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9/1/2009 - September 2009 SLI Educational Update - There are Criminals Among Us

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC.

To: SLI Supporters

Date: September 2009

From: A. Eric Johnston

Re: There Are Criminals Among Us

Churches, church schools and church childcare facilities are not protected from criminals. Though most of us attend or use churches and their ministries, that does not mean all of us are honest law-abiding citizens. As the saying goes, Christians are sinners, but forgiven. There are among us thieves and child abusers.

Recently, we have had several inquiries not so much about whether a church or church ministry should do background checks, but how to handle situations that have arisen. The incident we fear most is having a child abused, though probably on a more frequent basis, we have larceny by church employees. Often, these people have criminal records which would reveal their propensity to crime.

Recently, The Birmingham News editorial board ran an editorial entitled “Common-Sense Checks.” It noted the pedophile scandals in the Roman Catholic Church and referred to an agency that does background checks for churches which found that in checks conducted on 500 volunteers at 450 churches, almost one in eight were flagged because of some criminal history. The editorial noted there are “clear legal problems with the state mandating that houses of worship conduct background checks on volunteers who work with children . . . [but] it just makes common sense for churches to perform them.”

In 1999 we represented church school interests in the legislative process which resulted in the Alabama Child Protection Act of 1999. That Act requires criminal background checks on all public school teachers. In order to protect churches from state regulation, we were able to include the following exceptions:

§ 16-22A-14. Exceptions – Nonpublic school.

“If a nonpublic school wishes not to do the fingerprinting procedure of their applicants, they shall not be required to do so, then the applicant to the nonpublic school shall request a criminal background check through the local board of education in the city or county in which such nonpublic school is located and the request shall be processed in the same manner as other applicants under the provisions of this chapter.”

§ 16-11A-15. Exceptions – Church officials.

“The provisions of this chapter shall not cover any pastor, priest, rabbi, clergyman, or other church official except when acting in the capacity of a full-time regular classroom teacher.”

The former section keeps churches and church schools from being put under direct state regulation. It does require, nevertheless, a prospective employee to submit, along with his or her other credentials, a criminal background check report. The latter section protects clergy and church officials from the process.

In 2000, we worked on a similar law for criminal background checks on persons responsible for children, the elderly and the disabled. Even more susceptible to the wiles of pedophiles and those of that ilk, are those who cannot defend themselves either because of their youth or their condition. Criminal background checks are required for such facilities, although § 38-13-3(d) exempts a church ministry or religious school. It requires a prospective employee to obtain his or her own criminal background check report, similar to the requirement for church schools.

It may seem a trifling distinction that church ministries, both schools and childcares, are exempt, yet prospective employees must still have the criminal background check done. It provides protection for the children and others, but it keeps the church from getting entangled in state regulation and oversight.

None of these laws, however, require any background check for the volunteers who work in church Sunday schools and other programs for the young and the elderly. It does not protect churches from administrators and clerical employees who may see the church as an easy prey for embezzlement or misuse of church credit cards. Therefore, churches are at some risk.

The initial problem faced by a church is whether to report it to law enforcement. Church leadership must make that decision. If the problem is significant enough, it should probably be reported, particularly if it involves the abuse of a person. A criminal record makes others aware that when the criminal becomes a prospective employee somewhere else, the prospective employer, if it checks, will have a heads up on prospective problems. With everything being “prospective,” a background check takes some of the guesswork out. Based on our experience, we believe background checks are a good idea and they are inexpensive. However, it is a decision that each church must make for its ministries. Please call us if you have any questions or need assistance.

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