Virginia Supreme Court Revives Sexual Assault Victim’s Claims Against The Church of God for Former Pastor’s Post-Retirement Acts
On April 29, 2021, the Virginia Supreme Court ruled that the Virginia and international branches of the Church of God could still be liable for the acts of a former Church of God pastor who sexually abused a 13-year-old congregant after his retirement. The decision reverses the Waynesboro Circuit Court’s grant of demurrers as to the plaintiff’s negligent hiring, negligent retention, vicarious liability, and negligent infliction of emotional distress claims against the Church.
In a complaint filed in the Waynesboro Circuit Court, Plaintiff alleged that Jonathan Eugene King engaged in inappropriate sexual behavior, misconduct, and abuse of young women and girls over the course of more than three decades while serving as pastor at various Church of God churches. Between 1967 and 1995, the Church of God received complaints from congregants at Church of God churches regarding Pastor King’s inappropriate conduct and relationships with young girls in his congregations. Despite this knowledge, in August 1995, the Church hired King to serve as pastor at Celebration Church of God in Waynesboro, Virginia. Over the next ten years, at least a dozen women and men made written complaints to designated Church of God officials regarding Pastor King’s continued unwanted and increasingly emboldened sexual behavior toward young, female congregants. In 2002, the Church attempted to address King’s conduct by sending him to a weeklong counseling program. After returning from counseling, King’s sexual misconduct not only continued, but became progressively more serious and forceful. While many complainants begged the Church to take action to stop King from hurting other young women, the Church refused to take preventative action with regard to King, allowing him to continue serving the Church in a position of authority and trust.
During his tenure as pastor of Celebration Church of God, King cultivated a relationship with a minor congregant, Jane Doe, and her family, often inviting Jane and her parents to his home for spiritual advising and fellowship. In 2011, King retired from his position as full-time pastor, but continued to serve the Church in other capacities, maintaining his pastoral license and continuing to provide spiritual counseling to the Church’s congregants, including the Does. In 2016, King sexually molested 13-year-old Jane while she visited his home.
Plaintiff brought claims against the Church of God and various Church officials for negligent hiring, negligent retention, vicarious liability, intentional and negligent infliction of emotional distress, willful and wanton negligence, fraud, and failure to warn and protect. The Church of God filed demurrers as to all counts, asserting that the complaint failed to state any cognizable claim against the Church. The Church argued that it could not be liable to Jane for because King sexually assaulted Jane approximately five years after he retired from full time ministry; because the sexual assault occurred at King’s home and that King was not acting within the scope of his employment; and the assault on Jane was not foreseeable, as more than 10 years had passed since the last documented complaint about King. The Waynesboro Circuit Court sustained the demurrers and dismissed the case in its entirety. Plaintiff appealed.
In its April 29, 2021 opinion, the Supreme Court revived the negligent hiring, negligent retention, vicarious liability, and negligent infliction of emotional distress claims against the Church.
i. Negligent Hiring and Negligent Retention.
The Court ruled that Plaintiff’s claims that the Church negligently hiring or negligently retained King after his retirement from his role as full-time pastor could go forward. The Court noted that the reports of King’s “inappropriate conduct” received by the Church prior to 1995 were insufficient to put the Church on notice that King posed a particular and specific risk of sexual abuse. However, it found that when viewed in conjunction with subsequent reports of unwanted conduct of a sexual nature, the totality of the allegations showed that “King’s conduct was  progressing,” such that the Church knew or should have known that King posed a specific danger of sexual battery to congregants. Accordingly, the Church could be held liable for negligent hiring and negligent retention of King to the extent they utilized King as an agent after his retirement in 2011, including in a part-time or volunteer capacity.
The court also rejected the Church’s arguments that the sexual assault on Jane was too temporally remote to impose negligent hiring or negligent retention liability on the Church. The Court noted that the allegations, including a pattern of progressively emboldened misconduct and the failed attempt to reform King’s conduct through counseling, were sufficient at the pleading stage to show that King posed a foreseeable, continued risk, despite the passage of more than a decade since the last reported instance of misconduct.
ii. Vicarious Liability.
The Court also found that the Church could be vicariously liable for King’s post-retirement sexual assault, noting that “it is certainly possible to retire from full time ministry as a pastor and, nevertheless, retain a role within the church as an employee, volunteer, or agent.” The Court rejected the Church’s argument that it could not be vicariously liable for the sexual assault because at the time of the assault, King was motivated solely by his own desires, bringing his act outside the scope of employment. The Court found the allegations that King regularly offered physical gestures of comfort to his spiritual advisees and that he sexually touched Jane after first initiating contact under the guise of offering non-sexual comfort were sufficient to create a presumption that King was motivated both by his employer’s business and his own, rather than a purely personal motive. Noting the well-established pleading standard for vicarious liability, the Court also found that the allegations that King’s role with the Church included off-property spiritual advising and that he was alone with Jane at the time of the assault under the guide of offering spiritual advice were sufficient to establish, at the pleading stage, that King was acting within the scope and course of his agency with the Church when he assaulted Jane.
The Court held that Plaintiff could also recover damages for negligent infliction of emotional distress from the Church assuming she met her burden of proof on either negligent hiring/retention or vicarious liability. The Court affirmed the lower court’s dismissal of the other counts against the Church.
The case is captioned Jane Doe, By and Through Her Father and Next Friend, Jack Doe v. Michael L. Baker, et al. Additional Party Names: Church of God, Int’l Gen. Assembly, Jonathan Eugene King, No. 200386, 2021 WL 1684889, at *1 (Va. Apr. 29, 2021). The full opinion is available at http://www.courts.state.va.us/opinions/opnscvwp/1200386.pdf. Jane Doe is represented by Humes J. Franklin, III and Alexandra Humphreys of Wharton Aldhizer & Weaver. The appeal was handled by Jeff Adams and Lucas Pangle of Wharton Aldhizer & Weaver on behalf of Jane Doe.