C.J.C. v. Corporation of Catholic Bishop , 138 Wash. 2d 699 ( 1999 )

Johnson, J.

— In these consolidated cases we are asked to determine the scope of RCW 4.16.340, the statute of limitations applicable to civil claims “based on” intentional childhood sexual abuse. Specifically, we must decide whether negligence claims brought against church entities and individual church officials who did not themselves directly perpetrate intentional acts of childhood sexual abuse, but who allegedly failed to protect the child victims or otherwise prevent the abuse, fall within the broad limitations period allowed under the statute.

We answer in the affirmative.¹ Each case also raises questions specific to the individual case. These questions are answered after the common question is addressed.

FACTS²

Plaintiff C.J.C. was an altar boy at St. Paul’s Parish of the Corporation of the Catholic Bishop of Yakima (Diocese). C.J.C. alleges that two priests, Fathers Scully and Calhoun, sexually molested him on separate occasions during the years 1980 through 1981, when he was 15 and 16 years old, respectively. The abuse consisted of fondling and masturbatory acts performed on C.J.C. by the priests. C.J.C. claims the Diocese was aware of the risk Fathers Scully and Calhoun presented before the abuse occurred, but did nothing to prevent it.

Plaintiffs Juanita Funkhouser, Sheri Lewis, and Janelle Larson are sisters whose father was a pastor at the Calvary Baptist Church of Twisp (Church) between 1969 and 1973, and again between 1978 and 1989. Orin Wilson was a prominent member and onetime deacon of the Church. The sisters claim they were sexually molested on multiple occasions by Wilson when they were children. (Wilson has since died and his estate has been substituted.) Sheri and Janelle, the older sisters, allege they were molested between the years 1969 and 1973. Juanita claims she was molested on four occasions, the first occurring between 1970 and 1971, and on three other occasions between 1978 and 1980. In written letters before his death, Wilson admitted to the abuse. The sisters claim the Church and its governing body, the Calvary Baptist Conference, had prior knowledge of Wilson’s alleged abuse of other young girls but negligently failed to prevent their subsequent abuse, or to otherwise warn or protect them against Wilson.

Plaintiffs E.R.B. and his parents were members of the New Life Fellowship Church of God (Local Church) in Longview. The Local Church is governed by the New Life Church of God State Offices and Parsonages. Rick Shaw became an associate pastor at the Local Church in 1985. Shaw began sexually abusing E.R.B. in 1985, when E.R.B. was 14 years old. The abuse continued until July 1990, and consisted mainly of fondling E.R.B. and performing oral sex on him. E.R.B. and his parents claim the Local Church failed to properly investigate Shaw’s conduct after numerous allegations were made against him. They allege the Local Church negligently supervised Shaw, and the Local Church failed to protect E.R.B. from Shaw’s sexual misconduct.

All three trial courts held RCW 4.16.340 applied only to claims against the actual perpetrator of the abuse. In all cases, the trial courts dismissed (on various grounds) all claims against church entities and members who had not themselves directly perpetrated the abuse.

In each case, the Court of Appeals affirmed the trial courts on the applicability of RCW 4.16.340, holding the statute applied only to claims against the actual abusers.³ We address this common issue first.

ANALYSIS

RCW 4.16.340⁴ reads in pertinent part:

(1) All claims or causes of action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within the later of the following periods:

(a) Within three years of the act alleged to have caused the injury or condition;

(b) Within three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by said act; or

(c) Within three years of the time the victim discovered that the act caused the injury for which the claim is brought:

Provided, That the time limit for commencement of an action under this section is tolled for a child until the child reaches the age of eighteen years.

(5) As used in this section, “childhood sexual abuse” means any act committed by the defendant against a complainant who was less than eighteen years of age at the time of the act and which act would have been a violation of chapter 9A.44 RCW or RCW 9.68A.040 or prior laws of similar effect at the time the act was committed.

In addition, as part of the same act, the Legislature amended RCW 4.16.350, the statute of limitations for professional negligence by health care providers. That amendment reads:

This section [RCW 4.16.350(3)] does not apply to a civil action based on intentional conduct brought against those individuals or entities specified in this section by a person for recovery of damages for injury occurring as a result of childhood sexual abuse as defined in [RCW 4.16.340(5)] ....

Laws of 1988, ch. 144, § 2 (emphasis added).

In Jamerson v. Vandiver, 85 Wn. App. 564, 934 P.2d 1199, review denied, 133 Wn.2d 1005 (1997), the Court of Appeals restricted the scope of RCW 4.16.340 to claims against the actual perpetrator of the alleged childhood sexual abuse. The court reasoned the statutory definition of “childhood sexual abuse,” which limits the predicate conduct to acts in violation of the criminal code, precludes negligence claims against those who have not themselves committed intentional acts of sexual abuse. Jamerson, 85 Wn. App. at 567. In each of the cases before us now, relying on Jamerson, the trial courts and the Court of Appeals refused to apply RCW 4.16.340 to claims brought against persons other than the actual abusers. Plaintiffs argue Jamerson was wrongly decided and should be overturned. Plaintiffs argue the language contained in RCW 4.16.340 encompasses claims of negligence against individuals and entities secondarily liable for failing to prevent the alleged abuse. We agree.

We give words in a statute their plain and ordinary meaning unless a contrary intent is evidenced in the statute. Erection Co. v. Department of Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993). Where the statutory language is clear and unambiguous, the statute’s meaning is determined from its language alone; we may not look beyond the language nor consider the legislative history. Multicare Med. Ctr. v. Department of Soc. & Health Servs., 114 Wn.2d 572, 582, 790 P.2d 124 (1990). We construe an act as a whole, giving effect to all the language used. State v. S.P., 110 Wn.2d 886, 890, 756 P.2d 1315 (1988). Related statutory provisions are interpreted in relation to each other and all provisions harmonized. S.E, 110 Wn.2d at 890.

