Counseling

Legal Developments

Lay Bible Study Leader Successfully Invokes Clergy-Penitent Privilege

The privilege was not necessarily precluded or waived by the practitioner’s disclosure of statements made to him by the penitent in the course of spiritual counsel

Richard R. Hammar, Attorney, CPA
Bio


Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Key point 3-08.03. In most states either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.

Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.

An Illinois court ruled that the clergy-penitent privilege could be asserted by a lay practitioner, and that the privilege was not necessarily precluded or waived by the practitioner's disclosure of statements made to him by the penitent in the course of spiritual counseling.

An adult male (the "defendant") was charged with violating an order of protection when he allegedly went to the home of his ex-wife and slashed the tires on a car sitting in the home's driveway. At his trial, a witness (Craig) was called to testify regarding incriminating information the defendant shared with him. He attempted to avoid testifying by invoking the clergy-penitent privilege, claiming that, as the defendant's "spiritual advisor," he could not be forced to testify about an incriminating admission the defendant made to him. The defendant also invoked the privilege.

Craig conceded that he was neither a pastor at the church he and the defendant attended, nor a paid member of any clergy. However, he was a leader of a small Bible-study group at the church, he had been discipling the defendant, and he and the defendant were "accountability partners." As accountability partners, the defendant would confess his faults to Craig, and Craig would pray for him.

Craig often would talk to and pray with other members of the small group about the matters the defendant shared with him. He estimated that he had made these disclosures, including the defendant's confession, to eight persons. He did so to seek the collective wisdom of the group regarding how to disciple the defendant. At the defendant's trial, Craig testified that he had been "accepted" by the church elders as a small-group leader. Craig further testified that, in addition to leading the small group, he was "authorized" by the elders to baptize the defendant.

The trial court found that the clergy-penitent privilege applied and so Craig did not have to testify about the defendant's confession. In reaching that conclusion, the court found that: (1) Craig was approved by the church elders, who comprised the governing body responsible for making spiritual decisions in the church, to lead a small group and baptize the defendant; (2) Craig and the defendant had entered into a discipleship relationship that was supervised by the pastor; (3) conversations between the two were intended to be of a confidential nature and were discussed with others solely for the purposes of prayer.

The state appealed the court's ruling regarding the application of the clergy-penitent privilege. Illinois law defines this privilege as follows:

A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.

The state asserted that the privilege did not apply to the defendant's confession to Craig for two reasons. First, Craig was not a "clergyman" or "practitioner" as defined in the statute, and second, even if he was, the privilege was waived when he discussed the confession with other people.

Clergyman

The court noted that according to the statute the clergy-penitent privilege applied to both clergy and "practioners" who are accredited "by the body to which he or she belongs," and it concluded that Craig was a practitioner. It acknowledged that the terms "practitioner" and "accredited" were not defined by either the clergy-penitent privilege statute or prior cases in Illinois, so it turned to the dictionary for direction:

"Practitioner" is defined as "one that does something or follows some course or regimen habitually or customarily." Webster's Third New International Dictionary (1993). "Accredit" is defined as "to give official authorization to or approval of," "to order or permit to proceed on an official mission or on one otherwise officially recognized," or "to vouch for officially." In light of these definitions, we conclude that Craig was a "practitioner of [a] religious denomination accredited by the religious body to which he … belonged."

Specifically, the evidence established that the church elders did authorize Craig to lead a small group and to baptize defendant. Thus, the elders, acting on behalf of the church, certainly did "accredit" him to perform certain activities. Although nothing in the statute specifically requires that the practitioner be authorized to receive confessions or admissions from others, the facts here strongly suggest that the church was well aware of the fact that Craig, as defendant's spiritual advisor, was doing just that. Indeed, he regularly spoke with the pastor and assistant pastor about the things to which defendant confessed. Moreover, the evidence established that Craig was fully and regularly engaged in his religious edification with the church. He not only led a religious life, having been discipled himself throughout his Christian life, but he led a small group for the church, was charged with discipling others, and was in training to become a church elder … .

Further … it is unfeasible to expect a pastor of a church to counsel all of the people in the church. Although the specific number of people attending the church is unknown, Craig testified that there were approximately 56 to 64 people in the small groups alone. When we consider the huge congregations of some other churches, like Willow Creek Community Church, the ability of a clergyman to be available to counsel all of the people in the congregation becomes even less likely. Thus, it makes sense that the church would authorize other people in the church to counsel fellow churchgoers in a manner similar to that of a clergyman. Moreover … the evidence here strongly suggests that, when Craig spoke with defendant, he … did so as an assistant to the pastor of the church. That is, when defendant talked to him, the defendant, as he would with a pastor, admitted to things that he had done and sought forgiveness. Craig and the defendant would then pray together and ask for forgiveness.

Waiver of the privilege

The court then addressed the state's claim that the privilege was waived once Craig discussed the defendant's confession with eight people in their small group at church. The court acknowledged that "a plain reading of the [clergy-penitent] statute reveals a design to protect those communications between clergymen and laymen that originate in confidence that they will not be disclosed."

The court concluded that in some cases a communication can be confidential and privileged even if third persons are present. It noted that two other Illinois courts "have recognized that the privilege is not destroyed simply because a third person is present when a defendant confesses to a clergyman or practitioner." In one of those cases a state appeals court ruled that a trial court had erred in holding that the privilege extends only to admissions or confessions made in a "one-on-one setting." People v. Campobello, 810 N.E.2d 307 (Ill. App. 2004). In the second case, an Illinois court ruled that if the third person is regularly engaged in aiding the clergyman or practitioner in giving spiritual advice, the privilege will survive. People v. Diercks, 411 N.E.2d 97 (Ill. App. 1980).

Turning to the facts of this case, the court noted that "here, the undisputed evidence revealed that, although Craig relayed what defendant told him to eight other people, he did so only so that he could obtain advice on how to disciple defendant." It added, "The presence of third parties when a confession is given to a clergyman for the purpose of spiritual advice should not waive the privilege because, among other things, the statute requires simply that the confession be given for the purpose of obtaining spiritual advice, and the presence of third parties should not affect the clergyman's capacity to do so."

