Transcription
Sparks, president of AG Financial Insurance, welcome to Risk Management Live. We have with us Rich Hammer, renowned attorney and author, and all-around good guy, here again to help us. And we're actually—Rich is going to follow up on something we did last month and try to, you know, just do a follow-up on that. But if you have questions and you need answers to those questions as we're going through here, you can actually type at the bottom of the website, and actually these questions will come up to me, and we'll try to get those questions answered. So we appreciate your questions, and we're glad to do that for you.
Last month, we talked about the importance of background checks and reference checks, and actually, um, we came up with six steps to follow: a written application for all employees, for every person working with minors as well as anybody that has keys to the church; a thorough interview process; a background check, including a criminal record check and a sexual offender registry check; two documented reference checks, including past church history. And let me emphasize there, Jerry, I can't say this strongly enough: personal references are worthless. The FBI profile for preferential molesters says the only friends of pedophiles tend to be other pedophiles. So you get these two references from another state that you never heard of before; they are not only worthless, they're dangerous. We recommend what I call institutional references: where have you worked with minors before? Scouting, coaching, teaching, mentoring, maybe another church. You need to get references from other institutions that have observed this person working with minors and who can attest to the person's fitness and suitability. That's the gold standard. And if you missed our last Risk Management Live, go watch it, because actually it was all about the importance of reference checks and why background checks aren't enough. So pick that up.
A two-adult rule: where all applicants must—where—is this number five? This is number five. At no time should a child be left alone with another adult. And then number six, but it doesn't have to be a—one adult with a group of children. For example, I teach a fifth-grade Sunday school class, and I've done it for 27 years, and I'm in that room with 10 or 15 kids and no other adults. That doesn't violate, uh, you know, my church's two-adult rule, because the two-adult rule says there can be no one-on-one associations of adult and children. But hey, go down to your local public school down the street and walk into a fifth-grade classroom. What do you see? Thirty or forty kids and one teacher. That's your state standard. Occasionally, they'll be a teacher's aide, but often not. So, you know, if the state doesn't require that they have two people in there at all times with multiple kids, don't—don't subject your church to a standard that's above what the state standard is. Excellent. And then number six, a six-month rule: all—all applicants must be in good standing with a church for at least six months before being allowed—I say membership—well, now we're going to disagree on that, but you know the thing is this: becoming a member takes time; it's a process, and it subjects you to the discipline of the church. And that's why, for years, I have advocated for volunteers—you can't do this for employees—but for volunteers, that they be actually members of the church for a minimum of six months before you allow them to work in any volunteer capacity involving minors. Yeah, and I'm a little bit more lenient because I see a lot of people that go to the same church for years and years and years but never join. Hey, become members. There you go, Rich Hammer pushing membership to the churches now.
So we're gonna—what we're gonna do is—that that was kind of the background that we had for last month, but what we're gonna discuss today is what happens if there is an allegation of sexual misconduct, and and we kind of came up with an allegation plan, and you want to go ahead and start with… Well, we've come up with an allegation plan for years. I mean, I get asked this question with some frequency—uh, you know, a pastor or a church staff member will call me and say, "We've had an allegation of child abuse in the church, and what do we do?" This is a shocking revelation; it's a stunning revelation, and church leaders want to know what to do. And, of course, I've written about this extensively in *Pastor, Church, and Law*, my church long tax report newsletter, among other sources. Probably the best place would be in *Pastor, Church, and Law*, in chapter 10, where I talk about this whole issue with many, many, many recommendations. But I—I think the—the first and most important uh principle here, when you have, God forbid, an allegation of child abuse, is to immediately notify your insurance company. You have a duty to notify your insurance company of any potential claim. Some church leaders believe that we don't have to notify our insurance company until there's a lawsuit filed, but that's not the case. The—and in fact, there was a case uh fairly recently where a church did not inform their insurance company of what they knew to be a potential claim of child abuse for five years, and then they turned it over when the lawsuit was filed five years later. The—a court in that case ruled that the insurance company had no duty to represent, to defend, or to indemnify that church because they'd