impose a duty on the denomination to investigate pastors’ backgrounds before allowing them to be employed in a pastoral capacity in an affiliated church. 2011 WL 1833095 (Tex. App. 2011).

This Recent Development first appeared in Church Law and Tax Report, May/June 2012.

Legal Developments

Jurisdiction Over Hiring Claims Different vs. Supervision Claims

First Amendment prevents court from resolving negligent hiring claim but not negligent supervision claim.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Jurisdiction Over Hiring Claims Different vs. Supervision Claims

First Amendment prevents court from resolving negligent hiring claim but not negligent supervision claim.

Key point 10-10.2. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

* A Tennessee court ruled that the First Amendment guaranty of religious freedom prevented it from resolving a negligent hiring claim brought by a victim of childhood sexual abuse against the offending priest and his diocese, but did not prevent it from resolving a negligent supervision claim. In rejecting the victim’s negligent hiring claim against the diocese, the court observed: “The exercise of jurisdiction over matters pertaining to its decision of whom to hire and retain as a priest or clergyman would require an extensive entanglement into matters of religious doctrine or polity. Accordingly, the court may not exercise jurisdiction over [the victim’s lawsuit] insofar as it is based on claims of negligent hiring and negligent retention.”

However, the court concluded that the victim’s negligent supervision claim was not barred by the First Amendment:

The diocese asserts that the courts may not impose a duty on [it] with respect to the supervision of the diocese’s priests. To the extent that the imposition of such a duty would impact [its] supervision of a priest’s acts in matters of faith or doctrine, we must agree. However, this lawsuit implicates no doctrinal, theological, policy or internal administrative matter. Rather, it pertains only to the diocese’s duty to safeguard the physical safety of the children in its care. Although the diocese may hire and retain whomever it chooses as a priest, forgive whatever sins or shortcomings that priest may have, and supervise a priest’s duties insofar as doctrinal or theological matters are concerned in whatever manner it chooses, it may not hide behind the First and Fourteenth Amendments to avoid imposition of a civil duty of care to safeguard children against sexual abuse by its employees, including its priests.

Clearly, the Diocese’s duty to supervise its priests so as to prevent instances of child abuse can be imposed using neutral principles of law and without resort to or entanglement in matters of doctrine, theology or polity. We must agree with the Supreme Court of Mississippi that “the cloak of religion, which does not shield religious institutions from civil responsibility for fraud or breach of contract, surely cannot serve to shield such institutions from civil responsibility for more abhorrent conduct such as sexual molestation of a child. Nor should it shield those who fail in their duty to protect children from it.” Roman Catholic Diocese v. Morrison, 905 So.2d 1213 (Miss. 2005).

As we previously have stated, although the law cannot interfere with matters of religious doctrine or belief, it may interfere with conduct even when that conduct is motivated by religious doctrine when a compelling state interest is implicated. Some religious acts and practices by individuals must yield to the common good. We cannot fathom a more compelling state interest than the protection of children against sexual abuse. We can imagine no more neutral principle of tort law than that which imposes a duty upon an employer to supervise its employees in a manner designed to safeguard against the sexual abuse of minors.

Although the court concluded that the diocese could be sued for negligent supervision, it dismissed the case on the ground that it was filed after the statute of limitations had expired. Redwing v. Catholic Bishop, 2010 WL 2106222 (Tenn. App. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Church Not Liable for Molestation

Court ruled church not liable for molestation of minor student by teacher on basis of negligent hiring

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Church Not Liable for Molestation

Court ruled church not liable for molestation of minor student by teacher on basis of negligent hiring

Richard R. Hammar

Key point 10-04. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.

* A New York court ruled that a church was not liable on the basis of negligent hiring for the molestation of a minor student by a teacher. Prior to hiring the teacher the church contacted one of the three personal references listed on her employment application. This reference, who was a parent of a student who attended the church’s school, stated that she had known the teacher for many years and considered her to be “a wonderful person.” The church did not contact the other two references, and did not confirm the teacher’s prior employment history or contact any of her prior employers for a reference. The church did conduct a “Safe Environment” background check, which did not indicate that the teacher had been engaged in any prior criminal misconduct.

‘There is nothing here to indicate that a further investigation of [the teacher] was necessary.’

The church hired the teacher as a part-time music and gym teacher for kindergarten through the eighth grade. She groomed and eventually sexually assaulted one of her students. The victim sued the church, claiming that it was responsible for the teacher’s acts on the basis of negligent hiring. The court noted that “a necessary element of negligent hiring is that the employer knew or should have known of an employee’s propensity for the conduct that caused the injury.” The court pointed out that the church had contacted one reference, and conducted a “Safe Environment” criminal records check, which revealed no prior misconduct. Any duty to investigate further into the teacher’s fitness and background “may be imposed upon the employer only if it knew facts that would lead a reasonably prudent person to investigate the prospective employee. There is nothing here to indicate that a further investigation of [the teacher] was necessary, as there was nothing criminal in her background check. While [the church] may not have confirmed or contacted anyone from her prior work experience [the victim] has not submitted any evidence showing that checking more references would have revealed any improper conduct …. As such, the cause of action for negligent hiring is dismissed.” Jones v. Roman Catholic Archdiocese, 918 N.Y.S.2d 398 (N.Y. Sup. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Statute of Limitations Prevents Church from Being Sued

Court rules statute of limitations prevents 23-year-old male from suing a church six years after abuse from youth pastor took place.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Statute of Limitations Prevents Church from Being Sued

Court rules statute of limitations prevents 23-year-old male from suing a church six years after abuse from youth pastor took place.

Richard R. Hammar

Sexual misconduct by clergy, lay employees, and volunteers

Key point 10-16.4. The statute of limitations specifies the deadline for filing a civil lawsuit. Lawsuits cannot be brought after this deadline has passed. There are a few exceptions that have been recognized by some courts: (1) The statute of limitations for injuries suffered by a minor begins to run on the minor’s 18th birthday. (2) The statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. (3) The statute of limitations does not begin to run until an adult with whom a minister or church counselor has had sexual contact “discovers” that his or her psychological damages were caused by the inappropriate contact. (4) The statute of limitations is suspended due to fraud or concealment of a cause of action.

