Strong Medicine Prescribed in Fight Against Sexual Misconduct
Episcopal News Service. November 23, 1993 [93215]
David Skidmore, Director of Communication for the Diocese of Chicago
The surge in sexual misconduct cases has become a pressing concern for the church's liability insurer, the Church Insurance Company (CIC), which has seen sexual misconduct claims soar from two in 1983 to 39 in 1992. In addition to the psychological devastation, the cases have exacted a severe financial toll. As of September, CIC's payout in settlements, court costs and awards totaled $6.2 million, and as of the same date it faces $4.2 million in unsettled claims, nearly half of which are from just 1993 filings.
As a result, the CIC has revamped its coverage of sexual misconduct by removing it from the standard general comprehensive coverage on policies renewed after July 1 this year, and offering it as a separate endorsement for churches willing to conform to a strict set of risk management conditions. Unlike the standard liability insurance which offers $1 million and $2 million policy limits, the new coverage (known as Coverage K) sets caps of $350,000 per occurrence and $700,000 aggregate per year per insured.
The new coverage and the warranty outlining conditions to be met by insureds have been introduced to the church through four workshops held around the country since last May. The fourth, held October 12-13 near Chicago's O'Hare Airport, attracted 130 diocesan and parish treasurers, insurance administrators, youth coordinators, charities directors and clergy (see separate story).
In the words of Alan Blanchard, president of CIC's parent organization the Church Pension Group (CPG) and one of nine CPG officials and consultants speaking at the conference, sexual misconduct has become "the asbestos of the 1990s." And as with asbestos, the clean-up of sexual misconduct will be painstaking and costly, Blanchard asserted.
The cost for Episcopal churches and institutions will come in additional premiums and fees incurred through background checks on employees and through contracting pastoral counseling supervisors. In addition to the standard liability premiums, calculated according to the square footage of insureds' facilities, insureds will have to pay a minimum annual premium of $150 for Coverage K. If the church has an additional operation on the premises, such as a day care facility, and it is owned by the church, then the annual premium climbs to $250. Each additional operation adds another $125. Off-site ministries such as vacation Bible school or a summer camp, even if of limited duration, incur additional annual premiums of $500.
Compared to the hefty rates for health insurance -- which can run as high as $9,000 for a family plan -- CIC's Coverage K appears a reasonable charge, particularly since its coverage limits are among the most generous in the industry. With the average misconduct claim running around $150,000, CIC officials are confident the coverage will provide adequate protection. Additional protection is being considered as CIC is currently negotiating with other carriers to provide an extension of another $350,000 to $700,000 or even perhaps $1 million.
A number of private carriers have chosen to exclude sexual misconduct coverage while others have set modest sublimits, ranging anywhere from $25,000 to $100,000 per occurrence, reported Steve Michalski, CIC's vicepresident of underwriting.
"It's not a big market out there. Many companies don't want to get involved," said Michalski. Of those that do, many limit their coverage to just sexual harassment, avoiding the more costly exposure to child sexual abuse claims.
While the change in coverage reflects CIC's concern about its bottom line, the bigger issue and challenge is risk management. According to attorney and CIC consultant Robert Weber, it used to be that churches and charitable institutions were safe from lawsuits. "That statutory immunity has slowly eroded over the years so that in most states churches no longer have any statutory immunity for these types of crimes," said Weber. Another challenge has been the extension of the statute of limitations that gives plaintiffs anywhere from two to six years to file a lawsuit following an incident.
"What has happened in the area of sexual misconduct," said Weber "is that many states have passed what they call the discovery rule of statutes of limitation, and that has extended dramatically the time in which a victim can bring a claim against a church for sexual misconduct." Instead of starting from the time the incident took place, the discovery rule starts the statute countdown when the plaintiff realizes he or she suffered injury, he explained, which accounts for claims cropping up five or ten years after the alleged misconduct.
To reduce the potential for incidents to occur in the first place, and minimize churches' liability to claims, CIC has developed a battery of safeguards in the form of preconditions insureds must comply with to qualify for Coverage K. The preconditions warranty entails two four-hour training sessions for clergy, volunteers and employees of the insured, one dealing with issues of child sexual abuse and the other addressing sexual harassment and exploitation; and the possession of a manual that as a minimum defines sexual misconduct, outlines employment restrictions on persons with a history of sexual misconduct or who are diagnosed as paraphiliacs, and has procedures for investigating sexual misconduct allegations and disciplining offenders.
