In recent years, hundreds of churches have been sued as a result of the sexual molestation of minors by church workers on church property or during church activities. While such cases often involve molestation of boys by male youth workers, they also have involved molestation of both male and female adolescents by youth pastors, camp counselors, and Sunday school teachers. In most of these cases, the victim alleges either or both of the following two theories: (1) the church was negligent in hiring the molester without adequate screening or evaluation; (2) the church was negligent in its supervision of the molester.
Incidents of molestation can occur in any church. Most churches are perfectly willing to select, without any screening process whatever, anyone expressing an interest in working in a volunteer capacity with minors. Churches are by nature trusting and unsuspecting institutions, and it is these very qualities that have made them targets of child molesters. Obviously, a single incident of abuse or molestation can devastate a church. Parents often become enraged, the viability of the church's youth and children's programs is jeopardized, and some times church leaders are considered responsible for allowing the incident to happen. But far more tragic is the emotional trauma to the victim and the victim's family, and the enormous potential legal liability the church faces.
There is good news, however. Church leaders can take relatively simple yet effective steps to significantly reduce the likelihood of such an incident occurring. This article will (1) summarize the legal theories that victims use when suing churches as a result of an incident of molestation, (2) review some of the more significant reported court rulings, and (3) provide churches with forms that can be used to screen those church workers (both compensated and volunteer) who will have custody over minors.
One final word. No one understands or appreciates risk better than insurance companies. Risk evaluation is their business. As a result, it is very significant to observe that a number of church insurance companies are reducing significantly the insurance coverage they provide for child abuse or molestation, and in some cases are excluding it entirely. Some companies are suggesting that such incidents are excluded under the provision in most policies excluding damages based on intentional, criminal conduct (most acts of sexual molestation involve criminal activity). Your church board should immediately review your church liability policy to determine whether you have any coverage for acts of molestation occurring on your property or during your activities, and if so, whether your cover age has been limited in any way. Many churches will discover that they either have no coverage whatever for such incidents, or that the policy limits have been significantly reduced. If you fit within either category, the procedures recommended in this article are of even greater relevance.
Not only will this article apprise you of this significant and tragic source of church liability, but it will also help you to reduce the chances that such a tragedy will occur in your church.
Theories of liability
As noted above, most of the lawsuits filed against churches for acts of child molestation have alleged that the church was legally accountable either on the basis of "negligent hiring" or "negligent supervision." The term negligence generally refers to conduct that creates an unreasonable risk of foreseeable harm to others. It connotes carelessness, heedlessness, inattention, or inadvertence. It is important to recognize that churches are not "guarantors" of the safety and well-being of children. They are not absolutely liable for every injury that occurs on their premises or in the course of their activities. Generally, they are responsible only for those injuries that result from their negligence. Negligent hiring simply means that the church failed to act responsibly and with due care in the selection of workers (both volunteer and compensated) for positions involving the supervision or custody of minors. Victims of molestation who have sued a church often allege that the church was negligent in not adequately screening applicants.
Let's consider your church. If you are like most other churches, you have been selecting just about anyone who has ex pressed an interest in working in a volunteer capacity with the youth in your church (e.g., boys' or girls' programs, Sunday school, children's choir, nursery, teenagers, camp). Even applicants for compensated positions are not extensively screened.
Let's assume that an incident of abuse occurs at your church, and that the senior minister is asked to testify during the trial. The victim's lawyer asks, "What did you or your staff do to prevent this incident from occurring—what procedures did you utilize to check the molester's background and suitability for work with children?" What would your minister say? If the answer is "Nothing," you can well imagine the jury's reaction. The only question in the jurors' minds is the size of the verdict.
Note that a church may exercise sufficient care in the hiring of an individual, but still be legally accountable for acts of molestation on the basis of negligent supervision. Negligent supervision means that a church did not exercise sufficient care in supervising a worker. Clearly, both theories of liability are important. However, the focus of this article will be on negligent hiring.