We are primarily concerned with the language contained in subsection (1) and subsection (5) of RCW 4.16.340, as well as the related amendment to RCW 4.16.350. Specifically, we must decide whether the act contemplates causes of action sounding in negligence. If it does, we must then decide whether the definition of “childhood sexual abuse” contained in subsection (5) nevertheless limits the act’s applicability only to claims brought by a victim against the actual perpetrator of the abuse.

Subsection (1) of RCW 4.16.340 controls the scope of the statute’s applicability. The relevant language is expansive. It permits “[a]ll claims or causes of action” brought by “any person” provided only that claims be “based on intentional conduct” involving “childhood sexual abuse.” RCW 4.16.340(1).

By its plain terms, the statute encompasses all causes of action “based on intentional conduct.” The question is whether “based on intentional conduct” includes negligence causes of action. “Based on” is undefined in the statute. We, therefore, turn to the ordinary dictionary meaning. American Legion Post No. 32 v. City of Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991). Webster’s dictionary defines “base” as “that on which something rests or stands : Foundation . . . the point or line from which a start is made in an action or undertaking . . . .” Webster’s Third New International Dictionary 180 (1986). Accordingly, under the plain meaning of the statute, an action is “based on intentional conduct” if intentional sexual abuse is the starting point or foundation of the claim.

We have already reached a similar conclusion regarding the meaning and effect of RCW 4.16.340. See DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 960 P.2d 919 (1998). In DeYoung, although not engaging in statutory construction per se, we recognized the statute contemplates professional negligence causes of action where “the gravamen of the action is [childhood sexual] abuse . . . .” DeYoung, 136 Wn.2d at 147 (emphasis added). We noted the statute applies to medical malpractice actions where the underlying “child sexual abuse forms the grounds for the action . . . .” DeYoung, 136 Wn.2d at 147 (emphasis added).

Similarly, under the facts presented here, intentional sexual abuse is the predicate conduct upon which all claims are based, including the negligence claims. The alleged sexual abuse is essentially an element of the plaintiffs’ negligence claims. Absent the abuse, plaintiffs would not have suffered any injury and their negligence claims could not stand. Thus, the “gravamen” of plaintiffs’ claims is that defendants are liable for injuries resulting from acts of intentional sexual abuse. See DeYoung, 136 Wn.2d at 147. Equal to any other element of the negligence causes of action, the injury resulting from the abuse “forms the grounds” for the claims. As such, the negligence claims are “based on intentional conduct” within the meaning of the statute because they stem from injuries suffered as a result of intentional childhood sexual abuse.⁵ See DeYoung, 136 Wn.2d at 146-47.

At least one other state court has reached the same conclusion when interpreting identical statutory language. Werre v. David, 275 Mont. 376, 386, 913 P.2d 625 (1996) (holding that negligence claim against party who herself did not engage in intentional abuse is “based on intentional conduct,” because intentional sexual abuse provided the “starting point or foundation for the [negligence] claim”).

We find further support to conclude RCW 4.16.340 encompasses negligence causes of action in the simultaneously enacted amendment to RCW 4.16.350. That amendment expressly provides that RCW 4.16.340 applies to the negligence of a health care provider where the claim is based on injuries suffered as a result of childhood sexual abuse. Taken as a whole, therefore, the statute is not limited in scope to intentional torts, but specifically includes negligence causes of action.

Defendants argue that RCW 4.16.340’s definition of “childhood sexual abuse” necessarily limits its application to only those claims brought by “a” victim against “the” perpetrator of the abuse. RCW 4.16.340(5) (defining “childhood sexual abuse” as “any act committed by the defendant against a complainant . . . and which act would have been a violation of [the applicable criminal code]”).

Defendants draw our attention to two cases in which the courts of California and Rhode Island reached the result defendants argue for here. See Debbie Reynolds Prof'l Rehearsal Studios v. Superior Court, 25 Cal. App. 4th 222, 231, 30 Cal. Rptr. 2d 514 (1994) (holding that statute of limitations, which defined “childhood sexual abuse” as any act “proscribed” under the applicable penal code, necessarily limited the statute’s applicability to causes of action against defendants who had themselves perpetrated “certain intentional criminal acts prohibited by law”); Kelly v. Marcantonio, 678 A.2d 873, 875-76 (R.I. 1996) (holding that statute of limitations, which defined “childhood sexual abuse” as any act by “the defendant against a complainant,” and which act would have been a violation of the applicable criminal code, necessarily limited the statue’s applicability to causes of action against “the” defendant who had himself engaged in the criminal conduct).

We decline to adopt the reasoning of these cases. Initially, we note the statutory definition of “childhood sexual abuse” does not on its face specifically include or exclude those persons who may bring claims, or against whom claims may be brought. Ultimately, however, we find that to read the definition of “childhood sexual abuse” as necessarily implying that claims may be brought only by the victim against the alleged abuser would deny other words contained in the statute their ordinary meaning, deprive them of meaningful effect, and create discord between related provisions of the act.

The act plainly provides that “any person” may bring claims under its provisions, not just the victim. RCW 4.16.340(1). More significantly, the act expressly includes within its scope suits against negligent entities. RCW 4.16.350. By definition, a negligent actor does not act intentionally. Furthermore, entities, ipso facto, cannot directly perpetrate sexual abuse. Entity liability is, in all circumstances, derived from the acts of its agents, whether it be under theories of respondeat superior, negligence, or other imputed conduct (civil or criminal).

Rather than a limitation on the parties who may sue or be sued under the act, we read the statutory definition of “childhood sexual abuse” as limiting only the specific predicate sexual conduct upon which all claims or causes of action must be based. Thus, the alleged sexual abuse must amount to a violation of the criminal code. If it does not, no claim of any type, against any person, lies.

We find this interpretation best preserves express language contained within the act, harmonizes related provisions, and leaves intact the primary meaning of the definition of “childhood sexual abuse”—that claims must be based on serious sexual misconduct of criminal proportions.

