Sexual Misconduct and Church Liability

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.

Key point 4-11.2. Clergy who are sued for sexual misconduct may be able to assert one or more defenses.

The Iowa Supreme Court affirmed the criminal conviction and prison sentence of a pastor who engaged in sexual relations with four emotionally vulnerable women in his congregation. A pastor was employed by a church from 2003 to 2010. Church members testified that his sermons were "amazing," "great," and "dynamic." He was a "very talented speaker." "He definitely could preach the word of God."

The pastor initiated sexual relationships with four women in his congregation.

Victim #1
The pastor began making unsolicited calls to Victim #1 on her cellphone. At the time, she was undergoing fertility treatments unsuccessfully and was struggling with her infertility. The pastor began asking questions about her personal life, and she began to confide in him. Victim #1 and her husband decided to look at international adoption, and an opportunity arose to adopt four siblings from abroad as a group. Victim #1 was personally struggling with this adoption, and at the recommendation of her husband and her mother she decided to see the pastor. The pastor asked her to come alone to his home to discuss her concerns. During an initial meeting the pastor asked her about her marriage and whether her husband was "meeting her needs." She started to cry and said that things were difficult. At that point, the pastor made advances toward her and had sexual relations with her.

He continued to call her repeatedly on her cellphone, and would talk for two to three hours each day. This lasted for months. The pastor also arranged liaisons with victim #1 during the workday at hotel rooms and other buildings. Eventually, after victim #1 and her husband adopted a child, the relationship cooled. She called the pastor and told him she "knew what he was doing, that he was trying to get women into counseling for the purpose of trying to have sexual contact with them." Victim #1 did not report anything to the church elders or the police at the time, because she did not think she would be believed.

Victim #2
Victim #2 and her husband were also active members of the same church. She was experiencing several crises. Her father was going through a severe illness, her husband was depressed, her best friend died, and her daughter was having problems in her marriage. The pastor called her on her cellphone while she was driving and wanted to know how she was doing. She responded that she was not doing very well, and started shaking. She pulled her car over. At this point the pastor made a comment to her that "he would like it if we could be together under the cool, crisp sheets." He added, "You know, if you ever need anybody to talk to, call me. I'll always be there for you." Victim #2 was shocked by the pastor's comment.

Several months later, Victim #2 called the pastor because she "just had absolutely nobody to talk to." She asked him to come see her because she wanted to discuss problems in her marriage. During this and subsequent meetings the pastor initiated sexual contact with her. The pastor told her not to tell anyone, and that "the elders will never believe you. They will only believe me. I'll make sure everybody knows you're crazy."

Eventually the pastor terminated the relationship. But he said to Victim #2, "Call me if you ever need me or need somebody to talk to, I'll always be there for you night or day."

Victim #3
Victim #3 was a married church member who asked the pastor for a meeting. It was arranged for the meeting to occur in the pastor's home office. He assured her that it was fine to come to his home during the evening, as he "counsels women" in his home. When she arrived, the pastor took her down to his office in the basement. He began asking her very personal questions. He asked questions about her father who recently had been diagnosed with Alzheimer's. She revealed that she had been sexually abused as a child. The conversation lasted a couple of hours. The two continued to meet. They had sexually charged conversations. Soon they began to have sexual relations. The pastor instructed her not to tell anyone because "nobody would understand this. Even if you feel close to your husband, never tell him. Never think he's going to understand this." The pastor and Victim #3 engaged in sexual activity over a period of years.

Victim #4
Victim #4 and her husband were also members of the church. She had a young child with special needs, her mother-in-law had passed away, and she had an overworked husband. As she put it, "My plate was very full." She had seen a physician and had been prescribed an anti-depressant and anxiety medication, which she was taking.

The pastor called Victim #4 and asked to set up a meeting. She recounted, "He just wanted to make sure that I was doing okay." Eventually a meeting was set for a school day in the pastor's basement office. The pastor locked the door from the inside. They began with conversation. He asked whether she felt stressed. He asked about her family issues. He asked whether she had had premarital sex. After a while, the pastor informed her that he was very fond of her and "would like to get to know her better." He added, "Somebody needs to take care of you. You have your hands full." She became uncomfortable. Her feet were trembling. During this and subsequent meetings the pastor's questions became more intimate. He asked her to provide details of her "sex life" with her husband, and whether she had been abused as a child. Victim #4 later recounted, "The questions were getting deeper and he was getting to know me more and more, I guess knowing my vulnerabilities, where the voids were in my life."

The pastor called Victim #4 on her cellphone several times each day. Within a few months the two were having sexual relations, and continued to do so for the next two years. The pastor cautioned Victim #4 that this was a "secret relationship, and we need to keep it a secret."

During their final encounter, in Victim #4's home, her husband came home unexpectedly early and found the two in bed. The husband immediately went to the elders of the church to inform them of what he had witnessed. The pastor resigned immediately.

Criminal Charges

The pastor was charged with four counts of sexual exploitation by a counselor or therapist in violation of section 709.15(2)(c) of the Iowa Code. This section provides:

2. Sexual exploitation by a counselor or therapist occurs when any of the following are found …

(c) Any sexual conduct with a patient or client or former patient or client within one year of the termination of the provision of mental health services by the counselor or therapist for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the patient or client or former patient or client.

