• Key point 4-11.02. Clergy who are sued for sexual misconduct may be able to assert one or more defenses. .

Clergy Malpractice
Seduction of Counselees and Church Members

* A Kentucky court ruled that a husband whose marriage was ruined as a result of an ongoing sexual relationship between his wife and the pastor of his church could not sue the pastor or his church for damages. A married couple were active in their church and soon befriended a new pastor. During the next few years the pastor was a frequent visitor in their home and occasionally joined them on family outings. A few years later the pastor’s relationship with the wife became sexual, and continued for more than a year until she learned that she had become pregnant. She informed her husband, and despite attempts to reconcile, the couple divorced. The husband sued his pastor and church for damages he suffered as a result of his former wife’s sexual relationship with the pastor. He alleged that the pastor had inflicted severe emotional distress by “intentionally and recklessly undermining his marriage.” He also alleged that the church had contributed to his distress by responding in a negligent manner when it learned of the pastor’s behavior. A trial court dismissed the lawsuit, and the husband appealed.

An appeals court noted that “the general rule in Kentucky has been that engaging in consensual sexual relations, even with another’s spouse, does not justify an action in tort. Such an action is inconsistent with the privacy and liberty interests of the persons consenting to the relationship.” On the other hand, “our courts do recognize a cause of action for the intentional or reckless infliction of severe emotional distress, often referred to as the tort of outrage. Several courts, including our supreme court, have held that this tort provides a potential exception to the general rule just stated, that consensual sex does not provide grounds for a civil action. The exception arises when the defendant, through a special relationship with the plaintiff, owes the plaintiff an independent duty of care, the breach of which is both outrageous and severely distressing.”

The husband insisted that his relationship with his pastor was special in this sense and that his pastor’s breach of that relationship was outrageous. The court disagreed,

Although we acknowledge what must be the husband’s acute sense of betrayal, we nevertheless agree with the trial court that the mere fact that a person is a minister or other clergyman does not make him legally liable to his parishioners for personal liaisons. Unlike a counseling relationship … which could be deemed special apart from its religious context and thought to include independent legal duties, the relationship between parishioner and clergyman is essentially religious; its duties are not those of the civil law. Clearly, it is not for the court to construe or to enforce the clergy’s religious duties; yet that is precisely what the husband asks us to do. The trial court did not err by refusing his request. For the purposes of the civil law, the pastor’s affair with the wife was no different than another person’s affair would have been and does not give the husband a cause of action for outrage.

The court also concluded that “the fact that the law does not recognize the husband’s injury also defeats his claim against the church. He notes that an employer may be held liable for harms caused by its employee if it was aware that the employee posed an unreasonable risk of perpetrating the harm and yet negligently failed to prevent it. He alleges that the church responded negligently once it learned of the affair and thus contributed to the failure of the marriage. The cause of action requires an underlying injury perpetrated by the employee. Because there was no legally cognizable underlying injury in this case, the trial court did not err by dismissing the husband’s claim against the church …. In sum, we agree with the trial court that adulterous damage to a marriage is not rendered legally actionable by the fact that a clergyman and the spouse of a parishioner are the participants.”

Application. The court’s ruling demonstrates the difficulty that spouses experience in suing a pastor for alienating their spouse’s affections through a sexual relationship. However, the court warned that the result would have been different had a “special relationship” existed, such as a counseling relationship with either the husband or his wife. Had the sexual relationship in this case arose in the context of a counseling relationship, then the husband could have sued the pastor and church. Arlinghaus v. Gallenstein, 115 S.W.3d 351 (Ky. App. 2003).

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