The defendants contend the definitional language creates ambiguity in the meaning of the statute and argue the legislative history supports their position. Even were we to agree that the statute is ambiguous, which we do not, the defendants’ interpretation is contrary to the legislative intent. See Marquis v. City of Spokane, 130 Wn.2d 97, 108, 922 P.2d 43 (1996) (where language creates ambiguity in the overall meaning or purpose of the statute, this court must attempt to fulfill the legislative intent).

As noted earlier, RCW 4.16.340 was enacted in response to our decision in Tyson v. Tyson, 107 Wn.2d 72. In doing so, the Legislature specifically provided for a broad and generous application of the discovery rule to civil actions for injuries caused by childhood sexual abuse. See Laws of 1991, ch. 212, § 1(6), amending RCW 4.16.340 in part to clarify the Legislature’s original intent in enacting the statute (“[t]he legislature enacted RCW 4.16.340 to clarify the application of the discovery rule to childhood sexual abuse cases”). The Legislature adopted “findings and intent,” which make clear that its primary concern was to provide a broad avenue of redress for victims of childhood sexual abuse who too often were left without a remedy under previous statutes of limitation. See Laws of 1991, ch. 212, § 1 (finding that childhood sexual abuse is a pervasive problem and causes long-lasting damage; that victims of childhood sexual abuse may repress the memory of the abuse or be unable to connect the abuse to any injury until the statute of limitations has run; that victims may be unable to understand or make the connection between the abuse and the emotional damages it causes; that even though victims may be aware of injuries related to the abuse, more serious injuries may be discovered many years later).

Significantly, in 1991, the statute was broadened in order to make clear that the discovery of less serious injuries did not commence the period of limitations. In addition, the Legislature specifically superseded a line of cases that had strictly applied the discovery rule in cases involving childhood sexual abuse. Laws of 1991, ch. 212. At least one of the superseded cases, Raymond v. Ingram, 47 Wn. App. 781, 737 P.2d 314 (1987), involved negligence claims against nonabusers which had been dismissed by the court. Given this context, we conclude the Legislature intended a broad reading and application of the statute.

Nowhere in RCW 4.16.340 does the Legislature articulate concern for defendants who might be sued. If the Legislature had intended the act to apply exclusively to the perpetrators of the abuse, the statute would have included specific limitations to that effect. It does not do so.⁶

In giving effect to all the words used in the statute, and from our determination of legislative intent, we conclude RCW 4.16.340 encompasses causes of action sounding in negligence against parties who did not themselves directly perpetrate acts of childhood sexual abuse, but who allegedly failed to protect child victims or to otherwise prevent the abuse.

The trial courts and Court of Appeals are reversed on this issue. Jamerson v. Vandiver, 85 Wn. App. 564, is overruled.

Issues Specific to Each Case

C.J.C. v. Corporation of the Catholic Bishop

First, we must decide whether the alleged sexual misconduct of Fathers Scully and Calhoun (the Priests) constitutes “childhood sexual abuse” within the meaning of the statute. See RCW 4.16.340 (defining “childhood sexual abuse” as an act that would have been a violation of RCW 9A.44, RCW 9.68A.040, or prior laws of similar effect at the time the act was committed).

C.J.C. argues the Priests communicated with him for an immoral purpose as proscribed under former RCW 9A.44.110 (1981) (“Any person who communicates with a child under the age of seventeen years of age for immoral purposes shall be guilty of a gross misdemeanor . . . .”). The Priests, who allegedly masturbated C.J.C., argue that RCW 4.16.340 does not apply to claims against them because their conduct was not proscribed under the then applicable criminal code.

At the time in question, 1980 through 1981, RCW 9A.44 was the applicable statute then in effect. Finding the alleged conduct did not fall under any of the definitional sections of the statute, the trial court dismissed all claims against the Priests. See RCW 9A.44.010 (defining “sexual intercourse” as penetration or contact between sexual organs of one person and vagina, mouth, or anus of another).

Relying on State v. McNallie, 120 Wn.2d 925, 846 P.2d 1358 (1993), the Court of Appeals reversed and reinstated the claims. Under McNallie, the Court of Appeals reasoned a jury could find that an act not specifically proscribed by statute could nevertheless constitute communication with a child for immoral purposes, so long as the communication was “for the predatory purpose of promoting their exposure to and involvement in sexual misconduct.” C.J.C. v. Corporation of the Catholic Bishop, 88 Wn. App. 70, 75, 943 E.2d 1150 (1997) (quoting McNallie, 120 Wn.2d at 933).

The Friests now argue that the Court of Appeals should not have applied the reasoning of McNallie because that case interpreted RCW 9.68A, a later enacted statute. In essence, the Priests would have this court ignore McNallie and reverse the Court of Appeals on the basis that their conduct was not then a crime and, therefore, they could not have engaged in communications for an immoral purpose. See, e.g., State v. Luther, 65 Wn. App. 424, 428, 830 P.2d 674 (1992) (no communication for immoral purpose if underlying sexual conduct not illegal).

The Priests’ argument is not well taken. In 1979, we construed the very statute at issue here and concluded it applied to misconduct of a sexual nature whether or not precisely defined within the statute itself. See State v. Schimmelpfennig, 92 Wn.2d 95, 101-04, 594 P.2d 442 (1979) (construing RCW 9A.88.020).⁷ We gave the phrase “communication with a minor for immoral purposes” a “commonsense understanding,” holding that “any spoken word or course of conduct with a minor for purposes of sexual misconduct is prohibited.” Schimmelpfennig, 92 Wn.2d at 103-04 (emphasis added). We upheld the conviction of a man who had merely attempted to entice young girls into the back of his van for sexual purposes. Here, defendants allegedly engaged in actual sexual misconduct.

We find the Priests’ conduct meets the definition of “childhood sexual abuse” as defined in RCW 4.16.340. We affirm the Court of Appeals on this issue.

Second, we must decide whether two communications sent from the Priests’ mental health providers to the Diocese are privileged and undiscoverable.