violated the prompt notification condition in their insurance policy. So when you know of a potential claim, contact your insurance agent immediately. I recommend that it be confirmed in writing, so you have a paper trail that you actually did so. But that's first and foremost. Well, actually, let me back up, and maybe I can do one and one-half versus one: understand your sexual abuse misconduct as defined by your state mandatory laws, so you know what sexual misconduct is. And actually, if that happens, notify the state as well as… Yeah, that's—that's my second point—is that if—if this is a minor and this constitutes uh reportable child abuse, to report it. And then we get into the difference between mandatory versus permissive reporters. I'll just tell you that clergy are mandatory reporters in 41 states. In about half of those states, they're off the hook if they learn of the abuse in the course of a conversation protected by the clergy-penitent privilege. That is rare. Ninety-nine percent of the information ministers receive is not privileged. And even if it is, so what? Uh, I still—I have never told a pastor who has called me not to report child abuse that's suspected—uh, that whether you're a permissive or mandatory reporter, it doesn't matter—report it. And I say that for many reasons which we've discussed in prior programs. But you know, discharging—fulfilling the child abuse reporting duty, even if you're not a mandatory reporter, is point number two. And then here's the third thing that I—I recommend, and let me tell—I understand what you're thinking: "Oh, there's all kinds of reasons we shouldn't report. We shouldn't report this. We don't want to offend the family. We, you know, this guy's a deacon." It doesn't matter. You've got to ignore those barriers to reporting and apply what I call the sleep test: How can you sleep at night knowing this guy may be victimizing that same victim or others? Get with it and report. I—I'm an absolutist on this issue. Uh, yes, there's potential downside here. The family may leave the church. I had that happen in a recent case, but so what? If you—you will never regret doing the right thing.
Let's go on. Point number three, in terms of your church's response to an allegation of child abuse, is be—and most churches never even think about this—but be careful what you say in church board meetings. And what are you talking about? Well, uh, when you get an allegation of child abuse, typically—and this is—this is typical—the pastor may call an emergency meeting of the church board and—and to discuss this. Well, you've got a—you've got a secretary on the church board that is—that takes down verbatim transcripts of what—what's being—what's being said in that board meeting. Just remember, everything in those minutes is discoverable in the event of litigation and can be used as admissions against interest against you if there's things in there that are incriminating. So—and this—this really swerves into a broader topic, and that's the whole topic of church board minutes: How much detail should there be? Well, we could—we could spend—and probably we should spend a whole session on that, but for now let me just say, when you're talking about a—an issue such as child abuse, you want to keep those minutes very generic and very non-accusatory, non-incriminating: "A personnel issue was discussed," something like that. You don't want to go into details about that—that, because those details can later come back to haunt you. And actually, that is a—a great point. Um, what about number—how about a fourth thing to do? Take the allegations seriously and address it promptly. So, um, if—if you know something that happens, let's take it seriously and address it promptly, not just with the victim and the victim's family, but also with the perpetrator. So number five… Well, uh, how about, uh, you know, in many cases the perpetrator is going to be obviously either an employee or a volunteer uh in the church and has used that position to have access to the—to the victim. So obviously you need to, at a minimum, suspend this person immediately. Initially, you may not know what happened; there may not be absolutely conclusive evidence this guy's guilty, and maybe a he-said-she-said situation, which are very difficult. But—and so you may think that your staff member is totally innocent, but you—you have a serious charge that's been made. You have got to suspend this person pending the outcome of any investigation, that because once you have credible information or reasonable suspicion—and that's—that can be the accu—the accusation of one minor—then you become a guarantor for the safety of minors at your church because you have this knowledge. What did you do with that information? What would a jury expect you to do with that? They would expect you to get this person out of a position involving additional contact with—with minors. So that person has got to be, at a minimum, suspended. Sometimes he'll immediately admit it, and it's clear he did it: dismissal. Uh, but—but if it's—if the person denies it, which is common, you had him—you just can't say, "Well, we believe you, so let's—you know, it's happy days are here again." You have got to suspend that person pending a reasonable investigation. And again, if you've reported this to the authorities like we recommend, they will step in and do an investigation, and the outcome of that investigation will help to inform you as to what to do.