The court noted that even if it were to conclude that Craig waived the privilege when he relayed defendant's admission to other people, the defendant did not do so. Because "the privilege belongs both to the person making the statement and to the clergyman [or practitioner] … the privilege would still apply here, as nothing indicates that defendant, who joined Craig in invoking the privilege, ever shared his admission with anyone other than Craig."

What this means or churches

This case is instructive for two reasons. First, it is one of the few cases to address the important question of the impact third persons will have on the clergy-penitent privilege. The presence of one or more individuals when a penitent is seeking spiritual counsel from a minister may jeopardize the privilege in two ways: First, the communication may not be "confidential," as required by the clergy-penitent privilege in all states; and second, the privilege may be "waived" if a penitent is seeking spiritual counsel from a minister in the presence of others.

According to this court, Craig's disclosure—to all eight members of his small group—of the defendant's confidential communications did not destroy the privileged nature of those communications since Craig's disclosure was for the limited purpose of obtaining advice on how to disciple the defendant. In other words, the disclosure was to assist Craig in his counseling of the defendant.

Second, the court concluded that even if Craig had waived the privilege, the defendant had not done so, and therefore Craig was not required to testify regarding the defendant's confession. It is important to note that in most states either the minister or penitent can claim the privilege, and therefore the fact that the minister chooses to testify without asserting the privilege does not preclude the penitent from doing so. People v. Thodos, 49 N.E.3d 62 (Ill. App. 2015).

Legal Developments

Woman Sues Pastor for Divulging Confidential Information

Court rules that the First Amendment prevents it from resolving case.

Richard R. Hammar, Attorney, CPA
Bio

Key Point 6-10.1 According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the first amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

The Texas Supreme Court ruled that the First Amendment guaranty of religious liberty prevented it from resolving a dismissed church member's claim that her pastor committed "professional negligence" by using information she shared with him in confidence as the basis for disciplining her.

A church endeavored to operate according to biblical principles and practices as described in the church's constitution and statement of faith. The church required all membership applicants to affirm their willingness to abide by the church's constitution, which contains the following disciplinary policy:

We believe that one of the primary responsibilities of the church is to maintain the purity of the Body. We are directed by God to be holy. In recognition of the importance of this obligation, the elders will biblically and lovingly utilize every appropriate means to restore members who find themselves in patterns of serious misconduct. When efforts at restoration fail, the elders will apply the Biblical teaching on church discipline, which could include revocation of membership, along with an appropriate announcement made to the membership (Matthew 18:15-17; 1 Corinthians 5:1-5; Galatians 6:1, Galatians 6:2; 2 Thessalonians 3:6).

The church's constitution provided that, if a member engaged in conduct that "violates Biblical standards, or which is detrimental to the ministry, unity, peace or purity of the church," and the member is unrepentant, "the elders will follow our Lord's instructions from Matthew 18:15-20," which states: "If your brother sins, go and show him his fault in private; if he listens to you, you have won your brother. But if he does not listen to you, take one or two more with you, so that by the mouth of two or three witnesses every fact may be confirmed. If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, let him be to you as a Gentile and a tax collector."

If a member remained unrepentant and chose not to resign, the constitution instructed the church elders to revoke the person's membership and announce his or her removal to the congregation. The church's stated goal is "to encourage repentance and restoration of fellowship with the Lord and His people."

A woman (the plaintiff) became a member of the church. In applying for membership, she signed an application in which she expressed her agreement with the church's beliefs and affirmed her willingness to abide by the church constitution.

The plaintiff separated from her husband, and thereafter the couple participated in a series of weekly counseling sessions at the home of their pastor, who was also a licensed professional counselor. The plaintiff alleged that the Bible was not discussed in these sessions and she considered them to be a professional counseling relationship with the pastor in his role as a licensed professional counselor.

The plaintiff later informed the pastor that she had decided to divorce her husband, and that she had engaged in an extramarital sexual relationship. When the pastor informed her that her extramarital sexual relationship would trigger the church's disciplinary process, she informed him that she was resigning her membership.

A few days later the pastor and church elders wrote a letter to the church membership concerning the plaintiff. The letter explained to the congregation that the plaintiff intended to divorce her husband, there was no biblical basis for the divorce, she had engaged in a "biblically inappropriate" relationship with another man, and she had rejected efforts to bring her to repentance and reconciliation.

Describing the disciplinary process as one of "tough love," the letter encouraged the congregation to "break fellowship" with her in order to obtain her repentance and restoration to the church body. The letter admonished the congregation to treat the matter as a "members-only issue, not to be shared with those outside the congregation."

The plaintiff sued the pastor, church, and church elders alleging defamation, professional negligence, breach of fiduciary duty, and emotional distress. The professional negligence claim was based on the pastor's breach of an alleged "secular duty" to refrain from disclosing confidential information shared with him during counseling sessions.

The church defendants claimed that the plaintiff's claims all arose in the context of a church disciplinary matter which the First Amendment placed beyond the jurisdiction of the civil courts. A trial court agreed with the church defendants, and dismissed the lawsuit. The plaintiff appealed, but only with respect to her claims against the pastor. A state appeals court affirmed the dismissal of all of the plaintiff's claims except for her professional negligence claim which the court concluded could be resolved without violating the First Amendment. The pastor appealed to the Texas Supreme Court.

The church autonomy doctrine

The court began its opinion by acknowledging that "when a pastor who holds a professional counseling license engages in marital counseling with a parishioner, the line between the secular and the religious may be difficult to draw."

The court noted that "while it might be theoretically true that a court could decide whether the pastor breached a secular duty of confidentiality without having to resolve a theological question, that doesn't answer whether its doing so would unconstitutionally impede the church's authority to manage its own affairs.

Churches have a fundamental right to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." The court stressed that "it is a core tenet of First Amendment jurisprudence that, in resolving civil claims, courts must be careful not to intrude upon internal matters of church governance. It quoted from a landmark decision of the United States Supreme Court:

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it.