C.J.C. moved the trial court to compel discovery of certain communications between mental health counselors and the Diocese regarding the treatment of Fathers Calhoun and Scully. The trial court denied the motion. The Court of Appeals affirmed in part and reversed in part. C.J.C. v. Corporation of the Catholic Bishop, No. 37632-2-1, slip op. at 20-22 (Wash. Ct. App. Sept. 22, 1997). In reversing in part, the court reasoned that two reports sent from the Priests’ mental health counselors to the Diocese were discoverable because they were not confidential communications between patient and counselor. See C.J.C., No. 37632-2-1, slip op. at 21.

The fact that the Priests participated in counseling at the insistence of the Diocese and consented to the Diocese receiving reports of their progress is undisputed. Nevertheless, they argue the client-psychologist privilege was not waived because of their unique relationship with their church. The Priests liken this relationship to a husband and wife attending joint counseling. Alternatively, they argue this court should fashion a rule similar to the “joint defense” or “common interest” rule under which communications exchanged between multiple parties engaged in a common defense remain privileged under the attorney-client privilege.

Defendants’ argument does not persuade us to amalgamate various evidentiary privileges in order to ere-ate the protection they seek. Legislative grants of testimonial privilege conflict with the inherent power of the courts to compel the production of relevant evidence and are, therefore, strictly construed. See, e.g., State v. Latta, 92 Wn.2d 812, 819, 601 P.2d 520 (1979); Phipps v. Sasser, 74 Wn.2d 439, 444, 445 P.2d 624 (1968); Cook v. King County, 9 Wn. App. 50, 52, 510 P.2d 659 (1973).

Even were we inclined to recognize a unity of interest between a cleric and his or her church and protect communications made in furtherance of that interest against compulsory disclosure, this is not the case in which to do so. Where childhood sexual abuse is at issue, even long established privileges do not apply. See, e.g., State v. Fagalde, 85 Wn.2d 730, 735-37, 539 P.2d 86 (1975) (client-psychologist privilege does not apply to any judicial proceeding regarding a child’s injury, neglect, or sexual abuse); Dike v. Dike, 75 Wn.2d 1, 11, 448 P.2d 490 (1968) (attorney-client privilege is not absolute and exception's to the privilege may result from a balancing of the privilege against the public interest in full disclosure of all the facts). See also State v. Waleczek, 90 Wn.2d 746, 751, 585 P.2d 797 (1978) (husband-wife privilege may be “subordinated to the overriding and paramount legislative intent to protect children from physical and sexual abuse”). Accordingly, we limit our discussion to the specific parameters of the client-psychologist privilege.⁸

RCW 18.83.110 governs the client-psychologist privilege.⁹ It prohibits compulsory disclosure of confidential communications only. The privilege is strictly construed. In re Welfare of Henderson, 29 Wn. App. 748, 752, 630 P.2d 944 (1981).

A person “may not claim a privilege as to communications that do not originate in the confidence that they will not be disclosed.” State v. Post, 118 Wn.2d 596, 612, 826 P.2d 172, 837 P.2d 599 (1992). A patient’s intent that the communication be confidential must be reasonable in light of the circumstances surrounding the communication. Post, 118 Wn.2d at 612. The patient’s subjective expectations of confidence, while relevant, should not be given more weight than the objective evidence of the situation and circumstances in which the communication was made. Post, 118 Wn.2d at 612.

Here, the Court of Appeals limited discovery to only those reports actually communicated to the Diocese; it did not require disclosure of actual treatment records. While the Friests may have believed their communications would remain confidential, they clearly intended that a third party, the Diocese, would be kept informed. The courts of this state have long held that communications intended for the purpose of providing a third party with the results thereof are not confidential. See, e.g., In re Henderson, 29 Wn. App. at 752-53; J.N. v. Bellingham Sch. Dist. No. 501, 74 Wn. App. 49, 63, 871 P.2d 1106 (1994). As a result, we find the communications at issue are not protected under RCW 18.83.110.

We affirm the Court of Appeals and permit discovery of the two reports sent to the Diocese because they were not confidential patient-psychologist communications.

Third, C.J.C. appeals the dismissal of his respondeat superior and strict liability claims. Under the facts alleged here, these claims are governed by our recent decision in Niece v. Elmview Group Home 131 Wn.2d 39, 48, 52-58, 929 P.2d 420 (1997).

Following an extended discussion, we concluded in Niece that neither current Washington case law nor considerations of public policy favor the imposition of respondeat superior or strict liability for an employee’s intentional sexual misconduct. We specifically stated, “ [vicarious liability for intentional or criminal actions of employees would be incompatible with recent Washington cases rejecting vicarious liability for sexual assault, even in cases involving recognized protective special relationships.” Niece, 131 Wn.2d at 55 (emphasis added). C.J.C.’s argument that the Priests were, from his perspective, acting within the scope of their authority does not persuade us to establish a contrary rule. Our courts have never before adopted such an approach in the present context and we decline to do so now. Compare, e.g., Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993) (doctor was not acting within scope of employment or apparent authority when he misled patient into believing sperm sample was required and normally obtained by manually stimulating the patient to ejaculation). See also Taylor v. Smith, 13 Wn. App. 171, 177, 534 P.2d 39 (1975) (apparent authority is determined by objective test and the authority of an agent is not “ ‘apparent’ in contemplation of law, merely because it looks so to the person with whom [the agent] deals”).

For these same reasons we decline to impose strict liability on a theory of quid pro quo sexual harassment. See Thompson v. Berta Enters., Inc., 72 Wn. App. 531, 538, 864 P.2d 983 (1994) (employer strictly liable for supervisor’s quid pro quo sexual harassment because such harassment is impossible absent the actual or apparent authority to make employment decisions), superseded by statute on other grounds by Schonauer v. DCR Entertainment, Inc., 79 Wn. App. 808, 905 P.2d 392 (1995). On this point, we simply disagree with C.J.C.’s contention that there is no basis for distinguishing “between supervising an employee who wants to keep her job and supervising an altar boy who wants to get into heaven.” C.J.C. Answer to Eet. for Review at 19. Unlike the former, the latter relationship is formed entirely by religious doctrine and, in this case, by C.J.C.’s personal religious beliefs. While C.J.C. may have sincerely believed Fathers Calhoun and Scully had the power to gain him entry into heaven, and while he may have exchanged sexual favors believing it would help him get into heaven, the notion that legal liability may be premised on such beliefs is unprecedented.

