Church and denominational agency not responsible for pastor’s misconduct – Alpharetta First United Methodist Church v. Stewart, 473 S.E.2d 532 (Ga. App. 1996)
[ Negligence as a Basis for Liability, Denominational Liability]
Article summary. A Georgia court addressed the complex legal issues surrounding the sexual seduction of a woman by a pastor in the course of a counseling relationship. The court concluded that a church and denominational agency were not responsible for the woman’s injuries on the basis of respondeat superior or negligence, since they had no prior knowledge of misconduct by the offending pastor. The court cautioned that churches and denominational agencies are potentially liable on the basis of negligence for injuries sustained by victims of sexual misconduct if they have knowledge of prior misconduct. However, since the woman could not prove that church officials either knew or should have known of any previous sexual misconduct by the offending pastor, the negligence claims had to be dismissed.
In a decision that will be relevant to both churches and denominational agencies, a Georgia court dismissed a lawsuit brought by a woman against her church and a denominational agency as a result of injuries she allegedly sustained during a sexual relationship with her pastor. The court’s decision addresses a number of important legal issues, including respondeat superior, the statute of limitations, negligence, and the effect of prior notice of inappropriate conduct. This article will summarize the facts of the case, review the court’s ruling, and assess the significance of the case to other churches and denominational agencies.
A husband and wife joined a church in 1990. The woman sought counseling from an associate pastor at the church because of an incident involving a pastor in her former church. She informed the senior pastor of her former church about a “drunken assault” by the church’s associate pastor during a mission trip. The woman claimed that her former pastor did not believe her, told her she was “a troublemaker,” and asked her to leave the church. The woman was concerned that her new pastors had been told about this incident, and she met with an associate pastor to find out what had been said about her. The associate pastor met with the woman on a number of occasions, but eventually informed her that she should discontinue the counseling sessions with him and find another counselor because he was sexually attracted to her. Despite this request, the woman did not discontinue the counseling sessions, and the two began having “phone sex” conversations. The woman claimed that the associate pastor initiated the first such conversation but that at times she would call him. She insisted that while she led him to believe she was participating in the “phone sex,” she was, in reality, only pretending.
The woman alleged that toward the end of their counseling relationship the associate pastor called her at home and asked her to come to his office so they could have sex. She drove to his office and the two engaged in intercourse. The woman did not see the associate pastor anymore for counseling after this incident because by that time he had referred her to another counselor. However, the two continued to engage in “phone sex” and they engaged in sexual intercourse on several other occasions, even after the associate pastor was assigned to another church. The woman quit seeing the associate pastor when she learned that he was engaged to be married to another woman.
The woman informed her church’s new associate pastor of her involvement with his predecessor. However, she refused to permit him to disclose the information on the ground that she was “not ready to tell anyone else.” A few months later the woman sent a letter to a denominational office, describing her sexual relationship with the former associate pastor. The day denominational officials received the letter they confronted the former associate pastor and he submitted his resignation.
The woman and her husband sued the pastor, their church, and a denominational agency. They claimed that they both had suffered serious emotional damages as a result of the associate pastor’s behavior. The woman sued the associate pastor, church, and denominational agency for
- intentional infliction of emotional distress
- false imprisonment
- breach of trust, and
- professional malpractice
The husband sued the associate pastor, church, and denominational agency for loss of consortium. The couple both sued the church and denominational agency, claiming that they were legally responsible for the pastor’s misconduct on the basis of respondeat superior, negligent hiring, and negligent retention.
The couple insisted that while the woman appeared to consent to the sexual contacts she was in reality the victim of the associate pastor’s manipulation of the “transference” phenomenon. Transference is defined as “a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make.” Jacobsen v. Boyle, 196 Ga.App. 411, 412, 397 S.E.2d 1 (1990).
The church and denominational agency claimed that the statute of limitation barred the lawsuit and that the first amendment guaranty of religious freedom protected them from the negligent hiring and negligent retention claims. They also insisted that the sexual relationship was consensual, and even assuming “transference” did occur and the woman was incapable of resisting the pastor’s sexual advances, they could not be guilty for the pastor’s sexual misconduct. The church and denominational agency filed a motion for summary judgement, asking the court to summarily dismiss all claims against them. A trial court rejected this request, and the case was appealed.