In one of the most significant reported decisions, the Virginia Supreme Court ruled that a church and its pastor could be sued by a mother whose child was sexually assaulted by a church employee. In 1985, a mother sued a Baptist church and its pastor, alleging that her 10-year-old daughter had been repeatedly raped and assaulted by a church employee. She asserted that the church and minister were legally responsible on the basis of three separate theories. First, she claimed that the church and minister were liable on the basis of "negligent hiring" i.e., they failed to exercise reasonable care in the selection of the employee. Specifically, she alleged that when the employee was hired, the church and minister either knew or should have known that he had recently been convicted of aggravated sexual assault on a young girl, that he was on probation for the offense, and that a condition of his probation was that he not be involved or associated with children. Despite these circumstances, the individual was hired and en trusted with duties that encouraged him to come freely into contact with children, and in addition was given keys to all of the church's doors. The mother alleged that the employee in fact came into contact with her daughter on the church's premises, and had sexual inter course with her on numerous occasions. Second, the mother alleged that the church and its pastor were liable on the basis of their "negligent supervision" of the employee. Third, the mother alleged that the church and its pastor were legally responsible for her daughter's injuries because of their failure to warn parents of the employee's previous criminal and sexual history.
The church and pastor sought a dismissal of the suit, arguing that churches were immune from liability under Virginia law, and also that the employee's probation and parole were controlled by the Commonwealth of Virginia and could not be delegated to a church. A trial court agreed with the church's contentions, and dismissed the case. The mother appealed to the state supreme court, which ruled that the church and its pastor could be sued on the theory of negligent hiring. The theories of negligent supervision and failure to warn were not addressed by the court, since the mother's attorney abandoned them on appeal.
The state supreme court rejected the church's contentions that the theory of negligent hiring either was not recognized under Virginia law, or was not recognized in the context of church employers. It cited earlier decisions in which it had recognized the theory of negligent hiring in the context of charitable employers. The court also rejected the church's contention that it could not be responsible for criminal acts of employees: "To say that a negligently hired employee who acts willfully or criminally thus relieves his employer of liability for negligent hiring when willful or criminal conduct is precisely what the employer should have foreseen would rob the tort of vitality."
The court also rejected the church's claim that it could not be liable since the alleged conduct of its employee was not within the "scope of his employment": "This argument demonstrates that [the church] is confusing the doctrine of respondeat superior with the tort of negligent hiring. . . . The two causes of action differ in focus. Under respondeat superior, an employer is vicariously liable for an employee's tortuous acts committed within the scope of employment. In contrast, negligent hiring is a doctrine of primary liability; the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others. Negligent hiring, therefore, enables plaintiffs to recover in situations where respondeat superior's 'scope of employment' limitation previously protected employers from liability." Accordingly, the church's contention that "proof that the misconduct was within the scope of the wrongdoer's scope of employment is misplaced." The court remanded the case back to the state trial court for a trial on the issue of negligent hiring.
What activities on the part of the church would prevent a finding of negligent hiring? Unfortunately, the Virginia Supreme Court did not address this issue, other than to refer to earlier decisions in which it had concluded that (1) an employer need only exercise "due care in the selection and retention of employees," and once this duty is discharged, it can not be liable on the basis of "negligent hiring" for injuries caused by its employees, and (2) an employer was responsible for injuries caused by an employee who "got dangerously angry from slight provocation" since "no one made inquiry concerning his past record, habits, or general fitness for the position" (had it done so "it probably would not have offered [him] the job") (J. v. Victory Baptist Church, 372 S.E. 2d391 [Va. 1988]).
In two cases, state courts concluded that churches were not legally responsible for acts of sexual molestation. A California state appeals court ruled that a church was not liable for repeated acts of sexual assault on a minor by a Sunday School teacher. Here are the facts. A volunteer Sunday School teacher began picking up a second-grade boy each Sun day morning and evening allegedly for church services, and on Thursday evenings to participate in a church visitation program. This relationship continued for two years, during which time the teacher frequently molested the boy. The boy's mother had no suspicion that her son was being sexually abused by the teacher. On the contrary, she felt the teacher was an ideal adult who was fulfilling the role of "second father" for her son, whose real father was suffering from a serious illness.
Eventually, the teacher was arrested and charged with 47 counts of child molestation, including 9 counts against the boy in question. Thereafter, a lawsuit was brought against the church, alleging assault, battery, and infliction of emotional distress. The state appeals court began its opinion by observing that an employer can be liable for the misconduct of employees or volunteers only if the misconduct was committed "within the scope of the employment." The court continued: "Certainly [the teacher] was not employed to molest young boys. There is no evidence the acts occurred during Sunday School. . . . There is no evidence to suggest that [the teacher's] conduct was actuated by a purpose to serve [the church]. Rather, the acts were independent, self-serving pursuits unrelated to church activities. Finally, [the teacher's] acts of sexual molestation were not foreseeable 'in light of the duties he was hired to perform.' There is no aspect of a Sunday School teacher's or member's duties that would make sexual abuse any thing other than highly unusual and very startling. We conclude [the teacher's] acts against [the boy] were neither required, incidental to his duties, nor foreseeable. They were, therefore, not within the scope of this employment."