* A Kentucky court ruled that the statute of limitations barred a victim of child sexual abuse from suing a church that employed the molester as its youth pastor. In 2007, a 23-year-old man (the “victim”) sued his former church, alleging that he had been sexually molested while a minor by the church’s youth pastor. The victim claimed that the church was legally responsible for the youth pastor’s acts on the basis of negligent hiring, negligent supervision, and a failure to warn. The alleged molestation occurred when the victim was 14 and 15 years of age. The victim attained age 18 in 2001, and the following year informed his father of the abuse. This disclosure resulted in a report being made with the police. Following an investigation, the youth pastor was charged with felony child abuse, and later pled guilty to his crimes and was sentenced to prison.

The plaintiff sued the church in 2007, when he was 23 years old. The church asked the court to dismiss the lawsuit on the ground that it had been filed after the statute of limitations for personal injuries had expired. The trial court agreed that the lawsuit was barred by the statute of limitations, and dismissed the case. It applied the one-year statute of limitations under state law that applies to personal injuries. In cases involving personal injuries to minors, the one-year period for filing a lawsuit does not commence until the minor’s 18th birthday. In this case, that meant that the plaintiff should have filed his lawsuit prior to his 19th birthday. By the time he filed the lawsuit, at age 23, the limitations period had expired.

The plaintiff appealed, claiming that the one-year limitations period had been “tolled” or suspended by a state law allowing the period to be tolled if a defendant “obstructs” the filing of a lawsuit. The plaintiff claimed that the limitations period was tolled because the church either concealed or obstructed the filing of the lawsuit by concealing knowledge of the youth pastor’s propensities for sexual abuse. He produced three affidavits to support his claim of concealment. One affidavit, signed by a married couple, stated that they had been informed by the victim’s father that “he felt there was a problem with the way the youth pastor was interacting with his son.” A second affidavit by another church member contained a vague assertion that she believed that another church member was aware of “problems” with the youth pastor. In the third affidavit, another member stated that he approached the pastor and indicated that he believed “something strange” was going on with the youth pastor.

The victim claimed that the church was legally responsible for the youth pastor’s acts on the basis of negligent hiring, negligent supervision, and a failure to warn …. Following an investigation, the youth pastor was charged with felony child abuse, and later pled guilty to his crimes and was sentenced to prison.

The appeals court ruled that the affidavits failed to show that anyone at the church had knowledge or reason to believe that the youth pastor had behaved inappropriately with the church’s youth or had any propensities to sexually abuse the youth, and as a result it refused to toll the limitations period. The court concluded:

In [a prior case] this court found that the limitations period was tolled where evidence showed that the church had received reports of sexual abuse and concealed them and had further maintained files documenting the reports of abuse. There is no such evidence in this case …. The affidavits here provide no information, even when taken in a light most favorable to the victim, which would allow this court or a jury to find that the church had any knowledge of the abuse.

Application. This case illustrates an important point. In many states, the statute of limitations is “tolled” in cases involving the sexual molestation of a minor in a church if it can be established that church leaders “obstructed” the victim’s filing of a lawsuit by “concealing” evidence or knowledge of the abuse. This is a strong argument against denying or ignoring credible evidence of inappropriate conduct by staff members, especially in cases involving minors, since such a response may expose the church to liability long after the statute of limitations would otherwise have barred a lawsuit. 2010 WL 476046 (Ky. App. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840.© 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Church Held Liable for Pastor’s Abuse of Minors

Church without “never-alone” policy is held responsible for children who were sexually abused by pastor.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Church Held Liable for Pastor’s Abuse of Minors

Church without “never-alone” policy is held responsible for children who were sexually abused by pastor.

Richard R. Hammar

Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.

Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.

Key point 10-14. Churches may be liable on the basis of “ratification” for the unauthorized act of a minister or other church worker if it is aware of the act and voluntarily affirms it.

Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

* An Ohio court rejected the assertion of two individuals, who had been sexually molested by an associate pastor when they were minors, that their church and senior pastor were liable for the associate pastor’s acts as a result of their failure to implement a child abuse policy forbidding staff members to be alone with children. A church used its senior pastor’s son (the “defendant”) in various volunteer positions, including music director. The defendant also was appointed associate pastor so that he could perform pastoral duties if his father, for health reasons, was unable to do so. However, the defendant was never ordained as a pastor, and was not an employee of the church and consequently received no salary or wages.

The defendant raped a minor on church premises, and molested another minor over the course of several months with some of these acts occurring on church premises. He was charged with various felony counts, and pled guilty. The parents of the two victims (the “plaintiffs”) sued the church, claiming that it was responsible for the defendant’s acts on the basis of negligence since it failed to have a church policy in place to protect children against sexual misconduct. The plaintiffs also claimed that the senior pastor and church were responsible for the defendant’s acts on the basis of negligent supervision and retention, and that a state denominational agency was liable on the basis of negligence. The trial court dismissed all claims against the defendants, and the plaintiffs appealed.

The defendant raped a minor on church premises, and molested another minor over the course of several months with some of these acts occurring on church premises …. The parents of the two victims sued the church.

failure to have a sexual misconduct policy

On appeal, the plaintiffs argued that the senior pastor and church were negligent in failing to have a church policy in place to protect children against misconduct of adult church officials such as the defendant. They claimed that the pastor and church owed the victims a duty to protect them from the criminal acts and that they breached that duty by failing to have in place a policy regarding the protection of children from sexual misconduct of church officials. Such policy, the plaintiffs alleged, should have prohibited adults from being alone with children.