We affirm the dismissal of C.J.C.’s respondeat superior and strict liability claims.

Funkhouser v. Wilson

We must first decide whether a church and its officials have a special relationship with either its workers or the children of its congregation which gives rise to a duty to take reasonable measures to prevent harm intentionally inflicted on the children by a church worker.

The alleged facts pertaining to this issue are as follows: In 1968, David Schulz, a church elder, received a telephone call while he was doing volunteer work at the Church. The exact content of the conversation is disputed. However, Schulz admits the caller identified herself, asked to speak with a person of authority within the Church, and asserted inappropriate sexual conduct by Orin Wilson (the alleged molester of the plaintiffs) toward a young girl. At the time of the call, plaintiffs were living out-of-state. By 1969, one year later, plaintiffs had moved to Washington, their father had begun his pastorship at the Church and Schulz had become the first chairman of the Church’s deacon board. At the time, Schulz did nothing to warn plaintiffs or their father of the accusation, or to prevent or discourage Wilson from being involved with the youth of the church. Schulz was, however, concerned enough that he “watched, listened, and observed” Wilson. Nevertheless, Wilson was subsequently made a deacon and was entrusted with various leadership positions within the Church that allegedly provided extensive contact with and authority over children.¹⁰

We begin with the now well-established principle that where a “special relationship” exists, a duty to protect against the intentional or criminal acts of third parties may arise. See, e.g., Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 200, 943 P.2d 286 (1997); Niece, 131 Wn.2d at 43. A special relationship between the defendant and the intentional tortfeasor may give rise to a duty to control the tortfeasor’s conduct for the benefit of third persons. See Niece, 131 Wn.2d at 43. A special relationship between the defendant and the victim may give rise to a duty to protect the victim against foreseeable harms, including harms intentionally caused. “Many special relationships give rise to a duty to prevent harms caused by the intentional or criminal conduct of third parties.” Niece, 131 Wn.2d at 44. Thus, for instance, a school has a duty to protect students within its custody from reasonably anticipated dangers, an innkeeper has a duty to protect its guests, and a hospital its patients. See Niece, 131 Wn.2d at 44-45 (citing cases). Similarly, even where an employee “is acting outside the scope of employment, the relationship between employer and employee gives rise to a limited duty, owed by an employer to foreseeable victims, to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others.” Niece, 131 Wn.2d at 48.

Whether there is a special relationship between a church and the children of its congregation that gives rise to a duty to protect the children against foreseeable harms is an issue of first impression. In important aspects, however, the activities of a church generate the kind of relationships where we have, in other contexts, imposed a duty of reasonable care. The children of a congregation may be delivered into the custody and care of a church and its workers, whether it be on the premises for services and Sunday school, or off the premises at church-sponsored activities or youth camps. As in other agency relationships, a church chooses its officials, directs their activities, and may restrict and control their conduct. In many respects, the activities of a church, and the corresponding duties legitimately imposed upon it, are similar to those of a school. As a matter of public policy, the protection of children is a high priority. In general, therefore, we find churches (and other religious organizations) subject to the same duties of reasonable care as would be imposed on any person or entity in selecting and supervising their workers, or protecting vulnerable persons within their custody, so as to prevent reasonably foreseeable harm.

Under the facts of this case, the more difficult question is whether the harm sought to be prevented fell within the scope of any duty. Here, plaintiffs do not allege the molestation perpetrated by Wilson occurred on Church premises or during Church activities. Nor do plaintiffs claim the victims were, at the time of the molestation, specifically within the protective custody of the Church. Nevertheless, plaintiffs assert the Church had a duty to protect the children of its congregation against foreseeable harms perpetrated by a Church official whom the Church “placed in authority and in close relationship to church children, knowing of the danger.” Funkhouser Supplemental Br. at 7.

On these facts, the trial court found no duty existed and dismissed the claims of Janelle Larson and Sheri Lewis (the Church had moved for summary judgment only on this issue against these two plaintiffs). The Court of Appeals reversed, reasoning “churches and the adult church workers who assume responsibility for the spiritual well-being of children of the congregation, whether as paid clergy or as volunteers, have a special relationship with those children that gives rise to a duty to protect them from reasonably foreseeable risk of harm from those members of the congregation whom the church places in positions of responsibility and authority over them.” Funkhouser v. Wilson, 89 Wn. App. 644, 660, 950 P.2d 501 (1998). We agree with the Court of Appeals that the Church and Schulz owed a duty of reasonable care, but do so on slightly different grounds.

Although we have not previously addressed the issue, we find the reasoning of the New Hampshire Supreme Court, in an analogous context, persuasive. In Marquay v. Eno, 139 N.H. 708, 662 A.2d 272 (1995), former school students who allegedly had been sexually abused by school employees filed suit against the school on theories of negligent supervision and failure to protect. None of the complaints alleged the abuse took place on school premises or during school hours. Marquay, 139 N.H. at 711. Nevertheless, the New Hampshire Supreme Court did not reject the existence of a duty as a matter of law. The court recognized that a principal’s negligent failure to control an agent is not necessarily limited to conduct performed within the scope of employment or during work hours, so long as there is a causal connection between the plaintiff’s injury and the fact of the agency relationship. Marquay, 139 N.H. at 719-21. The court reasoned that, under such circumstances, liability exists not because of when (or where) the injury occurs, but because “the actor has brought into contact or association with the [victim] a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct . . . .” Marquay, 139 N.H. at 719 (quoting Restatement (Second) of Torts § 302B cmt. e, para. D).¹¹ Accordingly, employers have been found liable for criminal conduct by off-duty or former employees where such conduct was consistent with a propensity of which the employer knew or should have known, and the association between the victim and the employee was occasioned by the employee’s job. Marquay, 139 N.H. at 719-20 (citing cases).