The court based its decision in part on an earlier California appeals court ruling that had dismissed a lawsuit against the archbishop of the Los Angeles Diocese of the Roman Catholic Church for the alleged sexual molestation of a 16-year-old girl by two priests. The court in the earlier case had similarly concluded that "it would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the archbishop of the Roman Catholic Church. There is simply no basis for imputing liability for the alleged conduct of the individual priests ... to the arch bishop" (Scott v. Central Baptist Church, 243 Cal. Rptr. 128 [4th Dist. App. 1988]).
In the second case, a Washington State appeals court ruled that a church-operated school was not legally responsible for damages resulting from an alleged sexual relationship between a teacher and a student. The student's parents had sued the school and church for "negligent hiring" and "negligent supervision." The court rejected both allegations. With regard to the school's alleged negligent hiring, the court observed that "the hiring process employed by the school suggests it took reasonable care in hiring [the teacher]. . . . The process appears sufficient as a matter of law to discover whether an individual is fit to teach at [the school]." With regard to the school's alleged "negligent supervision," the court agreed that "schools have a duty to supervise their students," and to take precautions to protect students from dangers that may reasonably be anticipated. However, "at some point the event is so distant in time and place that the responsibility for adequate supervision is with the parents rather than the school." Such was the case here, concluded the court, since the alleged misconduct occurred off school property during non-instructional hours. The court also rejected the argument that the school had breached an implied promise to provide a "competent and morally fit faculty" (Scott v. Blanchet High School, 747 P.2d 1124 [Wash. App. 1987]).
Many churches conduct Scouting pro grams for boys' and girls' groups. Such programs present unique risks. While no reported case deals specifically with the Scouting programs of churches, a number of rulings address the liability of the Boy Scouts of America for incidents of molestation occurring during Scouting activities. Consider the following two decisions. In one case, a Boy Scout sued a regional organization of the Boy Scouts of America alleging that he had been emotionally and physically damaged by the intentional homosexual acts of a first aid attendant at a camp operated by the regional organization. The victim alleged that the regional organization was liable on the basis of "negligent retention and supervision" and the theory of "respondeat superior." The court rejected the first theory of liability, since an organization "must have had constructive or actual notice of the employee's unfitness to work as a first aid attendant at the camp to be liable for negligent retention and supervision," and there was no evidence that the organization had any notice of the attendant's unfitness to work with youth.
However, the court concluded that the regional organization could be liable on the basis of "respondeat superior." Respondeat superior is a well-established legal principle that imputes the negligent acts of employees to their employer, if the acts were committed within the scope of employment. The court acknowledged that the acts in question were intentional rather than negligent, but it concluded that even intentional acts of an employee can be imputed to an employer if "the employee's misconduct occurred within the scope of the employment" or if "the employee was doing what his employment contemplated." However, the court observed that "there is no liability [on the part of the employer] when the servant steps aside from his employment to commit a wrongful act to accomplish some purpose of his own." The court held that "generally the jury should resolve the question of whether an employee was acting within the scope of this employment." And, since the trial court had ruled in favor of the Boy Scouts without letting the case go to the jury, the appeals court remanded the case back to the trial court for a jury trial on the issue of respondeat superior. Obviously, this is an important decision for any organization (including churches and denominations) that operates a scouting or camping program (M.V. v. Gulf Ridge Council of Boy Scouts of America, Inc., 529 So. Zd 1248 [Fla. App. 2nd Dist. 1988]).
In the second case, a California state appeals court ruled that the Boy Scouts of America (BSA) was not responsible for the homosexual molestation of two young boys by a Scoutmaster. The mother of the two boys learned in 1984 that her sons had been repeatedly molested by the Scoutmaster during the course of scouting activities. She sued the BSA, alleging that it (1) was responsible for the conduct of the Scoutmaster on the basis of the "respondeat superior" theory, and (2) it was negligent in failing to discover that the Scoutmaster "had been discharged from the Air Force for improper sexual conduct and had also been convicted ... of child abuse in another situation." A trial court dis missed the case against the BSA, and the mother appealed.