In support of their claim that the pastor and church had a duty to have a policy or protective measures in place to protect the church’s youth members, the plaintiffs cited five items of evidence:

First, a church deacon testified that a few years prior to the defendant’s sexual assaults, the church received notice from its insurance company that it wanted the church to implement “something to safeguard the children from inappropriate behavior.”

Second, a pastor of another church testified that his church had a policy regarding contact between adults and children in his church, that one of the purposes of the policy was to protect the children, and that he believed that it was “common practice” to have such a policy in place. The policy stated, in part, that “two adults should be present during any activity involving youth or children.”

Third, the minutes of a church membership meeting contained a comment by an officer of a state denominational agency to the effect that no person should ever drive an underage child or young person home and that no one person should ever be in the home of another person alone.

Fourth, an officer of a state denominational agency testified that churches should have in place a policy addressing the danger of contact between minor children and members of the church.

Fifth, the church and its senior pastor were “put on notice” of the need for a policy designed to protect young church members several years before, when the defendant informed his father that he was being investigated by the state Department of Youth Services, his employer, based on an allegation that pornography was found on his work computer.

“While it may well be advisable to have such a policy in place, the plaintiffs have not provided this court with any authority mandating that churches adopt such a policy.”

Despite this evidence, the court concluded that the plaintiffs had failed to cite any authority for the proposition that the church and its senior pastor had a duty to have a policy in place to protect the children of the church. The court concluded:

While it may well be advisable to have such a policy in place, the plaintiffs have not provided this court with any authority mandating that churches adopt such a policy or that it was a common standard of care and practice among churches to have such a policy. Nor is this court aware of any such authority. While the plaintiffs note that some churches have implemented such a policy, there is no evidence that such churches are not the exceptions rather than the rule. There is no evidence in the record as to the percentage of churches that have this type of policy. Moreover, there was no testimony from anyone in this case that such a policy was required by law.

With regard to the previous investigation by the defendant’s employer resulting from the discovery of pornography on his work computer, the court noted that he was never disciplined and continued working until right before his arrest related to this case. Further, the court concluded that “even if the defendant did possess pornography on his work computer, it is not reasonably foreseeable that he would sexually abuse a child.”

The court concluded:

We find that plaintiffs have not presented any evidence that the church and its senior pastor either knew or should have anticipated the defendant’s sexual misconduct. We concur with the trial court that a reasonably prudent person would not anticipate that a child would be sexually assaulted whenever left alone with an adult. There is no evidence that any similar acts were committed by the defendant in the past. Moreover … [the plaintiffs] testified that they believed the defendant was a good person and had no reason to believe that he was a threat to their daughters. During the time while they were members of the church they never complained to anyone at the church about the defendant or alleged to anyone at the church that he had engaged in inappropriate conduct with their daughters. During their depositions, both plaintiffs testified that prior to leaving the church, they thought the defendant was a trustworthy person. In short, we find that the plaintiffs failed to present evidence that the church and its senior pastor should have foreseen that the defendant would sexually assault anyone.

negligent supervision and retention

The court rejected the plaintiffs’ claim that the church and senior pastor were liable on the basis of negligent supervision and retention, since they had no prior knowledge of any sexual misconduct by the defendant. It pointed out that the plaintiffs themselves testified that they never voiced any complaints about the defendant and that they believed that he was a good person who would not hurt children. The plaintiffs further testified that (1) they were not aware of anyone who questioned the defendant’s reputation or character; (2) that they never told the defendant not to spend time with their children or be alone with them; and (3) up until the disclosure of the abuse they had no reason not to trust the defendant.

ratification

The plaintiffs claimed that the church “ratified” the defendant’s conduct by conducting a candlelight vigil at the jail where the defendant was incarcerated, by using a church bus to transport members to the vigil, and by permitting the defendant to preach a sermon from his cell on the power of forgiveness and love.

The court disagreed that these acts amounted to a ratification of the defendant’s wrongful acts by the church. It pointed out that at the time of the vigil the defendant had not been convicted and his father and some other members of the congregation believed that he was innocent. Moreover, “there is no evidence that sexual assault and battery was condoned at this event.”

negligence by the state denominational agency

The plaintiffs asserted that the state denominational agency with which the church was affiliated was negligent in “failing to mandate and provide policies and procedures regarding contact between adults and children.” The court disagreed, noting that the plaintiffs had failed to cite any authority for the proposition that the denominational agency had a duty to require churches to implement such a policy.

In addition, the plaintiffs had failed to present any evidence that the denominational agency either knew of, or should have known of, or anticipated that the defendant would engage in the intentional sexual acts that he did, since “there is no evidence in the record that the defendant committed any similar acts in the past.”

Plaintiffs insisted that based on occurrences of sexual misconduct between a church official and young congregation members that have been reported in the media since the 1980s, the denominational agency could have foreseen that such misconduct could occur in this case. The court disagreed since such anecdotal reports “are not evidence.” Further, “there is no evidence that the denominational agency had any reason to foresee the sexual misconduct that occurred in this case. There is no evidence that the defendant committed similar acts in the past.”

Application. This case is instructive for the following reasons:

1. It demonstrates the risks that are sometimes associated with the selection of a senior pastor’s child as a pastoral staff member. The problem that sometimes arises in such cases is that church staff may feel awkward in conducting background checks on the pastor’s child, which can lead to a relaxation of the screening procedures that would apply to anyone else. Of course, this can lead to the selection of a person whose undisclosed background makes him or her a risk of harm to others. And, to the extent that the church relaxed its screening procedures in the selection of such a person, this will help establish that the church was negligent in selecting the person. The takeaway point is that churches should apply the same screening standards to everyone, regardless of position or relationship.