Rich, question here: Do you continue to pay a person that is under suspension when there is just no evidence of the wrongdoing? Absolutely. You can suspend with or without pay, and I think that decision will be based on the uh substantiality of the evidence, the—you know, how credible is the evidence—uh, you know, how uh corroborating the evidence is, and kind of the worst case is a he-said-she-said situation where the victim makes the allegation, the perpetrator—the alleged perpetrator denies it—those are very difficult cases. And—but—but I do believe that, depending on the circumstances, it's totally appropriate to suspend with pay pending the outcome of the case. You know, we had a—at the church that I was in, we actually had a case where a family came and said, "Our boy came to us and told us that he was touched inappropriately," and the family came into—into the church, was very, very upset. Pastor immediately called me in because I was on the board. This person happened to be also a board member, and the people knew that this person was also a doctor and said, "Boy, we see big bucks." What they didn't know is that we actually had cameras in the Sunday school room, and once we let them look at the sun—at the cameras—uh, look at the film, and there was no evidence—they immediately… Jerry, isn't that a powerful story? Uh, I—I think video technology is so powerful in these cases, especially with young children, toddlers, uh preschoolers, that they're not—that can't often articulate what's happened—uh, to have a video cam that's cheap—I mean, you're not talking about something expensive—and it can be—I've seen this happen myself in a number of cases where that—having a video camera uh has completely rebutted and negated a—a allegation or a suspicion of child abuse. Yeah, it—it—it's amazing what—you know, it just went boom, and the—the family still actually left the church, but I think it's more out of embarrassment because they had—they had raised such a stink about it. So let's move on. Um, documenting—number six, documenting the allegation—preserving the evidence. If you did—if you ran background checks, have—you know, make sure you have those in place; have your reference checks ready; um, what exactly happened; how did it happen? If the perpetrator comes in and talks to us and—and basically says, "I did do this," get him to sign a confession at that time. I think that's so important, Jerry, and I've practiced this policy for a number of years: have that—have that confession ready in advance before you meet with the perpetra—the alleged perpetrator. You have no idea where that meeting is going to go, but if the person confesses to it, you have a brief window there of contrition where that person will sign the confession. Now that confession, you know, sometimes I recommend having two or three versions of the confession: one that's very explicit, one that's more generic, like "Conduct unbecoming a minister" or uh "immoral, unscriptural behavior," something like this. I—I—but—but have that ready and pull out the appropriate one for the individual to sign. But it's very important for that confession also to say—to say that, you know, "My dismissal, whether I'm an employee or volunteer, was just and appropriate based on the—the evidence—based on my conduct." And so I think that's very important, but also to put in there a permission—a consent on the part of the perpetrator for the senior pastor to read this confession to the staff—they're going to want to know what's going on, especially if it's like the youth pastor—and also to the congregation in any membership meeting or any—any worship service or membership meeting. So you can call a meeting of members—maybe not during the service—or you can mention it during a service, but the point is you want to have the—the cons—the signed consent of the individual authorizing you to do that. I've seen that as a very effective strategy in—in many cases. You know, I know of two incidents at the church I attend that—that actually the pastor has had—number one has had a pastor that had committed adultery and—and chastised him basically in front of the whole entire church, told the church exactly what happened. And then we also had a youth minister that had inappropriate relations with his fiancée, and um the pastor addressed it in front of the whole church. So the whole church knows exactly what's going on. So many of our churches today want to—you know, "We don't want that out as public knowledge," and actually I think uh releasing that information makes the church—um makes the church—makes people realize that the church is actually looking out for their interests. You know, uh, I read a book years ago called *The History of Auricular Confession in the Catholic Church from Zero to One to One Thousand*. I wouldn't recommend that after 9 p.m., but it was a thick book. And the interesting thing about that book—I—I mean, it was fascinating—in the early centuries of the church, the whole concept of discipline involved public penance, where the—the—the uh perpetrator—the offender, whatever the sin may have been, was expected and required to disclose everything to the congregation. And so uh one of the—one of the things that—that does—it—it makes everybody a supervisor uh in the congregation, not just that small click that "We're gonna keep this secret—we're not gonna…" And there's a powerful—I think—what should I say?—benefit in expanding the knowledge base so that, to the extent that person remains in the congregation, everybody becomes uh kind of a supervisor of that person. It actually works. One of the other things I have down is: If we know that the allegation is true, then actually make the—make the alleged victim—help them with counseling and give them support. And actually, I know that you talked to an attorney here the other day. Most people don't want to sue their church, but how they are treated basically depends whether or not they'll bring a lawsuit. We see this happening all the time. Can you go through with…
