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
=

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