The Problem of Negligent Selection and
Child Sexual Abuse in the Church

By James F. Cobble, Jr. and Richard R. Hammar
Copyright 2002 by Church Law & Tax Report

Key Point: Proper screening helps to reduce the risk of negligent selection.

Churches can face allegations of negligent selection for a variety of reasons. For example, suppose a death occurred following a tragic van accident and it was learned that the church driver who caused the accident had a history of driving violations and did not have a valid license. Furthermore, suppose the church did nothing to screen that driver. An allegation of negligent selection may follow. Such allegations surface in a variety of ways and for a variety of positions. But in recent years, no topic has gained more attention or raised more concern in the church than the negligent selection of workers who molest children. Such a finding dramatically impacts the life of a church and its leaders. Consider the following.

1. The trauma to victims of sexual misconduct. Most cases of negligent selection involve either the sexual molestation of a child or the sexual seduction of an adult church member. These victims can experience lifelong trauma resulting in severe emotional and psychological problems. The spiritual life of these victims and their family members often becomes shattered. No one expects such pain to result from one's participation in a church. When it does occur, the resulting shock and anger often intensifies if it is learned that church leaders did nothing to prevent it. In these situations church leaders often respond, "We did not believe this could happen in our church."

2. The emotional and spiritual impact on the congregation. Once an allegation of sexual misconduct occurs, congregational members respond in disbelief. If the allegation is confirmed, the initial disbelief gives way to shock, anger, and often disillusionment. About one-fifth of the time, when the sexual misconduct involves children, multiple victims are present. Not only does this significantly increase the likelihood of litigation, but other parents within the church become concerned that their own children may be victims. Congregations become divided. Some members cannot believe the allegation. Some insist on forgiveness and restoration of the offender. Others seek justice, accountability and protection. Intense discord can surface lasting for months and even years. Some congregations never fully recover.

3. The negative news coverage. Church litigation involving sexual misconduct energizes the news media. Coverage can be intense and the media attention can last for months. Church leaders who have faced such circumstances report that congregational members become embarrassed to admit where they go to church. They feel like lepers within their own community.

4. The stress of litigation and the investigative process. Incidents of child sexual abuse often result in a state investigation. Social workers and police detectives question church members and employees. Children may undergo medical exams and interviews. If a lawsuit should occur, depositions are taken and a trial may follow. The process takes a toll on every person who is involved.

5. The financial cost. These cases cost more than any other form of litigation that churches face today. In addition to the legal costs, contributions from members may decline if they see church funds being swallowed up by attorney fees. Members often take a wait and see attitude before committing their financial resources to resolve a controversial legal concern.

6. The personal impact on church leaders. The toll on church leaders should not be underestimated. First, the emotional stress can be intense. Leaders who must respond to allegations of sexual misconduct experience a wide range of emotions, bewilderment and uncertainty. Often, they have no idea how to respond or what to do. Under the legal theory of negligent selection, church leaders have been charged with gross negligence. That means not only are they accused of failure to exercise reasonable care in the selection of the alleged perpetrator, but that the selection process was reckless resulting in gross negligence. A finding of gross negligence can be devastating to a church leader, since it may remove the "limited immunity" that many states provide to the uncompensated officers and directors of nonprofit organizations. Suddenly, church leaders may find themselves personally responsible if a jury determines that gross negligence occurred. Furthermore, if punitive damages are assessed against the church for reckless conduct, the cost will be fully assumed by the church. Generally, insurance does not cover punitive damage awards.