A state appeals court affirmed the trial court's order dismissing the case. It acknowledged that "under the doctrine of respondeat superior, a principal or employer is liable for the wrongful acts of its agent or employee committed.. . within the scope of the employment." How ever, it noted that for the conduct of an agent or employee to fall within the "scope of employment," the conduct either had to be "(1) required by or incidental to the duties of the agent or employee and hence not a substantial deviation from those duties for personal reasons, or (2) could reasonably have been foreseen by the principal or employer in any event." The court concluded that a Scoutmaster's homosexual assaults upon young boys satisfied neither of these tests. The court cited with approval previous California decisions rejecting church liability for acts of sexual molestation perpetrated by a church custodian and a Sunday School teacher. The court observed: "Sexual misconduct between a Scoutmaster and his charges is so unusual and startling that it is equally unfair to hold BSA liable under the doctrine of respondeat superior for damages caused by that activity."
The court likewise rejected the mother's claim that BSA was liable for failing to adequately investigate and supervise the Scoutmaster. While such facts may have rendered the BSA liable to the victims, they did not render the BSA liable to the mother. And, since the mother was the only party named as a plaintiff in the case, the court had no alternative but to dismiss this allegation as well. In other words, the court left open the question of whether or not the actual victims of sexual molestation could sue the BSA on the basis of its alleged failure to adequately investigate or supervise Scoutmasters who had a history of molestation and deviant sexual conduct.
The fact that this critical issue was left unresolved reduces significantly the comfort that this case otherwise might have brought to church and denominational Scouting programs in California (and to some extent in other states). Churches and denominational agencies that operate Scouting programs must continue to exercise extreme care in selecting and supervising workers (both volunteer and compensated) (Cordts v. Boy Scouts of America, Inc., 252 Cal. Rptr. 629 [Cal. App. 3rd Dist. 1988]).
Churches can significantly reduce their risk of legal liability for negligent hiring (and thereby the likelihood that an incident of abuse or molestation will occur) by having every applicant for youth work (volunteer or compensated) complete a "screening application." A sample form accompanies this article for your consideration. The application should be completed by every applicant for any position involving the custody or supervision of minors. The application should also be completed by current employees or volunteers having custody or supervision over minors. Having an individual complete the form is in itself not enough to protect a church and its members. Significant protection only occurs if the church takes the following additional steps:
1. If an applicant is unknown to you, confirm his or her identity by requiring photographic identification (such as a state driver's license). Child molesters often use pseudonyms.
2. Contact each reference listed on the application and make a written record of each contact. Show the date and method of the contact, the person making the contact as well as the person contacted, and a summary of the reference's remarks. A sample form for use in recording references' comments is re printed with this article. Such forms, when completed, should be kept with an applicant's original application.
3. Contact each church in which the applicant has indicated prior experience in working with youth. Provide a written report of all of the information contained in the preceding paragraph. A sample form is reprinted with this article.
4. Be sure your entire staff (volunteer and compensated) is aware of the child abuse reporting requirements in your state. You will need to check with a local attorney for clarification and guidance.
5. Be sure you are aware of any additional legal requirements that apply in your state. For example, a number of states have passed laws requiring church-operated child-care facilities to check with the state before hiring any applicant for employment to ensure that each applicant does not have a criminal record involving child abuse or molestation. Again, you will need to check with a local attorney for guidance.
6. Finally, the church must treat as strictly confidential all applications and records of contacts with churches or references. Such information should be marked "confidential," and the church board should enact a policy restricting access to this information to as few persons as possible.
As your church board considers the implementation of a screening procedure, keep the following considerations in mind:
1. The screening procedure should apply to all workers—both compensated and volunteer. Acts of molestation have been committed by both kinds of workers.
2. The screening procedure should apply to new applicants as well as current workers. Obviously, churches need to use some common sense here. For example, if your fourth grade Sunday School teacher is a 60-year-old woman with 25 years' teaching experience in your church, you may decide that reference checks are unnecessary. The highest risks involve male workers in programs that involve overnight or unsupervised activities. Persons in this category should be carefully screened.
3. If the screening application and reference forms seem overly burdensome, consider the following:
a. One insurance company executive has described as "an epidemic" the number of lawsuits that have been filed against churches as a result of acts of sexual molestation.
b. Your church liability insurance policy may exclude or limit coverage for acts of child molestation. If so, you have a potentially enormous uninsured risk. Reducing this risk is worth whatever in convenience might be generated in implementing a screening procedure, just ask any member of a church in which such an incident has occurred.
c. The screening procedure is designed primarily to provide a safe and secure environment for the youth of your church. Unfortunately, churches have become targets of child molesters be cause they provide immediate and direct access to children in a trusting and often unsupervised environment. In order to provide some protection for the youth of your church against such persons, a screening procedure is imperative.
d. The relatively minor inconvenience involved in establishing a screening procedure is a small price to pay for protecting the church from the devastation that often accompanies an incident of molestation. Just ask any member of a church in which such an incident has occurred.
