Documenting and preserving prevention and response efforts
By Gregory Love & Kimberlee Norris
In a recent sexual abuse case, church leaders were notified of an abuse allegation stemming from events in 2014 involving a 10-year-old girl and a church employee. The allegation, communicated by the child’s mother, was addressed by the executive pastor. The mother of the child felt the executive pastor’s response was inadequate. A lawsuit stemming from the allegation involving the 10-year-old — now 20 years of age — was filed in 2023. Response from the church, 10 years later, required answers to these questions:
• How was the matter addressed in 2014, and who was involved?
• Was the allegation reported to the authorities? If so, by whom and when?
• What sexual abuse prevention system was in place in 2014?
• If an effective Safety System was in place, do records provide evidence of this System?
Many of the church’s leaders joined church staff after the alleged abuse occurred, and those who were employed by the church in 2014 do not remember the allegation or were not involved in the church’s response. In 2023, there was no institutional knowledge of safety protocols in place in 2014, who communicated any response, whether a report was made to appropriate authorities, or how the victim and her family were treated.
Sadly, this pattern is revealed regularly, and highlights the importance of record keeping.
SEXUAL ABUSE AND RECORD KEEPING
Child sexual abuse allegations constitute the number one reason churches end up in the courtroom since 2010, and there’s no reason to believe this will change anytime soon. Some sexual abuse lawsuits are initiated within a short time after the abuse occurred; others may relate to facts from years or even decades prior, like the example above.
As long as the possibility of future civil litigation remains, records must be preserved. Why? Every child-serving organization has a legal obligation to take reasonable steps to create a child-safe environment, implementing an effective Safety System. In litigation, a ministry must prove that these safety protocols were in place — particularly during the time of the alleged abuse. Memories are helpful, but written records are superior, providing the necessary framework for memories (and testimony) to be refreshed.
Now more than ever, every church must (1) implement an effective Safety System to prevent child sexual abuse; (2) document these policies and processes; and (3) preserve these records indefinitely.
AVOID BAD ADVICE
It is common for human resource consultants and attorneys to advise organizations to keep records for seven years — after which the organization is safe to shred or delete information. This can be dangerous advice in the realm of sexual abuse risk.
Cost of document storage
One reason for this advice — to destroy documents after seven years — is no longer relevant. In the past, screening processes relying on paper copies required physical storage, creating a need for physical filing space and significant expense. Today, screening processes more commonly use online and paperless processes, removing the high cost of physical storage. Even paper copies of screening documents can be stored electronically, with little expense. The cost of document storage is no longer a valid reason to destroy records.
Limited statutes of limitation
Another reason for this advice — to ‘shred after seven years’— was premised on the idea that these records would not be needed for an employment dispute after a few years, much less seven years later. The logic is related to the legal statute of limitations. The majority of employment disputes necessitating the retention of employment records have a relatively short statute of limitations: the time period within which legal proceedings must be brought — usually two years or less. In the past, seven years was believed to be a sufficient length of time for an organization to retain records to defend itself in an employment dispute.
Child sexual abuse
Child sexual abuse claims, however, have a longer statute of limitations than employment law claims; generally longer than any other claim. In many states, there is no time limit for filing a child sexual abuse lawsuit. Other states are expanding civil statutes of limitation and evaluating (and implementing) look-back statutes that revive otherwise time-barred claims. In general, there is no length of time after which a church can safely delete or destroy information related to sexual abuse prevention and response. Instead, this information must be preserved indefinitely.
PRESERVING RECORDS
What specific information should a church preserve?
In an IRS audit, an individual or business is required to produce the necessary paperwork to prove or establish reasonable and lawful financial decision-making in a tax return, including earnings, deductions, donations and expenses. Accordingly, the individual or business preserves the information necessary to support decisions related to each IRS filing. If the business is audited and cannot provide sufficient documentation to support its filing, the business may be subjected to adjustments, fines and penalties. Whether all transactions occurred correctly or not is irrelevant if the audited individual or business cannot prove it. Most businesses understand this dynamic and preserve the relevant information in anticipation of a possible audit.
Sexual abuse claims are somewhat similar. When a child sexual abuse claim is filed, a ministry must produce documentation supporting its decision-making and child protection efforts. In a sexual abuse lawsuit, one or more of the following claims will be brought: negligent hiring, negligent screening, negligent retention, negligent training (or failure to train) or negligent supervision. The church must be able to demonstrate that its decisions related to hiring, screening, retention, training and supervision were reasonable. This is instructive: if a church must prove its leaders made reasonable decisions in each of these areas, records clarifying these decisions must be preserved, and retained indefinitely. Whether or not every decision was made correctly at the time in question is irrelevant if the ministry cannot prove it in some form.
Negligent hiring/screening
Every church must have a reasonable process in place to screen employees and volunteers, including an application, reference checks, interview and Background Check. This screening process should focus on child safety, rather than ‘fitness for purpose’ — whether the applicant has the appropriate skills for the position — alone. An effective screening process includes questions meant to elicit high-risk indicators, alerting the ministry to a possible predator. (Learn more about an effective screening process.) These records should be preserved indefinitely.
Negligent retention
If a staff member or volunteer (or another child) becomes the subject of a complaint involving abusive behavior but is retained in the program, does the church have records supporting this decision? Information included in this category may be highly fact-driven, and the church must demonstrate its decision-making process and response. Again, these records should be preserved indefinitely.
