How to Deal with Registered Sex Offenders in Your Church

Hi, I'm Jerry Sparks, president of AG Financial Insurance Solutions, and once again we have Rich Hammer, renowned attorney and uh, risk management expert. Boy, do we have a subject today, and it is how to deal with sexual offenders in church. And um, Rich, you know, probably one of the largest or the most frequent questions that we get is how do we handle a sexual offender in the church? And and actually we have that with adults; we we have also had, here as of lately, we've had it with children also that are actually may not be registered sex offenders but have been there have been issues. And and how does a church deal with it? So let's let's first start with: can you give me the legal risk to a church of letting a registered sex offender attend the church? Well, that's that's our primary question today, but maybe before we we even answer that, Jerry, let's address the question of uh, how do churches even find out that they've got a registered sex offender? That that is a shocking revelation in many cases, and uh, to find that out. And there there are a number of ways this can happen. You know, somebody can just inform the pastor, "Hey, there's a guy attending the church I happen to know is a registered sex offender." Uh, it happens that way sometimes. And but but sometimes it happens because uh, somebody in the church, maybe somebody in the church office realizes—and we'll talk about this more later—there's a national sex offender website that enables you to uh, to determine without a signed application, without a social security number, for free instantaneously whether somebody's on a sex offender registry or not. And and so it's easy to go down the church membership role and find out if uh, uh, especially for smaller churches, and then you come up with a list of 13 registered sex offenders that attend our church. Whoa, we didn't know this, Jerry. What do we do with this information? So there's a number of ways that church leaders become aware of the fact that a registered sex offender is attending the church.

Let me mention uh, some of the risks involved. If if a church has become aware that a registered offender attends their church and they allow that person to continue to attend, there's a there's a number of uh, risks obviously under those circumstances. Number one is the risk that this person may m uh, a child, especially if this person is a sex offender because of some incident involving child molestation. And then there's of course the the risk of liability to the church itself if the person is going to be working with minors; that would be a negligent selection claim typically, or just a general negligence claim if the church does nothing to uh, to monitor, to oversee, to supervise this person. There's also a risk of uh, punitive damages, uh, which are damages that are uh, to punish you for reckless or gross negligence, reckless behavior. And uh, you know, for a church to know they have a registered sex offender and they allow the person to be mainstreamed without any supervision, even working with minors, this could be a punitive damage claim. It also could implicate liability for the church board members who failed to implement a an appropriate policy, uh, implementing safeguards to make sure that this kind of contact can't happen. Then you have the media publicity, the the uh, the stigmatization of the church and the community because of a media feeding frenzy on on what happened in your church. And then let me mention another risk, and that's, Jerry, you can maybe speak to this issue; that's the risk of a potentially uninsured claim. And by that I mean this, that uh, all all church liability policies, including yours, uh, ex has have various exclusions, one of which is for intentional criminal uh, willful misconduct; goes by various uh, definitions, but the bottom line is criminal or intentional misconduct generally, by because of public policy, is not an insurable risk. And and the courts have differed over this when an insurance company says to a church uh, gives you a no coverage letter: there's no coverage under the policy for a case of child molestation uh, because that's a Crim that's criminal behavior. Well, that may be criminal behavior for the perpetrator, but but what did the church do that's criminal behavior? The church is not being sued for criminal behavior; it's being sued for negligence, negligence in the selection or perhaps the supervision of this particular individual. So the fact is uh, there may be uh, an insurance, the insurance policy of the church may not cover this risk.