2. The court acknowledged that it would have been desirable for the church in this case to have adopted a child protection policy prohibiting adult workers from being alone with a minor, but it concluded that the church’s failure to do so was not negligent since the plaintiff had failed to prove that such a policy was a common and prevailing church practice. Research conducted by Church Law & Tax Report demonstrates that such a policy is increasingly common among churches, but the plaintiffs were unaware of this evidence. Future plaintiffs may be more thorough in their research, and come across the results of surveys conducted by Church Law & Tax Report and others indicating that such policies are common. If so, this will help establish the “community standard of care.” This is significant, since negligence generally is defined as a failure to comply with the community standard of care. As more and more churches adopt child protection policies, this will make it easier for plaintiffs to demonstrate that churches failing to adopt such a policy are negligent.

The bottom line is that it is important for church leaders to be familiar with trends in the risk management practices of churches, since a failure to comply with, or exceed, those practices may constitute evidence of negligence. These trends are regularly reported in this newsletter.

Research conducted by Church Law & Tax Report demonstrates that such a policy is increasingly common among churches, but the plaintiffs were unaware of this evidence. Future plaintiffs may be more thorough in their research.

3. The court concluded that the discovery of pornography on the defendant’s work computer at his place of secular employment did not make the church negligent in hiring him since “even if the defendant did possess pornography on his work computer, it is not reasonably foreseeable that he would sexually abuse a child.”

4. The court concluded that the church was not negligent in hiring, supervising, or retaining the defendant since it was aware of no information suggesting that he was a risk to minors. This demonstrates the importance of taking seriously all allegations of sexual misconduct involving church volunteers and employees who work with minors. Failure to take these allegations seriously, and to respond appropriately to them, greatly increases a church’s risk of liability based on negligent hiring, supervision or retention should the person who is the subject of the allegations injure others by engaging in similar acts of misconduct.

5. The court concluded that the state denominational agency with which the church was affiliated had no legal duty to require churches in its jurisdiction to “mandate and provide policies and procedures regarding contact between adults and children.” The court based this conclusion on three considerations: (1) The plaintiffs had failed to cite any authority for the proposition that the agency had a duty to require churches to implement such a policy; and (2) the plaintiffs had failed to present any evidence that the denominational agency either knew of, or should have known of, or anticipated that the defendant would engage in the intentional sexual acts that he did.

6. The court concluded that media reports on the sexual molestation of minors by clergy did not impose a duty on all denominational agencies to mandate that affiliated churches adopt child protection policies based on the foreseeability of harm, since such anecdotal accounts did not amount to admissible evidence. Further, there was no evidence that the denominational agency in this case “had any reason to foresee the sexual misconduct that occurred in this case. There is no evidence that the defendant committed similar acts in the past.”

7. A dissenting judge observed:

While there may be no record evidence as to the percentage of churches that have such a policy in place, [a pastor of another church testified that] not only did his church have such a policy, but also that having a policy was common practice. The fact that the church received notice from its own insurance company requesting it implement a policy to safeguard children from inappropriate behavior is itself recognition of the foreseeability of harm. The advisability of having such a policy in effect was specifically communicated to the church during its church business meeting by [a denominational officer].

It is difficult to ignore the numerous reported admitted instances of sexual child abuse committed by members of the clergy toward members of their congregation. I suspect, indeed do not doubt, many other instances go unreported. Those members of the clergy and others the church place in positions of authority or supervision over the children in their church can easily and naturally develop a unique relationship of trust and dependency. In that sense, they are not unlike the intimate relationship that can develop between a teacher and student, or a coach and athlete. The record does reflect several members of the clergy and the church’s insurance company have recognized the inherent risk. I believe this court should also. 2010 WL 1254632 (Ohio App. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840.© 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Catholic Archdiocese Not Held Responsible for Sexual Abuse

Federal court rules archdiocese not responsible for negligent hiring in sexual abuse case, based on no prior knowledge of wrongful act by priest.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Catholic Archdiocese Not Held Responsible for Sexual Abuse

Federal court rules archdiocese not responsible for negligent hiring in sexual abuse case, based on no prior knowledge of wrongful act by priest.

Richard R. Hammar

Key point 10-04.2. Some courts have found churches not liable on the basis of negligent selection for the molestation of a minor by a church worker since the church exercised reasonable care in the selection of the worker.

Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.

Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

* A federal court in New York ruled that a Catholic archdiocese was not responsible on the basis of negligent hiring, supervision, or retention for the sexual misconduct of a priest, since it had no knowledge of prior wrongful acts. A Catholic priest asked a female parishioner (the “plaintiff”) if she had been sexually abused as a child. After the plaintiff told him that she had been abused, he informed her that he had helped other women with a history of abuse. In the course of three private “sessions” the priest engaged in various forms of sexual contact with the plaintiff as part of his “therapy” to help relieve her of the effects of the prior abuse. The plaintiff did not disclose this abuse until she began meeting with a therapist. The therapist promptly informed the victims’ assistance coordinator of the archdiocese of the plaintiff’s allegations. This was the first notice to the archdiocese of the plaintiff’s allegations concerning the priest, or of any other claims of sexual abuse made against him.

The plaintiff sued her church and the archdiocese (the “church defendants”), claiming that they were responsible on the basis of negligent hiring, supervision, and retention for the priest’s wrongful acts. The church defendants asked the court to dismiss the plaintiff’s lawsuit on the ground that there was no evidence that they were aware of the priest’s alleged propensity to commit sexual abuse.

The court began its opinion by noting:

Under New York law, a claim for negligent hiring, supervision or retention … requires a plaintiff to show: (1) that the [person causing injury to another] and the defendant were in an employee-employer relationship; (2) that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury prior to the injury’s occurrence; and, (3) that the injury was committed on the employer’s premises or with the employer’s property …. A cause of action for negligent hiring or retention requires allegations that the employer failed to investigate a prospective employee notwithstanding knowledge of facts that would lead a reasonably prudent person to investigate that prospective employee.

The plaintiff insisted that the church defendants failed to conduct any investigation into the priest’s background, and failed to instruct him not to touch females. The court responded that the plaintiff was missing the point:

The defendants had no duty to investigate the priest, or to warn him not to sexually abuse parishioners, when they had no reason to believe that he would engage in such misconduct. Under New York law, there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.

