- Common Issues Arising in Church and Charitable Organizations Litigation
- June 3, 2009 | Authors: F. Robert Radel; Barbara M. Cowherd
- Law Firm: Butler Pappas Weihmuller Katz Craig LLP - Tampa Office
As our society becomes more litigation conscious, so must you, the leadership of our churches and charitable organizations, and the insurers for their financial well being. In doing so, we look for ways to raise our consciousness, become more educated, and become more forward thinking in our planning to avoid (or at least lessen the impact of) the inevitable pitfalls that lay ahead of us. We hope this seminar in its totality, and each speaker individually, provides you with more insight and information that will enable you come closer to your goal of protecting your organization, as well as it’s employees, members and insureds.
I. PROFILE OF A SEXUAL PREDATOR
Will I know him when I see him? We now know the answer is a resounding "no." Until recently, when we heard the words sexual predator, an image of a dirty old man, dressed in a trench coat, lurking around an elementary school, appeared in our minds. Today, with ever increasing frequency, we have learned our mistake.
Sexual predators occupy various positions in our local communities. They have been identified as teachers, youth ministers, day care workers, boy scout leaders, babysitters, camp counselors, photographers, social workers, Big Brothers, school bus drivers and foster parents. These individuals have been welcomed in our homes and trusted with our children. They are both men and women.
In the media, sexual predators are commonly referred to as child molesters and pedophiles. However, not all child molesters are pedophiles and not all pedophiles are child molesters. A pedophile is an individual who prefers to have sex with children. If this person does not act out his sexual preference, he is not characterized as a child molester. Unlike a pedophile, a child molester generally prefers to have sex with an adult, but for some reason, decides to have sex with a child. A child molester is an individual who sexually molests a child, for reasons such as availability, curiosity, or a way to hurt the loved one of a molested child.
There has been a dramatic increase in the filing of lawsuits against churches, schools and youth groups by victims of sexual molestation in response to abuse perpetrated by sexual predators. Therefore, it has become increasingly important for individuals involved in church, charitable and educational endeavors, as well as attorneys and claims handlers, and, of course, parents, to become familiar with the profile of a sexual predator.
This section will generally identify and recognize common profiles of sexual predators, and, more specifically, will discuss their patterns of behavior and well-developed techniques of gaining access to child victims. The first portion of this section includes information from a behavioral analysis report, prepared by Kenneth V. Lanning, formerly with the Federal Bureau of Investigation (FBI) Behavioral Sciences Unit.
B. FOUR MAJOR CHARACTERISTICS OF A PEDOPHILE
In his report, Kenneth Lanning describes four major characteristics of pedophiles. They consist of 1) a long term and persistent pattern of behavior, 2) having children as preferred sexual objects, 3) a well-developed techniques in obtaining victims, and 4) sexual fantasies focusing on children. Lanning, Kenneth, "Child Molesters: A Behavioral Analysis," 3rd Edition (1992). Lanning points out that, although each indicator listed below, and contained under each of the four major characteristics, means very little alone, "their significance and weight comes as they are accumulated and come to form a pattern of behavior."
1. Long-term and Persistent Pattern of Behavior
a. Sexual Abuse in Background
Although most victims of child sexual abuse do not become offenders, research indicates that many offenders are former victims. Therefore, it is important to investigate a person’s background, including interviewing family members, friends and acquaintances to determine if the individual has ever been the victim of sexual abuse and to find out what the nature of the abuse was (i.e. the age it occurred, relationship with the offender, acts performed, etc.) Unfortunately, such in depth background investigation is generally impossible when screening potential candidates for employment situations.
b. Limited Social Contact as Teenagers
A deviant’s sexual preference for children usually begins in early adolescence. For that reason, during his teenage years, a pedophile may have exhibited little sexual interest in people his own age. He may not have dated and would be described as a "loner" or as being quiet and shy. Of course, as with several of the indicators provided, that fact alone means little.