You know, one of the so basically what you're saying is once a church finds out that—no matter how they find out, whether they did a background check uh, and checked which included a sexual registry—once they find out that there is a registered sex offender attending their church, that's when the liability really really starts for them because now you know of an instance, and what are you doing to protect your congregation? That's right. And Jerry, that raises an interesting question: does a church have a duty to screen everybody that attends the church? What are you going to do? Have somebody have a little desk at the entrance of the church with somebody with a laptop with a wireless connection? Well, here's a guy that's never been here before; what would you come over here? What's your name? We need to do a criminal recra—No court has said a church has that obligation, much less Walmart or any any other entity, facility, business, charity in your community. No court has said there is a general duty to do criminal background checks on everybody that crosses the threshold of your congregation. The duty arises when you set apart somebody uh, in some official capacity to work with minors, as a teacher, as a as somebody that's involved in transportation. Uh, there are a number of ways somebody can volunteer or perhaps be paid to work with minors uh, in a nursery, a Sunday school teacher, etc. These are the people that you've set apart officially to work with minors, and that's where the the legal duty arises, uh, not with respect certainly to somebody that just stumbles onto your shore on Sunday morning; you have no idea who this person is. Uh, only when they emerge as somebody expressing an interest in working with minors in some capacity uh, does that does that legal duty to to uh uh investigate arise. Now, if you know, a lot of times people will actually uh, inform, especially if it's a a spouse or somebody else saying, "My husband is a registered sex offender," um, or and that's normally how we find out is somebody at the church actually calls the church office and says uh, "We believe this person is a sexual, you know, is a registered sex offender." Then how the church handles it after that, really um, that's when the liability starts is when somebody notifies you. That is not possibly a worker, because I can tell you that most of the time if you're filling out an application, I think I've only had, you know, I attend a very large church and only once uh, while we were there did I have a registered sex offender actually fill out the volunteer application and go through the background screen. And you know, it was interesting; I I asked him, I said, "You knew this was going to show up, so why did you fill this out?" He goes, "Why fill this stuff out before?" He goes, "But nobody's ever really checked the stuff; I didn't really think you were going to check it." Amazing that that uh, that people would not even think that we're going to check it.

So once you find out that you do have a registered sex offender in the church, okay, how should the church handle it? I think there's two ways; you may disagree with me, but I think there's two ways that the church can handle it. Let's talk about those. Well, I think there are three ways uh, actually. Uh, the first way is probably what most churches do, and that's nothing. Uh, you know, they don't know what to do; they maybe they haven't thought about it; it's just not an issue that's that's risen to the level of urgency where church leadership feels we need to do something about. We do not recommend that. Now the other two options would be uh, a policy of total exclusion; totally exclude all registered sex offenders. Uh, some churches do that. The largest survey, Jerry, ever done of church practices in this country with regard to how to handle sex offenders on your premises was done by Christianity Today 3 years ago, and it was interesting; the in the survey, one of the questions was, "What do you think the appropriate response would be to knowledge that you have a registered sex offender uh, attending your congregation?" And of those that said the appropriate response is total exclusion of that person, I was I have to admit I was a little surprised with that; it was only 3% said that we would totally exclude that person. Now I will say that in my opinion there are some situations when I think uh, total exclusion is appropriate. Let me just mention two of them. One would be if the crime or the crimes for which this person was previously guilty put him on a sex offender register are particularly heinous, um, and this guy's out of prison for whatever reason. Uh, you know, the uh, the Adam Walsh Child Protection Act of 2006, uh, federal law that requires all states to have sex offender registries, it requires the national government, the federal government, the F the Department of Justice to implement a sex offender registry that's accessible by the public. Uh, that particular statute segregates sex crimes into three categories: tier one, tier two, tier three. And uh, tier one are the least offensive crimes; you're on that registry for just 15 years. Tier two are more severe crimes, sexual oriented crimes, and you're on the registry for 25 years. Tier three are the most heinous crimes; you're on the on the registry for life. So the point is if you have somebody that's a tier three sex offender, this person has been determined to be the most severe category of crime. So I I would say that for tier three offenders, Jerry, you you may be able to make a case, I think perhaps easily in fact, that maybe these people ought to be scrutinized very carefully. And then so uh, with respect to um, total exclusion, so some crimes are so heinous that I think they should be excluded from church. The second reason I think a church may want to adopt this policy is if some of the offender's victims still attend the church. And so the point here is this frequently happens; maybe one or more of this person's victims continue to attend the church. And uh, does the church sh should it not intervene here and protect the victims from being revictimized every Sunday by seeing this guy? Uh, not just the victims, but their families, their mothers and fathers, their parents, their siblings, their grandparents perhaps uh, to to have this continual revictimization stop it. I in my opinion that's another reason. So that's that's the second response churches have. The first response is doing nothing; the second response is total exclusion, which as I say may be appropriate for tier three offenses that are particularly heinous uh, or if victim one or more victims continues to attend the church.