The court, in ruling that the church defendants had no knowledge of the priest’s propensity to engage in sexual misconduct, concluded: “While the defendants had offered evidence that they were unaware of [the priest’s] prior sexual misconduct, the plaintiff failed to counter with admissible evidence from which a reasonable juror could infer that the defendants, at any time prior to the relevant incident, knew or should have known of his propensity to engage in inappropriate sexual conduct.”

The lawsuit alleged that the preschool director approved the perpetrator’s enrollment in the preschool, despite being informed that he “had been sexually abused and had a history of acting-out sexually with other children.”

Application. This case is important because it illustrates the general principle, recognized by many courts, that an employer can be liable on the basis of negligent hiring or retention for the sexual misconduct of an employee only if it knew, or should have known of, the employee’s propensity to commit such acts and yet failed to investigate further. Bouchard v. New York Archdiocese, 719 F.Supp.2d 255 (S.D.N.Y. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840.© 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Are Churches and Affiliated Organizations Separate Entities?

A church and its affiliate may be considered a “single employer.”

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Are Churches and Affiliated Organizations Separate Entities?

A church and its affiliate may be considered a “single employer.”

Richard R. Hammar, J.D., LL.M., CPA

Key point. There are several legal defenses available to a denominational agency that is sued as a result of the acts or obligations of affiliated clergy and churches. These include a lack of temporal control over clergy and churches; a lack of official notice of a minister’s prior wrongdoing in accordance with the denomination’s governing documents; lack of an agency relationship; the prohibition by the First Amendment of any attempt by the civil courts to impose liability on religious organizations in a way that would threaten or alter their polity; and elimination or modification of the principle of joint and several liability.

A New York court ruled that a church and an affiliated education center could be treated as a “single employer,” and therefore the church was jointly liable for the acts and obligations of the center. A church operated an “educational center” through which it conducted a summer camp for children. Two adolescent males (the “plaintiffs”) who worked at the camp claimed that they were sexually abused by an adult camp worker, and they sued the church for injuries they allegedly sustained.

The lawsuit referred to the church and its education center as one entity. The church asked the court to dismiss it from the case on the ground that it was a legally separate entity from the education center and as a result was not responsible for the plaintiffs’ injuries. It pointed out that:

However, the church’s pastor acknowledged that:

Was the church responsible for the actions of an employee of its affiliate? The court observed:

To determine whether separate entities should be considered a “single employer” for liability purposes, courts have employed a four-factor test that examines the interrelation of operations, common management, centralized control of labor relations and common ownership. [Also] relevant are the use of common office facilities and equipment and family connections between or among the various enterprises … and ultimately single employer status depends on all the circumstances of the case and is characterized by absence of an arm’s length relationship found among unintegrated companies.

The court concluded that there was sufficient evidence that the church and education center were a “single employer” and as a result it rejected the church’s request to dismiss it from the case. It concluded:

Although the church and center are not commercial enterprises, the allegations of the complaint and the affidavits submitted showing, among other factors, control by the church pastor of the operations of the center and asserting grossly improper activity on the part of the perpetrator in his relationship with the very young plaintiffs working under his supervision, raise a triable issue of fact as to whether the church and the center should be considered an integral enterprise for the purposes of liability for the various claims asserted herein.

Application. Many churches operate affiliated entities. Common examples include schools and preschools. In some cases church leaders separately incorporate an affiliated entity in order to protect the church from liability for the acts and obligations of the affiliate and its employees. Unfortunately, such arrangements often do not work because the church fails to divest itself of control over the affiliate. As this case illustrates, the courts sometimes conclude that the church and its affiliate comprise a “single employer” for liability purposes, despite the fact that the affiliate is separately incorporated.

One of the first courts to recognize this theory noted that “superficially distinct entities may be exposed to liability upon a finding they represent a single, integrated enterprise: a single employer.” Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983). The court gave the following definition, which has since been applied by many other courts (including the New York court in the case addressed in this article):

Factors considered in determining whether distinct entities constitute an integrated enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.

As this case illustrates, the mere fact that an affiliate is separately incorporated does not, by itself, preclude single employer status. This is so even if the two entities have separate officers. The court concluded that the several examples of interrelationship between the two entities (summarized above) were sufficient to overcome the church’s argument that it and the center were not a single employer. Nunez v. Mariners Temple Baptist Church, 2009 WL 3254510 (N.Y. Sup. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2010.

Legal Developments

Church Held Liable for Coach’s Sexual Misconduct

Don’t ignore warning signs of potential misconduct.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Church Held Liable for Coach’s Sexual Misconduct

Don’t ignore warning signs of potential misconduct.

Richard R. Hammar, J.D., LL.M., CPA

Key point. A church may be liable on the basis of negligent selection for a worker’s molestation of a minor if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.

Key point. Some courts have found churches liable on the basis of negligent retention for the sexual misconduct of ministers and other church workers on the ground that the church was negligent in retaining the offender after receiving credible information indicating that he or she posed a risk of harm to others.

A Kentucky court ruled that a church could be liable for an employee’s sexual molestation of two minor girls since church leaders had sufficient evidence of inappropriate conduct by the offender to make it foreseeable that he would molest the two girls. The principal of a church-operated private high school appointed a 23-year-old church member (“Eric”) as the girls’ basketball team coach. Pursuant to school policy, a criminal background check was performed prior to Eric’s appointment. Although Eric previously resided in Ohio, only a Kentucky background check was performed, which did not reveal his criminal history for drug and traffic offenses in Ohio. Prior to his appointment, he told members of the congregation, including the principal, about his prior drug use, and several church members confirmed that he had “testified” in church regarding his drug use.