c. Prior Arrests
In many cases, predators have been previously arrested for child molestation or sexual abuse. Such an arrest record is a major indicator if the arrest goes back many years or is repeated. Interestingly, however, Lanning also states that pedophiles may have arrest records that do not appear to involve sexual abuse. These arrests might include impersonating a police officer, writing bad checks, violating child labor laws, or other violations that may reveal the pedophile’s interest in children and, therefore, the potential need for further investigation. Any arrest in which the predator was accompanied by, or in the presence of, a child would warrant further investigation into the facts surrounding the incident. A thorough criminal background check is necessary to elicit any prior arrests and/or convictions.
d. Frequent and Unexpected Moves
Often when a pedophile is identified, they are "asked" to leave town by someone in authority, the parent of one of the victims or by an employer. This was, and still is, a common way to deal with the problem. Accordingly, pedophiles often show a pattern of living in one place for several years with a good job and then suddenly, and for no apparent reason, moving and changing jobs. The pedophile will usually have an explanation for the move; however, it will most likely not reflect the true circumstances. Most of the time, investigators will find no official record of what happened. Therefore, if possible, an investigator should try to contact neighbors, co-workers and acquaintances located in the person’s prior city of residence. The individual’s moving pattern can sometimes be determined from examination of driver’s license records or internet search results.
e. Premature Separation From the Military
At times, one may find that a pedophile was dishonorably discharged from the military for molesting children. However, it is far more common for this type of individual to be prematurely separated from the military with no specific reasons given or available. Like most organizations, the military was frequently interested in only getting rid of pedophiles and not necessarily prosecuting them.
f. Multiple Victims
Most of the time, pedophiles have victimized more than one child. More often than not, the children will have similar characteristics. Therefore, if only one victim is known and there is reason to believe that the sexual predator is a pedophile, it is more than likely that other victims may be present and could come forward on their own, or if questioned by law enforcement or investigators. Lanning illustrates that if a teacher who is a suspected pedophile has molested one child in his classroom, it is highly likely that he has molested or attempted to molest others in that same class or in previous classes he taught. Similarly, one might note the recent onslaught of youth workers and youth ministers who have recently been arrested for molesting children in their youth groups.
g. Planned, Repeated or High-Risk Attempts
According to Lanning, "Bold and repeated attempts to obtain children that have been carried out in a cunning and skillful manner" is a strong indicator that an individual is a pedophile. Oftentimes, the danger element of being apprehended excites the pedophile and, as he becomes more successful at gaining access to children in different ways, he begins to gain more confidence at his skill and, therefore, undertakes higher risk attempts.
2. Children as Preferred Sexual Objects
a. "Over 25, Single, Never Married, Does Not Date"
Although these indicators, by themselves, mean nothing, they bear significance when combined with other characteristics of a pedophile. Often, pedophiles do not marry and have trouble performing sexually with adults due to their sexual preference for children. They may also have very little dating experience. However, a pedophile is still capable of engaging in sexual relations with an adult. For example, a pedophile may marry in order to gain continuous access to stepchildren and/or friends and acquaintances of the children in the home.
b. Lives Alone or With Parents
Of course, the fact that a man or woman lives alone does not mean that he or she is a pedophile. However, an individual that lives alone and who possesses many of the other characteristics provided in this section should raise suspicions.
c. If Married, A "Special" Relationship Exists With Their Spouse
According to Lanning, male pedophiles that do marry often marry either "a strong, domineering woman or a weak, passive woman-child." Either way, male pedophiles most often marry women who do not have high sexual expectations or needs because they have sexual performance problems with women. Moreover, despite the fact that his wife may not have high sexual expectations or needs, she would likely blame herself for the problem, and therefore, not disclose it to anyone.
d. Excessive Interest in Children
Although it is difficult to determine if a substantial amount of interest shown to a child or children is excessive, Lanning states that the old adage "If it sounds too good to be true, maybe it is" may be appropriate. Of course, this may be difficult to determine if the pedophile is employed in a position in which he primarily deals with children, such as a youth counselor or child care worker. Evidence that the individual spends a great deal of time outside of work with children may be more indicative of a problem, especially when combined with other factors enumerated here.
