Anecdotal evidence and surmise is all we have for most laws –
it’s all we have for the proposition that, for instance, having RFRAs actually
increases religious freedom; it’s not like we have social science or criminal
statistics to support that. And social science and criminal statistics are
especially unlikely to be available for child sexual abuse by the clergy, which
is for obvious reasons hard to measure accurately, and which is numerically
rare enough that random variation can easily swamp any slight effects of a RFRA
or employer tort liability. To be sure, I think that social science evidence,
when it’s available and when it’s properly gathered and analyzed, can be very
helpful in making policy decisions. But we often find ourselves having to make
such decisions even without such evidence.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com
Sent: Thursday, June 14, 2012 6:21 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Religious exemptions and child sexual abuse
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<mailto: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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