4. Think of the screening procedure in terms of risk reduction. A church is free to hire workers without any screening or evaluation whatever, but such a practice involves the highest degree of legal risk. On the other hand, a church that develops an extensive screening procedure and that utilizes it for all current and future workers has the least risk.
5. The forms reprinted with this article are guidelines. Your church board may wish to make modifications to adapt them to your particular circumstances, or it may wish to develop entirely different forms. In any event, your final product should be reviewed by a local attorney to ensure compliance with state law. It is also advisable that your final forms be shared with your church insurance agent for his or her comments. You also may wish to share them with a local office of your state agency that investigates re ports of child abuse.
6. Your church can further reduce the risk that an incident of molestation will occur by adopting a policy restricting eligibility for any position involving the custody or supervision of minors to those persons who have been members in good standing of the church for a minimum period of time (e.g., six months). Such a policy gives the church an additional opportunity to evaluate applicants, and will help to repel potential molesters seeking immediate access to children.
7. Remember that the screening procedure is designed to protect the church against the charge of negligent hiring. Your church may exercise sufficient caution in hiring a worker, but can be sued for "negligent supervision" if it inadequately supervises him or her. Overcoming a charge of negligent supervision re quires the implementation of procedures designed to provide reasonable supervision of youth workers while at the same time minimizing if not eliminating the opportunity of an adult to have access to one or more children without another adult being present. The question of negligent supervision is not addressed in this article.
8. Some churches that have developed a close relationship with a local police agency are permitted to obtain criminal record checks as an additional means of screening applicants for youth work. Obviously, common sense needs to be used. Such an extraordinary procedure should be employed only for high-risk positions or perhaps to verify information shared by a reference. State agencies responsible for investigating reports of child abuse sometimes will perform the same service.
9. Every state has enacted a statute requiring specified persons to report actual or reasonably suspected cases of child abuse. This subject will be the focus of a feature article in a future issue of Church Law & Tax Report.
10. A number of denominations have been sued as a result of incidents of molestation occurring in affiliated churches or in denomination-sponsored activities. As a result, denominations should consider encouraging affiliated churches and programs to implement a screening procedure. This will enable them to materially assist their churches and programs while at the same time reducing their own risk of liability.
11. Should a church hire an applicant for youth work who has been guilty of child molestation in the past? Occasion ally, such persons freely admit to a prior incident, but insist that they have since had a conversion experience and that they now present no risk whatever. The safest course would be to encourage such an individual to work in the church, but in a position not involving access to children. This is a reasonable accommodation of the individual's desire to serve his or her church. A church that permits such an individual to work with children, on the basis of the professed religious conversion, will have a virtually indefensible position should another incident of molestation occur. The church's defense—that the molester claimed to have been converted—would likely be viewed with derision by the court.
To illustrate, one court cited with approval the following testimony of a psychiatrist: "In the years that I have been doing this work, I probably have treated people from every religious denomination. We have seen priests, ministers, rabbis who have engaged in pedophilic [i.e., child molestation] behavior, so attendance at a church or being high up in a religious hierarchy doesn't contraindicate that a person is a [pedophile]. . . . They tell us that they have repented, that they have found the Lord and no longer have the problem they were accused of having. So we don't see religiosity as solving the problem" (Dutchess County Department of Social Services v. G., 534 N.Y.S.2d 64 [N.Y. 1988]). Churches that place a known child molester in a position involving access to children are taking an enormous risk.
12. The screening application form reprinted with this article is designed for use by persons at least 18 years of age. If your church employs minors in positions involving custody or supervision of children, then the form will need to be modified to include a signature of the applicant's parent or guardian, plus whatever additional modifications your church considers appropriate under the circumstances.
13. This article has been written to apprise church leaders of the legal issues associated with incidents of child molestation. Of course, the real trauma is experienced by the victim. Churches must take an aggressive stance in protecting children and youth from molestation, and in reducing the risk of legal liability to the church and to its leaders. Forms, such as the ones suggested, can assist that process.