After his appointment as coach, Eric began telephoning a 14-year-old team member (the “victim”) late at night. Upon learning of the contact between her daughter and Eric, the girl’s mother informed the principal about the phone calls and stated that she found his conduct inappropriate. The principal assured the mother that Eric would be supervised. Subsequently, the principal met with Eric and instructed him to stop calling the team member and giving her rides in his car.

Despite this admonition, Eric had sexual intercourse with the victim on two occasions. He also attempted to sexually assault a second team member in a school van, but ceased his advances when other team members approached the van.

Several team members later testified that Eric made sexual advances toward the girls and that he was “weird” and “creepy.” There was also testimony that a student who knew of Eric’s calls to the one victim suspected a possible sexual relationship between the two and informed the principal regarding his suspicions.

The parents of Eric’s two victims sued the church and school claiming that they were legally responsible for his actions on the basis of negligent hiring and negligent retention. The trial court dismissed the lawsuit on the ground that negligence-based liability requires proof of foreseeable harm, and there was nothing in Eric’s background to suggest that he would sexually molest minors in his care. The parents appealed.

A state appeals court noted that liability for negligent hiring and retention “can be imposed on an employer who knew or should have known that an employee was unfit for the job in which he was employed and that his placement or retention in that job created an unreasonable risk of harm.” The court agreed with the trial court that liability for negligent hiring or retention requires proof that the victims’ injuries were reasonably foreseeable. The court conceded that the school’s failure to conduct an Ohio criminal records check was evidence of negligent hiring or retention since such a check would have only uncovered drug and traffic offenses in that state which “did not render it foreseeable that Eric would commit criminal sexual acts.” While his drug-related convictions “did not render him a desirable athletic coach, there was nothing in his criminal history to suggest that he had a propensity to sexually abuse children.”

However, the court concluded there was additional evidence of foreseeability that required it to reverse the trial court’s dismissal of the case. It observed:

The principal was warned by students and [one victim’s mother] that Eric had engaged in inappropriate behavior toward girls at the school. As a result, the principal verbally reprimanded him and instructed him to cease further contact with [that victim]. Furthermore, students informed the principal that they believed Eric’s conduct toward female students was inappropriate.

Although the principal and other school personnel may not have known that he would commit or was committing criminal acts, the law only requires that it be reasonably foreseeable that there was a risk of harm. It is not beyond reason for a jury to conclude that the principal’s knowledge of Eric’s late night phone calls to female students, providing transportation to [one of his victims] in his private vehicle, and information gained from [that victim’s] mother and other sources, make it foreseeable that he would commit the acts alleged by the [parents].

Application. This case is instructive for three reasons. First, it demonstrates that the shortcomings of local or in-state criminal records searches. The church only conducted a search of Kentucky criminal records, and as a result was unaware of drug and traffic offenses Eric had committed in Ohio.

Second, since the Ohio offenses did not involve sexual crimes, they did not make it reasonably foreseeable that Eric would molest minors, and therefore the church’s failure to uncover these offenses was not negligent. Of course, had Eric’s offenses in Ohio (or in any other state) included sexual offenses, then the church’s failure to discover those offenses could have made his molestation of the two victims in this case reasonably foreseeable and therefore negligent.

Third, the court concluded that the foreseeability that an employee or volunteer will molest minors is not limited to the results of criminal records searches. It also can be based on any other credible evidence that is known to church leaders. The court concluded that the school principal in this case had sufficient warnings (from one victim’s mother, and other team members) of Eric’s inappropriate conduct to make it reasonably foreseeable that he would molest the victims. The lesson is clear—church leaders who ignore credible allegations of inappropriate sexual conduct by an employee or volunteer are exposing their church to potential liability based on negligence for that person’s future misconduct. 2009 WL 3320924 (Ky. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2010.

Legal Developments

Probation Conditions for Sex Offenders at Church

Check the probation arrangements of offenders who attend your church.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Probation Conditions for Sex Offenders at Church

Check the probation arrangements of offenders who attend your church.

Richard R. Hammar, J.D., LL.M., CPA

Key point. In some cases, child molesters are given probation instead of imprisonment, subject to various conditions. If such a person attends a church, it is important for church leaders to be apprised of such conditions so that they can help to ensure that they are followed.

The Washington Supreme Court affirmed the revocation of a child molester’s probation as a result of his repeated violations of the terms of the probation which, among other things, barred him from attending church or other places frequented by minors. An adult male (“Brian”) was convicted of first degree rape of a child under the age of 12 for raping his 11-year-old developmentally disabled granddaughter. The trial court sentenced Brian to 123 months imprisonment but found that he qualified for a special sex offender sentencing alternative (SSOSA) suspended sentence. In imposing the SSOSA sentence, the trial court set a number of conditions, including that Brian “not frequent areas where minor children are known to congregate, as defined by the supervising community corrections officer” (CCO). The CCO specifically instructed Brian that places he could not frequent included parks, schools, churches, day cares, movie theaters, shopping malls, bowling alleys, skating rinks, video arcades, and Boys and Girls Clubs.

A few years later, the state determined that Brian had violated a term of his probation by having contact with minor children. He was later cited again for violating the terms of his probation by visiting a church, a park, and a school on three separate occasions. The court sanctioned Brian to 120 days of confinement and sexual deviancy treatment.

A year later, Brian’s community corrections officer (CCO) received a tip that Brian had been a regular visitor at a church’s food bank located on the premises of the church’s elementary school, and that on some occasions he arrived at the food bank at 7:30 a.m., though the food bank did not open until 9 a.m. The CCO visited the food bank one morning and observed several minors in close proximity. Brian admitted to the CCO he visited the food bank but denied seeing any minors present or knowing it was on school property. As churches and schools are considered places where children are known to congregate, the CCO determined that Brian once again had violated the terms of his supervision. The CCO recommended that the court revoke Brian’s SSOSA sentence and send him to prison to serve his suspended sentence. Following a hearing, the court accepted the CCO’s recommendation, finding that Brian was at high risk to reoffend and was difficult to monitor in the community.