We find the rationale adopted in Marquay persuasive when analogized to the circumstances presented here. In particular, we find the conjunction of four factors present in the case before us decisive to finding the existence of a duty is not foreclosed as a matter of law: (1) the special relationship between the Church and deacon Wilson; (2) the special relationship between the Church and the plaintiffs; (3) the alleged knowledge of the risk of harm possessed by the Church; and (4) the alleged causal connection between Wilson’s position in the Church and the resulting harm. Under these circumstances, we simply do not agree with the Church that its duty to take protective action was arbitrarily relieved at the church door. Where a protective special relationship exists, a principal is not free to ignore the risk posed by its agents, place such agents into association with vulnerable persons it would otherwise be required to protect, and then escape liability simply because the harm was accomplished off premises or after hours. Under these facts, the focus is not on where or when the harm occurred, but on whether the Church or its individual officials negligently caused the harm by placing its agent into association with the plaintiffs when the risk was, or should have been, known.¹²

This approach is consistent with our cases recognizing a duty to prevent intentionally inflicted harm where the defendant is in a special relationship with either the tortfeasor or the victim, and where the defendant is or should be aware of the risk. See, e.g., LaLone v. Smith, 39 Wn.2d 167, 172, 234 P.2d 893 (1951) (employer liable for employee’s criminal assault on third person “because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment”); Taggart v. State, 118 Wn.2d 195, 223-24, 822 P.2d 243 (1992) (special relationship giving rise to a duty to prevent intentional harm need not be “custodial or continuous,” but arises where ability to supervise is present and necessity for such supervision is or should be known); Petersen v. State, 100 Wn.2d 421, 428-29, 671 P.2d 230 (1983) (psychiatrist-patient relationship gives rise to duty to take reasonable precautions to protect all persons foreseeably endangered by mental patient’s release into community). Compare Carlsen v. Wackenhut Corp., 73 Wn. App. 247, 256, 868 P.2d 882 (1994) (employer liable for security guard’s attempted rape if employer knew of or should have known of guard’s violent propensities and nevertheless conferred position of authority and responsibility), with Peck v. Siau, 65 Wn. App. 285, 289, 292-94, 827 P.2d 1108 (1992) (school not liable for teacher’s off-campus sexual assault of student where it did not know, nor reasonably should have known, of the risk posed by teacher).¹³

Viewing the facts in the light most favorable to the plaintiffs, a jury could reasonably find Wilson’s position in the Church was a causal factor in the resulting harm. Wilson was a prominent member of the Church, placed into positions of trust over children. This position not only brought him into close connection with the children of the congregation, it allegedly inspired confidence to place the plaintiffs into his care. In addition, there is evidence that Wilson baby-sat the victims in order that their father could travel on Church business and that the Church was aware of this arrangement. Given the Church’s specific and superior knowledge of the facts, a jury could reasonably find the Church knew or should have known the children of its congregation, and specifically these particular plaintiffs, were exposed to an unreasonable risk of harm at the hands of Wilson.¹⁴

Our decision not to foreclose the imposition of a duty as a matter of law under these facts is supported by the strong public policy in favor of protecting children against acts of sexual abuse. Current law makes it a criminal offense for certain professionals to fail to notify the proper authorities when there is reason to suspect childhood sexual abuse. See RCW 26.44.030 (medical practitioners, law enforcement personnel, school personnel, nurses, social service workers, licensed child care providers and their employees, among others, are required to report suspected child sexual abuse to the proper authorities); see also RCW 26.44.080 (failure to report is a gross misdemeanor). We note that at the time of the alleged abuse in this case, certain church officials were also required by law to report suspected abuse. See former RCW 26.44.030 (1969) (requiring any “clergyman,” as defined, to report suspected child sexual abuse).¹⁵ While the reporting requirement is permissive as to “other persons” not specifically defined, see RCW 26.44.030(3), the Legislature has made clear that the prevention of child abuse is of “the highest priority, and all instances of child abuse must be reported to the proper authorities who should diligently and expeditiously take appropriate action . . . .” Laws of 1985, ch. 259 (legislative findings appended to RCW 26.44.030). Any person who makes a good faith report of suspected abuse is absolutely immune from civil or criminal liability arising from the reporting. RCW 26.44.060(l)(a).¹⁶

We, therefore, conclude the Church and Schulz owed a duty of reasonable care to affirmatively act to prevent the harm, in view of their relationship to the plaintiffs, their relationship to Wilson, and given the knowledge they allegedly possessed. Whether there was a causal connection between the harm and the fact of Wilson’s position in the Church, or whether the risk of harm was or should have been reasonably foreseen at the time the harm occurred, are questions of fact to be determined by the jury.

We caution that our holding is limited. We do not suggest that a principal is an insurer against all harm occasioned by its agents simply because the work situation fortuitously provides an opportunity to perpetrate the harm. Nor do we decide that knowledge of potential harm alone is sufficient to give rise to a duty to warn in all cases. We do hold that where a special protective relationship exists a principal may not turn a blind eye to a known or reasonably foreseeable risk of harm posed by its agents toward those it would otherwise be required to protect simply because the injury is arbitrarily perpetrated off premises or after hours.¹⁷

Finally, we reject the Church’s argument that the First Amendment or article I, section 11 of the state constitution prevent this court from imposing a duty on the Church.¹⁸ The First Amendment does not provide churches with absolute immunity to engage in tortious conduct. So long as liability is predicated on secular conduct and does not involve the interpretation of church doctrine or religious beliefs, it does not offend constitutional principles. See, e.g., Sanders v. Casa View Baptist Church, 134 F.3d 331, 336 (5th Cir.) (“the constitutional guarantee of religious freedom cannot be construed to protect secular beliefs and behavior, even when they comprise part of an otherwise religious relationship between a minister and a member of his or her congregation. To hold otherwise would impermissibly place a religious leader in a preferred position in our society.”) (second emphasis added), cert. denied, 525 U.S. 868 (1998).