e. Young Friends and Associates
Many pedophiles frequently socialize with children and become involved in activities in which young people share an interest. They often spend a substantial amount of time at schools, arcades, malls and other places that children visit frequently. Depending on the age and gender preference of the pedophile, they most often have friends that are very young or may be teenagers.
f. Limited Peer Relationships
Most pedophiles have very few close adult friends because they are unable to share the most important part of their life (their sexual interest in children) with most adults. Frequently, however, if a pedophile has a close adult friend, there is the possibility that the friend may also be a pedophile, since, as Lanning states, "Only other pedophiles will validate their sexual behavior." Many pedophiles spend a great deal of time on the internet engaging in conversations in chat rooms and support networks to share their interests. Again, speaking with neighbors, co-workers and acquaintances, as well as a review of the pedophile’s computer history, may elicit important information about the pedophile’s social relationships.
g. Age and Gender Preferences
According to Lanning’s findings, most pedophiles prefer children of a certain sex in a certain age range. He explains that pedophiles attracted to toddlers are more likely to molest boys and girls, indiscriminately, while pedophiles attracted to teenagers are more likely to molest either boys or girls, exclusively. However, most of the time, how old a child looks and acts is more important than the child’s actual age. Therefore, a pedophile who prefers children 8-10 years of age, may target a 13 year-old child who looks and acts like a 10 year-old child. Nevertheless, most pedophiles do not molest, or attempt to molest, children who have gone through puberty.
h. Refers to Children as "Clean," "Pure" or "Innocent"
Since pedophiles often have an idealistic view of children, it is common for a pedophile to refer to children by the adjectives provided above. On the other hand, some pedophiles refer to children as if they were "objects, projects, or possessions." According to Lanning, comments by pedophiles may include, "This kid has low mileage," or "I’ve been working on this project for six months."
3. Well-Developed Techniques in Obtaining Victims
a. Skilled at Identifying Vulnerable Victims
Although some pedophiles can observe a group of children for a short period of time and choose a target, many develop their skills in selecting victims through practice and experience. Most of the time, victims are from a broken home or have been emotionally or physically neglected. Children that exhibit signs of loneliness and seek attention are frequent victims. Often, children of low-income families, in which there may only be one parent present in the home, are targeted by pedophiles, especially if there is not a male figure present in the child’s life.
The internet is another vehicle where a predator can describe himself as a twelve year-old to a twelve year-old on the computer. The predator may then lure children, via the internet, to meet him.
b. Identifies with Children
Most pedophiles identify with children better than with adults, a characteristic that makes them "master seducers" of children. Typically, they know how to listen to children better than most other adults. As Lanning states, many pedophiles are described as "pied pipers" who attract children, enabling them to become particularly good teachers, coaches or youth volunteers.
c. Access to Children
In order to gain access to children, most pedophiles place themselves in situations in which they can be around young people. Pedophiles may not only marry to gain access to children, as mentioned above, but may befriend a woman for the sole reason of getting closer to her children. In addition, a pedophile may become employed at a job where he will be in the presence of many children (teacher, camp counselor, photographer, babysitter). He may even become involved in a position where he can eventually specialize in dealing with children (minister, doctor, dentist, police officer, social worker). As Lanning mentions, "the pedophile may also become a scout leader, Little League coach, and so on." Of course, sexual abuse by many pedophiles in these positions have led to the increase in lawsuits against such institutions as churches, schools and charitable organizations.
d. Activities with Children, Often Excluding Other Adults
Another common characteristic of a pedophile is that he is always attempting to place children in situations where there are no adults present. For example, Lanning mentions that on a scout hike, a pedophile might suggest that the fathers go into town for a beer, while he will "sacrifice" and stay behind with the boys. Another example may be a pedophile "volunteering" to stay home and babysit or take the children to a Disney movie.
e. Seduces Children with Attention, Affection and Gifts
Lanning states that this is the most common technique utilized by pedophiles. They develop a closeness and trust through paying attention, listening and talking to children, when others will not. Buying gifts, such as toys, video games and candy is also part of the "seduction" of the child. This process is often referred to as "grooming." As indicated above, children from single parent, low-income families are often "easy" targets for pedophiles. Many of them have never had significant material possessions and are easily swayed by such things as gifts and trips to fun places that they have never been. Like most children, they crave attention and enjoy fun activities.