Yeah, yeah. I—I was speaking to an attorney recently who sued many, many, many, many churches in cases of child abuse, and I—uh, he said that he had never seen an exception—in—in all the cases he had personally handled—to the church response when confronted with an allegation of child abuse to one or more of the following three responses: denial, minimization, or blame. Denial—denying that this happened; minimization—"Ah, it wasn't that serious"—uh, or blame—blaming the victim—"You're gonna be a troublemaker; you know, get it—get out of here." But—but his point was, when churches respond to victims—this is the biggest crisis in that family's life—and to be treated like this by their church, to which they come to for comfort and solace, is unspeakable. And what does it do? It makes that family—that is torn with guilt and anger—and they go to their church, and they're treated like dirt. And so what do they do? They see that attorney advertising at midnight on TV. "Well, maybe we ought to call…" They don't want to; they feel dirty in doing this—uh, but they—and many of them still can't bring themselves to do it, but some do, and—uh, they—they contact the—they contact an attorney for assistance. And this attorney told me something very interesting—interesting. I said, "Well, what if—what if you encountered a church that actually didn't do any of those three things but treated the victim and the victim's family with dignity, treated them as Jesus would under the circumstances?" He said, "There wouldn't be a lawsuit." And I think that's your point, Jerry, that uh there's a—there's a uh reason to be Christ-like and compassionate, and you know, so church leaders say, "Well, we—that could be used as evidence against us in accordance…" Give me a break! Uh, do we—I mean, this—this is—you're called upon to act like Christians in this circumstance, and if you do the right thing, often that's gonna have collateral benefits, such as no lawsuit being filed because the church believes you are treating them justly and fairly. And let me tell you this—uh, you got to be careful how you treat the perpetrator. And—uh, one of the—probably the top five verdicts in any case involving a church in American history involved a church in which a youth pastor sexually molested 17 teenage boys, and the—uh, these 17 families—they love their church, and they really held off on suing the church. They couldn't bring themselves—people don't want to sue their church; they kind of feel like they're forced to sue their church. So here's what happened—because they're not being taken seriously. So what happened in that case was the victims watched the spectacle of this perpetrator who was prosecuted and convicted and sentenced to years in the state penitentiary, and like once a month they got the buses in the church parking lot, loaded up with members, and they drove 50, 100 miles, whatever it was, to the state penitentiary to go visit their former children's youth pastor. Horrible. And the victims' families sat there in church and watched this spectacle. "What about us? You're treated like dirt. We don't want to treat you with any uh compassion because that could be used against us in a court of law." No! And that attitude brought those families out of the woodwork, and the first family filed the lawsuit that resulted in a seven-million-dollar judgment. Sixteen other families are out there; I—I don't know what's happened with them, but—but the point is, you know, do the right thing, and be careful how you treat the perpetrator. It's okay; I'm not saying to ignore that person, but—but there's got to be a balance here. You can't go overboard with a child molester—a convicted child molester in this case—and ignore the victims.
Yeah, actually, that's my number eight: responding to the alleged perpetrator, also to the congregation, which we've kind of covered—you know, telling the congregation what's going on—and then actually how to respond to the media when this—when this comes. I can't tell you before we get to that. Okay, just let's—that'll be the concluding point. All right. Uh, there's one other point I want to wedge in here, and that is uh in some cases the alleged perpetrator is an adolescent. So it may be a 15-year-old. A mother comes to you and says, "My five—my six-year-old son says he was sexually molested by a 15-year-old in a restroom at church," and—and that creates certain complications. Uh, I mean, you still need to follow the recommendations we've made here today, but—but I just want you to know that law enforcement and child abuse reporting state offices generally view child abuse inflicted by an adolescent as a symptom of that person's own victimization. So typically what happens is: Here's a 15-year-old that was sexually molested, maybe when he was 10, by a power figure—an adult, perhaps somebody in the church—and now has this compulsion to act out and to molest a weaker victim. So it's a power imbalance situation, and—and so when adolescents molest younger children, you always have to be aware of the fact that this may indicate that that adolescent was himself a victim of child abuse. But—but uh but the point is—another point here is that if you do have an adolescent who is a victim of child abuse, that's a high-risk person, and you need to be very careful in mainstreaming that person without intense supervision to be sure that there is absolutely no way that person can be isolated with a younger child.
