• Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “non-religious” counseling.
• Key point 10-12. Churches face a number of legal risks when they offer counseling services by ministers or laypersons. These include negligent selection, retention, or supervision of a counselor who engages in sexual misconduct or negligent counseling. A church also may be vicariously liable for a counselor’s failure to report child abuse, breach of confidentiality, and breach of a fiduciary relationship.
Seduction of Counselees and Church Members
Clergy Malpractice
* A Minnesota court ruled that the first amendment guaranty of religious freedom did not prevent it from resolving a man’s claim that his church and a denominational agency were responsible for the negligent counseling of his pastor that led to the breakdown of his marriage. A husband and wife (“Jon” and “Jan”) sought marital counseling from the pastor of their Seventh-Day Adventist church, who met with them as a couple and individually over the course of two years. Jon claimed that the pastor acted inappropriately in several ways, including the following: (1) During one of the first counseling sessions, the pastor told Jon that he felt very attracted to Jan and “needed to pray about it.” (2) The pastor administered a personality test to the couple and advised them that their personality types were “very different” which would make it very difficult for them to have a harmonious marriage. In contrast, the pastor said that his own personality type was “very similar” to that of Jan. (3) On one occasion, the pastor and several church members, including Jan, stayed at a motel during a 4-day out-of-state seminar, during which time the pastor provided counseling to Jan in her motel room. (4) The pastor asked Jan to make a list of the qualities she would like to see in a “fantasy man” and then told her “I am your fantasy man.” (5) The pastor told Jon that if he made himself available, Jan would run off with him. (6) The pastor told Jon that he and Jan were “not right for each other” and that he did not have any hope for a good solution.
The pastor eventually was forced to resign his ministry, largely because of his relationship with Jan. Jon acknowledged that there was no evidence that his wife and the pastor were sexually intimate while the pastor was providing them with pastoral counseling. Jon and Jan were separated and later divorced. Following the divorce, Jan married the pastor. Jon sued the pastor, his church, and a denominational agency, alleging that while acting as a trained counselor the pastor breached confidentiality and violated “counseling relationship boundaries” by repeatedly disclosing personal information. He also asserted that the pastor repeatedly violated church doctrine and policy regarding limits on the counseling a minister may provide, as set out in the “Seventh-Day Adventist Ministers Handbook.” Jon sued the pastor for negligent counseling. He also claimed that the Minnesota Conference of Seventh-Day Adventists (the “regional church”) was liable for the pastor’s actions on the basis of its negligence in supervising and retaining the pastor. The state supreme court ruled that the civil courts could resolve the negligent counseling claim against the pastor, but remanded the case to a state appeals court to determine if the negligence claims against the regional church should be dismissed.
The regional church insisted that a resolution of Jon’s claims for negligent supervision and retention would involve the courts in the church’s fundamental right to recognize individuals who have been called by God to ministry. It noted that scripture governs discipline within the church, and that if a minister trespasses but repents, scripture requires forgiveness. The appeals court was not persuaded, and ruled that the civil courts could resolve Jon’s claims.
negligent retention
Jon presented the court with substantial evidence suggesting that the regional church was aware that the pastor was unfit to engage in counseling, but failed to investigate or take further action. Such evidence included the following: (1) A letter in the pastor’s personnel file referring to a “false accusation” regarding claims of sexual impropriety against him at an earlier church; (2) three anonymous letters sent to the regional church’s president expressing specific concerns about the relationship between the pastor and Jan, and an expression of similar concerns by Jon’s mother. Although a regional church officer confronted the pastor with one of the anonymous letters, the pastor denied any impropriety, referring only to his “special friendship” with Jan. No action was taken until the regional church learned that ten people had confronted the pastor about his inappropriate relationship with Jan. The court observed,
Minnesota has long recognized that an employer has the “duty to refrain from retaining employees with known dangerous proclivities.” Thus, the employer may be liable for negligent retention when “during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment ….” The question [in this case is] whether the regional church negligently retained the pastor without further investigation after it became aware or should have been aware of his claimed negligent secular counseling.
The court concluded that the test for negligent retention was neutral, and would not require a civil court to become entangled in church doctrine.
negligent supervision
Jon also claimed that the regional church was guilty of negligent supervision. The court noted that for Jon to prevail with this claim he must show “that the employee’s conduct was foreseeable and that the employer failed to exercise ordinary care when supervising the employee.” A trial court had relied on the denomination’s “minister’s handbook” to provide the standards for assessing the claims. Because use of the handbook “poses a serious risk of religious entanglement for a court attempting to discern its limits,” the state supreme court prohibited reliance on it.
The appeals court noted that it “must focus on negligent supervision not as to pastoral counseling, which could pose the risk of religious entanglement, but as to the negligent secular counseling claim. Just as the negligent counseling claim against the pastor may be assessed by the neutral standards of the statute governing unlicensed mental health practitioners, so too can the neutral standard of care for supervising unlicensed mental health practitioners be used to address the claims against the regional church. Consequently, the courts have jurisdiction to address this claim.”
Application. This case illustrates two important principles. First, a church or denominational agency that ignores credible evidence of wrongdoing on the part of an employee or volunteer is exposing itself to potential liability on the basis of negligent retention of that person unless it promptly investigates the evidence and responds in a way that a jury would deem appropriate. Ignoring repeated allegations of wrongdoing can result in a significant risk of liability. Note that in this case the evidence of wrongdoing consisted of a letter of accusation that the regional church deemed to be “false,” and three anonymous letters sent to the regional church’s president expressing specific concerns about the relationship between the pastor and Jan. This suggests that church leaders may have a duty to respond to anonymous letters to the extent that they make specific accusations of misconduct against a church employee or volunteer—especially if they contain information that can be independently confirmed.
Second, the court concluded that churches cannot be liable on the basis negligent supervision for “pastoral counseling.” The pastor in this case had engaged in what the court deemed to be “secular counseling,” and so the negligent supervision claim against the regional church could be pursued. Odenthal v. Minnesota Conference of Seventh-Day Adventists, 657 N.W.2d 569 (Minn. App. 2003).
© Copyright 2003 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 c0603
