ANSWER:  In accordance with the Free Exercise Clause of the Constitution, a church has the protected right to expel or discipline its members.  A church member who concludes that he or she has been improperly disciplined or expelled from membership in a church has several potential claims or causes of action against the church available.  The remedies, claims, and causes of action include the following:

• If the church is located in a jurisdiction that permits review of church membership disputes, the member can seek to obtain a judicial review of the discipline or expulsion process.  If, following a judicial review, a court determines that the discipline or expulsion was improper, the court can rule that the discipline and/or expulsion was defective and declare the action of the church null and void, and, thereby, reinstate the member.
• A member can seek injunctive relief against the church, thereby barring the church from any actions of discipline or expulsion.
• A member can seek a declaratory judgment from the court clarifying and setting forth the member’s rights, powers, and privileges.
• A member can sue the church, its board of directors, and other members under tort law seeking monetary damages.  Possible causes of action include invasion of privacy, defamation, and negligent and intentional infliction of emotional distress.

When undertaking discipline or expulsion of a member, a church should take care to follow the rules that it has set forth in its organizational documents or internal policies and to document the measures taken to follow that process.

Unfortunately, the church is not immune from episodes of sexual harassment from taking place within its walls.  It is crucial that churches understand what constitutes sexual harassment, how to prevent it and how to handle it should it occur.

Sexual harassment is prohibited at the federal level by Title VII of the Civil Rights Act of 1964.  If your church is engaged in interstate commerce (a very, very broad view) and has at least 15 members, then the federal ban on sexual harassment legally applies.  Moreover, your state is likely to have its own legal requirements and it will not include the necessity of engaging in interstate commerce and frequently will apply to organizations with fewer than 15 members.

Although training is not required by federal or state law for churches, your church should nevertheless train its personnel and volunteers on the prevention of sexual harassment because several Supreme Court cases, federal and state court decisions and Equal Employment Opportunity Commission (EEOC) Guidelines make it clear that sexual harassment training is essential and is expected among all employees, including churches.

http://churchexecutive.com/archives/training-cuts-lawsuit-impact

But in a victory for the pastor, Kenneth L. Miller, Judge William K. Sessions III of Federal District Court in Vermont said he did not have to start serving his sentence until higher courts decided on a planned appeal, which could take at least two years, according to Brooks G. McArthur, one of Mr. Miller’s lawyers.

Mr. Miller’s lawyers have argued that Vermont, where an original custody battle over the girl was fought, was an improper venue for an alleged crime that took place in Virginia and elsewhere. While Judge Sessions had previously ruled that the case could be tried in Vermont, his ruling on Monday appeared to acknowledge that federal court rulings had been contradictory and that Mr. Miller’s appeal had a chance of success.

For the full article, http://www.nytimes.com/2013/03/05/us/kenneth-miller-convicted-of-aiding-in-parental-kidnapping.html?_r=0.

Also, think about your current professional and personal passwords and how fast it would take a hacker to crack your password and gain access to whatever account it is that the password is trying to protect.  Further, you might consider how long it would take a hacker to infiltrate your organization’s systems and consider promulgating an acceptable information security policy that mandates the use of strong passwords.  As more and more nonprofits and other organizations move storage to the cloud and make member donation and other personal information available online, it makes sense to give consideration to this often overlooked area.

http://www.gadg.com/2011/06/28/an-infographic-reveals-lulzsec%E2%80%99s-hacking-statistics-and-top-attacks/

http://www.huffingtonpost.com/2012/07/26/georgia-gun-ban-church_n_1704452.html

ANSWER:  Religious organizations may be liable for injuries while their premises are used by outside groups. The question of liability ultimately turns on which party assumed the responsibility for and controlled the condition that caused the injury. Outside groups using a premises sometimes may be left unattended, but to minimize or avoid liability, the organization should be expressive in communicating the state of their property’s condition before the time of use, reasonable in identifying and correcting any dangerous conditions before use, and insistent that the supervisors of the outside group familiarize themselves with the premises and present any questions to the organization before use.

You can find more information at:   http://www.identityfinder.com/us/Files/TaxReturnExposure.pdf.