f. Skilled at Manipulating Children
Most pedophiles are very skilled at manipulating people, specifically children. As Lanning states, pedophiles use "seduction techniques, competition, peer pressure, child and group psychology, motivation techniques, threats and blackmail." Once a pedophile succeeds in lowering the inhibitions of a child, he can more easily take advantage of the child. Frequently, a pedophile will ask children to sleep over at his house so that the children will have to change their clothing at night and, therefore, will be more easily seduced. Oftentimes, sexual molestation at these "sleep overs" may take place with other children, or even the pedophile’s wife, close by. With others present, it not only provides the pedophile with a defense (i.e., how could anything have happened when there were so many others present?), but also adds a danger element to the seduction and abuse.
g. Engages in Hobbies and Interests Appealing to Children
As Lanning states, this indicator must be "considered for evaluation only in connection with other indicators." A pedophile may collect toys, have a strong interest in video games or perform as a clown to attract children. The pedophile may also pretend to be interested in activities, toys or games in which the target child shows interest.
h. Shows Sexually Explicit Material to Children
It is common for pedophiles to show children sexually explicit material in order to lower their inhibitions. As part of this seduction process, a pedophile may send a child a sexually explicit picture via a computer, allow him/her to view pornographic magazines, or encourage the child to call a dial-a-porn service.
4. Sexual Fantasies Focusing on Children
a. Youth-Oriented Decorations in House or Room
According to Lanning, "the homes of some pedophiles have been described as shrines to children or as miniature amusement parks." Oftentimes, a pedophile’s house will contain games, toys, posters and other objects to which children are attracted. Children will more likely want to spend a substantial amount of time at a house that has such attractions. They, as well as some adults, may think that the adult pedophile is just a big kid.
b. Photographing of Children
Although one might think that a pedophile is only interested in photographs of children undressed, Lanning indicates that it is common for pedophiles to enjoy viewing photographs of children fully dressed. He provides an example of a pedophile that bragged that he went to a rock concert with thirty or forty rolls of film in order to photograph young boys. After he developed the film, he fantasized about having sex with them. It is not uncommon for pedophiles to frequent playgrounds, child beauty pageants or athletic contests involving young children in order to take pictures of the children. With the invention of digital cameras, it is now possible for a pedophile to store and view his pictures on his computer.
c. Collecting Child Pornography
According to Lanning, it is very common for pedophiles to have extensive collections of books, photographs, movies, magazines, toys, games and other things that relate to children in a "sexual, scientific or social way." While most child pornography is used by pedophiles in absence of a child being present, oftentimes, a pedophile will show a child the pornography, again, in order to lower the child’s inhibitions. Lanning explains that a child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having "fun" participating in the activity.
Pedophiles frequently organize and collect much of their pornography on their computers. According to Lanning, many pedophiles are "compulsive record keepers" and store and retrieve names and addresses of victims and other pedophiles. They also use computers to communicate with other pedophiles, in order to exchange child pornography, and to locate others, including children, with similar interests.
C. REDUCING THE RISK OF SEXUAL MOLESTATION AT YOUR CHURCH, SCHOOL OR OTHER YOUTH ORGANIZATION
Sexual misconduct is not restricted to paid employees. A volunteer can be a child predator. Therefore, both future and current employees and volunteers should be required to complete an application. This application should include, at a minimum, the following information: the applicant’s full name; applicant’s full address; area of youth work the applicant desires; training/education in youth-related field; description of youth work at churches or other organizations for prior five years; description of church membership for past five years; description of church/youth volunteer work for last five years; prior felony convictions; prior criminal convictions for sexual abuse and molestation; and names and addresses of two or three references.
