The North Carolina Religious Freedom Restoration Act Endangers Children
Let’s be clear. The pending North Carolina Religious Freedom Restoration Act (RFRA) is markedly different from the Indiana version which has recently been in the news. While every state’s but Mississippi’s RFRA requires the State to have significantly burdened the exercise religion by anyone or entity, North Carolina will only require that a “burden” was created. The number and types of government action that could be claimed as burdens is limited only by the imagination of lawyers.
The proposed North Carolina Restoration of Religious Freedom Act (RFRA) will increase the likelihood that a child will be sexually abused. This is due, in part to the fact that House Bill 348 will make it much easier for an individual and/or legal entity to claim that the government is infringing on their free exercise of religion.
In the thirty years I spent as an attorney representing survivors of sex abuse, one of the most common theories relied upon was that the institution is responsible for its negligent hiring. The essence of this theory is that the institution failed to conduct an adequate background check, which would have revealed that prospective employee’s unfitness to work with children. If North Carolina passes the proposed RFRA, organizations will undoubtedly assert the defense that their hiring decisions were guided by their faith and were not subject to state scrutiny.
Sound farfetched? Consider what happened last year in Kentucky. Roy Yoakum, a pastor at the New Gospel Outreach Church in Kentucky, was arrested for allegedly sexually assaulting a fourteen-year-old boy at church. He was hired despite the Church knowing that he was a registered sex offender. The Church justified the hiring of Yoakum by stating “We’re firm believers in the Bible, so if God’s forgiven you, then we’re in no position to treat you otherwise”. If Kentucky had enacted a comparable RFRA, to the one proposed in North Carolina, the Gospel Outreach Church’s attorneys would surely have raised the defense that the hiring of Pastor Yoakum necessarily involved issues of faith that would burden the free exercise of religion. After all, if God’s forgiveness trumps a prospective employee’s history of sex abuse, then the claim of negligent hiring would become extinct.
This law will also allow religious institutions to resist producing incriminating documents in sex abuse cases. The argument will certainly be made that most, if not all, of their documents are inextricably linked to the exercise of their religion and therefore beyond the power of a court to order that they be produced. In practically every case that has ever been brought against the Catholic Church related to sex abuse, church documents about prior complaints lodged against the perpetrators and the Church’s response to these prior reports, have proven critical in order to hold a Diocese responsible.
Similarly, House Bill 348 would weaken the scope of our child abuse reporting laws. For example, sexual abuse within a family or church is often not reported as required. Those that fail to do so would now be able to assert that their religious beliefs required that such misconduct be handled without the involvement of outsiders
We need to implement policies and laws that protect our children from sexual abuse. House Bill 348 will do the opposite.
Seth Langson, Child Advocate and Attorney
Dedicated to Preventing Child Sex Abuse