Now the third option that a church has—in fact, according to the Christianity Today survey, this was the option selected by about 80% of churches when asked what do you think the appropriate response would be—and that's getting to your point of the U uh, limited attendance agreement, that the person person is free to attend the church as long as he or she signs a limited attendance agreement that has a number of features to it. And I think and we'll talk about that in a minute, but I think that type of approach really resonates with church leaders; it's more merciful, it's less harsh, it's less condemning, and uh, and I think if it's worded properly, this can put the church in a position of being viewed as having acted reasonably under the circumstances, which means that it can't be it's probably not going to be negligent. You know, actually I call it a conditional attendance policy is is the the wording that I've used with most of the churches that call in with us. And uh, some some important things which I'll actually uh, talk about is number one: it needs to be looked at by an attorney and drafted by an attorney. We can give you the the uh, items that really need to be part of it, but it needs to be uh, drafted by an attorney or looked at by an attorney. Each state is a little different, and you want to make sure that uh, you're following the rules in that state. So uh, let's let's talk about what actually goes into a conditional attendance policy. Well, I think it's it's really common sense when you think about if you would sit down and and try to draft a policy, just bullet points, what kind of thing should be in a limited or a conditional attendance agreement where we are going to allow—80% of churches say they do this uh, that we surveyed—going to allow a registered sex offender to attend, not mainstream this person as a worker with children, but just let this person attend; that's what we're focusing on today. Obviously you don't want to use that person uh, in a capacity as a teacher. In my opinion, uh, you know, I I think of James chapter 3, verse one, that says, "Not many of you should become teachers, for we who teach will be judged more strictly." I think that's a biblical mandate that when it comes to people that we set aside as teachers, there's a stricter standard that applies, and if somebody's a registered sex offender, that person just doesn't meet that standard. I think most right-thinking, reasonable people would would come to that conclusion. So so we're not talking about that issue today; we're talking about the related issue: well, what if the person doesn't want to work with children, just wants to attend the church? What what do you do with that person? And that's where that conditional attendance policy I think becomes important. And so what are the kinds of things that would be in there? Obviously you cannot work with minors in any capacity, any official capacity in the church. Number two: you are not going to be allowed to transport minors to or from. Well, I'm going to take this kid home; he needs a ride, this seven-year-old. Uh, number three uh, is what is what we call a chaperone policy, designating somebody who's going to be able to observe this person when he is on church premises to make sure that uh, inappropriate contact contact with minors cannot occur. We call it a chaperone; the person doesn't have to sit with this guy; I mean, just be able to observe the person. You may be 50 ft away in a sanctuary, but if that person gets up and walks out of the sanctuary, you follow him. Uh, one study showed that 77% of uh, victims of child abuse in church occurred in in restrooms, so that's a high-risk area, and pedophiles know it. So uh, that's another thing you got to have that sh and have that chain of custody where you never let this person—say there can't be any wrongdoing under those circumstances. Uh, and number three, number four I guess uh, would be of course uh, that the person should not be allowed to attend children or youth functions. And uh, and I think it's important to point out that a single violation of these conditions should not lead to the church leadership practicing uh, mercy and great—Well, what's just just one wrong? Uh, it's uh, one violation, big deal. It is a big deal. I I would have a zero tolerance policy because, Jerry, what you see sometimes is, you know, 15 or 10 polic or violations stack up. Well, let's give them another chance. And uh, that that is clear evidence in many cases of of negligence.

