Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise? --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edu writes:
Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’ s seen as a defense to an employer negligence claim. 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “ reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states with such Sherbert/Yoder regimes have indeed accepted liability for employer negligence notwithstanding those regimes, so it seems quite likely that implementing a RFRA would not thwart such negligence – but only quite likely, not certain. 5. Liability for employer negligence may help encourage churches to more closely police their clergy, based on standard tort-law-as-deterrence theory. 6. Conversely, disallowing such liability may, by comparison, diminish the incentive for churches to closely police their clergy, and may thus yield somewhat more sex abuse by clergy. 7. Therefore, depending on the magnitude of the effects described in item 4 (RFRA strengthening the no-employer-negligence-liability position) and item 6 (absence of liability diminishing the incentive to police clergy, and absence of policing increasing abuse), enacting a RFRA might in some measure yield somewhat more sex abuse by clergy. This of course doesn’t meaning that enacting a RFRA (even one without an exception for employer negligence) is necessarily bad. I favor state RFRA statutes, though I also favor Smith as a constitutional model. But it does suggest one possible cost of a RFRA. Eugene = _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
