Expanding the Scope of Church Liability for Sexual Abuse Claims
Jury selection just concluded in a West Virginia case that may prove monumental in expanding the scope of liability assigned to churches for sexual abuse of minors. What makes this case unique is that while we are familiar with the many lawsuits against the Catholic church for sexual abuse by priests. The abuser in this instance was not a church leader but was another member, who was a minor himself, and the abuse took place off church premises. Nine minors and their parents have joined together to sue the Church of Jesus Christ of Latter-Day Saints (otherwise known as the Mormons) claiming negligence, negligent supervision, fraud, conspiracy, civil assault, failure to report as required under the state’s mandatory reporting laws, and intentional infliction of emotion distress.
Michael Jensen moved to West Virginia with his family at the age of 14 in 2006. From 2007 until 2012, both parents and church leaders though he was a suitable babysitter for children in the congregation. In 2003, Mr. Jensen was criminally charged and sentenced for the abuse committed on two of the nine children. While he spends the next 35 years in prison, the children who endured the abuse and their parents turn their attention to their own church, who they claim knew about Michael predications to abuse and did not warn them. In order to prove that the church was in fact negligent in its supervision of Mr. Jensen, the plaintiffs in this case will need to show that the church knew, or should have known, that Mr. Jensen could cause harm and that they failed to warn of this risk.
While not controlling, in a consolidated state court case out of Washington, the court expanded liability to those actions that take place off of church premises and done by those outside of the otherwise identified special priests-parishioner relationship. This Washington case involved a prominent church member that held various leadership positions in the church who sexually abused the pastor’s three daughters. It was shown that church leadership knew of the abuser’s previous history of molestation but failed to take steps to prevent or warn. Similar to the West Virginia case, none of the abuse occurred in the church itself but while he was babysitting for the children. The majority of the court found that the church had a legal duty since it was the church who first “placed [the perpetrator] in authority and in close relationship to church children, knowing of the danger”. It will be most interesting to see if the West Virginia state court feels similarly.
Naturally the Church of Jesus Christ of Latter-Day Saints does not want to be held liable for criminal actions committed by one member against another while off-church premises. At the same time though, the state of West Virginia requires clergy, or church leadership, to report suspicions of abuse, and these families will attempt to show that neither the church nor its agents reported known allegations against Mr. Jensen.
For its part, the church is concerned that that such sweeping liability would cause government intrusion into internal affairs of the church that are arguably impermissible under the First Amendment. Churches tend to argue that the First Amendment, among other things, offers religious organizations special status in society; there is a concern that if courts start to apply neutral laws of general applicability of non-religious organizations to church actions that somehow religious status will be downgraded . But the Establishment Clause provides no shelter for the church from abuse claims and the Free Exercise Clause only imposes limits on laws that single out religion from disfavored treatment. In Employment Division v. Smith, the Supreme Court ruled that the Free Exercise Clause of the First Amendment does not excuse individuals from compliance with neutral, generally applicable laws that are not intended to burden religious exercise. A state mandatory reporting law is not meant to burden religious exercise.
Likewise, in Lemon v. Kurtzman, the Court has held that a state action does not violate the Establishment Clause if the action has a secular purpose, whose primary purpose or effect neither advances nor inhibits religion and does not excessively entangle the state with religion. In this instance, the negligent supervision claim would not require excessive entanglement into the internal affairs of the church because all these families need to discover is: (1) when the church leaders became aware of Mr. Jensen’s allegations of abuse; (2) whether they reported the suspicion to law enforcement as required in West Virginia once they became aware of the allegations; (3) and whether the leader failed to warn those in harm’s way.
In the West Virginia case, the plaintiffs have a high probability of proving negligent supervision on the part of the Church and various leaders. Proving the claim would not cause an impermissible entanglement with the Church. Because the families in this case have refused to settle, it appears that we will get a chance to see if another state will expand church liability to encompass abuse committed by one member upon another member, off church property.