Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.
* The Arkansas Supreme Court upheld a 40-year prison sentence for a pastor who engaged in sexual relations with a church secretary and a church member. A church secretary alleged that the church's senior pastor called her into his office at the church during lunch and sexually assaulted her. A second incident occurred a few months later when the pastor took her to a motel where he again assaulted her. The secretary testified that she was afraid to resist on both occasions. She testified that she saw the pastor as a "father figure" and looked up to him as a preacher. A second woman also claimed that the pastor engaged in sexual contact with her. The pastor was arrested and charged with sexual assault in the third degree. The third-degree sexual assault statute states: "A person commits sexual assault in the third degree if the person … engages in sexual intercourse or deviate sexual activity with another person who is not the actor's spouse, and the actor is … a member of the clergy and is in a position of trust or authority over the victim and uses the position of trust or authority to engage in sexual intercourse or deviate sexual activity." A jury convicted the pastor and sentenced him to a prison sentence of forty years. The pastor appealed on several grounds, including those summarized below.
(1) Sufficiency of the evidence
The pastor claimed that there was insufficient evidence to sustain his conviction for third-degree sexual assault. He argued that the state's evidence proved nothing more than a consensual sexual relationship with both women, and that there was no evidence that he was in a position of trust or authority over either woman or that he used that position to engage in a sexual relationship with either. The court disagreed. It concluded:
Our review of whether a crime was committed does not end with the fact that the pastor had sex with the two victims. Both victims testified that they looked up to him as a preacher and trusted him. [The church secretary] testified that she was afraid of what might happen to her if she did not comply with his sexual requests. She further testified that she was not attracted to him. [The other woman] stated that she told the pastor, regarding sex, "No, you're a preacher. It's not proper. It's not right." This testimony does not indicate a consensual relationship. It indicates that the [pastor] used his position of trust and authority over these two victims to engage in unwanted sexual activity with them. The evidence was sufficient to sustain his conviction for third-degree sexual assault.
(2) Constitutional issues
The pastor claimed that the Constitution guarantees the right to engage in private, consensual sex. The court agreed, but concluded that the pastor had no right "to engage in sexual activity by abusing his position of trust and authority."
The pastor also claimed that the third-degree sexual assault statute violated his rights under the Equal Protection Clause of the United States Constitution since it singled out ministers and prohibited them from engaging in consensual sex with other adults. The court disagreed: "Once again, [the pastor] misconstrues the statute as one that prohibits purely consensual conduct. As previously discussed, he was not prosecuted for purely consensual acts but rather for using his position of trust and authority to engage in sexual activity." In addition, the court noted that several other professions are mentioned in the third-degree sexual assault statute, including child-care workers, dentists, judges, law enforcement officials, medical personnel, teachers, and prosecuting attorneys.
The court concluded: "Members of the clergy are highly respected and trusted by most people. People specifically seek out their ministers and clergyman when they are especially vulnerable and in time of need. Because the clergy is held in such a high regard, there is a legitimate reason for the state to criminalize a clergyman's abuse of this trust and authority to procure sex."
Application. Ministers who engage in sexual contact with church employees or church members expose their church to potentially substantial liability. Many of these cases have been reported in this newsletter. But, such behavior has other consequences. One of them is criminal liability for the minister. Several states have enacted laws that make sexual misconduct by clergy a crime punishable by imprisonment. Talbert v. State, 2006 WL 2699903 (Ark. 2006).
Resource. A feature article in the July-August 2006 edition of Church Law & Tax Report ("Criminal Liability of Clergy for Sexual Misconduct Involving Adults") addresses the criminal liability of clergy for engaging in sexual misconduct.
* See also the feature article "The Bar Association Analogy," in this newsletter.