Similarly, while article I, section 11 of our state constitution protects “[ajbsolute freedom of conscience in all matters of religious sentiment,” that protection “shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.” Thus, the specific language of article I, section 11 defeats the Church’s state constitutional claims.

We affirm the Court of Appeals in Funkhouser and reverse the trial court on the issue of duty.

E.R.B v. Church of God

We must decide whether the claims of E.R.B.’s parents are untimely. E.R.B.’s parents brought claims against Shaw (the alleged abuser), the Local Church, and the New Life Church of God State Offices and Parsonages. The trial court dismissed. The Court of Appeals, Division Two, affirmed. E.R.B. v. Church of God, 89 Wn. App. 670, 686, 950 P.32d 29 (1998).

We reverse. We find the claims brought by E.R.B.’s parents fall within the ambit of RCW 4.16.340(1). The statute allows “any person” to bring a claim based on childhood sexual abuse. Commencement of the limitations period is not determined by reference to knowledge possessed by the parents. Rather, it is determined according to knowledge possessed by the child “victim.” See RCW 4.16-.340(l)(b)-(c). The fact that E.R.B.’s parents allegedly had prior knowledge of the abuse is, therefore, irrelevant to the timeliness of their claims. Under the statute, the claims of parents begin to run at the same time as the underlying claims of their child(ren).

Although this result may seem unusual, the plain language of the statute controls. Therefore, we reverse the trial court and the Court of Appeals on the timeliness of claims asserted by E.R.B.’s parents.

CONCLUSION

For the reasons stated above, the decisions of the Court of Appeals in Funkhouser v. Wilson, 89 Wn. App. 644, and C.J.C. v. Corporation of the Catholic Bishop, 88 Wn. App. 70, are affirmed, partially on different grounds; the decision of the Court of Appeals in E.R.B. v. Church of God, 89 Wn. App. 670, is reversed. The cases are remanded for proceedings consistent with this opinion.

Smith, Alexander, and Talmadge, JJ., concur.

1 As a result, we do not reach plaintiffs’ alternative theory that claims were timely filed under the common-law discovery rule.

2 The facts are described in the light most favorable to plaintiffs whose claims were dismissed on summary judgment. For a more detailed recounting of the facts in each case, see Funkhouser v. Wilson, 89 Wn. App. 644, 950 P.2d 501 (1998); E.R.B. v. Church of God, 89 Wn. App. 670, 950 P.2d 29 (1998); C.J.C. v. Corporation of the Catholic Bishop, 88 Wn. App. 70, 943 P.2d 1150 (1997).

3 divisions One and Two of the Court of Appeals split on the applicability of the common-law discovery rule. In C.J.C. and Funkhouser, Division One applied the discovery rule and reversed summary judgment; under similar facts, Division Two in E.R.B. refused to apply the discovery rule and affirmed summary judgment. Compare C.J.C., 88 Wn. App. 70, and Funkhouser, 89 Wn. App. at 669, with E.R.B., 89 Wn. App. at 683-84. Because we find the claims against nonabusers and church entities fall under RCW 4.16.340, we do not decide whether the common-law discovery rule would otherwise apply.

4 In Tyson v. Tyson, 107 Wn.2d 72, 79, 727 P.2d 226 (1986), this court, in a plurality decision, held the discovery rule did not apply to intentional tort claims where the plaintiff has suppressed the memory of the abuse during the period of the statute of limitations. RCW 4.16.340 was enacted in 1988 in response to our decision in Tyson. Laws of 1988, ch. 144, § 1.

5 In addition to conforming to the language of the statute, our interpretation is entirely consistent with traditional tort principles. See, e.g., McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 321, 255 P.2d 360 (1953) (“[b]ut intervening criminal acts may be found to be foreseeable, and if so found, actionable negligence may be predicated thereon”).

6 legislative history which purportedly shows the statute was intended to apply only to actions against the abusers themselves is inconclusive. The Senate Bill Report states, in summary, that the new legislation would allow “an action against the abuser . . . .” Senate Comm, on Law and Justice, S.B. Rep. 6305, at 1 (Wash. 1988). The House Bill Report summarizes, by stating a “cause of action for intentional childhood sexual abuse” must be commenced within the time allowed by the discovery rule. H.B. Rep. E.S.S.B. 6305, at 2 (Wash. 1988). The legislative history also contains a report by the Northwest Women’s Law Center, a major proponent of the act, which states, the purpose of the legislation is to apply the discovery rule “to civil suits alleging negligent and/or intentional torts . . . .” See “Proposed Legislation Regarding the Statute of Limitations for Civil Suits Brought by Adult Survivors of Incest or Childhood Sexual Abuse,” S.B. Rep. 6305, at 1 (Wash. 1988). Finally, the “Summary of Legislation Regarding the Statute of Limitations in Civil Childhood Sexual Abuse Cases,” S.B. Rep. 6305 (Wash. 1988) (prepared by Jana Mohr, representing Patti Barton), states, the “proposed legislation will apply the discovery rule to civil actions based on intentional torts ... for injuries suffered as a result of that abuse.” The language in these brief summaries is in sharp contrast to the adopted statutory language which allows “[a]ll claims or causes of action based on intentional conduct. . . .” RCW 4.16.340(1).

We also reject defendants’ argument regarding the effect of the words “or omission” stricken from section 1 of the original act (requiring the claim be brought within three years of “the act (or omission) alleged to have caused the injury,” (now § (l)(a)). First, this section does not control the scope of the statute. It is, therefore, irrelevant to determining whether the statute encompasses negligence claims “based on” intentional conduct. Furthermore, the section ties the running of the limitations period exclusively to the actual commission of the intentional abuse, without reference to any omissions that may have facilitated such abuse. Thus, inclusion of the word “omission” was grammatically and logically incorrect. Accordingly, the deletion of these words has no impact on our analysis.

