Unfortunately, child sex abuse claims against religious organizations, valid and invalid, have greatly increased over the last two decades.
There are three important things to do first if your church, religious school, or other religious organization is faced with a child sex abuse claim.
First, immediately contact an attorney and any insurance company that may provide coverage for the claim and ask that the insurer provide coverage. This is known as “tendering” your defense to an insurer, which may pay legal fees, any settlement, and any court judgment if the tender is accepted.
Second, have an attorney determine if the claim may be untimely and barred by the statute of limitations.
In Oregon, pursuant to Oregon Revised Statutes 12.117, a child abuse claim generally must be brought before
the alleged victim reaches age 40.
The civil child abuse statute of limitations varies from state to state.
Third, your organization needs to determine whether it can be held vicariously liable for the conduct of the person who allegedly abused the claimant.
In Oregon, for purposes of vicarious liability, the critical distinction is between paid employees and unpaid volunteers known as “nonemployee agents.”
In short, religious organizations in Oregon may be held vicariously liable for child sex abuse committed by a paid employee. However, it likely will not be held vicariously liable for such conduct by a nonemployee agent, such as the typical church or religious school volunteer.
In Oregon, unlike nearly every other state, churches, religious schools, and other religious organizations can be held vicariously liable for a paid employee sexually abusing a child (even if the organization was unaware of the abuse). This is the holding of the Oregon Supreme Court in Fearing v. Bucher, 328 Oregon 367 (1999), a case involving the alleged sexual abuse of a child by a priest employed by the Catholic defendant.
However, more recently, the Oregon Supreme Court recognized that corporate defendants like churches and religious schools should not be vicariously liable for such conduct by unpaid volunteers known as “nonemployee agents.”
In 2012, the Oregon Supreme Court, in a case called Eads v. Borman, 351 Oregon 729 (2012), held as follows: “vicarious liability for an agent’s physical torts arises only if the principal has the right to control the agent’s specific injury causing conduct in particular. The principal’s abstract right of control or right to control an agent in other respects is not enough.” Oregon law, therefore, “differentiates between employees and other agents for purposes of a principal’s tort liability, with the result that, ordinarily, a principal is not liable for the negligence of a nonemployee, because a principal generally does not have the requisite right of control over those nonemployee agents. *** Distinguishing between employees and agents who are not employees is important for vicarious liability purposes, because a principal’s liability for the torts of its agents varies based upon the type of agent. In general, a principal is liable for all torts committed by its employees while acting within the scope of their employment, but a principal ordinarily is not liable in tort for physical injuries caused by the actions of its agents who are not employees.”
Therefore, a church, religious school, or other religious organization, if faced with a child sex abuse claim, needs to immediately determine whether the person who allegedly abused a child was a paid employee or a nonemployee agent, which includes volunteers. There may be vicarious liability in Oregon for child abuse by a paid employee, but there likely will not be vicarious liability for such conduct by a nonemployee agent. This is because it is obviously highly unlikely that a religious organization controlled or had the right to control the agent’s “specific injury-causing conduct in particular,”
meaning the act of sexually abusing a child.
Thus, the statute of limitations and the alleged abuser being a nonemployee agent of a religious organization may allow a child abuse claim against it to be promptly dismissed without the payment of any money to the alleged victim and without the time, expense, risk, or negative publicity associated with a trial. This is why these issues, along with hiring the right attorney, must be kept in mind when facing a child sex abuse claim.