Expanding the Scope of Church Liability for Sexual Abuse Claims

Expanding the Scope of Church Liability for Sexual Abuse Claims

Heather Stinson

            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.

Spratly Islands

The Spratly Islands

Samantha Poon

In a time when the United States is slowly slipping away from its former title as the global hegemon, countries, like the People’s Republic of China (“China”), are asserting their regional power. China’s place within southeast Asia is shifting into one of greater influence. This is most clearly visible in China’s role in the enduring Spratly Island drama and its complete rejection of the United Nations Permanent Court of Arbitration’s (“Tribunal”) final decision.

Disputes over a handful of islands in the middle of the sea have been a historically complex international legal debate, involving issues such as water rights, natural resource rights, economic rights, military occupation rights, and more. The Spratly Islands disputes are paradigmatic of this convoluted international problem. The Spratly Islands consists of more than a hundred islands or reefs located in the South China Sea, occupying a 150,000 square mile area, which are valuable for political, economic, and military reasons. The Spratly Islands are surrounded by Malaysia, Brunei, Vietnam, Philippines, Singapore, the People’s Republic of China (“China”), and Taiwan. Because all of these states have relative proximity and centrality to the Spratly Islands, they each claim total or partial entitlement to the Spratly Islands, excluding Singapore. China, Taiwan, and Vietnam claim the Spratly Islands in their entirety, while Brunei, Malaysia, and Philippines stake partial claim. Consequently, historical international dispute has arisen over the Spratly Islands. It has been a backdrop for ongoing territorial disputes since the 1960s.

The disputes that arise in the South China Sea stem from China’s overreach. China’s greater military strength is a substantial factor and reality to consider in the disputes, and “any agreement concerning the Spratly Islands that does not satisfy China’s interest would fail at its inception.” It has claimed “historic rights” to essentially the entire South China Sea, including the area which encompasses the Spratly Islands. After decades of dispute, the Philippines brought a claim against China to the United Nations Permanent Court of Arbitration in 2013.

The Philippines brought the claim under the United Nations Convention of Law and the Sea, which governs maritime disputes and the law of the sea at large. The main issues the Philippines presented were that: (1) China did not have “historic rights” to the Spratly Islands; (2) territories in the Spratly Islands are reefs and rocks, not islands, which do not generate independent entitlement to maritime zones; and (3) China conducted illegal activities in the South China Sea. In an incredibly surprising decision to the international community, the Tribunal asserted jurisdiction over the claims and ruled in favor of the Philippines on all its submissions.

China has continually refused to recognize the validity of the Tribunal’s jurisdiction over the case, and consequently its decision in favor of the Philippines. The Tribunal’s decision to rule heavily in favor of the Philippines presents the global community with a unique problem. China’s refusal to participate in the arbitration tribunal undoubtedly complicates the outcome of the Tribunal’s decision. China has a variety of options: it can comply with the decision; ignore the decision and proceed as before; withdraw as a party from UNCLOS; or increase aggressiveness in the South China Sea and in its activities in the claimed territories in the Spratly Islands. The optimal outcome is certainly for China to peacefully resolve the dispute and comply with the Tribunal’s decisions. However, the Tribunal’s harsh rulings against China make it very difficult for China to save face. Alternatively, China could engage in diplomatic negotiations with the Philippines to resolve the Spratly Islands disputes based on the Award. This would allow China to save face, in an appearance of bilateral negotiations, while complying with certain aspects of the Award on its own timeline. This would require the Philippines to be flexible, but may be the most practical option, taking into account China’s superior political position in Asia. As it stands, the international community is at a loss for how to deal with China’s rising power. Only time will dictate how the maritime dispute will unfold.

The United States’ Well-Kept Secret: Detaining Vulnerable Women and Children

The United States’ Well-Kept Secret: Detaining Vulnerable Women and Children

By: Samantha Poon

“no one leaves home unless home is the mouth of a shark. you only run for the border when you see the whole city running as well.”