But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872).

As a result, "the autonomy of a church in managing its affairs and deciding matters of church discipline … or the conformity of the members of the church to the standard of morals required of them" has long been afforded broad constitutional protection."

The neutral principles exception

The court acknowledged that the United States Supreme Court has recognized a narrow exception to the church autonomy doctrine when "neutral principles of law" may be used to resolve disputes over ownership of church property. The plaintiff asked the court to apply the neutral principles exception to her professional negligence claim, claiming that it could be resolved under neutral legal principles without resorting to or infringing upon religious doctrine.

Specifically, she asserted that the primary focus of her complaint was not the letter the church sent to the congregation or the church's disciplinary process. Rather, it was the pastor's disclosure to the church elders of confidential information he obtained during the marital counseling sessions, which she claimed constituted a breach of professional counseling standards. The court was not persuaded that her claim could be resolved without implicating religious considerations:

It is true that the plaintiff pins the pastor's liability … on his breach of a secular duty by disclosing confidential information to the church elders. However, this disclosure cannot be isolated from the church-disciplinary process in which it occurred, nor can [it be resolved] without examining what effect the imposition of damages would have on the inherently religious function of church discipline.

Subjecting the pastor to liability for engaging in the disciplinary process that the church requires would clearly have a chilling effect on churches' ability to discipline members and deprive churches of their right to construe and administer church laws …. In sum, while the elements of the plaintiff's professional negligence claim can be defined by neutral principles without regard to religion, the application of those principles to impose civil liability on the pastor would impinge upon the church's ability to manage its internal affairs and hinder adherence to the church disciplinary process that its constitution requires.

The court concluded

The secular confidentiality interest the plaintiff's professional negligence claim advances fails to override the strong constitutional presumption that favors preserving the church's interest in managing its affairs. She voluntarily became a member of the church body and agreed to abide by the church constitution; indeed, she expressed that she did so willingly. That constitution outlined the disciplinary process that would be followed if a member engaged in conduct that the church considered inappropriate. The pastor … assumed an obligation to the plaintiff and to the congregation to follow the church's constitution. Although the plaintiff contends pastoral counseling is not at issue because she did not receive marital counseling from the pastor in his capacity as a member of the clergy, the publication about which she complains was made in the course of the church disciplinary process and communicated by the pastor pursuant to the requirements of that process.

Even if the pastor's dual roles as secular counselor and pastor could be distinguished, which is doubtful, he could not adhere to the standards of one without violating the requirements of the other. Any civil liability that might attach for his violation of a secular duty of confidentiality in this context would in effect impose a fine for his decision to follow the religious disciplinary procedures that his role as pastor required and have a concomitant chilling effect on churches' autonomy to manage their own affairs. The result would be interference by the civil courts in the relationship among the church, its pastor, and the church members, which the First Amendment prohibits.

Resignation from church membership

The plaintiff claimed that her resignation from the church after she revealed confidences to the pastor "precluded any argument that he was performing a pastoral function in disseminating confidential information to the church."

The court disagreed. It noted that the church's constitution required the discipline of members to follow the procedure laid down in Matthew 18:1-35. According to this procedure, if a member sins and does not heed the counsel of church leaders, then the matter must be "told to the church." The court concluded that the church's decision to proceed with the formal discipline of the plaintiff following her resignation "was based on its interpretation of Matthew 18:15-20, an inherently ecclesiastical matter. We hold that court interference with that decision through imposition of liability in this case would impinge upon matters of church governance in violation of the First Amendment."

What this means for churches

What is the relevance of the Texas Supreme Court's decision to other churches? Obviously, the court's decision is binding only upon churches in the state of Texas. Nevertheless, the case represents one of the most extensive discussions of church discipline by any court, and as a result may be given special consideration (and no doubt be followed) by the courts of other states. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

  • This is one of the few courts to address the question of whether a minister can be liable for divulging confidential information. The court concluded that a pastor was not liable for divulging confidential information to his congregation regarding a member's confession of marital infidelity since the disclosure occurred in the context of administering discipline pursuant to the church's constitution.
  • The most significant church discipline ruling up until now has been a 1989 decision of the Oklahoma Supreme Court. Guinn v. Church of Christ, 775 P.2d 766 (Okla. 1989). In the Guinn case, the court reached the following conclusions: (1) The discipline of church members (i.e., persons who have not withdrawn from membership) is a constitutionally protected right of churches. (2) Discipline of persons who have withdrawn their church membership is not a constitutionally protected activity, and a church that engages in such conduct can be sued under existing theories of tort law. (3) Church members have a constitutional right to withdraw from church membership unless they have waived that right. (4) Statements by church leaders to church members concerning the discipline of current members are conditionally privileged—meaning that the disciplined member cannot successfully sue the church for making such disclosures unless the church acted maliciously (i.e., it either knew that the disclosures were false or made them with a reckless disregard as to their truthfulness).

It is important to note that the Texas Supreme Court deviated in two significant ways from the Guinn ruling: First, the court rejected the conclusion that the discipline of persons who have resigned their church membership is not a constitutionally protected activity, and a church that engages in such conduct can be sued under existing theories of tort law. The court stressed that the church's decision to proceed with the discipline of the plaintiff following her resignation "was based on its interpretation of Matthew 18:15-20, an inherently ecclesiastical matter," and that "court interference with that decision through imposition of liability would impinge upon matters of church governance in violation of the First Amendment."

Second, the Guinn court noted that a "qualified" or "conditional" privilege protects churches from liability for disclosing confidential information to members, but it concluded that this privilege does not apply to disclosures made to non-members. The Texas Supreme Court ignored this issue. It simply noted that the church sent a letter "to the congregation," without any indication if the recipients included both members and nonmembers. Perhaps the court concluded that its ruling did not require a discussion of the qualified privilege. That is, since the church's disclosure of the plaintiff's marital infidelity was constitutionally protected, it didn't matter to whom the disclosure was communicated. Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).