If the applicant is unknown by the church, school or organization, the entity should confirm the person’s identity by obtaining photographic identification. Each organization in which the applicant listed prior experience should be contacted and the conversation memorialized. Further, each reference listed should be contacted and the conversation documented. When obtaining the application and collecting information, materials and communications received should be considered strictly confidential. Child abuse reporting requirements should be provided to every staff member, whether the employee is compensated or not compensated. Finally, a mandatory child sexual abuse prevention program for employees and volunteers should be offered.
Unfortunately, churches, schools, and youth organizations are targets for child molesters, since they provide individuals with direct access to children. Therefore, the business or entity should consider implementing a policy that restricts eligibility for positions involving supervision of minors to employees, volunteers, or church members in good standing for a minimum period of time. If possible, select married couples as youth leaders, since it reduces the risk of sexual misconduct and can provide children with positive role models.
The organization should, obviously, follow common sense guidelines. Adult males working with youth should never be alone with a female member of the group. It is also strongly advised to always have two adults present with any child or group of children.
The organization should also be alert for warning signs of child molestation. Physical signs include: irritation, pain, injury to genital area; difficulty in urination; discomfort when in sitting position; torn or bloody undergarment; cuts or bruises; and/or nightmares. Behavioral signs include: acting out; withdrawal from church activities and friends; sexual self-consciousness; anxiety when approaching church playground or nursery area; nervous or hostile behavior toward an adult employee/volunteer; marked personality change; and/or a child who appears aloof or withdrawn. Verbal signs include: dislike of a particular youth worker; not wanting to be alone with a certain youth worker; a youth worker who plays roughly with a child; and/or a youth worker who likes to play alone with a child.
When an allegation of sexual misconduct is claimed, it should be immediately investigated. One person of the organization or congregation should be designated a spokesperson for the media. A statement should be prepared on behalf of the organization or church regarding the alleged sexual abuse. The church’s or organization’s policies and established safeguards should then be explained. The statement should advise that the allegation is taken seriously and the church or organization is responding in a timely and appropriate manner. The organization should never state "no comment." Finally, rather than blaming the alleged victim or minimizing or denying the allegation, the organization must react with concern and compassion by making counseling and services available.
By taking the proper safeguards to reduce the risk of sexual misconduct occurring at your church, organization, or school, both the reputation of the entity and the innocence of a child may be protected.
D. THE END, BUT NOT REALLY
It can be expected that claims for negligent hiring and supervision against the employers of individuals guilty of sexual misconduct will continue. Therefore, it is important to understand the characteristics of pedophiles so that churches, schools and charitable organizations can be more aware of potential problems that may arise with regard to employees they hire who deal mostly with children. Additionally, attorneys and claims handlers should likewise familiarize themselves with the behaviors of the alleged perpetrator who is at the center of a sexual misconduct lawsuit.
II. BACKGROUND CHECK REQUIREMENTS
Many states have their own statutory requirements concerning background checks. You should consult your local counsel to determine whether you are an organization or group that is required to do so. Whether or not you are within the statutorily defined organizations required to perform background checks on its employees and volunteers, it is a good practice to voluntarily complete them, as a matter of policy. It certainly will assist you if allegations are made that your employee or volunteer had a history of acting inappropriately.
Pursuant to Florida law, all employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. Level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies. (Fla. Stat. § 435.03)
All employees in positions designated by law as positions of trust or responsibility shall be required to undergo Level 2 security background investigations as a condition of employment and continued employment. Security background investigations shall include, but not be limited to, fingerprinting for all purposes and checks, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies.
Florida’s program under the National Child Protection Act is called the Volunteer and Employee Criminal History System (VECHS). For certain volunteers, appointees or employees, who are not required to undergo a formal FBI or FDLE background check (Level 2 screening), VECHS provides the requisite criminal history check, although the mandatory sexual offender/predator registry check must still be conducted. In addition, local background checks may be obtained from the individual counties and reflect criminal record information solely for their area of jurisdiction.
