Sexual misconduct by clergy, lay employees, and volunteers

Key point 4-11.02. Clergy who are sued for sexual misconduct may be able to assert one or more defenses. Seduction of Counselees and Church Members

* An Oregon court ruled that a pastor who engaged in a sexual relationship with a woman could not be sued directly by the woman’s husband. A married woman ("Erica") with two small children worked as a receptionist at her church’s preschool. She later became the senior pastor’s administrative assistant. A few years later, Erica sought out the pastor for marital counseling. During this counseling relationship, the pastor and Erica became sexually involved. Eventually, Erica told her husband about the relationship, and her husband pleaded with the pastor to discourage Erica from continuing the relationship. A few months later, Erica discovered that she was pregnant as a result of her sexual relationship with the pastor. She filed for divorce shortly thereafter. The pastor later reconciled with his wife after a separation, and his relationship with Erica ended. Erica’s former husband sued the pastor and his church as a result of the destruction of his marriage. Specifically, he asserted that the pastor was guilty of intentionally engaging in outrageous conduct that ruined his marriage and caused him severe emotional distress. A trial court dismissed all of the husband’s claims against the pastor and church, and the husband appealed. A state appeals court affirmed the trial court’s ruling. It noted that to prove intentional infliction of emotional distress the husband had to demonstrate an "extraordinary transgression of the bounds of socially tolerable conduct." It observed,

[The pastor] entered a consensual extramarital relationship with a coworker, plaintiff’s wife. They continued that relationship for some months despite plaintiff’s appeal to [the pastor] to discourage plaintiff’s wife from doing so. The relationship resulted in a pregnancy, and plaintiff’s wife ultimately left her marriage with plaintiff. The question that this case presents is whether, in light of the circumstances, a reasonable jury could find that [the pastor’s] conduct was an extraordinary transgression of the bounds of socially tolerable conduct.

The reality is that the circumstances here are far from extraordinary. When a marital relationship breaks down, a common cause is an extramarital relationship by one or both marital partners. For better or worse, society tolerates extramarital relationships. That is not to say that society condones them, but it is clear from the treatment of such relationships in the entertainment, art, and news media, for example, that society at least tolerates them. That fact is reflected in our laws as well. State legislatures across the nation have abolished the tort of alienation of affections, as did Oregon in 1975. In addition, nearly all states have established no-fault marital dissolution laws.

The mutuality of the relationship at issue in this case also is significant to our analysis. There was no evidence or even suggestion of deception, coercion, overbearance, or ulterior motive on [the pastor’s] part. To the contrary, the evidence indicates that plaintiff’s wife took at least equal initiative in starting and continuing the extramarital relationship. Plaintiff endeavors to distinguish this case as "much more than marital infidelity among strangers" by attempting to construct a heightened "obligation" on [the pastor’s] part to refrain from the conduct because an "association" existed between plaintiff and [the pastor] and the church. Plaintiff’s apparent point is that, because the parties knew one another socially and through the church, the outrageousness of [the pastor’s] conduct is magnified. In other words, their social friendship is a type of aggravating factor. Nothing in the record, however, reflects a fiduciary or other special relationship, nor is there anything inherent in plaintiff’s and [the pastor’s] acquaintance with each other that gives rise to an obligation to exercise a greater degree of care. Furthermore, we find no other factors to distinguish this situation from other extramarital relationships arising from social settings or from the workplace… . [I]t is not outrageous in the extreme for people to behave as they often do in commonly occurring circumstances. We recognize that marital infidelity may potentially disrupt marriages and personal lives. Nevertheless, in situations such as this one, the conduct is not socially intolerable and does not rise to the extraordinary level required for an [intentional infliction of emotional distress] claim.

In sum, the evidence here is that [the pastor] and plaintiff’s wife agreed to enter an extramarital sexual relationship. They met a few times at her house; they continued the relationship elsewhere to some degree while they were both separated; they did so despite the husband’s expressed wish to the contrary; and the relationship resulted in a pregnancy. Certainly, no single act shown to have been committed here was "outrageous in the extreme." Nor were they in combination. Based on the totality of the circumstances, we conclude that, as a matter of law, [the pastor’s] conduct was not an extraordinary transgression of the bounds of socially tolerable conduct.

Application. The court’s ruling demonstrates the difficulty that spouses experience in suing a pastor for alienating a spouse’s affections through a sexual relationship. However, while the court ruled that the husband could not sue the pastor, this does not mean that the pastor was free from liability. He still faced possible criminal liability as a result of initiating sexual contact with a counselee, and he could have been sued by the wife on the basis of a number of theories. In addition, the church could have been liable for the pastor’s actions had it known of previous similar incidents and failed to adequately supervise or limit his behavior. Rosenthal v. Erven, 17 P.3d 558 (Ore. App. 2001).

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