Sexual exploitation by a counselor or therapist is a "serious misdemeanor." It is a class "D" felony for a counselor or therapist to engage in a "pattern or practice or scheme of conduct" of sexual exploitation.

The statute defines "counselor or therapist" as follows:

"Counselor or therapist" means a physician, psychologist, nurse, professional counselor, social worker, marriage or family therapist, alcohol or drug counselor, member of the clergy, or any other person, whether or not licensed or registered by the state, who provides or purports to provide mental health services. (emphasis added)

During the pastor's trial, all four victims testified. The pastor and his wife testified for the defense. The pastor acknowledged having sexual relations with all four women, but maintained that it was consensual. He denied having provided "mental health services" to any of the women, and therefore he had not committed sexual exploitation or a pattern of exploitation as defined by state law.

The jury found the pastor guilty on the four sexual exploitation charges. He was sentenced to ten years imprisonment.

On appeal, the Iowa Supreme Court upheld the pastor's conviction over the pastor's objection that there was insufficient evidence to convict him:

We begin by noting a few common facts. All four women were members of [the same church]; the [pastor] had been their pastor for several years. Three of the four had preexisting marital problems in addition to other difficulties in their personal lives. The fourth developed such problems after getting involved with the pastor, who claimed to be resolving them. Two of the four went to the pastor's office initially thinking they would receive help from him, and he quickly ended up having sex with both of them (one of them in the office that day). Before and during his sexual encounters with each of the four women, the pastor asked each of them deeply personal and probing questions, purporting to guide them through their personal difficulties … .

We find sufficient evidence to sustain the convictions on all of the sexual exploitation counts. There is substantial evidence that he counseled each of the four women for an "emotional … or social dysfunction, including an intrapersonal or interpersonal dysfunction." See Iowa Code § 709.15(1)(d) … . This went beyond an "informal exchange of advice," or "the giving of general spiritual advice or guidance from a clergy member to congregants." There is substantial evidence that a relationship was established between the pastor and each victim, at least initially, "for the purpose of addressing particular mental, intrapersonal or interpersonal dysfunctions." To some extent … it appears sexual contact was part of the pastor's program of pseudotherapy and treatment for his victims.

Constitutionality

The pastor claimed that section 709.15(2) (quoted above), as applied to him, unconstitutionally burdened his fundamental right to enter into sexual relationships. He claimed that section 709.15(2) "creates a ban on all sexual relations between certain categories of individuals regardless of the existence or nonexistence of consent." The pastor insisted that his sexual relations with all four women was consensual and not criminal. The court disagreed:

Based upon their testimony, the relationships between the pastor and each of the four women did not involve full and mutual consent. In each case, the pastor used—misused—his position of authority as a counselor to exploit the vulnerabilities of his victim. The relationships were of a kind where "consent might not easily be refused … ." The pastor is not the first person to assert that any sexual exploitation laws that criminalize consensual sexual relations between adults are unconstitutional. Similar arguments have been raised, generally without success, in other jurisdictions. For the most part, the courts have reasoned that the statutes do not implicate fundamental rights … because the relationship is imbalanced and not fully consensual.

What This Means For Churches:

Note the following:

1. This case illustrates that sexual misconduct by clergy with adult congregants may result in criminal liability under state laws making such conduct illegal. Presently, the following 12 states have laws that specifically make sexual contact between a minister and a counselee a crime:

Arkansas
Code § 5-14-126

Connecticut
Statutes §§ 53a-65 et seq.

Delaware
11 Del. Code §§ 761 et seq.

Iowa
Code §§ 709.15 et seq.

Minnesota
Statutes §§ 148A.01 et seq.

Mississippi
Code § 97-5-23

New Mexico
Statutes §§ 30-9-10 et seq.

North Dakota
Century Code § 12.1-20-06.1

South Dakota
Codified Laws §§ 22-22-27 et seq.

Texas
Penal Code, § 22.011

Utah
Code § 76-5-406

Wisconsin
Statutes §§ 895.441 et seq.

2. Several states have laws that make sexual contact between a psychotherapist and a counselee a crime, and, unlike the statutes mentioned above, do not specifically define "psychotherapist" to include a member of the clergy. However, the definition of "psychotherapist" under some of these laws may be broad enough to include a member of the clergy.

3. Every state has enacted laws making it a crime to engage in nonconsensual sexual contact with another person. These laws constitute another potential basis of criminal liability for ministers who engage in sexual contact with a counselee or member of their congregation. A typical statute makes it a felony for anyone to "engage in sexual contact with another person without consent of that person."

4. Every state has enacted a law making assault and battery a crime. These laws constitute another potential basis of criminal liability for ministers who engage in nonconsensual sexual contact with a counselee or member of their congregation.

5. Church insurance policies exclude any claims based on intentional or criminal misconduct. As a result, ministers who are prosecuted for a sexual offense involving a counselee or member of their congregation ordinarily cannot expect the church insurance company to pay for a legal defense.

6. There are many other consequences of clergy sexual misconduct. To illustrate, clergy who engage in such behavior may have to register as a sex offender under state law; and, churches and denominations increasingly are revoking the ministerial credentials of ministers who engage in such behavior. Removal of ministerial credentials generally is motivated by several considerations, including the protection of others, the scriptural standards for ministry, accountability, and an avoidance of legal liability for a minister's future misconduct. State v. Edouard, 854 N.W.2d 421 (Iowa 2014).