Current recommendations to church employers is to purchase from a reputable vendor background investigations on prospective new hires and volunteers that will work with children. These investigations are no longer expensive. While their reliability record is not perfect, background investigations can be proof the church employer was not on notice of the evil proclivities of a prospective hire or volunteer.
Background investigations generally available do not find expunged criminal records, withdrawn or dismissed criminal charges, or acquittals. Also, the public sometimes is unaware that an acquittal is not a judicial finding of actual innocence. Trials can be messy. Witnesses can vanish, forget, or simply lack credibility no matter how truthful they might be. That might result in an acquittal but not because of innocence. Moreover, the ability to inquire deeply into a dismissed criminal charge or an acquittal is often outside the ambit of the internet unless news media coverage documented some of the circumstances.
The opinion of the Missouri Court of Appeals for the Eastern District in BB v Methodist Church of Shelbina, et al, Slip Op., 2017 noted the two background investigations conducted on the later criminally convicted child molester and no doubt that influenced the decision to affirm summary judgment for the church and denomination. Neither investigation revealed a prior acquittal. There was not much more the church could do in that respect.
The opinion is worth readying simply because it is one of the better apologetics for the limitations on church employer liability for the criminal misconduct of an employee. Missouri has found that the Ecclesiastical Abstention Doctrine prevents mere negligence claims that require a court to delve into ecclesiastical matters. Also, an employee guilty of criminal misconduct is outside the course and scope of employment which is a traditional limitation on employer liability.
In this case, the alleged sexual molestation occurred at the home of the youth pastor. Because the abuse did not occur on church property and, indeed, occurred in the youth pastor’s home, the court held the church did not have control of that environment. There was an allegation that a church staff member knew kids were going to the youth minister’s home, but the court held if true that was at best a negligence claim and would require an ecclesiastical inquiry. Almost no employers have control over an employee’s home and churches are not different in that respect. The Plaintiff argued “grooming” occurred on church property but the court held “grooming” was not sexual abuse.