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Background investigations generally available do not find expunged criminal records, withdrawn or dismissed criminal charges, or acquittals.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.
Litigating about litigating is the most expensive battle in a lawsuit because it does not directly decide the case on the factual merits. Discovery disputes are the worst because they usually decide the least number of issues between the parties.
In Padron v Watchtower Bible and Tract Society of NY, Slip Op., (CA App., 2017), the trial court imposed a sanction of $4,000 per day for non-compliance with a document discovery order of the court. The appellate opinion affirming the trial court’s order laboriously considered and rejected the denomination’s arguments against production of reports to the denomination by local congregations over many years regarding sexual abuse of children. The Plaintiff asserted the denomination allowed accused officers to transfer from one congregation to another even though the denomination knew of multiple accusations against the transferring officer. The discovery sanction by the trial court came about after the denomination had unsuccessfully challenged the discovery sought by the Plaintiff but openly refused to obey the court’s order. It might also be noted that the trial court appointed a discovery referee (aka “special master”) and it was the referee’s recommendations the trial court adopted in its order. The denomination did not help its argument by making inconsistent arguments in different proceedings about whether it had the documents sought.
Denominations should probably use a single discovery coordinating law firm or law department rather than only the local law firm assisting with defense of the case. Such coordination would reduce the likelihood of internal inconsistency in discovery positions and reduce the cost of the learning curve regarding denominational document flow. Likewise, a single qualified technology vendor can assist the denomination with searches of electronic document storage and reduce the risk of inconsistent results from one case to the next. One issue that the denomination lost was limitation of the document searches to congregations in the state of California, the location of the trial court, the Plaintiff and the relevant congregations. Once a discovery issue hops state boundaries national coordination becomes less expensive than fragmented responses.
The gospel of reporting statutes, especially when crossing state lines and possibly triggering more than one, still seems to be misapprehended by many in church leadership. Among some church leaders, there might even be an arrogance by which leaders somehow convince themselves they can manage, cure, or heal child abuse victims and abusers. Most church leaders lack the training and resources to help victims unilaterally. Most church leaders are unwilling to demand stringent proof of repentance much less have the training or resources to cure or manage abusers. Nevertheless, church leaders often try to do one or the other or both resulting in onerous legal repercussions or perpetuation of the harm. Also, church leaders tend to apply the standards of their upbringing to the conduct alleged without consideration of the changing views of society, meaning that what might have been considered merely unacceptable in an earlier age is today a crime.
In Jane Doe-1 v Corporation of the President of the Church of Jesus Christ of Latter Day Saints, Slip Op. (W. Va. 2017), the 82 page opinion detailed numerous instances over several years in which both local and regional church leadership were alleged to have learned of alleged sexual abuse of children but did not report it. There is even an allegation that the accused abuser was brought home from a mission trip in response to a police investigation but that the police were not notified of the return. Another aspect of the opinion was that for the court to have this quantity of information to recite in its fact summary, the record in the trial court had to have been extensive. Extensive fact records, especially when there has not yet been a trial, usually exist only after expenditure of a lot of money.
In Jane Doe-1, conspiracy to hide the abuse was alleged. The opinion clearly seems to teach that church leaders that receive allegations of child abuse that consult with other leaders, or even parents, about what should be done may later be accused of conspiring to hide abuse if the consultation leads anywhere but reporting. The only safe thing a church leader receiving allegations of child abuse can do in most states is report. The only safety valve other than reporting is consultation with legal counsel that is paid to report on the actual impact of the reporting laws on the allegations received. But, this is a safety valve only in that it might provide to a church leader a consultation free from conspiracy charges even if the consultation has to be paid. It does not provide a defense.
The National Center for the Prosecution of Child Abuse of the National District Attorneys Association updates periodically a document entitled State Laws Regarding Mandated Reporting of Child Abuse. The latest version on their website is current through September 2016 and lists the statutes in effect in all fifty states. This is very handy for church lawyers.
Also, on the NDAA website is the Clergy Communications and Clergy as Mandated Reporters document last updated January 2012. This is equally valuable for church lawyers considering clergy confidentiality, clergy privilege and penitent privilege. A quick reading of this document well convinces that this is still a mine field, especially in light of the reporting statutes, which do not always expressly explain how these privileges should be weighed against the duty to report, or if they can be weighed at all under the law.