An entity must provide some type of care or care placement services for children, the elderly, or the disabled (even if it is only a limited part of the entity’s overall business) in order to be qualified to participate in the VECHS program. Such qualified entities may request criminal history information on all current and prospective employees and volunteers who have or who seek to have unsupervised access to those groups listed above. A "qualified entity" is "a business or organization, whether public, private, for profit, not-for-profit, or voluntary, that provides care or care placement services, including a business or organization that licenses or certifies others to provide care or care placement services" to children, the elderly, or individuals with disabilities. An organization can become qualified by completing the application and user agreement available from the VECHS Unit at the Florida Department of Law enforcement.
For those entities regulated by DCF pursuant to Fla. Stat. §§ 402, 409 and 435.04 (including child care facilities, summer or recreation camp owners and operators, but not after care facilities), and public school boards pursuant to Fla. Stat. §§1012.35, 1012.32 and 1012.56 (public school employment/certification), as well as AHCA pursuant to Fla. Stat. §409.97 (medicaid providers), and the Clerk of the Court under Fla. Stat. §744.3135 (as a non-professional or professional or public guardian), Level 2 screening is mandated. If a church or non-profit religious organization provides substance abuse services, and is exempt from licensure by the Department of Health, it must comply with personnel fingerprinting and background check requirements. Level 2 screening is required for personnel who have direct contact with children or adults who are developmentally disabled. However, if the entity utilizes volunteers who assist for fewer than 40 hours per month and who are under direct and constant supervision by a person who has undergone the requisite screening, then that volunteer is exempt from fingerprinting and background check requirements. (Fla. Stat. §397.451)
For those churches and non-profit entities who operate Charter or Alternative Schools, each non-instructional or contractual personnel (any vendor, individual, or entity under contract) who are permitted access on school grounds when students are present, who have direct contact with students or who have access to, or control of school funds, must meet Level 2 screening requirements. (Fla. Stat. §1012.468)
Employers may be held liable for their negligence in employing or retaining an employee who may constitute a danger to others. Negligent hiring and retention claims tend to be based upon employee actions that are not within the course and scope of employment (i.e. allegations of sexual abuse). Liability is founded on the employment or continued employment of a person who is known to be dangerous, incompetent and liable to do harm. The main difference between negligent hiring and negligent retention is the time at which the employer is charged with knowledge of the employee’s unfitness.
Negligent hiring occurs when the employer knew or should have known of an employee’s unfitness before the employee is actually hired. (Claimants will prevail if they can show that the defendant should have investigated the employee’s background, but failed to do so, and that the investigation would have revealed the employee’s unsuitability.)
Negligent retention occurs when an employer learns of, or should have learned of problems related to the employee that indicate unfitness, but fails to take appropriate corrective action, such as investigation, reassignment, or discharge. (Claimants must show that the employer received actual or constructive notice of the employee’s unfitness, but did not investigate or take corrective action.)
Obviously, the better course of action is to have a practice, procedure or guideline that establishes background checks as a matter of course for each employee or volunteer that has contact with children or developmentally disabled adults, or comes on the premises where children or developmentally disabled adults are located.
III. REPORTING REQUIREMENTS
Many states have their own statutory requirements concerning reporting allegations of inappropriate sexual contact or sexual molestation. You should consult your local counsel to determine whether you are an individual, organization, or group that is required to do so. Whether or not you are within the statutorily defined organizations required to report, it is a good practice to voluntarily report to the appropriate agencies, as a matter of policy. It certainly will assist you if allegations are made that you or your organization knew about ongoing allegations and failed to respond in any manner.
The statute governing mandatory reporting of child abuse, abandonment or neglect is §39.201, F.S., which states, in pertinent part,
(1) (a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned or neglected by a parent, legal custodian, caregiver or other person responsible for the child’s welfare, as defined in this chapter, shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).
(b) Reporters in the following occupation categories are required to provide their names to the hotline staff...
It is important to note that §39.201(1)(a) requires "any person" who knows or reasonably suspects that a child has been abused to report the allegations to the abuse hotline. Section (b) provides that only individuals in certain occupations who report allegations of abuse, neglect or abandonment will be required to identify themselves to the abuse hotline staff. This interpretation is supported by Op.Atty.Gen., 2004-57 (Nov. 23, 2004), which responded as follows to the question, "Is there an obligation for citizens to report child abuse, abandonment or neglect?"