Legal Developments

Counseling and Clergy Malpractice

Most courts have rejected clergy malpractice as a basis for liability in all cases.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Counseling and Clergy Malpractice

Most courts have rejected clergy malpractice as a basis for liability in all cases.

Richard R. Hammar, J.D., LL.M., CPA

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “non-religious” counseling.

* A Utah court ruled that a counselee’s lawsuit against a pastoral counselor had to be dismissed on the ground that it was in essence a claim of “clergy malpractice” that the civil courts could not resolve without violating the First Amendment. An adult male church member alleged that during a pastoral counseling session a pastor breached his fiduciary duty and intentionally inflicted emotional distress on him. The member sued the church, and a trial court dismissed the lawsuit. A state appeals court affirmed the dismissal. The appeals court noted that the state supreme court previously ruled that claims for clergy malpractice or similar claims are not recognized in Utah since recognition of such claims “would require an unconstitutional evaluation of religious philosophy and teachings, contrary to the First Amendment’s non-establishment of religion clause.” The state supreme court also noted that, regardless of the title of a claim, it “will not survive constitutional scrutiny if an adjudication of the claim would foster an excessive governmental entanglement with religion in violation of the First Amendment.” The appeals court concluded that “when a claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice or would otherwise require excessive entanglement with religion, the claim is barred.”

The court noted that “the plaintiff’s claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice. He asserts that [the pastor] breached a duty owed as part of his role as a cleric—essentially the same elements as clergy malpractice. Even if not identical to a clergy malpractice claim, the claim would require the same excessive entanglement in evaluating standards and duties in a religious setting, and would thus lead to the same violation of the First Amendment. Accordingly, the trial court correctly dismissed the plaintiff’s claim for breach of fiduciary duty.”

The court also rejected the plaintiff’s claim that the pastor intentionally inflicted emotional distress. It noted that such a claim requires proof of conduct that “may reasonably be regarded as extreme and outrageous,” and concluded that “there is nothing so shocking in [the pastor’s] conduct that evokes outrage or revulsion, or shows that the conduct was extreme.” Lowery v. Cook. 2007 WL 772782 (Utah App. 2007)

Legal Developments

Clergy-Penitent Privilege and Observations

Ministers can be compelled to testify regarding their “observations” or general impressions of a counselee’s demeanor.

Richard R. Hammar, Attorney, CPA
Bio

Key point 3-07.1. In order for the clergy-penitent privilege to apply there must be a "communication." A communication includes verbal statements, but it also may include nonverbal acts that are intended to transmit ideas. Mere observations generally are not considered to be communications.

The Tennessee Supreme Court ruled that the clergy-penitent privilege did not prevent a pastor from testifying in a murder trial regarding his observations of the defendant during the several hours he met with him while awaiting trial.

An adult male (the "defendant") was convicted of three counts of premeditated murder for killing three restaurant employees, execution style. A jury sentenced him to death. While the defendant was in prison awaiting trial he became acquainted with a pastor who participated in a volunteer prison ministry.

The pastor spent more than 75 hours talking with the defendant. The pastor was called to testify at the trial regarding his conversations with the defendant. The trial judge ruled that the pastor could not testify as to his conversations with the defendant because the defendant had not waived his clergy-penitent privilege.

However, the judge allowed the pastor to testify regarding his general impressions of the defendant. In particular, he testified that the defendant did not focus on trial strategy but instead tended to concentrate on irrelevant details. He further testified that the defendant expended a great deal of energy trying to appear normal, often watching and mimicking the behavior of others. It was his opinion that the defendant behaved much like a twelve-year-old boy.

The defendant appealed his conviction on several grounds. One of his arguments was that he was "incompetent," and as such he lacked the capacity to "waive" the clergy-penitent privilege and therefore the trial judge erred in refusing to allow the pastor to testify regarding his conversations with the defendant. The court disagreed.

What this means for churches

The clergy-penitent privilege protects "communications" made to a minister while acting in a professional capacity as a spiritual adviser. Ministers cannot be compelled to testify regarding such communications. However, as this court noted, the privilege only extends to communications. Ministers can be compelled to testify regarding their "observations" or general impressions of a counselee's demeanor, since a person's demeanor is not a communication. State v. Reid, 2006 WL 3804398 (Tenn . 2006).

Legal Developments

Clergy-Penitent Privilege and Confidentiality

In many states, the presence of third persons during a conversation with a minister will prevent the conversation from being privileged.

Richard R. Hammar, Attorney, CPA
Bio

Key point 3-07.2.In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

The Mississippi Supreme Court ruled that a pastor's confession to another pastor that he was guilty of rape was not protected by clergy-penitent privilege since other persons were present when the confession was made and so it was not confidential.

The court noted that the clergy-penitent privilege prevents ministers from testifying in court regarding statements made to them in confidence while acting in a professional capacity as a spiritual advisor. The Mississippi privilege states: "A person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser."

The court noted that the confession was not privileged because it was not confidential. It based this conclusion on the fact that five persons were present when the confession was made. The court concluded that the clergy-penitent privilege only protects confidential communications, and that "a communication is confidential if made privately and not intended for further disclosure except in furtherance of the purpose of communication." Disclosure of confidential information or communication "in the presence of third parties generally operates to waive any privilege."

What this means for churches

This case illustrates an important point. The clergy-penitent privilege generally applies to confidential communications made to a minister acting in a professional capacity as a spiritual advisor, meaning that these communications are not admissible in court. This court defined "confidential" to exclude statements made in the presence of third parties. This demonstrates why it is important for ministers to be familiar with their state's clergy-penitent privilege. In many states, the presence of third persons during a conversation with a minister will prevent the conversation from being privileged. Rogers v. State, 928 So.2d 831 (Miss. 2006).

Legal Developments

Woman Sues Church Elders for Advice She Received

Court ruled church elders could not be sued for their advice to a woman to remain with her abusive husband.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in "non-religious" counseling.

