Legal Conclusions from Licking Baptist Church, Part 2

As we considered in the last post, after the girls raped or molested by the associate pastor of the Licking Baptist Church were disfellowshipped by the church, the pastor pled guilty and served seven years in prison. The girls, when they became adults, filed suit.

The events were so traumatic to the girls — now in their young 20’s — that even after the pastor had pled guilty and served a 7-year sentence, they didn’t feel vindicated. They’d never had their day in court, you see. Evidently, the church had not given them a hearing before disfellowshipping them!

And so they sued for money damages. And as against the rapist, the law plainly gives them this right. They’d been assaulted and slandered.

But they also sued the church, the convention, and other officers of the church. In part, they surely felt that they’d been wronged by these others, and they had no chance to recover any money damages against the pastor himself, who was surely penniless after serving 7 years in jail for rape.

Now, generally, if a church employee commits a willful crime, such as rape, the church is not liable for damages, because the employee was acting outside the scope of his duties as an employee. But there are several possible exceptions.

The girls argued that the church had failed to properly supervise the pastor. This theory failed because there was no evidence that the leadership of the church had reason to suspect that he might be a rapist or abuser.

They further argued that the church failed to enforce its sexual abuse policy. The appellate court rejected this claim even though the church had adopted policies designed to prevent sexual abuse, at the urging of their insurance company, and the policies had clearly been violated by the pastor.

The court ruled,

While it may well be advisable to have such a policy in place, appellants have not provided this Court with any authority mandating that churches adopt such a policy and/or that it was a common standard of care and practice among churches to have such a policy. Nor is this Court aware of any such authority. While appellants note that some churches have implemented such a policy, there is no evidence that such churches are not the exceptions rather than the rule. There is no evidence in the record as to the percentage of churches that have this type of policy. Moreover, there was no testimony from anyone in this case that such a policy was required by law.

To a lawyer, this is a bone-chilling paragraph. You see, more motivated lawyers may well have been able to prove exactly those things.

On the other hand, even if the policy created a duty to the young girls (as I suspect many courts would hold), it’s hardly clear that the church (as opposed to the pastor) violated its own rules. However, if other officials had known that the pastor was acting contrary to the church’s own standards and failed  act, they may well have been liable (at least, in many states) for failing to satisfy duties voluntarily undertaken.

To prove some sort of notice, the girls argued,

Appellants maintain that appellees Licking Baptist Church and Lonny Aleshire, Sr. were “put on notice” of the need for a policy designed to protect young church members “several years before Aleshire, Jr. committed his criminal conduct.” Appellants note that Lonny Aleshire, Jr. informed appellee Licking Baptist Church and his father that he was being investigated by the Ohio Department of Youth Services, his employer, based on an allegation that pornography was found on Lonny Aleshire, Jr.’s work computer.

However, the court was unpersuaded.

Even if Lonny Aleshire, Jr. possessed pornography on his work computer, it is not reasonably foreseeable that he would sexually abuse a child.

(How scary is that? The rapist was an employee of the Department of Youth Services, had been found with pornography on his work computer, and the Department took no action against him.)

They further argued that the church ratified the actions of the pastor.

Appellants, in contending that such appellees ratified the conduct of Lonny Aleshire, Jr., note that appellees Lonny Aleshire, Sr. and Licking Baptist Church held a candlelight vigil at the jail where Lonny Aleshire, Jr. was being held in early 2005. They note that members of the congregation arrived at the jail on appellee Licking Baptist Church bus and that Lonny Aleshire, Jr. was permitted to conduct a sermon from his jail cell. The subject of the sermon was the power of forgiveness and love.

But, the court held, the church did not believe the pastor to be a rapist at this time. They therefore could not be said to have approved his rape.

The appeal was heard by a three-judge panel. One judge dissented regarding the duty to have a policy in place against sexual abuse, finding that the law should require such policies to be in place and to give rise to an enhanced duty to protect children in the care of the church.

Some conclusions.

I’m not a labor lawyer, and laws vary quite a bit from state to state. But here are my non-expert (but informed) opinions.

First, this is a truly horrendous set of facts, but not nearly as uncommon as we’d like to believe. Penn State, the Catholic Church’s scandals, and many other cases now create a deep public concern about sexual abuse of children. Any jury is going to look for ways to protect children from adults who seek to do them harm.

While the pastor himself was properly jailed and suffered a huge civil judgment, anyone who files suit is going to go looking for “deep pockets,” that is, someone with enough insurance or wealth to pay damages — and they’ll do so based on a firm belief that churches have a duty to protect children from predators.

This particular church got lucky. In many states and before many judges, they’d have gone before a jury — and a very unsympathetic one at that. Of course, the key fact that protected them was a lack of any warning or notice that the pastor might commit such crimes. No one had reason to consider him a risk.

That means that once a church employee does something to put the church on notice, the church very nearly becomes an insurer of his good conduct. If your youth minister violates your sexual abuse policies and you know it, you just might be on notice. If a child complains of being fondled, you’re certainly on notice.

That means ministers need to be highly disciplined to actually follow the rules their elders adopt — and the elders should enforce those rules. Violators should be warned and even fired just for breaking the rules — even if there’s no evidence of criminal wrongdoing. That is, if there’s a policy that says the youth minister may not be alone with a girl in a car, and he’s found alone in a car with a girl, he gets formally warned and then fired on the second offense. After all, the leaders are now on notice that the youth minister is too self-centered and undisciplined to honor their rules. And a jury may consider them warned that he’s a potential predator.

If there is any allegation that he broke the rules for sexual reasons, he gets fired without a second chance. There can be no second chance when it comes to the sexual abuse of children.

But what about his right to be considered innocent? Well, he’s not innocent; he broke rules set by the elders. That’s insubordination.

The leadership can expect that some parents and teens will be outraged and infuriated at the “best youth minister in the history of our congregation” being fired or even disciplined over something so “minor.” They’ll tell true stories of how this youth minister has helped their son find Jesus. They’ll be terrified of how the actions of the “mean spirited” elders will impact the confidence their children have in church. It’ll be awful.

But not nearly as awful as dealing with the rape of a 13-year old girl after you were put on notice that your youth minister feels entitled to break your rules. Not only would it be unbearable to live with that knowledge, you just might lose everything you own to the girl when she sues you.

And imagine the damage to your congregation when the girl comes forward alleging rape — by a youth minister who should have been fired. How does a church recover from that? And in my view, the duty of the elders is first to the children and the church, not the ministers.

The minister’s duty is to submit to his elders, even those annoying rules designed to protect him from allegations of sexual abuse. Ministers who are too high and holy to honor those rules don’t deserve a place on any church’s staff.

Even if they are sheerly naive, they place their elders and fellow ministers in a horrible position. Their self-indulgence can destroy the lives of their elders and bankrupt their congregations.

They are professionals who attend classes and seminars on these very issues. They should be held to a standard high enough to protect the children, the church, and its leaders.

Therefore, if there’s any question about the safety of my church’s children, I’d fire the most popular minister ever — even if it meant I had to resign as an elder and leave the congregation. That’d be far better than living with the knowledge that I failed to prevent the rape of a 13-year old.

Ministers should be made aware of the church’s abuse policies and told in no-uncertain-terms that the policies will be strictly enforced. When the policies are adopted, the church should be told the same thing. And maybe they should be reminded now and again.

And whatever policies you adopt, follow them. If you can’t or they seem unreasonable, fix them. Amend them to something you’re willing to really do — and share the changes with your insurance carrier. Don’t dare adopt policies you won’t enforce.