Excerpt from “Home” by Warsan Shire

A rural Texan town with a population of 4,000 people sits a few hours from the United States-Mexico border. This small town houses a privately-owned family detention center. At this center, women and children are imprisoned for fleeing their homes that are the mouths of sharks; these are women and children who ran for the border and saw other families running as well.

In 2014, the Obama administration waged a war on Central American mothers and children fleeing from the Northern Triangle—namely, Honduras, Guatemala, and El Salvador. In their home countries, gang members accost, threaten, and harass young women to be their “girlfriends.” Drug cartels recruit boys, as young as ten years old, at schools to sell drugs. Local gangs routinely extort land and business owners for a “war tax.” The police watch silently as these unspeakable horrors occur.

To escape these terrifying scenarios, women and children journey to the United States. Along the way, some will encounter human traffickers, others will face rapists; most will have to brave extreme weather conditions as they cross miles of desert without proper access to nourishment and water. Those who are able to make it to the border will present themselves at a United States port of entry. They will be rudely questioned about why they want to enter the United States. If they fail to express a fear to return to their country, the women and children will be turned away and forced to make the dangerous trip back home. The fortunate who are able to express fear are rounded up and allowed to continue their journey into the United States, wading through legal and structural hoops and barriers.

After immigration processing, the women and children are transferred to the privately-owned family detention centers. Immigration and Customs Enforcement contracts with private prison companies to build prison facilities for these women and children. These private prisons profit from detaining traumatized mothers and frightened children. Women and children are given ironically colorful uniforms and guards escort them around all day. They are treated as prisoners in the so-called land of the free. Their only crime? Attempting to escape the horrendous conditions in their home countries.

At the family detention centers, the women and children will go through an initial asylum screening interview, known as the credible fear interview. During this interview with an asylum officer, the women and children must divulge some of the worst experiences in their lives. Raw stories of women experiencing abuse by partners, mothers watching their daughters raped by gang members, children witnessing beloved family members gunned down by mercenaries, studious young boys forced to drop out of school by active gang recruiters. The mothers are re-traumatized in telling their stories to a stranger, who communicates in a language they do not understand. If the asylum officer decides that the mother and child have expressed a credible fear of returning to their country, the asylum office will allow them to pursue their asylum application in immigration court. If the asylum officer decides that the mother and child have not expressed adequate fear or suffered sufficient persecution, the mother and child will be deported.

“Give me your tired, your poor, your huddled masses yearning to breathe free.” The Statute of Liberty has long stood as a welcoming symbol for immigrants. However, at its core, family detention centers contradict the very notions of American freedom and liberty. Instead of helping women to breathe free, we suffocate them, shove them into prisons, and force them to relive their trauma. We treat them as inmates. When they are unable to navigate the complicated legal standards of an asylum, we expel the tired, poor, and huddled mass.

In a new Trump administration of immigration priorities, only time will tell whether family detention centers will grow or dissipate. The rate of private prison contracts is increasing in this administration, and immigration has become a priority. However, these women and children in Dilley are not a security threat, contrary to the current anti-immigrant rhetoric. The fight to end family detention persists, and lawyers play a crucial role in this battle.

This article is written by Samantha Poon as part of the Journal of Law & Policy’s Student Summer Series, which highlights work that Wake Forest Law students performed over their summer. Samantha Poon worked with women and children who were detained at these detention facilities. 

Understanding the Unrepresented: How Therapeutic Jurisprudence Shapes America’s Patent Court

Understanding the Unrepresented: How Therapeutic Jurisprudence Shapes America’s Patent Court 

By Yawara Ng

The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) has three methods to dispose of cases: precedential opinions, non-precedential opinions, and affirmances without a written opinion. The last method is codified under Federal Circuit Rule 36 (“Rule 36”). Rule 36 allows the Federal Circuit to adjudicate over cases that are either completely without merit or split opinions that are not meant to be precedential, conserving judicial efficiency. As the national federal docket has risen dramatically over the years, judicially effective mechanisms appear more sound. However, judicial efficiency can come at the expense of individuals with no understanding of the law—particularly as the Federal Circuit has increased its use of Rule 36 affirmances.