Let me mention just a couple other things: make sure you contact your church insurance company to have them review your your conditions, your policy uh, for their input. And uh, and I think it's also very important to check with the individual's probation officer uh, with regard to this policy that you've come up with, whether it's whether that person agrees to it or not. You know, the fact is there's 550,000 registered sex offenders in this country; many of them are not in prison. And why is that? Have they served their sentences? No, they've been released because of prison overcrowding or who knows what; they've been released early. Many of them are subject to the term terms of a strict probationary agreement which says, "Okay, we're letting you out early, but you're subject to these conditions." And Jerry, I've seen a number of these agreements that literally forbid the person to attend church and and there have been a number of cases—I'm thinking of one case where a registered sex offender was sentenced to 40 years; his crimes were so heinous—and he was released after like 18 months. And but there was a very strict probationary agreement: you may not interact with or or or be involved with minors in churches without adult supervision. Well, come to find out within weeks of his release, he was he was more or less, you might say, teaching a group of boys, children in the church basement with no oversight. So he was he he was uh, discovered, and he was reported, and he uh, what, his probation was revoked, and he was sent back to prison to serve out the remainder of his 40-year sentence. Wow. So he appealed that; this is cruel and unusual punishment. That went up to the state supreme court, and the state supreme court affirmed this and said, "Yes, you serve your sentence; you've you have violated your Poli." So the point is this: if the person is out of prison because of a probationary agreement that says you cannot attend church because of the proximity to children—those I have seen many of these agreements—and you will let you let this person just attend your church, that is a high risk. So as part of your conditional attendance agreement, that's what we're talking about here, you want to be sure you check with the probation officer, which usually there will be one, and uh, "Do you have any problems with this? What are the terms of his probation? We need to know; we need to see what those terms are. Is he excluded? Is he pre-excluded from attending church? What other conditions may apply that we need to know of?" And by the way, here's our policy; would you please review this for us? One of the one of the things that uh, we have done in at actually the church that I've attended is that um, when a sexual when we find out about a sexual offender, we actually make them come to the information booth. So once they come on the premises, then I actually put either an usher or security person with them; they follow them until they actually leave the premises. Yes, okay. Um, like you said, when we have instances, most of the time, you know, it's amazing when we have uh, sexual molestation instances, most of the time that we have actually seen this happening on the church premises, it is in the restroom. So I had them, you know, you know, question from an usher, "Do I actually follow the guy into the restroom?" I said, "Yeah, you don't have to go in the stall with him, but you follow him into the restroom, and you make sure there's nobody else that can, you know, that he's in proximity proximity with any minors." Because actually there'll be minors probably in the restroom, but you want to make sure you know what you're doing there. The one of the questions too that has come up: can a spouse actually be the chaperone?