A Connecticut court ruled that church elders who counseled with a woman could not be sued for their advice to remain with her abusive husband.

A woman sought out leaders of her church for assistance in escaping from her husband's violence. She met with three church elders over the course of several years. One discouraged her from supplying any details about her husband, demonstrated discomfort at the topic, often told her that she might have caused her own problems, and once reprimanded her for discussing her husband's abuse with someone other than a church elder. Two other church elders encouraged her to stay with her husband and refused to look at marks on her back she sustained from her husband. One elder told her to do whatever her husband told her to do.

The woman later sued the church elders and her church for intentionally and negligently causing her emotional distress. The court ruled that the alleged acts of the elders were not sufficiently outrageous to amount to intentional infliction of emotional distress, which requires conduct that is "so extreme in degree that it goes beyond all bounds of decency and is regarded as atrocious, and utterly intolerable in a civilized society." While the court found the woman's allegations troubling, it noted that "they must be considered in the context of efforts made as part of the church's pastoral counseling. While the counselor's suggestions may have been ill advised, indeed insensitive, they do not meet the threshold of extreme outrageous conduct."

The woman also claimed that the elders and church were guilty of negligent infliction of emotional distress, which requires proof of (1) negligence on the part of the defendant, and (2) that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." The woman claimed that the elders had a duty to exercise reasonable care in counseling and directing her with respect to her family life, that they breached that duty, and that any reasonable person in their position would have known that such acts and omissions would cause her to suffer severe emotional distress. She further alleged that she suffered extreme emotional distress in that she was unable to eat, lost sleep, was hospitalized, and developed chronic conditions. The elders insisted that the only type of counseling they provided was spiritual, and so the first amendment guaranty of religious freedom barred a civil court from finding them liable based on the content of their advice.

The court agreed. It acknowledged that the first amendment does not create "blanket tort immunity for religious institutions or their clergy, thus allowing clergy and clerical institutions to be sued for the torts they commit." Further, "the common law doctrine of negligence does not intrude upon the free exercise of religion, as it does not discriminate against a religious belief or regulate or prohibit conduct because it is undertaken for religious reasons. Application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution."

The elders argued that the woman's claim of negligent infliction of emotional distress was actually a disguised claim of clergy malpractice, which is barred by the first amendment. The court noted that clergy malpractice "has been universally rejected by courts in the United States." It quoted from the landmark Nally case: "Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of a particular denomination or ecclesiastical teachings of the religious entity." Nally v. Grace Community Church, 253 Cal. Rptr. 97 (Cal. 1988). The Connecticut court concluded:

The essential facts of the plaintiff's allegations, viewed in the light most favorable to her, are as follows. Throughout her abusive marriage, the plaintiff sought the spiritual counsel of the individual defendant elders and other elders within the defendant church. In her allegations about her marital situation, she alleges that at all times the elders counseled her in accordance with Jehovah teachings. Allegedly, at the direction of the elders, the plaintiff stayed in her abusive marriage and suffered emotional distress separate from the distress she suffered as a result of her marriage. As those alleged facts demonstrate, the plaintiff's claims cannot be addressed without violating the first amendment.

The plaintiff's allegations are essentially that she sought counsel from the defendants and that they negligently caused her emotional distress in giving her bad advice contrary to Jehovah teachings. In fact, throughout her complaint, the plaintiff cites to scripture and publications, which, according to the plaintiff, show what the defendants should have done. As other courts have recognized, that is a claim of clergy malpractice, which usually is barred by first amendment principles.

[I]n the present case, any analysis of the plaintiff's claims would require a court to delve into religious issues, which is prohibited by the first amendment. Determining whether the defendants' counseling created an unreasonable risk of emotional harm or that the plaintiff's distress was foreseeable would require a court to evaluate the proprieties of religious teachings. Furthermore, the plaintiff cites certain Jehovah's scriptures, which would require the court to evaluate whether the defendants counseled in accordance therewith. Under both the free exercise clause and the establishment clause, the first amendment prohibits civil courts from resolving disputed issues of religious doctrine and practice. We conclude that the court properly granted the defendants' motion for summary judgment as to the count of negligent infliction of emotional distress.

Application. This case demonstrates the constitutional protection that the courts have extended to spiritual counseling. If the first amendment guaranty of religious freedom means anything, it means that church counselors who base their counseling on religious teachings and precepts cannot be liable on the basis of malpractice or negligence for the content of that counseling, even if it results in injuries to the counselee.

This has been the consistent conclusion of the courts that have addressed this difficult question. It is important to note that this conclusion has been applied most often in cases involving clergy counselors who are not licensed by their state as psychologists or counselors, and who are not providing exclusively "secular" counseling. The elders in this case were deemed to be pastoral counselors by the court, since they functioned as pastors within their congregation. Decorso v. Watchtower Bible Society, 829 A.2d 38 (Ct. App. 2003).

Legal Developments

Malpractice

A Connecticut court ruled that church elders who counseled with a woman could not be sued for their advice to remain with her abusive husband.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in "non-religious" counseling.

A Connecticut court ruled that church elders who counseled with a woman could not be sued for their advice to remain with her abusive husband.

A woman sought out leaders of her church for assistance in escaping from her husband's violence. She met with three church elders over the course of several years. One discouraged her from supplying any details about her husband, demonstrated discomfort at the topic, often told her that she might have caused her own problems, and once reprimanded her for discussing her husband's abuse with someone other than a church elder.

Two other church elders encouraged her to stay with her husband and refused to look at marks on her back she sustained from her husband. One elder told her to do whatever her husband told her to do. The woman later sued the church elders and her church for intentionally and negligently causing her emotional distress.

The court ruled that the alleged acts of the elders were not sufficiently outrageous to amount to intentional infliction of emotional distress, which requires conduct that is "so extreme in degree that it goes beyond all bounds of decency and is regarded as atrocious, and utterly intolerable in a civilized society." While the court found the woman's allegations troubling, it noted that "they must be considered in the context of efforts made as part of the church's pastoral counseling. While the counselor's suggestions may have been ill advised, indeed insensitive, they do not meet the threshold of extreme outrageous conduct."

