Criminal background checks — not a silver bullet!

By Gregory Love & Kimberlee Norris

Given the #MeToo and #ChurchToo movements and the ongoing media headlines, many church leaders have awakened to the risk of child sexual abuse and are seeking guidance about what to do.

Others are taking this opportunity to evaluate existing safety efforts to measure preparedness. Typically, the criminal background check is quickly identified as the first line of defense.

However, for many churches, the background check is the only line of defense.

When it comes to criminal background checks, many ministry leaders are not good consumers — they tend to look for ‘cheap and fast’ rather than intrinsically effective. There is much to learn about this important security  measure.

As a starting point, ministry leaders must learn what this element in the ministry screening process accomplishes, and what it lacks.

If a ministry allows an applicant with a past known (or knowable) criminal history of harming children into a ministry program, that ministry is placing children in harm’s way, as well as exposing the ministry to civil liability and public censure. Why? Because the best predictor of future behavior is past behavior.

However, the value of the criminal background check must be measured in light of reality. Take, for example, this fact: less than 10% of sexual abusers will encounter the criminal justice system ever. As a result, more than 90% of child sexual abusers have no criminal record to find — and they know it.

Criminal background checks have become a standard of care and must be performed, but they cannot be relied upon as a silver bullet used as a ministry’s sole preventative protocol meant to prevent child sexual abuse. 

The purpose of this article is to provide ministry leaders with a better understanding of the value and limitations of this fundamental element of an effective screening process: the criminal background check.

Legislative limits

Due to legislative limits, an applicant applying for a ministry position might have a criminal record that does not appear on a criminal background report due to laws placing guidelines and limitations on the type and age of information reported. As a result, it behooves ministry leaders to develop some familiarity with state-specific guidelines and restrictions. When a background check report comes back stating ‘no records found,’ it cannot necessarily be concluded that no records exist.

Practice Point 1: Develop a familiarity with ‘plea-down’ or red flag offenses.

FCRA (federal law)

The criminal background check industry is governed by federal legislation: the Fair Credit Reporting Act (FCRA). Any third-party vendor providing criminal background checks to a church or ministry is a Credit Reporting Agency (CRA). One purpose of the FCRA is to provide consumer protection, promulgating guidelines that seek to ensure that consumers are not unfairly deprived of employment and other opportunities. The FCRA places limitations on information reported by a background check vendor, a CRA, to a ministry. In addition, in some jurisdictions state law further restricts criminal history reporting, placing limits on the type of information reported and when a background check can be requested by a potential employer.

Under the FCRA, criminal convictions can be reported regardless of when the conviction occurred, while non-convictions may only be reported if the matter is less than seven years from the criminal filing. A non-conviction could involve an alternative or deferred adjudication, a dismissal or a finding of ‘not guilty.’   

Practice Point 2: NEVER accept a self-reported explanation for a red flag offense.

State law

Though the FCRA places no limits on reporting criminal convictions, various states have passed legislation that have limited the scope of conviction reporting to seven years, including California, Kansas, Massachusetts, Montana, New Hampshire, New Mexico, New York and Washington.   

Though the FCRA limits the reporting of non-convictions past the seven-year mark, some states (California, Kentucky, New Mexico and New York) prevent CRAs from reporting non-convictions altogether.

In Massachusetts, Hawaii and Washington, employers may perform a criminal background check only after an offer of employment has been extended. Additionally in Hawaii and Washington, an employer may rescind the offer of employment only if a conviction has occurred within the past 10 years and is directly related to employment responsibilities.

These examples, which are not exhaustive, illustrate how state legislation can impact the type and age of information reported, and when it can be requested. Year by year, these legislative limitations continue to mount.

Equal Employment Opportunity Commission (EEOC)

In addition to federal and state law, the EEOC is a federal agency that has proposed guidelines further restricting how and when criminal histories can be requested and used for employment purposes.