The court’s decision
A state appeals court reversed the trial court’s decision, and ruled that all claims against the church and denominational agency had to be dismissed. The court based its conclusion on the following grounds:
Statute of limitations
The court agreed that the couple’s claims were barred by the statute of limitations, which requires lawsuits to be filed within a specified period of time. The couple had two years to file their lawsuit under the Georgia statute of limitations, yet the lawsuit was not filed for nearly three years after the associate pastor left the church to accept a new assignment. The court also noted that the woman admitted that for more than two years prior to the time the lawsuit was filed she had progressed in her therapy to the point where she was able to tell the associate pastor “no” if he approached her about sexual relations. The court concluded that any acts of sexual intercourse occurring after this time were by her own admission consensual. The court rejected the couple’s argument that the statute of limitations was “suspended” due to the woman’s depression, noting that “this is not evidence of incompetency sufficient to toll the statute of limitation.”
Under the legal doctrine of respondeat superior, an employer is liable for the acts of its employees occurring within the scope of their employment. In rejecting the couple’s claim that the church and denominational agency could be liable on this basis, the court observed:
Even assuming that the relationship between [the woman and her pastor] was not consensual, it is well settled under Georgia law that an employer is not responsible for the sexual misconduct of an employee. The basis for these holdings is that these types of torts, being purely personal in nature, are unrelated to the employee’s duties and, therefore, are outside the scope of employment because they were not in furtherance of the master’s business. This is especially true of the sexual misconduct of a minister. The record shows that such behavior is clearly contrary to the tenets and principles of the [church] and is not a part of, or in any way incidental to, a minister’s duties and responsibilities. Therefore, even if her tort claims were not time—barred [the woman] cannot recover against the church and [denominational agency] under a theory of respondeat superior.
The couple claimed that the church and denominational agency were responsible for their injuries on the basis of negligent selection. Specifically, they claimed that both the church and denominational agency failed to exercise reasonable care in the selection of the associate pastor. In rejecting this claim, the court observed:
An employer may not be held liable for negligent hiring or retention unless the [victim] shows the employer knew or should have known of the employee’s violent and criminal propensities. Specifically, the [couple] must show that the church and the [denominational agency] knew or should have known of [the associate pastor’s] propensity for sexual misconduct …. There is nothing in the record before us to show the church or [denominational agency] should have been on notice prior to ordaining [the associate pastor] that he had a propensity for sexual misconduct.
The court noted the following precautions that were taken prior to the time the associate pastor was ordained:
He had graduated from seminary and then worked for two years in a lay position before applying to be ordained.
As part of the ordination process he was required to submit letters of recommendation to the ordination committee.
As part of the ordination process he was required to submit academic transcripts to the ordination committee.
As part of the ordination process he was required to undergo psychological testing.
As part of the ordination process he was required to undergo extensive interviews by the ordination committee.
As proof that the church and denominational agency had been negligent in ordaining or hiring the associate pastor, the couple noted that he had been suspended for a year while in seminary for cheating on a Hebrew examination, and that his psychological evaluation indicated certain problems, such as difficulty controlling his impulses, a tendency to use poor judgment, a tendency to disregard the rights of others, and a likelihood to express aggression in a physical manner. The court disagreed that these facts proved that either the church or denominational agency was guilty of negligent selection: “These types of generalized findings, without more, are not sufficient to put the church and [denominational agency] on notice of a propensity for sexual misconduct.” The court pointed out that the psychological evaluation (which consisted of the Minnesota Multiphasic Personality Inventory, the Interpersonal Behavior Survey, the Strong—Campbell Interest Inventory, and the Sentence Completion Test) also showed several positive characteristics such as: “He is very social and interested in leadership in service to other people …. He shows a pattern of interest moderately like those of successful ministers or social workers.”
