• Church Checklist:  Church Sexual Abuse -- Are You At Risk?

 
• Recent Developments

 
• From the Courts

 
• Stay On Track 

 
• Recent Headlines -- Child Sexual Abuse in the Church
  
  
  

Austin Street Church of Christ
Custodian Indicted for Molesting Three-Year-old Boy  

The Dallas Morning News, January 4, 1997. Dallas, Texas 

A 36-year-old custodian of a church in Garland, Texas, was arrested in December for molesting a three-year-old boy. The custodian had a prior conviction for public lewdness in 1993. 

Church leaders acknowledge that had they done a criminal background check and found the prior conviction, they would not have hired the custodian. 

"Our practice has been not to do a criminal background check, but we're talking to other churches about the legality of doing it," said the associate minister. "It's more complicated than we realized, but we hope to start in the very near future." 

The church hopes to begin criminal background screening of all church employees and volunteers with access to children.

St. Mary's of the Annunciation
Priest Accused of Sexually Abusing 21 Children Over Four Decades 

A 61-year-old priest was placed on sick leave after the latest accusations that he had sexually abused children. According to church records, the church had received complaints about the priest in 1979. A mother allegedly confronted church officials in 1979 and accused the priest of molesting her sons. Church officials told the parent "'not to say anything, that they would handle it.'" Despite these allegations, the priest was not placed on sick leave until one year later and returned to duty in 1981. After returning to duty, the priest again allegedly began sexually abusing other children. Several lawsuits have already been filed and more are expected. 

One of the priest's supervisors never was told why the priest took sick leave and never heard abuse and are attempting to sue several church members and trustees who they claim were involved in a conspiracy to cover up the abuse.

Orlando Diocese Implements Fingerprint Program to Protect Against Sexual Abuse of Children

All employees and volunteers of the Catholic Diocese of Orlando are being fingerprinted as part of an effort to effectively screen workers at the diocese. The fingerprints will be submitted to the Florida Department of Law Enforcement, which will run criminal background checks for $15 on each of those fingerprinted. The decision to fingerprint all employees and volunteers comes two years after a series of sex abuse cases involving priests in the Orlando diocese. In the last twenty years, the diocese has paid millions of dollars in settlements with abuse victims. The bishop of the diocese was the first employee fingerprinted. 

Dallas Jury orders Roman Catholic diocese to pay nearly $120 million after finding that priest sexually molested 11 altar boys, one of which had committed suicide. 

The jury found that the church had ignored evidence that the priest was sexually abusing boys, the diocese had been grossly negligent and had tried to cover up the scandal. Testimony presented showed that a reasonable background investigation by church officials would have revealed that the priest had served a year in a juvenile detention center for molesting a neighbor. He had also entered into a marriage that was annulled by the diocese's marriage tribunal, and his ex-wife said in a deposition that she had informed a tribunal official that her former husband was gay and of any of the complaints and accusations. "I was under the impression he had some sort of breakdown," the supervising priest said, "but I was never told. They have this thing about confidentiality."had a sexual interest in boys. Even more damaging were letters and reports contained in church files that since 1985 the priest had frequent sleep overs with the boys in the rectory causing one Catholic Priest to write the Bishop: "when he hugged them, he would hold them tightly against him and rub them against him, almost like they were a towel with which he was drying himself."

Plaintiffs Allowed to Seek Over $91 Million In Sexual Abuse Lawsuit Against 300-year-old Bruton Parish Church 

Fourteen children and other plaintiffs filed a sexual abuse lawsuit against a church "baby sitter", the baby sitter's mother, the church, its rector, the church's insurer, and the church's diocese. The original lawsuit requested $43.6 million and the plaintiffs were allowed to increase the claims to $56 million. The plaintiffs have now been allowed to amend their claims to seek $91.2 million. 

The employee has already been convicted of multiple sex crimes and has been sentenced to 73 years in prison. 

According to the lawsuit, the "baby sitter" employed by the church abused children in the church's buildings and the victims' homes. 