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SCREENING FOR CHILD SEXUAL ABUSE RISK

Principles every executive pastor should know

Effective screening is rooted in an understanding of the offender’s grooming process

Sexual offenders come from all segments of society. Sadly, some gain access to children through ministry programming. Abusers groom both children and gatekeepers — trusted adults in a child’s life — to convince them that they are helpful, trustworthy, responsible people. Validated by decades of academic studies, the grooming process of the abuser is known and recognizable. Ministries should screen child-serving personnel with a thorough understanding of the abuser’s grooming process, common grooming behaviors and known offender characteristics.

Effective screening creates OPT-OUT opportunities

Skillful screening incorporates opt-out opportunities for applicants with the wrong motive, before he or she has access to children. When a ministry communicates current child protection practices and protocols, from the beginning, it communicates that ‘it might be easier somewhere else.’ Written policy should clearly state that all suspicions and allegations of child abuse are immediately reported to authorities. Applicants should review and sign child protection policies describing inappropriate forms of communication and physical touch. Training should occur before an applicant is interacting with children. These clear policy expressions provide offenders with an opportunity to self-select out of the ministry’s screening process.

Effective screening gathers information about the applicant from third-party sources

Many employers ask for references, but don’t check them. Others check references but fail to include questions meant to elicit a high-risk response. The failure to speak with references about a prospective staff member or volunteer is one of the most common mistakes made by ministry hiring personnel. Beyond the initial consequence of missing helpful information about an applicant, untapped references can ultimately prove to be harmful to the organization, as employers are commonly responsible for information that would have been communicated by a reference, if the reference had been contacted.

Effective screening requires training

To screen effectively, intake coordinators and interviewers must be trained to recognize high-risk responses on applications, reference forms and during the interview process. An applicant with inappropriate sexual motives carries with them various indicators and life patterns that help identify them as one who might be a danger to children or youth.

For screening training, information and additional resources, see MinistrySafe.com.

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Plea-down offenses

Criminal background checks are performed in various industries, and the ‘hit rate’ varies depending upon the type of industry. An industry hit rate defines the likelihood that a population of applicants will have a criminal history. In the construction industry, for instance, the hit rate is much higher than the hit rate in higher education. The hit rate for industries hiring younger applicants (i.e., summer camps, youth ministry) is low in part because criminal activity prior to age 18 is generally unavailable.

The hit rate for ministry applicants is comparatively low. As a result, most ministry leaders get a report stating ‘no records found.’ As a starting premise, do NOT read this statement as an assurance that no records exist. An applicant might have encountered the criminal justice system, but that encounter is not or cannot be reported by a background check vendor for any of the reasons listed above.

On occasion, however, ministry leaders request a criminal history related to an applicant and get a ‘hit.’ Remember, the criminal background check is one screening element, part of an effective screening process (see prior article in this series, “Effective screening: keeping the wolf out of the sheep pen”). A fundamental principle in effective screening is this: the best predictor of future behavior is past behavior. A hit from an applicant’s criminal background check provides information related to an applicant’s past behavior that is criminal in nature. The next question is this: exactly what behavior did the applicant exhibit that gave rise to the criminal charge?

For example, if the charge is ‘theft by check,’ the applicant’s behavior is fairly clear. The appropriate analysis is this: the applicant has engaged in past criminal behavior involving money, suggesting the applicant might not be the best candidate for a position involving ministry funds. Screening analysis — predicting possible future behavior — is feasible with most criminal charges: DUIs, drug charges, fraud charges, etc.

Some criminal offenses are more difficult to evaluate — especially when the charges are related to ‘plea-down offenses.’ Imagine this occurrence: a sexual offender is arrested and charged with aggravated sexual assault of a child — clearly a disqualifying offense. In the course of the criminal justice process, however, the offender is allowed to plea down to a lesser (possibly even a non-registration) offense. Examples of common plea-down offenses correlated to child sexual abuse include: indecency, contributing to the delinquency of a minor, criminal mischief, assault, and a variety of other labels, depending on the criminal codes of a particular state. For screening purposes, these are red flag offenses. The person reviewing the criminal search results must understand this concept and be sensitive to red flag offenses.