In addition, the warranty stipulates that insureds must conduct background checks on all clergy, volunteers who regularly supervise youth activities and employees prior to their employment, ordination, licensing or acceptance, and that clergy and other pastoral care givers must either arrange for professional supervision or refer their clients to professional counseling after six counseling or pastoral care sessions with an individual.
The warranty also covers conditions for re-deployment of individuals who have admitted or been convicted of sexual misconduct. Before they could be rehired or redeployed they would have to undergo a professional rehabilitation assessment, obtain the bishop's endorsement -- if they are ordained, and make amends to the victims. Insureds will have one year to implement the warranty conditions.
If churches and related institutions follow the spirit of these procedures, said the Rev. David Rider, general manager of CIC's Medical Trust, then they will radically lower the risk of sexual misconduct and enhance their ability to defend against claims. "We think all parties will be well served because they will be minimizing human suffering," Rider said. "Just like drunken driving prevention, if you minimize the actual event from happening, everyone wins in terms of averting suffering and great financial cost."
Despite the positive spin offered by CIC officials, conference participants did not appear eager to swallow the medicine, particularly at the heavy dosage being prescribed. Already hardpressed to recruit youth ministry volunteers and scrape together funds for basic services, they pointed out that their church vestries and clergy will have to work even harder to coax contributions of time and talent. And, any hope of putting more funds into ministry may have to be tabled to pay for additional premiums, training costs for employees, and hiring contractors for basic ministries if volunteers balk at submitting to the warranty conditions.
The provision for background checks -- which must go back five years or two employers -- prompted questions, as did the training requirement in child sexual abuse issues. Seeking to dispel worries over Sunday school teachers being forced to sit through sexual abuse training, Rider said they would be exempted from the requirement. "We think trying to get 20,000 Sunday school teachers in line each year is not in the best interest of the church." And as for the background checks, churches will not be required, as some have feared, to conduct retroactive investigations of existing employees, as is the practice in the dioceses of Minnesota and Central Florida.
For clergy, the critical concerns revolve around intrusion into their private lives and infringement of their pastoral prerogatives. Under the pastoral care safeguards of Coverage K, in addition to the six-session pastoral counseling restriction, CIC stipulates that those "practicing formal spiritual direction" should submit their ministry to review by a spiritual advisor appointed by the bishop. This provision, along with panelists' recommendations that clergy keep wardens and vestries apprised of any relationships they might develop with parishioners, struck several priests at the conference as excessive.
"I think you people have gotten yourselves in an area you should not be regulating," said one priest. It may be appropriate for a bishop to supervise a priest's pastoral ministry, but for an insurance company to attempt to regulate it is inappropriate," he said.
"I would like you to conduct a survey of all of the Episcopal priests in the United States and see how many have a pastoral supervisor," he challenged the panel. "And I think you will come back with a handful. One handful."
Rider responded by citing a nation-wide survey in which victims felt better supervision would have saved them from injury.
Rider admitted that the CIC wrestled for years attempting to draft suitable definitions of "pastoral relationships." Questions on the nature of a pastoral relationship and where the boundaries lie within the scope of this ministry have no set answer. If the pastoral relationship extends to anyone with whom a priest is engaged in a pastoral role, then that could be construed to mean "anyone who has stopped in for the weekend in my town who saw me preach," observed Rider. But not to err on the side of caution could be an even bigger mistake. CIC's task force developed a functional definition, said Rider, that "reasonable people would agree is a pastoral relationship."
CIC's executive vice-president, Thomas Martinson, emphasized that the Coverage K provisions would be regularly reviewed and altered if they are found to be out of line. "This isn't carved in stone. We've modified a great deal these risk management initiatives simply because we in New York don't have all the answers."
As Rider stressed in his introduction to the risk management conditions, the changes are not being imposed by an outside authority, but are emerging from the conscience of the faith community itself: "For better or worse this is the product of the Episcopal Church for the Episcopal Church."