• Key point. Churches are subject to a new theory of liability for the sexual misconduct of clergy who engage in counseling-they may be liable for such misconduct under the federal Violence Against Women Act if the offending minister’s behavior constitutes a felony under state law.

A federal court in Iowa ruled that a woman who had been seduced by a priest could not sue her church and diocese for violating the federal Violence Against Women Act. An adult female claimed that when she arrived at church one evening to participate in the choir during evening mass she was sexually assaulted by her priest. In particular, the woman alleged that the priest “came up behind her, grabbed her with both of his hands and pulled her back into his body, held her tightly and kissed her neck.” Later that same evening he allegedly “rubbed [her] back up and down with his hand” while she was “standing and talking with other parishioners.” As a result, the woman claimed she suffered severe emotional trauma. The woman later sued the priest, her church, and diocese, on the basis of a number of theories. The first count of her lawsuit asserted that the priest’s actions amounted to a violation of the federal Violence Against Women Act (VAWA). VAWA, which was enacted by Congress in 1994, declares that all persons “have the right to be free from crimes of violence motivated by gender.” It further specifies that a person who commits a “crime of violence” motivated by gender “shall be liable to the party injured” for both compensatory and punitive damages. VAMA defines a “crime of violence” as an act or series of acts that would constitute a felony. The woman claimed that the priest’s behavior would constitute a felony under a state law making it a crime for a pastoral counselor to engage in sexual contacts with a counselee. The Iowa statute in question prohibits “[s]exual exploitation by a counselor or therapist.” Iowa Code § 709.15.1.f. A “counselor or therapist” is defined to include members of the clergy “or any other person, whether or not licensed or registered by the state, who provides or purports to provide mental health services.” Mental health service is defined as “the treatment, assessment, or counseling of another person for a cognitive, behavioral, emotional, mental, or social dysfunction.” The woman alleged that the priest “served as a counselor to [her].” A federal district court in Iowa ruled in favor of the woman, and also found that the church and diocese were liable for the priest’s behavior on the basis of negligent supervision.

A federal appeals court reversed the lower court decision, for the following reasons:

No Counseling Relationship

The appeals court concluded that the woman failed to prove that the priest was her “counselor or therapist” within the meaning of the Iowa statute. It noted that nothing in the woman’s lawsuit claims that she received “mental health services” from the priest. Yet, the receipt of such services was essential in order for the priest to meet the statute’s definition of a “counselor or therapist”. The court pointed out that the woman’s lawsuit contained no allegations suggesting that she received services for any sort of dysfunction. Nor did it allege that she was receiving such services from the priest at the time of his alleged sexual advances. Since the woman failed to establish a violation of the Iowa statute, she could not maintain her claim under VAWA. The court noted that the statute requires that the sexual conduct occur either during the time at which the patient is emotionally dependent, or within one year after the termination of the mental health services. As a result, if the priest had counseled the woman within one year of the date of the alleged assault, then he may have violated the statute and the woman could pursue her VAWA claim. However, she failed to allege that she had counseled with him during the year preceding the alleged assault.

No Felony

For the priest’s actions to violate VAWA, those actions would have to be a “crime of violence” amounting to a felony under state law. The court concluded that this requirement was not met. Under the Iowa statute, a “pattern or practice or scheme of conduct” to engage in any sexual conduct with a patient or client is a felony. Sexual conduct with a patient or client that is not part of a pattern, practice, or scheme is an aggravated misdemeanor. The court concluded that “we believe the Iowa Supreme Court would hold that the two instances of sexual conduct alleged in the complaint, which happened on the same day and within about an hour of each other, do not constitute a pattern, practice, or scheme of conduct within the meaning of [the statute]. Therefore, even accepting [the woman’s] allegations, the most serious violation [the priest] allegedly committed under state law is an aggravated misdemeanor.”

While the court dismissed the woman’s lawsuit, it did acknowledge that she was free to pursue her negligent supervision claims in state court.

One judge dissented from the court’s opinion. He was of the opinion that the woman had demonstrated a “pattern or practice or scheme of conduct” by the priest to engage in any sexual conduct. He noted that the same priest had made sexual advances on another woman, had been professionally evaluated because of sexual advances on other people in other communities, and had been accused of fondling a young girl in the church’s school.

Application. This case illustrates a new basis of liability for churches. In those states in which sexual misconduct by a minister with a counselee is a felony, a church may be liable (for both compensatory and punitive damages) for its minister’s acts of sexual misconduct with a counselee on the basis of the federal Violence Against Women Act. Ministers who engage in counseling activities are subject to criminal liability in many states for engaging in sexual contact with a counselee, and so the importance of this case to church leaders is clear. However, as this court noted, this basis of liability is subject to important limitations. Most importantly, the acts of the minister must constitute a felony under state law. As a result, the requirements of applicable state statutes must be reviewed to determine a church’s potential liability under the Violence Against Women Act. In many states, this will be a new basis of liability. Doe v. Hartz, 134 F.3d 1339 (8th Cir. 1998). [Seduction of Counselees and Church Members]

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