Ah, now that's a good question. Uh, I I would frankly uh, you know, I'm often asked, "Can a husband and wife team be teachers like of young children?" And yeah, there's a certain elevated risk there because the spouse may, one spouse may be covering with the other one. But I I think the the value of presenting to young children a husband and wife marriage, a married couple, is is powerful, and it's it's it's instructive in and of itself. So yes, the risk may be slightly more, but I think it's outweighed by the benefits. But uh, when you're talking about the spouse of a known sex offender serving as the chaperone, I draw the line there. I think uh, I I think that person would not qualify. And that's a good point, 'cause we talk about a chaperone; who should that person be? Uh, I I usually advise that it be a member of the church board. And uh, but but I would I would discourage uh, the use of a spouse. And I actually agree; that's the reason why I was asking you to bring it up. Um, a spouse can't uh, can't testify or doesn't have to testify against their the marital privilege. Yeah, so I would never have a spouse be this. Now let's just talk about um, we had a call here last week where a foster parent had um, a foster child child that had previous in instances; there is no sexual offender offender list, but they did let the pastor know that they had a a young man that had um, molested a younger sibling. Okay, and they were attending church, and they they called in and said, "All right, what policies do we put in place for this?" Um, they actually work in the cafeteria, so he will be, you know, he'll be around minors because, you know, if he's working in the cafeteria, there's minors. Um, let me tell you what we did, and you tell me if you want to if you want to expound on it any. We actually made the parents sign the conditional attendance policy for that for their for their son. We actually made the parents actually being the chaperone, the foster parents being the chaperone uh, when they were working in the cafeteria. So we allowed him still to work in the cafeteria in and grounded him if he is not with a parent attending church and is with a youth service; that's when we use another chaperone. And and that way the parents don't have to be at every youth meeting and stuff like that, but he has a chaperone, and we do not allow um, him to actually be with minors. We we make it known to everybody. Any any other things? I think that's reasonable; I think that's reasonable, Jerry. Uh, I've never seen a case quite like that, but uh, the bottom line is the church will will be uh, liable on the on the basis of negligence, and that means you failed to exercise a reasonable care; some would say a high degree of care when you're talking about minors in the supervision, the selection of a worker. And so the the test is a reasonable efforts on the church's part to address risk, and we're not talking about risk elimination; we're talking about risk management. You you could talk about risk elimination if you put a sign above the church entrances that says, "No minors allowed on on premises," and as appealing as that may sound to some of you, uh, hey, believe me, I'm a fifth grade Sunday school teacher for 25 years, and I teach a mentoring group for Junior High boys; they're wonderful; I love it. But uh, sometimes it gets a little wild, and uh, I have to use extreme precaution measures to get their attendance uh, attention. So yes, uh, I think U we're talking about not eliminating risk; we're talking about reducing it to a manageable level. So meet that standard of reasonable care, and given the unique circumstances of your case, you can ask yourself, "How would a jury view what you've done?" And and I think most right-thinking people would say, "We think that's a reasonable response." And in really in setting up a policy, that's what we're looking at is are you using due care? And and juries will actually decide that, but the court cases have helped us in determining what is due care. One of the things you mentioned is um, insurance companies, and actually I brought I brought with me an application because one of the things that happens is you may have a sexual offender attending your church or you may have um, know somebody that has been convicted and you and you have not done anything about it. Okay, so you haven't really notified your insurance company, but one of the questions on uh, a large church writer's application has: "Any employee or volunteer with your organization been accused or convicted of sexual misconduct or molestation?" Okay, so um, "Do you know of any circumstances that could lead to a claim of sexual misconduct or molestation against your organization or anyone within your organization?" So you're actually asking, they're asking questions, you know, uh, "Have there been any claims? Do you know of any reason that they should be it, you know, should be notified?" I've had actually a church that had a pastor that was on the sex offender list. I do not understand that, but um, it

It happened. No, it was not the lead Pastor. It was somebody that had uh uh that was not a lead pastor but was still uh pastoring in a in a pastor uh for for let's say helping with the youth or helping there. And it wasn't it was it was probably a tier one tier one offense and had gone through rehabilitation. But did you fill out the application and let the company know about that? Because here's what happens: you sign this application and you say, "I don't know of any circumstances," and you do know of a circumstance. I can almost guarantee if they find out about that that there's going to be a declination of coverage because you did not let them know about it. It's a misrepresentation, misrepresentation of facts. And um so it's real important when you're filling out the sexual misconduct uh application to read the questions. And can you think of any circumstances that can happen? Because um you know I I didn't catch it till this time. Has any employee or volunteer-- well I have I have you know we we have somebody, but we don't let them work with children. We don't give them keys to the building, but we let them count money or we let them Usher. Okay, I have an issue if you know somebody as a registered sex offender. I I don't even let them Usher. I don't want them seen as a person that you're putting up on a pedestal, that he is a he he is a worker in the in the church. Because actually by giving him a position, it it shows that we're supporting that position, and I I have somewhat of an issue with that. I agree.