The woman also claimed that the elders and church were guilty of negligent infliction of emotional distress, which requires proof of (1) negligence on the part of the defendant, and (2) that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm."

The woman claimed that the elders had a duty to exercise reasonable care in counseling and directing her with respect to her family life, that they breached that duty, and that any reasonable person in their position would have known that such acts and omissions would cause her to suffer severe emotional distress.

She further alleged that she suffered extreme emotional distress in that she was unable to eat, lost sleep, was hospitalized, and developed chronic conditions. The elders insisted that the only type of counseling they provided was spiritual, and so the first amendment guaranty of religious freedom barred a civil court from finding them liable based on the content of their advice.

The court agreed. It acknowledged that the first amendment does not create "blanket tort immunity for religious institutions or their clergy, thus allowing clergy and clerical institutions to be sued for the torts they commit." Further, "the common law doctrine of negligence does not intrude upon the free exercise of religion, as it does not discriminate against a religious belief or regulate or prohibit conduct because it is undertaken for religious reasons. Application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution."

The elders argued that the woman's claim of negligent infliction of emotional distress was actually a disguised claim of clergy malpractice, which is barred by the first amendment.

The court noted that clergy malpractice "has been universally rejected by courts in the United States." It quoted from the landmark Nally case: "Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of a particular denomination or ecclesiastical teachings of the religious entity." Nally v. Grace Community Church, 253 Cal. Rptr. 97 (Cal. 1988). The Connecticut court concluded:

The elders have presented evidence to establish that their conduct involved spiritual counseling based on the teachings of [their church]. The plaintiff has not countered that assertion. Under these circumstances, in order to determine whether the elders breached a duty in providing spiritual counseling, the court would necessarily intertwine itself with the religious philosophy of the [church]. A judicial review of plaintiff's claims would necessarily require an evaluation of the religious tenets of [her church], the religious definition of the marital relationship and the discharge of pastoral responsibilities by the elders. Such a review would impermissibly constitute excessive entanglement with religion.

What this means for churches

This case demonstrates the constitutional protection that the courts have extended to spiritual counseling. If the first amendment guaranty of religious freedom means anything, it means that church counselors who base their counseling on religious teachings and precepts cannot be liable on the basis of malpractice or negligence for the content of that counseling, even if it results in injuries to the counselee.

This has been the consistent conclusion of the courts that have addressed this difficult question. It is important to note that this conclusion has been applied most often in cases involving clergy counselors who are not licensed by their state as psychologists or counselors, and who are not providing exclusively "secular" counseling. The elders in this case were deemed to be pastoral counselors by the court, since they functioned as pastors within their congregation. Decorso v. Watchtower Bible Society, 2002 WL 172663 (Ct. 2002).

Legal Developments

Sexual Misconduct by Clergy

A court refused to recognize “breach of a fiduciary duty” as a basis for liability by clergy who engaged in a sexual relationship with a counselee.

Richard R. Hammar, Attorney, CPA
Bio


Key point 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on first amendment considerations.

A Michigan court refused to recognize "breach of a fiduciary duty" as a basis for liability by clergy who engage in a sexual relationship with a counselee.

A male pastor visited a female church member (the "plaintiff") in her home prior to an upcoming surgery. In the months and years that followed, the pastor assumed the role of a pastoral counselor and attempted to help the woman with several personal difficulties she faced.

At some point in the counseling relationship the pastor and plaintiff engaged in a sexual relationship, which was not in any way related to or condoned under church doctrine. Plaintiff claimed that the counseling relationship continued and that the pastor used counseling in order to eventually initiate a sexual relationship with her. She also claimed that prior to initiating a sexual relationship, the pastor engaged in an inappropriate course of conduct such as appearing at her home and school, giving her personal greeting cards and inspirational messages, and discussing inappropriate subjects, including "his perceived sexual inadequacies and private parts."

The plaintiff alleged that the pastor began making sexual advances toward her and when she protested, he misled her with his "distorted views of Christian morality," which confused her because of his "superior" status as pastor of her church. She claimed that the pastor became involved in her life to the extent that his financial and emotional assistance to her was in exchange for sexual relations. Moreover, according to the plaintiff, the Synod, District, and local church had a responsibility to either prevent the pastor from abusing his ministerial role or to intervene and end the relationship in order to protect her. Plaintiff asserted that the Synod, District, and local church all were aware of the relationship and should have ended the pastor's behavior.

The pastor insisted that his relationship with the plaintiff was entirely consensual. According to him, while he initially offered counseling services to the plaintiff, their relationship developed into a friendship and eventually into a sexual relationship. He claimed that while he continued to discuss plaintiff's personal difficulties and continued to attempt to assist her with her problems during their sexual relationship, his assistance was as an individual and friend rather than as a counselor.

The relationship between the pastor and plaintiff continued for five years, at which time the pastor resigned his position and moved away. The sexual relationship ended at about that time. The plaintiff later sued the pastor for breach of fiduciary duty and emotional distress. She sued her church for negligent supervision, and retention, and two denominational agencies for vicarious liability and negligent hiring, supervision, and retention. While the lawsuit was pending, the church and denominational agencies asked the court to dismiss them from the case.

The trial court rejected the agencies' request, noting that questions remained regarding the "adequacy of the system for dealing with abuse allegations" within the denomination. The local church also asked the court to dismiss it from the case. The court agreed to dismiss the negligent hiring claim against the church, since the church had no reason to anticipate the pastor's actions when it hired him. However, the court refused to dismiss the plaintiff's negligent supervision and retention claims against the church. It found that the church may well have had a duty to further investigate the situation once a member of the board of elders raised concerns about rumors of a relationship between the pastor and plaintiff at a board of elders meeting. The plaintiff, church, and denominational agencies all appealed.

The basis of liability in this case

In this situation, liabilty was claimed against the pastor, the church, and two denominational agencies by the plaintiff. The following looks at the various liabilities reviewed in the case.

