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.
A Washington state court affirmed the conviction and 15-year prison sentence of a youth pastor who engaged in a sexual relationship with a member of the church youth group. Eric was the youth minister at a church and also taught at the church's school. On six occasions he had sexual intercourse with a member of his youth group (the "victim") who also attended the church school. Eric communicated with the victim via computer and the telephone. While communicating via the computer, he persuaded the victim to undress.
He then viewed her through a webcam. The victim later reported the incident to her mother, and she also disclosed their sexual relationship. The mother immediately reported the incidents to the police. The State charged Eric with six counts of first degree sexual misconduct, one count of communication with a minor for immoral purposes, and one count of sexual exploitation of a minor. A digital forensic specialist with the sheriff's office testified that he was able to recover chat logs and emails from Eric's and the victim's computers. The chat logs indicated that Eric was viewing webcam images. He explained a webcam picture is captured and then transmitted to the designated computer, but he could not recover the web camera pictures from Eric's computer because Web camera transmissions are viewed almost instantaneously rather than downloaded to the computer.
The court convicted Eric as charged, and the court imposed an exceptional sentence, running the 60-month sentence for the six counts of first degree sexual misconduct consecutive with the 120-month sentence for sexual exploitation of a minor. The court concluded "a standard range sentence is too lenient under the facts and circumstances of this case." The court also concluded that Eric was in a position of trust during the abuse of the victim. On appeal, Eric claimed that there was insufficient evidence to support his sexual exploitation of a minor conviction. He alleged that there was no evidence that he compelled the victim to "photograph" herself because a Webcam viewing is not considered a photograph. Under Washington law, a person is guilty of sexual exploitation of a minor if he or she: "aids, invites, employs, authorizes, or causes a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed or part of a live performance." State law defines a "photograph" as a "print, negative, slide, digital image, motion picture or videotape. It includes anything tangible or intangible produced by photographing."
The court noted that "the legislature intended to draft the statute as broadly as possible to encompass any technology by which photographs containing child pornography could be reproduced and distributed." It concluded that interpreting the term "photograph" as broadly as possible to encompass any technology containing child pornography, "the sexually explicit acts viewed by Eric over his Webcam would be considered a photograph for purposes of [the statute]. A Webcam viewing would be characterized as an intangible digital image. Therefore, sufficient evidence exists to support the exploitation conviction."
Application. There are an array of legal consequences that often accompany acts of sexual misconduct by clergy. These include personal civil liability, liability for their employing church based on negligence or other grounds, and, as this case illustrates, possible criminal liability. The youth pastor in this case was sentenced to 15 years in prison for the relationship that he had with the victim. Five years of this sentence was for the acts of sexual intercourse. The remaining ten years was for "photographing" the victim with her Webcam. 2009 WL 473657 (Wash. App. 2009).
This Recent Development first appeared in Church Law & Tax Report, July/August 2009.