Finally, the couple claimed that the church and denominational agency were responsible for their injuries on the basis of negligent retention. Specifically, they argued that both organizations left the associate pastor in his position despite knowledge that he posed a risk of harm to women. This knowledge consisted of the following three facts:
There were rumors at the church about the pastor’s relationship with another woman who was a church employee.
A letter to the senior pastor from a prospective church member put the church and denominational agency on notice of the associate pastor’s propensity for sexual misconduct. In the letter, a woman claimed that the associate pastor came to her house in an intoxicated condition, made inappropriate comments and touched her on the knee.
The woman informed the church’s new associate pastor of her relationship with his predecessor.
The court concluded that this evidence did not render the church or denominational agency negligent for retaining the associate minister. It based this conclusion on the following factors:
With regard to the rumors of an improper relationship with the female church employee, the court noted that (1) the associate pastor later married this woman; (2) the associate pastor denied any inappropriate conduct with this woman when confronted about it by the senior pastor; (3) the senior pastor recommended that the associate pastor be transferred to another church on the basis of these rumors; and (4) the associate pastor’s “personal, consensual relationship with [the employee] is totally unrelated to the type of conduct complained of by [the woman in this lawsuit].”
With regard to the letter, the court noted that (1) the senior pastor immediately called the woman and met with her to discuss the letter; (2) the senior pastor also discussed it with the associate pastor who denied the events in the letter; (3) the senior pastor conducted a thorough investigation and determined the woman was not telling the truth; (4) the senior pastor testified that at no time did any woman come to him and say she was having a sexual relationship with the associate pastor; (5) the senior pastor testified that he was never, at any time, led to believe that the associate pastor was a threat to women parishioners; and (6) the senior pastor stated, in an affidavit, that “[i]n fact, I believe that [the associate pastor] possibly had an excellent future in the ministry.”
With regard to the woman’s disclosure to the church’s new associate pastor of her relationship with his predecessor, the court noted that she also told him she was not ready to come forward and tell anyone else about the relationship. Therefore she “cannot now complain of [his] failure to act when she told him she was not ready to disclose her relationship with [the associate pastor]. The court also noted that the woman’s communications to the new associate pastor were privileged and could not be disclosed without her permission.
The court concluded:
The record is also devoid of any probative evidence tending to show the church or [denominational agency] were or should have been on notice of a propensity for sexual misconduct after [the associate pastor] became a minister at the church. The [couple] make numerous allegations as to [the associate pastor’s] conduct with different women but have submitted no admissible evidence in support of this contention.
Relevance of the case to other churches
What is the relevance of this ruling to other churches? Obviously, a decision by a Georgia appeals court is of limited significance since it has no direct or binding effect in any other state. Nevertheless, there a number of aspects to the ruling that will be instructive to church leaders in every state. Consider the following:
1. The risks of counseling. There have been a number of lawsuits over the past few years brought by women who claim to have been seduced or sexually assaulted by male clergy and mental health professionals during counseling sessions. In some cases, the minister or counselor denies any wrongdoing, and the case becomes one of “her word against mine.” There is no doubt that some of these allegations are without basis, and are brought by women seeking a legal settlement (or some other ulterior motive). On the other hand, in many cases these allegations are true. As much as we would like to deny it, private counseling sessions involving dependent and emotionally vulnerable persons can present unique and sometimes formidable temptations.
Because of the unique temptations that counseling can present, and the possibility of false claims being brought against counselors, “defensive measures” should be taken by pastors and others who engage in counseling. Unfortunately, such measures were not taken in this case. No restrictions or “boundaries” were placed by the church on the offending pastor’s counseling activities. There are a number of ways to deal with this risk, including the following:
Method #1 – the third person rule
One effective way to deal with this risk is to adopt a policy prohibiting any male minister or counselor on staff from counseling privately with an unaccompanied female (i.e., opposite sex counseling) unless a third person is present. The third person should be the minister’s or counselor’s spouse, another minister on staff, or a mature and trusted church employee (preferably female). The presence of a third person probably will negate the “clergy—penitent” privilege for clergy counselors, meaning that either the pastor or counselee can be compelled to answer questions in a court of law regarding the communications that occurred. In most cases, loss of the clergy—penitent privilege is more than outweighed by the reduced risk that will occur.