Coinciding with the increase in the national docket is the surge of pro se litigants at the federal level. Due to a pro se litigants’ unfamiliarity with both the law and court procedures, many are disadvantaged from the onset; and the vast majority of pro se appeals are doomed to fail. Since 1995, the administrative office of U.S. Courts has commissioned the federal judiciary to document the number of pro se cases in the federal appellate system. However, the federal judiciary has declined to include America’s newest appellate court—the U.S. Court of Appeals for the Federal Circuit—in its statistical analysis; thus creating an imperfect picture of how pro se cases affect the federal docket. The Federal Circuit has exclusive jurisdiction over individual claims against the sovereign; yet, there is an absence of information regarding how the Court treats the unrepresented. Therefore, this blog will analyze one way the Federal Circuit adjudicates pro se cases by looking at its use of Rule 36 affirmances, and how it embodies “therapeutic jurisprudence.”

Pro se cases at the Federal Circuit are rarely heard on oral arguments and are usually decided on the briefs. Initially, I thought that the majority of meritless pro se cases would be disposed of through Rule 36 affirmances. However, this is not the case. In fact, pursuant to a WestLaw search, Rule 36 affirmances are rare in pro se cases, as indicated by the charts below. [1]


Beginning in 1993, the therapeutic jurisprudence movement focuses on the law’s impact on the emotional and psychological well-being of people. Advocates of therapeutic jurisprudence view lawyers and judges as therapeutic agents with the potential to heal the aggrieved rather than pedantic legal scholars removed from the human experience. However, therapeutic jurisprudence is not a “feel good” application of the law but a philosophical guideline that upholds the law while recognizing human realities.

In this vein, the Federal Circuit appears to apply the tenants of therapeutic jurisprudence in its rulings. Rather than disposing of meritless claims, the Federal Circuit addresses each claim individually unless a black and white procedural issue barred the court from having jurisdiction over the case. By engaging with the appellant, the Federal Circuit demonstrates to the unrepresented that while the ruling may not be in their favor, it is in accordance with the law and their argument was heard. By avoiding Rule 36 affirmances, the court displays a form of judicial altruism. Writing opinions for meritless decisions takes time and may contravene judicial efficiency, but doing so gives appellants a sense of finality. Avoiding opinions via Rule 36 could embitter individuals pining for judicial relief and disrupt their psychological well-being. While the outcome may not be what non-lawyers sought after, providing a reason is, in my view, more therapeutic than having them feel ignored.

[1] For the graphs, I conducted a Westlaw search with the following search string: adv: CO(fed) & DA(bef 1/01/20XX) & DA(aft 01/01/20YY) with the “attorney” field filtered with “pro se.” Afterwards, I filtered the results with “fed! Cir! R! 36” to compare.

Spring 2017 Symposium Approved for 4 CLE Credit Hours


This year’s symposium, “Disrupting the Death Care Paradigm: Challenges to the Regulation of the Funeral Industry and the American Way of Death,” will be held on Friday, February 24, 2017, from 9:30 a.m. to 3:45 p.m. in Room 1312, Worrell Professional Center, Wake Forest University School of Law. Attendees will receive four general CLE credits by the North Carolina Bar.

Read more about the program, including the agenda and registration information, on the “2017 Spring Symposium” page.

There have been a number of academic conferences addressing death and deathcare, but this symposium is unique because it is focused on the very active legal, political, and grassroots challenges to the funeral industry and the dominant paradigm of death care in this country. There are two main fronts of challenge to the existing paradigm – first, from those primarily concerned with the occupational licensing regime that shapes the funeral industry and the choices available to the public (i.e. court challenges to the casket laws and the ready to embalm laws); and second, from those primarily concerned with promoting new methods of memorialization and disposition. Caitlin Doughty, a funeral director, well-known voice in the Death Positivist movement, and the author of a New York Times best-selling book on this topic, will also give a keynote address on Thursday, February 23, 2017 at 6:00 PM.

Contact: Erica Oates, Symposium Editor: wfulawpolicyjournal@gmail.com.