Plaintiffs contend that the church negligently hired and supervised its employee and tried to cover up the extent of the abuse and are attempting to sue several church members and trustees who they claim were involved in a conspiracy to cover up the abuse.

CHURCH CHECKLIST

Child Sexual Abuse:  Is Your Church At Risk?

Question One: Have you surveyed the biblical mission of the church and its shepherds in the prevention of child sexual abuse while participating in church activities? 

Counsel: Psalms 82:3-4; Proverbs 22:3; Acts 20:28-31; John 10:1-13. 

Question Two: Does your church have a sufficient written policy and program to reduce the risk of sexual abuse of children in church activities? 

Counsel: The following are several purposes behind a written policy to reduce the risk of child sexual abuse: (1) to protect the child and youth from sexual abuse while he or she is involved in church activities; (2) to protect the innocent worker or staff from the possibility of false accusations; (3) to protect the church from legal liability by taking appropriate preventative steps to screen workers who regularly work with children and youth; and (4) to protect the honor and reputation of the Church and maintain the unity of the Body of Christ on this earth. Elements of an effective risk reduction program: 

• Screening workers; 
• Training, supervising and monitoring workers; 
• Abuse reporting procedures; 
• Necessary action plan for responding to allegations of abuse; and 
• Documenting all efforts to protect against and respond to such allegations. 

Counsel: In addition to normal application questions, the job application should contain questions about church references, whether the applicant was a victim of abuse or molestation and whether the applicant has read the child sexual abuse prevention policy. 

References should be contacted when the worker previously dealt with children or youth. A separate reference contact form needs to be used for each reference. A criminal background check also should be performed on paid staff, as well as volunteers if there is "reasonable suspicion." Having the applicant sign a form consenting to the release of background information is essential. 

A personal interview should be conducted, and a separate form listing certain interview questions should be used by the interviewer. The interviewer also needs to be adequately trained and experienced. 

Question Four: Have you put into place effective written procedures to administer your policy and strictly maintain the confidentiality and privacy of background screening information? 

Counsel: Program administration is essential to effective risk reduction. Making sure a seasoned worker with some human resources experience is most helpful. Interviewers need to make it clear to the applicant that all information is to be kept confidential and private. The church also should have a secure location where applications and personnel files are kept. A keyed file cabinet to which only a limited number of people have access is a must. 

Question Five: Is your church posting its child sexual abuse prevention policy, providing regular training sessions on its policy, training church staff and volunteer workers on how to recognize signs of sexual abuse and child sexual abuse. 

Counsel: Training workers can include the following: general training on policy requirements and reporting procedures; a training videotape with a signed roll sheet for attendance; and live training and tips on how to recognize signs of child sexual abuse.In addition, church leaders need to make sure that the child sexual abuse prevention policy is posted in all children and youth areas of the church. The following are several methods of supervising workers and monitoring contact between workers and youth/children: 

• have all workers wear name tags; 
• implement a two adult rule in which no adult will be alone with a child or youth; 
• install windows in doors so people in classrooms can be seen from other locations; 
• use hall monitors; receive written pledges from certain high risk workers; 
• and have job specific written guidelines for appropriate conduct of workers. 

Counsel: The church should have a written abuse reporting form to be completed by the person to whom the allegations are made or by the person who discovers evidence of abuse. There should be written procedures for internal investigations of the allegations. In addition, states vary as to the reporting requirements of churches and church workers to the appropriate authorities. Seeking legal counsel at an early stage of the investigation is also recommended. Legal counsel can oversee the investigation and with that counsel, the investigation may be protected by the attorney-client privilege. Regardless of whether an attorney is or is not involved, the church must document its investigation and its response to the allegations. 

Question Seven: Has your church formulated an action plan to respond to "suspected" church related child sexual abuse including: designated spokesperson, strict confidentiality guidelines, handling news media inquiries, arranging pastoral counseling for the abused(s) and abuser, biblical dispute resolution program, attorney oversight and necessary documentation? 

