• Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on first amendment considerations.

A Michigan court refused to recognize "breach of a fiduciary duty" as a basis for liability by clergy who engage in a sexual relationship with a counselee. A male pastor visited a female church member (the "plaintiff") in her home prior to an upcoming surgery. In the months and years that followed, the pastor assumed the role of a pastoral counselor and attempted to help the woman with several personal difficulties she faced. At some point in the counseling relationship the pastor and plaintiff engaged in a sexual relationship, which was not in any way related to or condoned under church doctrine. Plaintiff claimed that the counseling relationship continued and that the pastor used counseling in order to eventually initiate a sexual relationship with her. She also claimed that prior to initiating a sexual relationship, the pastor engaged in an inappropriate course of conduct such as appearing at her home and school, giving her personal greeting cards and inspirational messages, and discussing inappropriate subjects, including "his perceived sexual inadequacies and private parts." The plaintiff alleged that the pastor began making sexual advances toward her and when she protested, he misled her with his "distorted views of Christian morality," which confused her because of his "superior" status as pastor of her church. She claimed that the pastor became involved in her life to the extent that his financial and emotional assistance to her was in exchange for sexual relations. Moreover, according to the plaintiff, the Synod, District, and local church had a responsibility to either prevent the pastor from abusing his ministerial role or to intervene and end the relationship in order to protect her. Plaintiff asserted that the Synod, District, and local church all were aware of the relationship and should have ended the pastor's behavior. The pastor insisted that his relationship with the plaintiff was entirely consensual. According to him, while he initially offered counseling services to the plaintiff, their relationship developed into a friendship and eventually into a sexual relationship. He claimed that while he continued to discuss plaintiff's personal difficulties and continued to attempt to assist her with her problems during their sexual relationship, his assistance was as an individual and friend rather than as a counselor.