There have been no reported cases involving a claim of sexual seduction of a male counselee by a female counselor. As a result, churches using female counselors are reducing their risks significantly. Of course, there remains the possibility of an unstable male counselee making unfounded accusations against a female counselor, and as a result churches using female counselees may want to consider adopting the same precautions that apply to male counselors.
Method #2 – women counsel women
Since the vast majority of cases of inappropriate sexual behavior involve male counselors and female counselees, churches can significantly reduce their risk by using women to counsel women.
Method #3 – “intermediate measures”
There are other defensive measures that some churches have tried, such as use of a plate glass window in the pastor’s office making all counseling sessions clearly visible to office staff, or leaving the door to the counseling room open. Such practices can be effective in reducing risk, so long as there are other persons visible in the church office during all counseling sessions. Obviously, this may not be possible in all situations. For example, many smaller churches have no other office workers who can observe counseling sessions.
Some churches seek to reduce risk by imposing “boundaries” on the counseling ministry. For example, some churches (1) require a third person to be present for any counseling occurring off of church premises; (2) allow one—on—one counseling on church premises only during office hours if other staff members are present and visible; (3) limit counseling sessions to 45 minutes; and (4) permit no more than 5 counseling sessions with the same person during a calendar year.
Churches that adopt these lesser measures must recognize that they are not reducing risk as much as if they applied the “third person rule” or required women to counsel women. It is absolutely imperative that churches adopting these lesser measures incorporate them into official church policy and strictly monitor them to prevent any deviations. Remember, windows or open doors are of no value if a counseling session extends beyond normal office hours and the church staff leaves-or if there is no staff to “observe” counseling sessions.
2. Transference recognized. It is significant that the court recognized what psychologists call the “transference phenomenon.” The court defined transference as “a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make.” Recognition of the transference phenomenon makes it more likely that a court would reject “consent” as a defense to an incident of sexual misconduct by a counselor.
3. Counselees who forbid disclosure. The woman informed her church’s new associate pastor of her involvement with his predecessor. However, she refused to permit him to disclose the information on the ground that she was “not ready to tell anyone else.” The court concluded that the associate pastor was prohibited by the woman’s own instructions to disclose to anyone what she had told him regarding the former pastor’s misconduct.
The court also noted that the woman’s communications to the new associate pastor were privileged and could not be disclosed without her permission.
4. Negligent selection. The court concluded that the church and denominational agency were not responsible for the woman’s injuries on the basis of negligent selection. The court acknowledged that employers can be liable on the basis of negligent selection for injuries caused by their employees, but only if they “knew or should have known” of an employee’s “propensity for misconduct.” The court concluded that neither the church nor the denominational agency was guilty of negligent selection, since neither had knowledge of any prior activities by the offending pastor suggesting that he posed a risk of harm to others.
In addition, the court noted the precautions that were taken prior to the time the associate pastor was ordained, including the following: (1) he had graduated from seminary and then worked for two years in a lay position before applying to be ordained; (2) as part of the ordination process he was required to submit letters of recommendation to the ordination committee; (3) as part of the ordination process he was required to submit academic transcripts to the ordination committee; (4) as part of the ordination process he was required to undergo psychological testing; and (5) as part of the ordination process he was required to undergo extensive interviews by the ordination committee.
5. Negligent retention. The court rejected the woman’s claim that the church and denominational agency were responsible for her injuries on the basis of negligent retention of the offending pastor. The court concluded that the church and denominational agency were not negligent in retaining the pastor despite their knowledge of (1) rumors about the offending pastor’s relationship with another woman who was a church employee; (2) a letter to the senior pastor from a prospective church member claiming that the offending pastor came to her house in an intoxicated condition, made inappropriate comments and touched her on the knee; and (3) the woman’s disclosure of the offending pastor’s misconduct to the new associate pastor. The court concluded that the circumstances surrounding each allegation did not demonstrate negligence on the part of the church or denominational agency in retaining the offending pastor.
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