The pastor's liability for breaching a fiduciary duty

The plaintiff insisted that the pastor was liable on the basis of his breach of a fiduciary duty for the emotional and psychological injuries she suffered as a result of her sexual relationship with him. She noted that the pastor initiated and pursued a relationship with her that was at first non-sexual by doing things such as visiting her at home, in the hospital, and at school. She also alleged that the pastor began making sexual advances to her, "exposing his private parts" to her, and fondling her, all of which resulted in a sexual relationship between them. She claimed that during their sexual relationship, the pastor promised to marry her and encouraged her to divorce her husband.

The pastor insisted that in reality the plaintiff was claiming that he was liable for "seduction," a basis of liability that the Michigan legislature abolished many years before. The court defined seduction as "the act of persuading or inducing a woman of previously chaste character to depart from the path of virtue by the use of any species of acts, persuasions, or wiles which are calculated to have, and do have, that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused."

The court conceded that the plaintiff had made allegations that seemed to be more than seduction. For example, when she initially protested the pastor's sexual advances, he misled her "with his own distorted views of Christian morality, in a way that confused and intimidated [her] given [his] superior status as pastor of her church." Moreover, she alleged that "in the guise of offering Christian guidance and counseling [the pastor] began to wrongfully manipulate [her] thought process and decision making in ways that were personally gratifying to him, yet terribly self-destructive and damaging" to her.

The court concluded that these allegations that the pastor misused his superior position as her pastor and counselor in order to achieve a sexual relationship with her suggested that clergy malpractice, rather than seduction, was the basis of her lawsuit. The court observed:

Illustrative of this conclusion is plaintiff's allegation that [the pastor] owed a duty to her … to practice his religious calling in a reasonable, legal and appropriate manner, and to refrain from any acts or omissions that would violate his ministerial trust, and to function in a legal and moral fashion as appropriate to the role of pastor. Michigan does not recognize a claim for clergy malpractice. In fact, the claim of clergy malpractice has been universally rejected by courts in the United States.

The court further rejected the plaintiff's request that it recognize her claim as one for breach of a fiduciary duty rather than clergy malpractice. It explained its reluctance to make such a distinction by referring to the conclusion of another court:

[I]n order for the plaintiff's cause of action to meet constitutional muster, the jury would have to be able to determine that a fiduciary relationship existed and premise this finding on neutral facts. The insurmountable difficulty facing plaintiff, this court holds, lies in the fact that it is impossible to show the existence of a fiduciary relationship without resort to religious facts. In order to consider the validity of [the] plaintiff's claims of dependency and vulnerability, the jury would have to weigh and evaluate … the legitimacy of [the] plaintiff's beliefs, the tenets of the faith insofar as they reflect upon a priest's ability to act as God's emissary and the nature of the healing powers of the church. To instruct a jury on such matters is to venture into forbidden ecclesiastical terrain. On the other hand, if we try to salvage [the] plaintiff's claim by stripping her narrative of all religious nuance, what is left makes out a cause of action in seduction-a tort no longer recognized in New York-but not in breach of a fiduciary duty.

The pastor's liability for emotional distress

The court noted that in order to state a claim for intentional infliction of emotional distress, a plaintiff must show "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Liability for such a claim has been found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. It has been said that the case is generally one in which the recitation of facts to an average member of the community would arouse resentment against the actor, and lead the average member of the community to exclaim 'Outrageous!'"

The court concluded that the plaintiff's allegations failed this standard: "Stripped of religious overtones, plaintiff essentially alleges that a person pursued her, an adult woman, gained her trust, and eventually engaged in a consensual sexual relationship with her, albeit that her consent was given when she was in a vulnerable position. This type of activity does not rise to the level of conduct necessary to satisfy [this] standard … and could not be reasonably regarded as extreme and outrageous."

Liability of the church and denominational agencies

Since the plaintiff failed to establish that the pastor committed any conduct for which relief was available in a court of law, the appeals court ruled that her claims against the church and denominational agencies also had to be dismissed.

What this means for churches

This case demonstrates the difficulty that counselees face in suing clergy on the basis of "breach of fiduciary duty" for inappropriate sexual contacts. Very few courts have recognized this basis of liability. And, as the court pointed out, counselees ordinarily cannot sue clergy for "seduction" or clergy malpractice. Other bases of liability exist, but they were not pursued by the plaintiff in this case. The case also illustrates another important point-churches and denominational agencies cannot be liable for the misconduct of a minister unless the minister is found liable. Teadt v. St. John's Evangelical Church, 1999 WL 731383 (Mich. App. 1999).

Legal Developments

Husband Sues Church Over Wife’s Affair with Minister

Who can sue for damages resulting from an affair?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-11-01

Sexual Misconduct-by Clergy and Church Workers

Richard R. Hammar, J.D., LL.M., CPA

• Key point. In many states, a husband is barred from suing a minister for seducing his wife and breaking up his marriage. The husband also may be barred from suing the minister’s employing church. However, the wife is not necessarily prevented from maintaining her own lawsuit against the minister and church.

A Minnesota court ruled that a pastor who engaged in a sexual relationship with a woman could not be sued directly by the woman’s husband. The husband and his wife were members of the same church and sought out their pastor for marital counseling. As a result of this counseling, the pastor entered into a sexual relationship with the wife over a period of several months. As a result of this relationship, the husband and wife were separated and later divorced. The former husband sued the pastor and his church, alleging a number of theories of liability including breach of a fiduciary duty, emotional distress, breach of a duty of reasonable care, and negligent hiring. A trial court dismissed the lawsuit against the minister on the ground that the state’s abolition of “alienation of affections” as a basis of liability prevented the husband from recovering damages from the minister. The husband appealed, and a state appeals court affirmed the trial court’s ruling. The court noted that the state legislature abolished alienation of affections in 1978. The effect of this action was to prevent persons from being legally responsible for seducing another person’s spouse. The husband alleged that he continued to suffer severe mental and emotional distress as a result of the minister’s actions, which imposed upon him the difficulties of dealing with spousal guilt, depression, unhappiness, and low self—esteem and led to poor work performance, the termination of his employment, an unprofitable career change, and related medical expenses. The court concluded that “because these losses flow from the alienation of his former wife’s affections, they generally are no longer recoverable because the legislature has outlawed [such] actions.”