. . . Section 39.201(1)(a), Florida Statues, imposes a responsibility on any person who knows of or has reasonable cause to suspect child abuse, abandonment or neglect to report such abuse, abandonment or neglect...
With respect to concerns about the potential consequences of reporting or failing to report the allegations, §39.203, F.S. provides immunity from liability to any person who reports "in good faith" any instance of child abuse, abandonment or neglect "from any civil or criminal liability which might otherwise result by reason of such action."
Additionally, §39.205, F.S. establishes penalties for failure to report known or suspected child abuse, abandonment or neglect. The statute states, in pertinent part,
(1) A person who is required to report known or suspected child abuse, abandonment, or neglect and who knowingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, is guilty of a misdemeanor of the first degree...
It is important to note that §39.201, F.S. does not create an implied cause of action for damages for failure to report alleged abuse or neglect. See Welker v. Southern Baptist Hospital of Florida, 864 So.2d 1178 (Fla. 1st DCA 2004), overruled on other grounds, 908 So.2d 317 (Fla. 2005).
C. Clergy-Parishioner Privilege Exception
The Clergy-Parishioner Privilege is defined by Florida Statute §90.505, and defines a member of the clergy as a "priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed to so be by the person consulting him or her." The statute further provides that a communication between a member of the clergy and a person is "confidential" and privileged if:
1. It is made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy; and
2. The communication is made in the usual course of the clergy’s practice or discipline; and
3. The communication is not intended for further disclosure, except to other persons present in furtherance of the communication.
Thus, the communication must be made in private, with no uninvolved persons present, and it must be made to a member of the clergy for the purpose of seeking counsel and advice from the clergyman. It is not necessary that the communication be made during a confession, but if the communication is made to the clergy as a "friend," and not for the purpose of obtaining spiritual advice, then the communication is not privileged. So too, a communication that is intended to be shared with others, or made in the presence of someone not a member of the clergy (i.e. someone who is assisting the clergyman or the girlfriend/boyfriend of penitent) unless they are present in furtherance of the communication, is not privileged or confidential.
Section 39.204, F.S. abolishes all privileged communications, except attorney-client privileged communications and clergy-parishioner privileged communications in the context of reporting allegations of child abuse, neglect or abandonment. The statute states, in its entirety:
The privileged quality of communication between husband and wife and between any professional person and his or her patient or client and any other privileged communication, except that between attorney and client or the privilege provided in §90.505 (clergy privilege), as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report as required by §39.201, regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment or neglect. (Emphasis added.)
The phrasing of the statute referenced above is somewhat confusing. Phrased differently, it would appear that the statute holds:
The attorney-client privilege or the clergy-parishioner privilege shall apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment or neglect and shall constitute grounds for failure to report, as required by §39.201.
Therefore, if a person privately seeks a member of the clergy’s spiritual counsel or advice, and reveals that he or she committed abuse or neglect, then the clergy is not legally required to report the abuse, neglect or abandonment to the authorities.
IV. CHURCHES IN LITIGATION
Once a church is officially involved in litigation, its documents become a source of information to prove or disprove what the local, state and/or national level of church administration knew, or didn’t know, about its clergy at the time he or she was hired and during the clergyman’s service to the church, the church’s policies and procedures for retaining its clergy once allegations concerning sexual misconduct are raised, and not only how the church investigates such claims, but the results of any investigation. Under Canon law, the archives of the Catholic Church are sacrosanct and may not be violated, or made public to anyone other than the bishop, the vicar general and the chancellor. Other faiths have similar forms of "archives," albeit by other names.