We know of many churches that have been faced with this issue and there have been a range of responses.  Some churches have taken a strict, no-tolerance view and will not allow sexual offenders to come onto church property or become members.  At the other end of the spectrum, many churches appear to have not thought about the issue and do not have any policies or procedures regarding registered or convicted sex offenders or criminals.

Some middle-ground approaches allow sex offenders to come to church, and perhaps even participate in events, so long as the individual has agreed to follow the church’s adopted policies and procedures. Examples of guidelines that have been adopted by churches include one or more of the following:

• Require known registered or convicted sex offenders to submit an updated, comprehensive background investigation to verify the nature and number of any prior convictions;
• Create a special application questionnaire to learn more about the person beyond his or her criminal background, such as personal references, job history and stability, whether the person appears to be in a stable family and work environment, or whether there are any psychological counseling or drug therapies the person may be involved in;
• Create a special committee or appoint a specific church official to review pending membership or visitor applications and determine what restrictions, if any, to place on the person;
• Segregate such person into special worship services, classes, or study groups where they are not interacting with the rest of the congregation;
• Appoint a mentor or sponsor to help the person get acclimated to the church and/or to follow them around;
• Place restrictions on the person’s membership activities, such as not allowing them into areas where children or youth congregate, the use of certain bathrooms only, attendance of certain Sunday School classes only, or allowing them to walk from the parking lot to the sanctuary and back only;
• Put the person on a probationary membership where they are severely restricted in their church activities, but those restrictions are loosened after various milestones are reached over a period of time;
• Not allow the person to volunteer for certain church missions or programs;
• Have the person agree, in writing, that church officials may notify any and all persons that the church deems necessary of the person’s background;
• Require the person to meet with a designated committee of church official on a scheduled basis to assess the person’s state of mind and/or compliance with guidelines as set out by the church; and
• Have the person agree to a Code of Conduct that might include apologizing to prior victims and agreeing to follow certain Christian standards of living.

There is no easy or quick answer to this issue and the church will have to decide where it stands.  When the church adopts its policies and procedures, it will need to make sure that they are closely followed, and the church should review their effectiveness from time to time.  With proper planning, every church should be able to mold a solution that accommodates all concerns and desires, that allows for effective ministry, and that honors God.

The Church Law Group wants to hear from you!  What are your thoughts on allowing registered sex offenders to attend your church?

So what can be done?  In all areas of secular life, security concerns are requiring heightened awareness and responses.  Should the church put metal detectors at its doors and armed guards in the pews?  Can it be an effective ministry, a place of grace and forgiveness, with such strident measures? 

As a general rule in most jurisdictions, a church is not legally responsible for the criminal acts of a third-party occurring on its property unless the crime is foreseeable, that is that the church should have known something like that would happen.  Whether or not a church is ultimately found legally responsible for not preventing an attack that it should have known was coming, it can still suffer from the costs of defending itself from such a claim, both financially and from a public relations standpoint. 

A congregation that does not feel safe and protected is going to have a hard time conducting meaningful worship.  Every church should consider a general disaster or threat policy to address potential threats to the safety of its employees, congregation, and visitors.  As with all contingency and risk planning, every church is faced with some well-intentioned leaders who resist addressing these types of issues because of the “that-would-never-happen-here” mentality.  They say things about not wanting to cause concern for a problem that does not exist, that the church doesn’t have that budgeted, “we’ll address that next year,” that they believe the security is adequate (even though it has not been studied or discussed), etc.  Sometimes that kind of thinking is the minority view and sometimes it is the prevailing view.  In speaking to church clients who have been victimized by violence, we can say that they are always surprised, and that is the point.  No one can predict when they will be victimized by violence and at some point in all of our lives we should expect tribulations.  If your church is unfortunate enough to suffer through such an episode, wouldn’t you want to be prepared, to stop the violence before it starts or reduce its duration from ten minutes to one minute, to save the lives of your congregation not to mention yourself?  You, as a church leader, as a good shepherd, need to make sure that security has been considered and reasonably dealt with at your church.  Do not let someone talk you out of addressing this issue (because someone will try).  As with all liability issues, we at the Church Law Group advocate that you hope for the best and plan for the worst.

If a violent attack occurred in your church, would you and your staff have a plan to follow?