Uh, let me go back, Jerry, and and uh mention one or two other issues that we passed over here today. But here here's a question that I'm U that I'm frequently asked. Well, yeah, this guy's a offender, on whether he's on or off a registry, but we know that he's a sex offender. He's he's had sexual contact with Min, but that was 30 years ago. Uh, can't we forgive? And so I see this powerful motivation on the part of church leaders to show Mercy. How can we hold this against him? It was 30 years ago. Well, let let me answer that, uh and it deals with the definition of pedophile. There is so much confusion with regard to that definition, but the official definition in the diagnostic and statistical manual, DSM version five, by the way that was just issued a few months ago, of the American Psychiatric association defines pedophilia as a basically as a sexual preference for prepubescent minors. The new definition, by the way, expands that to prepubescent minors or early pubescent minors, a sexual preference-- not to say they don't have sexual contact or relations with adults-- but their prefer is for pre is for minors prior to the age of sexual uh maturity, prior to the age of puberty. And uh and so here's the point: the uh FBI profile on pedophiles, what they call preferential sex offenders, uh lists a number of factors that characterize these people. And let me just mention four of them uh that the FBI considers these people uh and this what this is what makes them unique and distinctive: they're promiscuous, with the average number of individual victims-- not the same victim multiple times-- 117 over the course of a life, some of them thousands. So promiscuity. Number two, predatory behavior: they're constantly looking for victims; their behavior, they eat, live, think, dream, sleep thinking about how can I access victims. Predatory. Number three, incurable: no known case in medical history where such a person has been cured from Mis orientation that can be controlled but not cured, kind of like alcoholism. Uh, and number four, one of if not the highest recidivism rate of any criminal Behavior, meaning the chance of repeat behavior in the future is extraordinarily high. So the point is this: given these characteristics, pedophiles are kind of a unique; they're a toxic; they're a nuclear risk to the church. So certainly uh somebody who was molested, had molested an 8-year-old 30 years ago, does that mean we can show Mercy today? And no, that's a lifelong incurable orientation, a sexual attraction or preference for pre prepubescent children. So you need to keep that in mind. Here, what what are the ages of the victims? And and if there if you're looking at potentially prepubescent children, it doesn't make any difference how long ago those offenses occurred. You know, and we see that happen often that uh that we see claims happen and the people have not committed an act in so many years or at least known.

Yeah, the other thing the other thing that I would uh also say is that um is that if a person has committed the ACT, you you know from a liability standpoint you cannot afford as the church to do this. Now, so let's say we're going to we know that we have sexual offender in our church, so we're going to either I believe do a total exclusion, which only 3% of the churches do, and it's appropriate as we said in a couple of cases in a couple cases, but the more the most churches unfortunately do nothing. But we're really going to come up with a conditional attendance policy. So we come up with a conditional attendance policy. What Duty does the church have, or does the church have a duty to say, all right, we have a sexual offender at our church, do we warn our church by telling everybody that a sexual offender is attending the church? Or number two, do we uh just let come up with a conditional attendance policy and let the church about the conditional attendance policy? Uh, I'm asked that question frequently. I think the best response, Jerry, is this: that would be for a church to appoint a committee of of opinion leaders in the congregation to come up with a policy that is, you know, you compare other churches policies Etc. You have you uh run it by appropriate personnel, maybe in law enforcement, you come up with your policy and present it to the church membership in a membership meeting for their Buy in. Then it becomes known to everybody, and then people act less irrationally and emotionally when they find out, "Hey, we have a sex offender in our church." Well, hey, that's that's okay. The fact is most churches do, and and many don't know it, right? But we have a a rational coherent policy that the members have bought into. We have adopted it. We've we've and and uh it's a reasonable response to this risk. Talk about the conditional attendance agreement, and you know, right thinking people will look at that and say, "Well, with this approach, how can we have a problem?" And and so I think that's probably the best way. The congregation is informed obviously in the membership meeting when this is presented. Uh, but I I believe in transparency in these issues, and uh and that's one way that can be done.

Let me just conclude. I know our time is up with this final thought, and that is in making a final decision as to what you're going to do with respect to these kinds of people that you become aware of in the congregation, there's going to be a tremendous urge on the part of church leaders to show mercy and forgive, to practice restoration, giving a second chance. I understand all that; those are biblical principles, but there're also counterveiling biblical principles of justice and and the protection of the innocent. And and I would encourage you to remember that Jesus' harshest words were directed at those who cause one of these little ones who believe in me to stumble. And so I think you can't just proof text and pull out verses of scripture to support one view or another. Look at the totality of scriptural references, and I think you'll come to a more reasonable response. Well, our time is up, and as we knew this was going to be a tough subject to try to get through in this in this short amount of time, but um I think we covered a lot of uh what the questions are that we normally get, actually fortunately or unfortunately on a weekly monthly basis uh where we're where we're dealing with the subject. So now we can just send them to this video. So we want to thank you for attending Risk Management Live, and we'll see you next month.