Yeah, we've actually—I've had several churches where that has actually happened where the parent has come to us and said, um, "You know, we have an issue with our child; how do we handle it?" And—and actually, again, we use the same thing we do with having any sexual offender in the church. We have actually basically somebody with that person from the time they come on the premises to the time they leave the premises—uh, and they even follow them in the restroom. So I mean—uh, most abuses can—you know, happen in the restroom. So you have to be careful. There was a study done years ago in—in one state, and it was determined that 77 percent—77 percent of all cases of child molestation not involving family members happened in restrooms. Wow. It's a high-risk venue. Okay, now so we actually—why is that? Because they're not supervised, and they're frequented by minors, and oftentimes they're isolated. Yeah, you get them inside a stall; they don't have any—you know—that—that we've seen it happen. Um, I've seen it happen too many times. I mean, so back to video technology—one thing some churches are doing is putting a video camera not in the restroom but in the hallway, so you can document who was going in and out, and that can be a tremendously preventive technology. That's great. Okay, you get the phone call: "This is KY3 News, and we're heading your way. You know nothing, but we understand your pastor just—you know, your youth pastor just got arrested." I can tell you that I, unfortunately, I've had this call yes, three or four times, where "What do we do?" You do the deer-in-the-headlights impression? I don't think so. So that's what—so often happens, Jerry. It is—people are—they're just blindsided, and here's a guy sticking a microphone on their face: "You know, say something," uh, and they—they make statements that they regret. And so that's what we're talking about: how to respond to the media. Yeah, and actually, that—you're absolutely right. A lot of times the pastor doesn't even know. You know, I've—I had a pastor call me and said, "I've got a news crew coming over to my place; I don't even know why."
They're coming, and I said, "Well, we need to try to find out why they're coming." And he called me back and he said, "Apparently, my youth pastor just got arrested." And I said, "All right, let me send you some things. And here's, here's your answers to the questions." He goes, "Well, how do you know what questions they're going to ask?" I said, "It doesn't make any difference what questions they ask."
So communications with the media: never say "no comment." Oh, "no comment." It just gives me chills when I hear people say that, because they've just—you've been convicted. It's like Lois Lerner—uh, I exercise my fifth amendment right against self-incrimination before that congressional committee. Everybody knows she's guilty. And, and, and that to say "no comment"—the, the your community watching this on TV assumes you, pastor, and your church are guilty, and all the terrible things people are saying about you, the plaintiffs' attorneys, they must be true.
So how often do you have the opportunity to speak to your community? This is one of those golden opportunities. And if, as we hope, your church has taken this issue of protecting children seriously and you have instituted screening programs and preventive measures, uh, then say so, and showcase that, uh, and, and mention how seriously you take this risk and what the church has done about it. Um, and if you do that, you begin to put yourself in a positive light in the court of public opinion. And, and it's very important here to designate one person who's going to be communicating with the media—typically the senior pastor—and rehearse what you're going to say. Don't be flat-footed. I mean, have an outline of the talking points you're going to share and rehearse it a few times so that when you stand before that camera, it's going to be effective and compelling.
So you know, the other thing is: don't lie or mislead. Remember, they only want 30 seconds; that's all they're going to put on TV is 30 seconds. And you don't have to answer the questions that are asked. So how do you, what do you, what do you, how do you answer their questions? I've got, I've got four. And you just say the things you want, just like in a presidential debate. It doesn't matter what the question is; you just give the, the response you want to give. That's why I say have your response ready and let them ask whatever they want, and you give your response, whether it relates or not. People aren't going to remember you didn't answer the question. And actually, they may ask other questions, but remember, they only want 30 seconds, and they're going to take their best take. So if you've got it rehearsed, they're going to use that. It's the broken record syndrome. So: number one, we've had an incident; number two, the incident is currently under investigation; number three, we don't have all the details at this time; and number four, we are now, and we always cooperate with the authorities. So that's the impression you want to leave.
Remember, the public is actually going to be watching how you react to this allegation, and, and these are, these are members of your community that are going to be doing it. So it is so important when the press comes calling that you know how to answer them. So, Rich, I can see that we're out of time again. It's amazing how time travels when, uh, we start going through this. We deal with this on a day-to-day basis—well, I should say on a week-to-week basis—and anything we can do that can help you, we're here for you. Um, let me, let me just go with a couple, with one of our little things—big thing is showing compassion to the victim. We've got to show compassion to the victim, and that, that is so important for the church to do that. How you react to that victim basically determines whether or not they're going to be sued, uh, as a church. So remember, be compassionate, Rich. Appreciate your time, and until next time, I will—if you have any questions, give us a call; we're here for you. Thank you. You.