On appeal, Brian argued that his suspended sentence could not be revoked without proof of willful violations of the terms of his sentence (i.e., that he frequented areas where he knew that minors congregated), and, that there was insufficient evidence to support the revocation. The state supreme court rejected Brian’s arguments, and authorized the commencement of his term of imprisonment. It concluded:

The government has an important interest in protecting society, particularly minors, from a person convicted of raping a child. That interest is rationally served by imposing stringent conditions related to the crime Brian committed. The condition forbidding Brian from frequenting areas where minors congregate serves as a way to prevent him from being in a situation where he would have an opportunity to again harm a child. Also, his rights are already diminished significantly as he was convicted of a sex crime and, only by the grace of the trial court, allowed to live in the community subject to stringent conditions.

… child molesters who are not currently in prison may be subject to a supervised probation arrangement that restricts their church attendance.

Those conditions, like the one at issue, serve an important societal purpose in that they are limitations on his rights that relate to the crimes he committed. Given the strength of that interest and Brian’s diminished rights as someone on a suspended sentence, the balance tips heavily in favor of not requiring a finding of willfulness … The evidence demonstrates that Brian went to a food bank located in an elementary school that is connected with a church. The trial court could reasonably conclude that the location of the food bank in a building housing a church school presented a risk to the safety or welfare of society. This violation, combined with his prior violations for visiting a church, high school, and a park on three separate occasions, justify revoking his suspended sentence.

Application. This case demonstrates that child molesters who are not currently in prison may be subject to a supervised probation arrangement that restricts their church attendance. Many church leaders have learned that sex offenders are attending their church. Knowing how to respond in such cases can be a difficult question. In many cases, probation arrangements prohibit a defendant from attending church under any circumstances, while in other cases a defendant is allowed to attend church but under strict conditions. A church’s exposure to liability is increased if it allows a known sex offender to attend services or other church activities without ascertaining the existence and conditions of a probation arrangement. State v. McCormick, 213 P.3d 32 (Wash. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2010.

Legal Developments

Can a Denominational Office Be Held Liable for a Pastor’s Sexual Misconduct?

The answer depends on several factors.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Can a Denominational Office Be Held Liable for a Pastor’s Sexual Misconduct?

The answer depends on several factors.

Richard R. Hammar, J.D., LL.M., CPA

Key point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

Key point 10-10.2. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.

Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on First Amendment considerations.

The Massachusetts Supreme Judicial Court ruled that a denominational agency was not liable on the basis of breach of a fiduciary duty, or negligent hiring or supervision, for a sexual relationship initiated by a pastor in the course of a counseling relationship with an adult member of his congregation. A married woman (the “plaintiff”) went to her pastor for counseling regarding concerns she had about a relative. During their initial counseling session the pastor indicated that he could “easily fall in love” with the plaintiff. The following day, the plaintiff began regular meetings with the pastor concerning her own marital problems. She left her husband a few weeks later and began a sexual relationship with the pastor. A few months later she filed for divorce.

A church member informed the denominational office (the “regional church”) of her concern that the pastor was “getting involved with a woman in the parish.” The member stated that she wished to remain anonymous and that she did not want to identify the woman she suspected as involved with the pastor. She did not disclose that the pastor was counseling the unidentified woman. An officer of the regional church informed the member that he could not “respond to hearsay and rumors of suspicions from anonymous people,” noting that there was no suggestion “that anything illegal was occurring.” He asked the member to have someone with first-hand knowledge of any sexual relationship contact him. A few months later the member again contacted the regional church, and informed an officer that the pastor was inappropriately involved with an unidentified female parishioner, adding that “there were perhaps two or three other people that may be involved” who all insisted on anonymity. The officer again asked whether she could “get somebody to come forward,” emphasizing that she “bend every effort” to encourage an informant to come directly to him. Again, no one did so.

The plaintiff eventually ended her relationship with the pastor, prompting him to appear at her home and threaten to commit suicide. The plaintiff telephoned the police, and the pastor was admitted to a psychiatric facility. The regional church thereafter learned of the pastor’s hospitalization, and the affair, and initiated its process of ecclesiastical discipline. Rather than defend against the charge, the pastor confessed. Consistent with church disciplinary requirements, the congregation was informed that the pastor had been involved in a sexual relationship with an unidentified parishioner and had been hospitalized, and that he had renounced his ministerial status.

The plaintiff sued the regional church for negligent hiring, supervision, and retention of the pastor, and breach of fiduciary duty. A trial court dismissed all the plaintiff’s claims, and she appealed to the state supreme judicial court.

The court began its opinion by noting that:

The First Amendment places beyond our jurisdiction disputes involving church doctrine, canon law, polity, discipline, and ministerial relationships. The First Amendment does not grant religious organizations absolute immunity from tort liability. We nevertheless proceed cautiously lest we become embroiled in disputes involving a religious organization that would require us to interpret or weigh church doctrine.

Breach of fiduciary duty

The plaintiff claimed that the regional church committed a breach of a duty of care that it owed her, as a parishioner, to protect her from sexual exploitation by a minister to whom she turned for counseling. The court disagreed:

The undisputed facts, when viewed in the light most favorable to the plaintiff, do not establish that the diocese stood in the type of relationship to the plaintiff from which a fiduciary duty could possibly arise under civil law …. The only relationship she had with the diocese was that of a parishioner …. Any alleged relationship between the plaintiff and the [regional church] … was based on no more than their shared religious affiliation and her role as a parishioner …. However consequential that may be in a religious context, it provides no basis to support liability in a civil context.

The court acknowledged that a counseling relationship might give rise to a fiduciary duty, but no such relationship existed between the regional church and the plaintiff.

Negligent hiring

At the time of the pastor’s employment the regional church, pursuant to its internal policies, arranged for the Oxford Document Management Company to conduct a background investigation, which was accomplished by sending detailed questionnaires to all employers, schools, and church agencies with which the pastor had any prior contact. This investigation did not result in any responses suggesting that he had engaged in any inappropriate sexual conduct. An officer of the regional church telephoned an officer of another regional church where the pastor was previously employed and was told that the pastor had experienced “some sort of breakdown” in connection with the failure of his marriage, but had recovered fully.

