FORSEEABILITY OF CHILD SEXUAL ABUSE

In the current environment, churches that retain employees or leaders based on a “benefit of the doubt” are taking a risk in child sexual abuse incidents. The church wants to believe the incident did not happen. The church wants to believe the employee or leader, sometimes a part of the church for many years, would never do or allow such a thing. Nevertheless, the risk is sufficiently threatening that “belief” is not enough. The church had better be demonstrably and reasonably certain.

In AH v Church of God in Christ, Inc., Slip Op. (Va. 2019), the trial court’s dismissal of the claim against the church was reversed for further proceedings likely to include discovery, other motions, and potentially trial. The Plaintiff alleged the church was aware of a prior allegation of child abuse but the mere awareness of a prior allegation was not enough to make the claim viable. What was enough, however, was the “special relationship” the Court held was alleged by Plaintiff between the church and the Plaintiff. The “special relationship” test is an exception to the rule that criminal conduct is unforeseeable and for which the employer cannot be held liable. However, if there is a “special relationship,” the employer is required to supervise the employee interaction more closely. The Plaintiff alleged the church “actively recruited” the child for the program, held out the employee as appropriate for the program, held out the employee as an agent (in this case a Deacon), and supervised the program. The age of the Plaintiff might also have meant the church took “custody” while the child was in the program.

Churches should suspend from duties with children or teens any leader or employee about which a child abuse or sexual misconduct has been alleged. They should be restricted from access and contact. The incident should be reported consistently with mandatory reporting statutes. The suspension can be lifted only when the investigation is terminated by law enforcement upon a finding the charge is not credible. If law enforcement refuses to make a final finding that can be documented, then the church should consider engaging counsel qualified to conduct such an investigation to document that it is not credible. If lack of credibility cannot be reasonably determined and documented, then the suspension should be made permanent or the person terminated. Rehabilitation can only be accomplished with the aid of outside medical professionals and rigorous internal scrutiny of both treatment the proof of repentance. Regardless of either, such a person must remain restricted from access permanently.

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