There is often no proof of knowledge by church employment supervisors that sexual misconduct occurred with a minor until long after the fact. One cause is that it is simply not reported to those supervisors at the time. Sometimes, inexplicably, that which is reported is some other tale that does not include any hint of a sexual event. However, sometimes it does become known to church employment supervisors.
In John Doe 122 v Marianist Province, Slip Op. (Mo. 2021), the Missouri Supreme Court reversed, in part, a summary judgment granted to the church. The claim sent back for further proceedings was a claim for intentional failure to supervise clergy. We previously reported on this case on January 29, 2020 regarding the Court of Appeals decision, which should now be considered superseded by this Supreme Court opinion. The Plaintiff’s proof of culpable knowledge by the church was presented by an apparently credible expert witness that personnel file entries contained euphemistic code words used at the time that, indeed, in code referenced inappropriate sexual behavior with minors. The trial court rejected such proof but the Missouri Supreme Court reversed and held it was for the trier of fact, probably a jury, to determine what weight to give the opinion.
While it is true that the standards of one era might differ from another, it is hard to imagine that clergy sexual misconduct could be so easily dismissed in any era by any church supervisory authority. However, it still seems to happen no matter how often legal counsellors decry it. Any church leader or clergy that becomes aware of sexual misconduct with a minor should consult legal counsel to determine if mandatory reporting is required. Such a consultation will likely not be free or quick unless the advice is to immediately report. Advice that indicates reporting is not required should be deliberate, careful, and thoroughly considered.
A version of the table below was copied in these reports a couple of years ago. Below is the 2019 version. While confessional privilege may be listed as “denied” in two states and a territory, it remains to be seen whether there will be or ever has been a prosecution for violation by a bone fide clergyman from a denomination with established confessional confidentiality. States that do not have confessional privilege exceptions in the mandatory reporting statute generally omit clergy from the list of mandatory reports so whether there is any duty on clergy is unclear.
Source: Child Welfare Information Gateway (2019), US Dept. of Health and Human Services.
In Nunez v Watchtower Bible and Tract Society of New York, Inc., 2020 MT 3 (Mont. 2020), a trial court judgment upon a jury verdict for $4 million and punitive damages of $35 million were overturned. The Montana statute contained a confessional privilege, as set forth, too, in the table above. The Supreme Court of Montana extensively analyzed the record before it as to the confessional privilege recognized by the denomination. The denomination made it a violation of canon law to breach the confessional confidentiality. However, the denomination recognized a church officer with authority to take confessions, unlike some denominations, could violate canon law and report the confession but that punishment would be unlikely. Nevertheless, that the denomination left some discretion in the confidentiality decision did not make it the ineligible for the confessional privilege set forth in Montana’s statute. The court held it was prohibited from considering whether religious confessional conduct conformed to the standards of a particular religious group. Also, the court held that by the Establishment Clause the court was prohibited from comparing confidentiality practices between denominations to favor one over the other.
The tension between confessional confidentiality and mandatory reporting statutes remains. Clergy are simply at risk. There is no easy way out. In some denominations, confession is not meaningful without proof of repentance. However, the breadth of the proof of repentance, or the vow to be undertaken to cure the sin, are beyond the scope of this report.
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.
The statutes of limitations are intended to prevent stale claims from being litigated. The idea is that stale claims are unfair to litigants because memories fade, witnesses die, and standards change. Such statutes are good policy. However, if a wrongdoer decides to hide the wrongdoing, and especially if the wrongdoer succeeds, then the statute of limitations does not begin to run until the victim or injured party knows or should have known through reasonable efforts. This is also a reasonable policy because the wrongdoing has not ended until the conspiracy of silence ends.
In Rice v Diocese of Altoona – Johnstown, 2019 PA Super 186, (PA Supp. 2019), the trial court reluctantly dismissed claims of fraud, constructive fraud and civil conspiracy because the alleged child molestation occurred in the 1970s and 1980s. The appellate court reversed holding that whether an alleged effort to hide the wrongdoing occurred, and thus prevented tolling of the statute of limitations, was a question of fact for the jury. The plaintiff alleged she discovered the alleged conspiracy to hide the molestation in grand jury testimony made public in 2016 and immediately filed suit. The plaintiff alleged the last act of the conspiracy was in 2016 revealed or further perpetuated in the grand jury testimony of 2016.
Limitations discovery rules are not new and the response to these types of rulings has been a more aggressive public disclosure of “credible accusations” by various denominations and churches. The risk of a defamation claim has been deemed less than further untolled limitations as to molestation claims. Confession may be both good for the soul and good litigation risk management.