One of the top questions asked about church liability has to do with dealing with known registered sex offenders who attend church. What steps should a church take to protect its members from potential harm and itself from a potential lawsuit?
First, let it be understood that a church has not been held liable for unknowingly allowing a registered sex offender to attend services. This information relates to known registered sex offenders only. Furthermore, there is no need to perform background checks on everyone in the church. The church’s legal duty to proactively check backgrounds arises when someone is set apart in an official capacity as with employee’s or board members, or those who work with minors in some way, as a volunteer, teacher, transportation provider, etc., or those who have keys to the church.
When it becomes known to the pastoral staff that a registered sex offender is attending, the church can choose one of the following three responses:
- Do nothing. Unfortunately, this is often the approach taken by many churches. This response is not recommended due to its associated legal risks, which include the following: risk that the offender may molest a minor, liability to the church if the person will be working with minors, punitive damages for reckless or gross negligence, liability for board members who failed to implement appropriate safeguards, negative media publicity, and the risk of a potentially uninsured claim (intentional or criminal misconduct is not an insurable risk). Bottom line: in choosing to do nothing, you carry a high risk of harm to minors and of being sued for negligence.
- Total exclusion of all registered sex offenders from the church. Although it may appear harsh and unforgiving, this is a valid option that depends on the severity of the person’s crimes. There are different segregations of the crimes for which a person can be placed on a state's sexual offender registry:
- Tier 1. These are the least severe sex crimes. The person is on the registry for 15 years.
- Tier 2. These are more severe sex-related crimes and the person is on the registry for 25 years.
- Tier 3. These are the most heinous sex crimes and the person remains on the registry for life.
If you have someone who’s a Tier 3 offender, the best response is to exclude them from attending. Even if the crime(s) occurred decades ago, consider the age of the victim(s); if the incident(s) involved pre-pubescent or early-pubescent children, it should not matter how long ago it occurred, since such a person may be a pedophile (someone with a sexual preference for prepubescent or early pubescent minors). According to an FBI profile, pedophiles are incurable, promiscuous, predatory, and have a high recidivism rate. From a liability standpoint, the risk to minors and to your church in allowing a pedophile to attend may be too high. In addition, exclusion may be the proper response in cases where the victim(s) of the sex offender’s crimes attend the same church.
- Conditional attendance, according to a signed legal agreement. This means that the person is allowed to attend provided he or she complies with the conditions of the agreement. This is sometimes viewed as a more merciful response. Worded properly, this can put the church in a position to be viewed as having acted reasonably under the circumstances, which means that it may not be considered negligent. However, a couple things must be kept in mind if this course is chosen. First, this document must be drafted by an attorney and comply with any requirements under state law. Second, careful thought must be given as to the conditions stated in the policy. The following conditions often are inserted in such documents:
• The offender may not work with minors in any official capacity.
• The offender may not transport minors.
• The offender may not attend children's or teens' functions at church.
• A chaperone must be designated to observe the person at all times while on church premises, never letting the person out of sight. Restrooms, in particular, pose a risk. Many documented cases of child molestation have taken place in a restroom. Always have the chaperone follow the offender into the restroom. In general, the spouse of a sex offender would not be a good choice for a chaperone. Ushers or board members are good candidates. In the case of a minor who has sexually molested another minor, the parents or legal guardians could act as chaperones. In their absence, another designated chaperone may be appointed.
It is also recommended that churches adopt a Zero Tolerance Policy for violation of a conditional attendance agreement. Even a single violation should result in the individual no longer being permitted to attend. In addition, it is best to contact your insurance agent or company to review the agreement after it is drafted and reviewed by an attorney. This is for your own protection as many applications for insurance ask if any member, employee, or volunteer (past or present) associated with your organization has been accused or convicted of sexual misconduct. The last thing a church wants is to have coverage denied in the event of a material misrepresentation.
One more step should be taken before adopting an attendance agreement. Check with the individual’s probation officer if they have one. Many registered sex offenders have been released from incarceration as a result of a probation or parole agreement. Some probationary agreements prohibit offenders from attending church, and if this is the case, it is essential for church leaders to know it.
When faced with the need to deal with a registered sex offender in your church, the point of these recommendations is not to eliminate risk but to reduce it to a manageable level to meet the standard of reasonable care. Ask yourself, how would a jury view your church’s actions? In setting up a policy, you are attempting to act reasonably and with due care for everyone involved, especially the precious children in your ministry.
For more information about church liability policies, call AG Financial Insurance Solutions at 866.621.1787.