In rejecting the plaintiff’s negligent hiring claim against the regional church, the court noted that it was the local church, and not the regional church, that hired the pastor and entered into an employment contract with him. The court concluded:

Even assuming that the regional church’s role in commissioning or conducting a background check on the pastor was sufficient to show that it ‘hired’ him, no rational jury could conclude that it overlooked or ignored any evidence suggesting that he would engage in a sexual relationship with an adult parishioner. The background check, conducted as required by church policy, revealed no such facts. Also in accordance with church policy, the regional church confirmed that the pastor had attended training designed to prevent sexual misconduct, provided by his previous employer. In short, the plaintiff presented no facts even suggesting that, at the time he was hired by the parish, the pastor had a history of sexual misconduct that the regional church could have discovered through reasonable investigation.

Negligent supervision and retention

The plaintiff claimed that the regional church was liable for the pastor’s conduct on the basis of negligent supervision and retention based on its “inadequate” response to the reports of an improper counseling relationship that had been submitted to him by an unnamed informant. The court disagreed:

Assuming, without deciding, that the [regional church] had any duty of supervision, no rational jury could find that [it] was negligent in supervising or retaining the pastor. While the pastor and the plaintiff were involved in a sexual relationship, a relationship they sought to keep secret, a [church member] twice informed [a regional church officer] of an anonymous report that the pastor was involved in a sexual relationship with an unidentified parishioner. The member did not report that the unidentified parishioner was being counseled by the pastor. On each occasion, the officer urged her to encourage any person (including the source of the anonymous report) to come forward. His actions were in accordance with the regional church’s sexual misconduct policy manual, which provides:

“Anyone who believes that he or she has been subject to sexual misconduct by a minister or church employee may make a complaint to [the regional church]. If the complainant is willing to make a charge of sexual misconduct, that charge must be in writing [and the regional church] will then begin the process of investigating and adjudicating the charge. Charges will not be processed unless they are in writing.”

The court concluded:

The delicate balance between the freedom to exercise religion and the demands placed on all persons (clerical and others) by civil law requires us to proceed cautiously in a controversy where we are asked to hold that a religious institution’s reliance on its own written policy governing the response to reports of a clergy’s sexual misconduct with an adult parishioner gives rise to liability under civil law. On the facts presented here, where the regional church adhered to its articulated policy; where there is no claim that its policy was unreasonable; where the plaintiff was an adult; and where she argues only that the sexual conduct in which she and her pastor engaged was proscribed by ecclesiastical law, we conclude that the plaintiff has not met her burden to show a genuine issue of material fact that the regional church negligently supervised or retained the pastor.

Application. This case is significant for several reasons, including the following:

1. The court concluded that a fiduciary relationship does not automatically arise between a church, or denominational agency, and its parishioners. There must be something more, such as a formal counseling relationship, for a fiduciary relationship to occur. As a result, the court rejected the plaintiff’s breach of fiduciary duty claim.

2. The court ruled that the regional church could not be liable on the basis of negligent hiring or the pastor’s conduct since it was not his employer and it conducted a thorough background investigation of the pastor at the time he was hired which revealed no information suggesting that he had ever engaged in an inappropriate physical relationship with a church member.

3. The court rejected the plaintiff’s negligent supervision and retention claims on the ground that the regional church had an established and reasonable procedure for investigating charges of pastoral misconduct that was triggered by the filing of a written complaint by a victim or other interested person. In this case, the regional church’s procedure had not been implemented since written charges had not been submitted by an identifiable person. The court suggested that the First Amendment guaranty of religious freedom would bar it from evaluating the adequacy of the regional church’s disciplinary and investigatory procedures. The court concluded: “The delicate balance between the freedom to exercise religion and the demands placed on all persons (clerical and others) by civil law requires us to proceed cautiously in a controversy where we are asked to hold that a religious institution’s reliance on its own written policy governing the response to reports of a clergy’s sexual misconduct with an adult parishioner gives rise to liability under civil law.” Petrell v. Shaw, 902 N.E.2d 401 (Mass. 2009).

This Recent Development first appeared in Church Law & Tax Report, January/February 2010.

Legal Developments

Youth Pastor Jailed for Sexual Misconduct

Clergy may face extremely severe consequences for sexual abuse and exploitation.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Youth Pastor Jailed for Sexual Misconduct

Clergy may face extremely severe consequences for sexual abuse and exploitation.

Richard R. Hammar, J.D., LL.M., CPA

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

A Washington state court affirmed a 15-year prison sentence for a youth pastor for engaging in inappropriate sexual conduct with two female members of his youth group. The youth pastor (the “defendant”) had sexual intercourse with a member of his youth group on six occasions. He persuaded another member of the youth group to disrobe while they were communicating with a computer, web-cam, and cell phones. Both minors informed their mothers of the defendant’s conduct, and the defendant’s acts were reported to the police. The defendant was charged with first degree sexual misconduct for engaging in sexual intercourse with the one minor. He was also charged with unlawful communication with a minor for an immoral purpose and sexual exploitation for his use of a computer, web-cam, and cell phone in communicating with the other minor.

The court convicted the defendant as charged and sentenced him to an “aggravated, exceptional sentence” of 15 years in prison, concluding that “standard range sentence is too lenient under the facts and circumstances of this case,” since the defendant had used his position of trust as a pastor to sexually abuse and exploit the victims.

A state appeals court affirmed the conviction and sentence. It noted that “a trial court may impose a sentence outside the standard sentencing range if it finds that substantial and compelling reasons justify an exceptional sentence.” Such reasons existed in this case, the court concluded. State v. Ritter, 201 P.3d 1086 (Wash. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2009.

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