Clergy Abuse and Child Sexual Abuse

In the past, the First Amendment freedom of religion provision and charitable immunity protected churches from lawsuits.  However, the current trend is that in many states, you may sue a church based on normal tort principles, including negligence.

What is Negligent Hiring?

The principle behind negligent hiring is that employers must take responsibility for harm created by hiring someone improper.  When a job brings an employee into contact with the public in a special relationship, the employer has a duty to conduct an investigation into the employee's work experience, background, character, and qualifications.  For an employer to be liable, you must show:

• The employer knew, or should have known, the person was unfit for the job at the time of hiring.
• The employee's incompetence, unfitness, or dangerous characteristics caused an injury.
• There is an employment or agency relationship between the employee and employer.

What is Negligent Retention and Supervision?

Employers may also be liable if they retain employees who commit wrongs against other people if they know, or should know, that the employee does those things.  The employer has a duty to protect people from harm from recurring behavior of an employee.  Similarly, an employer is liable if he fails to adequately supervise an employee who commits wrongs against other people, and the employer knows, or should know, about this past behavior.

How Does This Apply to Sexual Misconduct by Clergy?

If a clergy member engages in sexual misconduct, the church may be liable if the injured person can show that the church should have known that the clergy member may have done such an act in advance.  For example, there may be a prior criminal record, past accusations, or record of mental disease.  You must also show that the church is the controlling organization by citing rules or doctrine that show an agency relationship with the clergy member and the church.

How Do the Abuse Victims Succeed In a Clergy Sex Abuse Lawsuit?

To prevail in such a case, an abuse victim would probably have to prove only that he or she was sexually abused, and that the church took inadequate steps to address the issue, or took some affirmative steps to cover it up. It would also be possible to sue the perpetrator individually, though that person is not likely to have the financial resources to cover any judgment or settlement.

The vast majority of lawsuits related to clergy sex abuse have ended in settlement. These cases often involve multiple victims, contributing to the huge settlements. The Society of Jesus recently settled a case in Alaska for $50 million. It was claimed that members of the church sexually abused over 100 Inuit children at a mission in Alaska.

The Archdiocese of Boston has been embroiled in legal action concerning its cover-ups of abuse, and may settle for close to $100 million. Many other churches and diocese in the U.S. have filed for bankruptcy after being sued for clergy abuse.

What Difficulties Are There In Bringing a Clergy Sex Abuse Lawsuit?

Clergy sex abuse suits have become more common, but there are still significant hurdles to be addressed. The first is that many churches will invoke Constitutional law and the freedom of religion clause to hide their misdeeds. Although many judges have ruled that the judiciary is capable of rendering a verdict on criminal matters without touching church doctrine, many clergy will still use the First Amendment as a shield against any state scrutiny.

Another major obstacle to clergy sex abuse cases is that many of these cases involve victims who were once minors. Since children are reluctant to speak up when an adult is abusing them and with the churches often working to cover up any hint of scandal, the crimes often took place years, maybe decades, before any lawsuit can be brought forth. As a result, the statute of limitations, a time limit on when lawsuits can be filed with courts, has often long expired. It is crucial that any sort of abuse be heard by a judge as quickly as possible, or if the statutes of limitations have lapsed, to persuade a judge to hear such a case.

How Does Clergy Sex Abuse Differ from Clergy Malpractice?

Although clergy sex abuse is clergy malpractice, sex abuse is obviously a more serious subset of the latter. Sexual abuse of anyone, but especially children who place their trust in an authority figure, is a serious crime. Malpractice typically represents negligence, a failure to take certain actions to prevent a disastrous outcome. Abusing minors and then concealing evidence of such behavior is not a failure to take action, but an action which never should have been committed in the first place. Since clergy sex abuse deals with an aspect of criminal law, judges are now willing to hear such cases, while clergy malpractice suits are more likely to be bogged down in legal technicalities.

What Exceptions Are There?

If the clergy member's inappropriate activity was an independent act outside of the church and church activities, the church cannot be liable.  Also, if there was no way the church could have found out through investigation that the clergy member was a potential sex offender, the church cannot be liable.

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