Negligent training
Effective training is the single most important step a ministry can take to reduce the risk of child sexual abuse. When staff members and volunteers are equipped with the ‘eyes to see’ the grooming process of an abuser and key indicators of child sexual abuse, they are better able to protect children in their care. Without effective training, forms are just paper, and policies lack the appropriate foundation. Training should be refreshed regularly, at least every two to three years, and training records must be preserved indefinitely as evidence that appropriate training actually occurred.
Negligent supervision
This is the most common cause of action in sexual abuse lawsuits, stemming from any circumstance wherein a child is victimized during church programming — whether or not by a church representative. While in a church’s care or participating in a ministry program, children must be properly supervised to ensure safety, including bathroom use and ‘free play’ areas — the most common locations of peer-to-peer sexual abuse.
Every ministry program should have written policies in place to ensure sufficient supervision and prevent inappropriate sexual behavior. Policies should address staffing ratios, bathroom use, electronic communication and peer-to-peer interaction, limiting one-to-one interaction between a single worker and child. Policies should be tailored to the specific program, given the age(s) of children, facility challenges and inherent risks in the population served, providing a written description of what IS and IS NOT appropriate behavior in that ministry program. Policies should be periodically updated to address change, growth and facility modifications. Each policy version should be preserved to demonstrate policies in place during a particular time frame.
Ministry staff members and volunteers must be trained to understand sexual abuse risk associated with specific ministry programs and populations served. Each worker should receive written Policies & Procedures and provide an acknowledgment of (1) receipt of the policies, and (2) his or her willingness to embrace and enforce policy provisions.
To demonstrate adequate supervision in ministry programs, every ministry should preserve (1) training records; (2) copies of relevant policies, year by year; and (3) policy acknowledgments.
RECORD KEEPING FIRE DRILL
Like a fire or weather drill, it’s imperative to test systems and processes by ‘drilling’ a worst-case scenario of any foreseeable risk. Where child sexual abuse is concerned, learning from a past failure may ensure a better result in the future. For purposes of assessment, assume that an allegation is communicated this week forming the basis of claim in five years. Today, what child protection Safety System is in place? Are staff members and volunteers trained? Does the ministry have an effective screening process in place, supported by appropriate training? Are appropriate Background Checks occurring, keyed to position or level of trust? (Remember, there is no one-size-fits-all Background Check!) Does the ministry have written policies in each program, tailored to the program in which the policies are used? Do policies address the abuser’s grooming process? (For reference, see our most recent article.)
If so, can this information be documented and accessed years from now? The value of the ‘fire drill’ is to better evaluate additional steps to beef up preventative efforts while determining which records should be preserved. Based on what the church is doing today, can the following questions be answered in 2028:
• How was the matter addressed in 2023, and who was involved in this response?
• Was the allegation reported to the authorities? If so, by whom and when?
• What sexual abuse prevention system was in place in 2023?
• If an effective Safety System was in place, do records provide evidence of the System?
The purpose of this exercise is multifold: does the drill reveal weaknesses that must be addressed to avoid harm to a child? Is the church’s existing Safety System effective? Does the church have an intentional process in place to create and indefinitely preserve documentation demonstrating the ministry’s Safety System?
If not, now is the time to make those changes. Learn more about an effective Safety System or take an online Self-Assessment.
CHURCH MANAGEMENT SOFTWARES
If the church relies on Church Management Software (ChMS), is there a plan or process in place to periodically document child protection compliance? ChMS systems typically display information as it currently exists — constantly refreshing to allow church administrators to see real-time information. Does the church’s ChMS support a periodic ‘snapshot’ of the dashboard or display, capturing time-stamped electronic depictions of compliance at that particular time?
In the future, if a church has a need to demonstrate child protection compliance in 2023, the ChMS may not be helpful — simply depicting the ‘data of the day’. In general, information available through most ChMS systems is current — not past.
MinistrySafe Snapshot/Archive feature
MinistrySafe was created by legal professionals who are sexual abuse experts. After decades of litigating sexual abuse cases, MinistrySafe was founded to help churches meet legal standards of care and reduce the risk of sexual abuse using cutting-edge resources and a management system to implement, track and refresh Safety System elements. Given the need for record keeping, MinistrySafe provides a Snapshot/Archive feature, allowing members to periodically take an electronic ‘snapshot’ of the Control Panel depicting Safety System compliance. This creates an electronic library entry each time a ‘snapshot’ occurs, allowing the church to access and demonstrate Safety System compliance on or near the date when an allegation comes to light.
MinistrySafe recommends that each ministry implement the 5-Part Safety System, periodically taking a ‘snapshot’ of the member’s Control Panel, which visually depicts Safety System elements (training, Background Checks, applications, reference checks and interviews). If an allegation from 2023 becomes the subject of litigation in 2028, the church is able to demonstrate Safety System compliance through time-stamped, electronically archived ‘snapshots’.
Child sexual abuse constitutes an ongoing risk to churches and ministries, and this will undoubtedly continue. Clearly, prevention is KEY; in the interim, so long as the possibility of future civil litigation remains, records must be preserved.
Kimberlee Norris and Gregory Love are partners in the Fort Worth, Texas law firm of Love & Norris and founders of MinistrySafe, providing child sexual abuse expertise to ministries worldwide. After representing victims of child sexual abuse for more than two decades, Love and Norris saw recurring, predictable patterns in predatory behavior. MinistrySafe grew out of their desire to place proactive tools into the hands of ministry professionals.
Love and Norris teach the only graduate-level course on ‘Preventing Sexual Abuse in Ministry Contexts’ as Visiting Faculty at Dallas Theological Seminary.