Counsel: The church must take prompt, appropriate remedial action to "suspected" church related child sexual abuse. It is extremely important that the church document any action taken in response to the suspected abuse. The church should consult with its attorney and involve that attorney in the investigation process. Pastoral counseling of the alleged abused(s) and his or her parents may require retaining outside Christian counselors if they feel threatened or uneasy about counseling from the church. The church must not minimize or immediately deny the allegations. It is also recommended that the church involve and inform the victim and his or her family in the investigation and response. Most importantly, the church should respond compassionately and sensitively. 

Conclusion: No policy or procedure can guarantee child sexual abuse will not occur. However, the aforementioned questions highlight how your church can take a STAND to reduce the risk of child sexual abuse in church related activities. 

RECENT DEVELOPMENTS

New Federal Legislation to Protect 
Non-Profit Volunteers

• the volunteer was acting within the scope of his or her responsibilities at the time;
• the volunteer was properly licensed or otherwise authorized for the activities or practice in the State in which the harm occurred, if such is required or appropriate;
• the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed; and
• the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the State requires the operator or owner to possess an operator's license or maintain insurance. 

In addition to limiting actions for which a volunteer may be liable, the Act also prohibits the award of punitive damages against a volunteer unless the claimant establishes by clear and convincing evidence that the harm was proximately caused by an action which constitutes willful or criminal misconduct or a conscious, flagrant indifference to the rights or safety of the individual harmed. Further, noneconomic damages such as pain and suffering, mental anguish and loss of consortium, are prorated based upon the percentage of responsibility the volunteer's actions bears to the injured party's harm. 

The Act preempts inconsistent state law except when the state law provides additional protection from liability relating to volunteers in the performance of services for a nonprofit entity. This preemption appears to include Alabama Code Section 10-11-4 which states that volunteers are liable for claims arising out of actions taken in the line and scope of the volunteer's duties which cause personal injury, death or property damage. Thus Alabama volunteers apparently will have a greater measure of protection after the Act becomes effective. However, the Act has not been challenged, and by its own terms permits States to elect to make the Act inapplicable to any civil action in a State Court against a volunteer in which all parties are citizens of the State. To date, Alabama has not elected to make the Act inapplicable to these actions. 

Notwithstanding the considerable benefits the Act confers upon volunteers, the liability limitations do not apply to any misconduct that constitutes a crime of violence, an act of international terrorism, a hate crime, a sexual offense for which the volunteer has been convicted, a violation of civil rights law, or where the volunteer was under the influence of alcohol or any drug. Though these types of actions would generally fall outside the line and scope of a volunteer's responsibilities, and thus outside the responsibility of the non-profit organization, an organization may still face liability for harm caused by a volunteer who engages in the above actions. For example, if a church fails to establish or follow reasonable standards for the selection and supervision of volunteers, the church may be liable for negligence in the selection or supervisory process, in addition to the liability of the volunteer. 
 
 

PRACTICAL COUNSEL

FROM THE COURTS

City of Boerne v. P.F. Flores, 65 USLW 4612 (1997). 

The St. Peter Catholic Church was located in an area of Boerne, Texas, which was designated as a historic district. The City Council of Boerne denied the church a building permit to enlarge 

the church building. The Archbishop of San Antonio challenged the denial of a building permit alleging, among other claims, that it violated the Religious Freedom Restoration Act of 1993 ("RFRA"). RFRA "prohibits government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." The U.S. Supreme Court found that Congress exceeded its authority under Section 5 of the Fourteenth Amendment to the U.S. Constitution in enacting RFRA and declared the statute unconstitutional. The decision leaves intact the Courts prior ruling that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling government interest. See Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). 

Agostini v. Felton, 65 USLW 4524 (1997). 

Overruling a 1985 decision, the U.S. Supreme Court held that a "federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees under a program containing [certain] safeguards." The Court noted that the use of full-time government employees on parochial school campuses does not necessarily result in advancing religion through indoctrination. It found that New York's program contained safeguards against giving federal aid recipients an incentive to modify their religious beliefs or practices to obtain program services. The program met the three primary criteria used to evaluate whether the government was advancing religion: it did not result in government indoctrination, define its recipients by reference to religion, or create an excessive entanglement between church and state.  