7 Former RCW 9A.44.110 (repealed by Laws of 1984, eh. 262 and recodified at RCW 9.68A.090), was formerly codified at RCW 9A.88.020. The language of the two statutes is identical; both statutes were enacted by the same source. Laws of 1975, 1st Ex. Sess., ch. 260. Thus, although later moved to a different part of the criminal code, the two statutes are one and the same. Schimmelpfennig, therefore, controls.

8 Notwithstanding Fagalde, the Court of Appeals determined that the privilege applied in part. C.J.C., No. 37632-2-1, slip op. at 22. C.J.C. does not cross-appeal that holding. Accordingly, our discussion is limited to the scope of the privilege and not whether it should have been applied in the first place.

9 Father Calhoun’s mental health counselor held a masters of education and was not a licensed psychologist. The Court of Appeals applied RCW 18.19.180, the client-counselor statute, to find a privilege. C.J.C., No. 37632-2-1, slip op. at 22. C.J.C. does not appeal this ruling. Thus, for purposes of this review we assume, without deciding, that RCW 18.19.180 provides a privilege coextensive with that of the client-psychologist privilege.

10 The fact that both Schulz and Wilson were volunteers does not impact our analysis. A charitable entity may be held liable for the negligence of volunteers acting in an agency capacity. Abel v. Firs Bible & Missionary Conference, 57 Wn.2d 853, 855, 360 P.2d 356 (1961). Furthermore, one who assumes to act, even though gratuitously, may be held liable for his or her negligence in carrying out the act. See Roth v. Kay, 35 Wn. App. 1, 4, 664 P.2d 1299 (1983). See also Curran v. City of Marysville, 53 Wn. App. 358, 365, 766 P.2d 1141 (1989) (one who voluntarily assumes responsibility for the care of a child has a duty to exercise reasonable care to protect that child).

11 Restatement (Second) op Torts § 302B recognizes liability where a special protective relationship exists, or “[w]here the actor has brought into contact or association with the [victim] a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.” Restatement (Second) op Torts § 302B cmt. e, para. D (1965).

12 The concurrence/dissent accuses the majority of “toss[ing] into the mix” principal and agent language without discussing the legal principles involved. Concurrence/dissent at 731. First, the defendants do not argue an agency relationship did not exist, only that their duty of control did not extend into Wilson’s private affairs. Furthermore, under the Restatement of Torts § 302B, an agency relationship is not required in order to establish a duty of care. Finally, under our own precedent, a duty of control or protection also does not depend on a showing of agency. Taggart v. State, 118 Wn.2d 195, 223-24, 822 P.2d 243 (1992) (duty to control does not require agency relationship but arises where ability to control is present); Nivens, 133 Wn.2d at 205 (duty to protect adult store patrons against reasonably foreseeable harm does not depend on agency relationship with tortfeasor). We use the words “principal” and “agent” in the present context both for simplicity and because we limit liability to harm proximately resulting from the fact of Wilson’s position in the Church.

13 Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 802 P.2d 1360 (1991), upon which the concurrence/dissent relies, is simply not on point. In Hutchins, no special relationship existed. We stated, in the absence of a special relationship, a duty would nevertheless attach if the defendant had brought about an “especial temptation and opportunity for criminal misconduct.” Hutchins, 116 Wn.2d at 230. In short, Hutchins dealt with landowner liability where no special relationships existed. It is not at all relevant to this case.

14 The Church’s argument that it could not, without written complaint, take disciplinary action against Wilson and, therefore, was under no duty to control him, is unpersuasive. The Court of Appeals’ reasoning is flawed, as well. See Funkhouser, 89 Wn. App. at 657 (declining to impose liability under a duty to control because the Church constitution and bylaws required complaints be in writing before disciplinary action could be taken). Importantly, the Church had prior warning of Wilson’s alleged propensity to molest children. The Church, therefore, was in a position to refrain from developing a special relationship with Wilson and from placing him in positions of trust within the Church in the first place.

15 In 1975, the requirement as to clergymen was repealed. Laws of 1975, 1st Ex. Sess., ch. 217, § 3. Nevertheless, the reporting requirement continues to apply to those church officials who are engaged in “encouraging or promoting the health, welfare, support or education of children, or providing social services to adults or families, whether in an individual capacity, or as an employee or agent of any public or private organization or institution.” State v. Motherwell, 114 Wn.2d 353, 357, 788 P.2d 1066 (1990) (citing former RCW 26.44.020(8)). Thus, the newly implied exemption is triggered only when the official is actually acting in the capacity of a regularly licensed or ordained minister, priest, or rabbi. Motherwell, 114 Wn.2d at 359.

16 We need not determine whether the Church specifically violated the statute. We find merely that the statute reflects a strong public policy in favor of protecting children against reasonably suspected sexual abuse through report to the proper persons. See, e.g., Bernethy v. Walt Failor’s, Inc., 97 Wn.2d 929, 932-33, 653 P.2d 280 (1982) (where duty is based on common-law principles, an analogous statute, even when not specifically violated, reflects strong public policy in favor of imposing a duty).

17 Accordingly, we do not find the issue of duty in this case distinctly separable into either one of “control” or “protection,” since elements of both are present. Nor need we adopt wholesale the duty described in section 302B of the Restatement (Second) of Torts (1965).

18 Plaintiffs’ (C.J.C.’s and Funkhouser’s) motion to strike the supplemental brief of the Corporation of the Catholic Bishop of Yakima (Diocese) is granted. The Diocese is a defendant in the C.J.C. case. Its brief addresses the First Amendment rights of the defendants in the Funkhouser case. The Diocese admits it did not preserve these issues in its own case. RAP 10.1(g) is intended to facilitate shared briefing related to shared issues. The rule does not allow what essentially amounts to' amicus argument relating to another party’s case on an issue not shared in common.