A. WHAT THEY CAN GET
Despite the church’s expectations of privacy and non-disclosure of its files, recent court decisions around the country (California, Massachusetts, New Jersey, Illinois and Pennsylvania) permit prosecutors and plaintiffs to obtain all information contained in clergy personnel files and diocesan intervention or sexual abuse review committee notes and reports. Arguments based on the First Amendment Establishment Clause and Free Exercise Clause, including the church’s free exercise right to autonomous religious decisions in its own internal affairs, and clergy-penitent privilege to protect intimate sacramental conversations have all failed for one reason or another. Courts are holding that either the State (in a criminal case), or the Plaintiff (in civil litigation), has a compelling interest in determining the facts surrounding the allegations of sexual misconduct which outweigh the church’s interest in protecting its documents, despite ecclesiastical consequences otherwise. Moreover, one court held that when churches investigate allegations of sexual abuse, they act no differently than a secular employer does when it learns that a trusted employee has been accused of child molestation. It seems that all relevant documentation concerning allegations of sexual abuse or molestation are freely discoverable, without privilege, and orders compelling the wholesale production of personnel files and diocesan sexual review committee documents are becoming more the rule than the exception.
B. WHAT WE CAN KEEP
So far, it is not clear cut what documents are protected from discovery, other than those clothed under statutory privileges, such as attorney-client privilege, work-product, and, in some instances, those documents that are truly classified as priest-penitent, as we previously discussed.
For instance, in New Jersey, where the State prosecutor sought Church personnel records, the court held that the priest-penitent privilege was not properly applied to protecting written personnel records in the possession of the Vicar for Priests; however, the alleged perpetrator’s own correspondence with the Vicar was protected. Other documents, however, regarding the molestation and obtained from other sources were not protected from discovery. In Illinois, documents sought to be protected under its state confidentiality laws (medical), canon law protections of the sacred archives of the Diocese under Canon 489, First Amendment assertions, as well as the priest-penitent privilege, were all deemed discoverable, save those under statutory immunity, such as the immunity of sacramental confession. California courts sustained only 53 objections to a request for 285 documents based on attorney-client privilege (one document), clergy-penitent privilege (two documents), and physician-patient privilege (fifty documents).
These cases illustrate the fact that courts are inclined to order the production of all documents not protected by these enumerated statutory privileges.
C. HOW DO WE KEEP IT AWAY?
The one consistently successful method for protecting disclosure of personnel records rests with the clergy and employees, themselves. However, this too is limited.
In Florida, nonpublic employees, including clergy, have a constitutional right to privacy (i.e. the public disclosure of their personnel files), a right that has been extended to ensure that individuals are able to determine for themselves when, how, and to what extent information about them is communicated to others. Hence, a zone of privacy into which not even the government may encroach upon without invitation or consent.
However, that right of privacy inures solely to the individual, not to the employer. Despite the fact that the employer owns them, when private personnel records have been requested in litigation in Florida, only the employee, whether currently employed or not, has standing to raise any objection to producing the documents, and must do so individually in order to prevent their production. However, other states have been more protective of personnel records when no direct relevance to the issue is apparent. Florida Rule of Civil Procedure 1.280 only requires a showing that the documents are relevant or are reasonably calculated to lead to the discovery of admissible evidence.
Nevertheless, even if the employee fails to raise any objection to his or her personnel file being produced, the party requesting them does not have the right to rummage freely though the employee’s personal file or go on a fishing expedition for information contained therein. An employer does have standing to object to irrelevant or personal and sensitive information not directly related to legitimate issues. That information is protected and should not be disclosed. Such objections should be reviewed individually by the Judge and decisions made on a case by case basis as to the relevancy of the personal information sought, balancing the employee’s right to privacy and the litigant’s right to discovery. Submission of a privilege log and carefully crafted discovery order should protect privacy concerns while still achieving the desired objective.
As litigation increases and we become more pro-active in protecting our churches and charitable organizations, and their respective memberships, from sexual predators, we would be well-advised to be on the lookout for tell-tale signs and characteristics of both predators and victims. Each organization should implement policies and procedures to assist victims within our organizations, to safeguard against hiring persons with a history of or propensity for sexual abuse, for conducting back ground checks for each and every person who has contact with our children, and for reporting allegations of abuse. It is our duty and responsibility. By being accountable to our members, we can reap the benefits of growing our respective memberships and maintaining respect from our members.