The U.S. Department of Education has released guidelines indicating that local school districts may offer math and reading help in private and parochial schools. However, no religious symbols should be present in the classrooms used by the public school teachers. 

Hargrove v. Tree of Life Christian Day Care Center, 1997 WL 272426 (Ala. 1997). 

The parents of a 3 month old girl sued a church-affiliated day care center after the foster children of the day care administrator were permitted to kidnap their daughter for 6 days. Though the day care center had instituted safety procedures regarding the care of its children, at the time of the incident no adult was supervising the foster children who worked at the facility. The Alabama Supreme Court upheld a lower court ruling which found that the Center would not be held liable for the criminal acts of the foster children because it did not know or have reason to know that a criminal act was about to occur on the premises. However, after upholding the dismissal of claims for negligent and wanton supervision, outrage, invasion of privacy and respondeat superior, the court affirmed that the church could be held liable for breach of contract in failing to follow its established procedures. This opinion has not been released for publication and is subject to change. 

Swanson v. Roman Catholic Bishop of Portland, 692 A.2d 441 (Me. 1997). 

Husband and wife who received marriage counsel from a priest sued priest and church after the priest initiated a sexual relationship with the wife. The lower court dismissed the claims against the church for negligent selection and training, but not for negligent supervision. The Supreme Judicial Court of Maine held that the negligent supervision claim should likewise be dismissed on constitutional grounds. The court stated, "On the facts of this case, imposing a secular duty of supervision on the church and enforcing that duty through civil liability would restrict its freedom to interact with its clergy in the manner deemed proper by ecclesiastical authorities and would not serve a societal interest sufficient to overcome the religious freedoms inhibited. Courts across the country are split on whether the First Amendment to the U.S. Constitution restricts tort claims against religious organizations.

Nelson v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 935 P.2d 512 (1997). 

Adult supervisor fell on and seriously injured a youth at a church sponsored activity. The youth sued the supervisor and church. The supervisor settled by agreeing to pay the youth $100,000.00. The church argued that the vicarious liability claim against the church should be dismissed in light of the settlement. The court disagreed and the action was permitted to continue. 

Robinson v. Dunn, 683 So.2d 894 (La. Ct. App. 1997). 

Church pastor and members had a dispute at a church meeting which was called to determine whether the pastor could continue to serve the church. The head deacon and his family no longer wanted the pastor to serve and forcibly ejected the pastor from the meeting. The pastor sued the deacon and his family for physical injuries, pain and suffering, embarrassment, humiliation and mental anguish under the tort of battery. The court upheld the lower court's dismissal of the claims against the defendants, noting that according to the church's policy the pastor had no right to be present at the church for the church's meeting.

STAY ON TRACK

1. Is your church incorporated or otherwise organized to reduce liability risks?

 
2. Has your church adopted, or is it subject to, detailed, written policies and procedures for how the church will be governed, how decisions will be made and implemented, who is responsible for carrying out church decisions, membership qualifications, rights and responsibilities, church discipline, conflict resolution, church record keeping, dissolution, etc.?

 
3. Do you have written membership guidelines and do you require members to consent, preferably in writing, to a statement that they have had an opportunity to review your church's written policies and procedures, understand them, and agree to be bound by them?

 
4. Do you require that church disputes, whether at the membership level or otherwise, be resolved through the use of Christian oriented dispute resolution procedures (i.e. Christian Conciliation), including mediation and arbitration, if necessary?

 
5. Are you following your established written procedures consistently and documenting all meetings, decisions, important agreements, etc.?

 
6. Do you regularly review your insurance coverage to ensure that the church and those acting in a church related-capacity are covered and that you have adequate coverage amounts?

 
7. Has your church implemented detailed written policies and procedures for the hiring, supervision and termination of all church personnel, whether employee or volunteer, including requirements which are specific to the various ministries your church offers?

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The Church Law Alert is published by the law firm of Wallace, Jordan, Ratliff & Brandt, L.L.C. for the benefit of our clients. It is intended solely to be informational and does not constitute legal advice as to any specific situation. "No representation is made that the quality of legal services performed is greater than the quality of legal service performed by other lawyers."