These very valuable resources should be used with caution. The march of time is relentless in these areas. Also, these documents were created by lawyers for lawyers. These issues are not simple and counsel should be engaged to assist if a church leader finds that such an issue has arisen.
Allegations of sexual abuse, especially of children, by church members or church leaders are painful and difficult cases that will scar a congregation sometimes for decades. Nevertheless, there are limitations on lawsuits that sometimes allow a wrongdoer to escape secular punishment. One type are the statutes of limitation that require a lawsuit or criminal charges to be filed before the expiration of a length of time generally imposed by legislation. Statutes of limitation are based on the recognition that witnesses die or age beyond retrieval and documents and scientific evidence age beyond usefulness or are lost. [Try converting an uncorrupted photo, image or video from a format used before Y2K, for example, much less a corrupted data file.] But, sometimes the pain of the victim is permanent.
In Lewis v Bellows Falls Congregation, Slip Op. (D. Vt., 2017), the statute of limitations provided by state law for claims of “childhood sexual abuse” is six years beyond the age of majority (age 18) or from knew or should have known (i.e., the discovery rule). In the Lewis case, the sexual abuse was known before the victim reached 18 leaving the 18 year old six years to file a lawsuit. But, the victim did not file a lawsuit until nine years after reaching age 18.
The victim argued that the alleged fault of the church was not discovered until some years after the abuse which should have extended the statute of limitations under the discovery rule. However, because the abuse occurred in the home of the wrongdoer and the victim was not present in the home of the wrongdoer on a church function, the church had no duty monitor the wrongdoer (or ability to monitor). The victim was in the home of the wrongdoer through no fault of her own, or her parents, but that did not mean the church had control over the wrongdoer in the wrongdoer’s home. Had the abuse been on church property or at an official church function, there might have been a question of fact for a jury to consider regarding the responsibility of the church.
This outcome would have been the same for secular organizations like schools and day care providers. Just because two families meet at some organization like a church or school and develop a relationship outside of the purview of the organization that leads to sexual abuse does not usually alone represent “agency” or “control.” “Here, the Court can discern no evidence that True was continually subjected to the will of … the Congregation … .”
One lesson churches should take from these cases is that liability insurance (which will pay the legal fees to defend the case) should be maintained year in and year out with no gaps and for these types of cases should have very long “tails,” if needed. Well trained insurance agents understand and can solve these issues affordably. Any doubt should be resolved by consulting a second insurance agent independent from the first or legal counsel that is knowledgeable about insurance policy lore.
The unpublished decision of the Court of Appeal of California in Jane Doe v Pleasant Valley Baptist Church, Slip Op. 2016, is interesting on so many levels it is difficult to be selective. The Plaintiff alleged she was molested in 2002 or 2003 by a youth pastor. She sued the church and the senior pastor to recover money damages. The senior pastor was also principal of the church high school in 2010. The trial court dismissed the case on statute of limitations grounds and the court of appeals affirmed. The basic reason was that the court of appeals agreed that the failure to report sexual abuse, while a violation of statute, is only actionable for the period of time permitted by the statute of limitations. The failure to report was classified as an act of negligence subject to the statute of limitations for all negligence actions. The failure to report was not classified as sexual abuse, and in California sexual abuse is governed by a longer statute of limitation.
The lesser issues in the case did not change the result. The Plaintiff alleged that the youth pastor remained employed by the church for seven days after her complaint before he was fired and that resulted in “secondary victimization” and “betrayal trauma.” In addition to the failure to report claim, the Plaintiff claimed she was forced to confront the abuser in a meeting with the senior pastor acting as principal, told that she was not believed, and two weeks before graduation was expelled in retaliation. Even if all of the claims were meritorious, none of them extended the statute of limitations beyond Plaintiff’s eighteenth birthday plus two years. All of these alleged wrongful acts, if they occurred, were after the alleged sexual abuse, and not a cause.
One of the likely psychological underpinnings of the decision, if not an actual basis, was that there was no allegation or proof that the youth pastor’s alleged misconduct could have been foreseen by the church or senior pastor. There was no alleged prior pattern of sexual misconduct. The record was silent as to whether a background check was performed prior to hiring but had there been, there might have been additional support for the defense of lack of foreseeability.