In many cases, the criminal behavior underlying a charge for indecency is simple and explicable. In some cases, however, the criminal behavior underlying a charge for indecency is child sexual abuse. If the offender was allowed to plea down to a lesser offense, he or she will have an explanation for the charge that does not involve sexual abuse of a child, and this explanation will be well-rehearsed and persuasive. Do NOT accept self-reported explanations for red flag offenses. Instead, politely explain to the applicant that you must pause the process. Shift the burden to the applicant. Politely request that the applicant bring you the arrest record for the indecency charge. The arrest record is more difficult for you to access, but it is available to the applicant. The arrest record will describe the behavior that gave rise to the underlying arrest. If the applicant was arrested and charged with sexual abuse of a child, the arrest record will say so. If the applicant was in fact arrested and charged with sexual abuse of a child, the applicant will simply disappear. He or she will self-select out of the screening process.

This concept is covered at length in MinistrySafe’s Skillful Screening Training: including grooming offenses, stair-step offenses and use of releases.

Ministry best practices

Notwithstanding background check limitations, criminal searches must be completed. In so doing, ministries must wisely allocate limited resources. As financial resources are expended, the following principles should be considered.

Deeper searches

Given the growing crisis of child sexual abuse, background check vendors are quick to capitalize, encouraging ministries to run deeper searches and refresh searches more frequently. These are excellent suggestions, but deeper and more frequent background checks alone do not solve the problem, because less than 10% of abusers will encounter the criminal justice system.

As an example, USA Gymnastics could have undertaken an exhaustive criminal background check on Larry Nassar weekly, without a single hit.

Create tiers of staff / volunteers

Most ministries choose a background check vendor based upon how quickly and cheaply a search can be completed. As a general rule, the ‘cheapest’ background check has the narrowest search scope. Often, it will not search aliases, it provides the shortest ‘look back’ period, and it does not confirm Social Security Number (SSN) identity. In other words, it’s relatively easy to foil.

For some roles, a cheaper and narrower search might be acceptable: roles that are highly supervised with limited (or no) time alone with a child (e.g., a face-painter at your VBS). For other roles, a deeper search is necessary, particularly high-trust positions where trusted time alone with a child or student might be contemplated (e.g., student minister, children’s minister, senior pastor, church counselor). For these roles, a ministry cannot afford to be wrong.

Given differing roles and a limited budget, it is recommended that a ministry create two or more tiers of those who wear the ministry’s nametag. The depth of search should correspond to the trust level and access to children. Be prepared to spend more for personnel about whom you cannot be wrong. These tiers should be based on trust level and access, not whether a person is a staff member or a volunteer.

In general, there is no ‘one-size-fits-all’ criminal background check.

Disclosure requirements

Every ministry should have a disclosure requirement requiring all staff members and volunteers to disclose whether they have been arrested, charged or accused of criminal behavior during the time of service as a staff member or volunteer. This is not to be confused with requesting information prior to engagement, which might be impacted by state law.

Periodically refresh

Every two or three years, each ministry should refresh or re-run criminal history searches to determine whether a staff member or volunteer has been arrested or charged with criminal conduct. Coupled with a disclosure requirement (see above), discovery of an undisclosed new criminal record provides an independent justification for dismissal; requiring disclosure is an important first step.

Skillful screening training

Managerial and screening personnel must receive training to recognize high-risk indicators revealed by and through an effective screening process, including those revealed by criminal records. Risk indicators stemming directly from skillful evaluation of background check records include common plea-down, stair-step, grooming and red-flag offenses, as well as disqualifying offenses (mandated by state law or internal policy).

Ministry leaders have much to learn about the criminal justice system, how criminal records are generated, how records are reported, and the various obstacles to obtaining a complete criminal history. When ministry professionals become educated consumers, they are best prepared to fully use the criminal background check with an understanding of what this screening element can — and cannot — provide. 

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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 & Norris teach the only graduate-level course on Preventing Sexual Abuse in Ministry as Visiting Faculty at Dallas Theological Seminary.