The husband claimed that his losses did not arise from the sexual and emotional relationship that caused the break—up of his marriage. Instead, he argued that the minister had a “fiduciary duty” not to act against his interests that arose from the relationship of trust created by their counseling arrangement. The court ruled that even if the husband’s claim was sufficiently distinct from alienation of affections, his lawsuit still had to be dismissed because he “cannot show the adequacy of available damages to redress his injuries.” The court noted that the husband was seeking compensation for severe mental and emotional distress, resulting in the loss of his job, his acceptance of a lower—paying position outside of his career field, and increased medical expenses. But “money damages” are a “legal” remedy which, the court ruled, do not apply to a breach of a fiduciary duty which is “equitable” in nature. Equitable remedies consist of such non—monetary relief as an injunction or restitution, and neither remedy was appropriate in this case.

Application. The court’s ruling demonstrates the difficulty that spouses experience in suing a counselor or pastor for alienating a spouse’s affections through a sexual relationship. Further, this court ruled that monetary damages are not an appropriate remedy for a violation of a fiduciary duty, and this is a point that any church or minister could raise that is sued for a breach of fiduciary duties. Finally, while the court ruled that the husband could not sue the pastor, this does not mean that the pastor was free from liability. He still faced possible criminal liability, and he could have been sued by the wife on the basis of a number of theories. Also remember that the church was sued in this case, and it faces potential liability for the pastor’s acts. R.E.R. v. J.G., 552 N.W.2d 27 (Minn. App. 1996). [Seduction of Counselees and Church Members]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m29 c0697

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Legal Developments

Churches’ Liability After Out-of Court Settlements

If a pastor is released from liability for sexual misconduct, his denomination cannot be liable.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-11-01

Sexual Misconduct-by Clergy and Church Workers

Richard R. Hammar, J.D., LL.M., CPA

• Key point. A church or denominational agency cannot be liable for a pastor’s sexual misconduct if the victim enters into a settlement releasing the pastor from liability.

• Key point. A denomination’s bylaws do not impose a fiduciary duty upon the denomination to protect church members from sexual misconduct.

! The North Dakota Supreme Court ruled that a denominational agency could not be liable for a pastor’s sexual misconduct since the victim had entered into an agreement releasing the pastor from liability. A police officer was killed in the line of duty. His widow sought out her pastor for counseling. Within a few months, the pastor initiated a sexual relationship with the widow. The affair lasted for nearly a year, at which time the pastor was assigned to a position in another state. The couple continued their relationship for seven years, meeting four or five times each year at “workshops” around the country. Eventually, the widow informed a denominational official about the pastor’s relationship with her. The pastor was promptly removed from his position within the church. The widow later sued the pastor, claiming that he breached a “fiduciary duty” he owed to her as a result of the counseling relationship and her vulnerable position following the tragic death of her husband. The widow eventually reached an out—of—court settlement with the pastor which included a release of liability. The widow also sued the denominational agency, claiming that it was legally responsible for the pastor’s acts. She alleged that the agency, and at least one official, had been informed about the sexual relationship on two different occasions and failed to take appropriate action. For example, she alleged that on one occasion a denominational official was informed by a church member of the relationship, and responded by warning the member that “you could get yourself in a whole lot of trouble spreading rumors like that.” The widow claimed that the agency and its official owed her a fiduciary duty after they learned of the affair, and that they breached this duty by failing to intervene or respond appropriately. A trial court dismissed the lawsuit against the agency, and the widow appealed.

effect of a settlement releasing the pastor from liability

The court noted that the widow had entered into an out—of—court settlement with the pastor that released him from any liability. By releasing the pastor from liability, the widow could not sue the denomination on the basis of respondeat superior (a legal theory imposing liability on an employer for the wrongs of employees committed within the scope of their employment). However, the widow could still sue the denomination for its own wrongdoing. She chose to sue the denomination on the basis of a breach of a fiduciary duty.

fiduciary duty-review of other cases

The court acknowledged that “in some cases involving counseling and sexual relations between clergy and parishioners, some courts have allowed claims against the offending clergy or the church hierarchy for breach of a fiduciary duty.” The court referred to the following four cases (three of which occurred in Colorado), each of which is fully addressed in prior issues of this newsletter: (1) Colorado: Destefano v. Grabian, 763 P2d 275 (Colo. 1988) ; (2) Colorado: Erickson v. Christenson, 781 P.2d 383 (Colo. 1989) ; (3) Colorado: Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993) ; (4) Texas: Sanders v. Casa View Baptist Church, 898 F. Supp. 1169 (N.D. Tex. 1995).

On the other hand, the court noted that other courts have refused to find a fiduciary duty under the same circumstances: (1) Nebraska: Schieffer v. Catholic Archdiocese of Omaha, 508 N.W.2d 907 (Okla. 1993); (2) New York: Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991); (3) Ohio: Strock v. Pressnell, 527 N.E.2d 1235 (Ohio 1988); (4) Oklahoma : Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993).

fiduciary duty-this case

The court concluded that the widow had failed to prove that the denominational agency owed her a fiduciary duty. It observed that a fiduciary duty is based on the existence of a fiduciary relationship, and it concluded that such a relationship exists “when one is under a duty to act or give advice for the benefit of another upon matters within the scope of the relationship.” It further noted that a fiduciary relationship “generally arises when there is an unequal relationship between the parties.” Did the widow have a fiduciary relationship with her denominational agency on the basis of its alleged knowledge of the affair? No, concluded the court. It observed: “Although there was evidence [the agency and one of its officials] were informed about the intimacy between the [pastor and widow], we are not persuaded that knowledge, by itself and without some other action to assume control of the matter, raises an inference that the [agency] assumed a fiduciary duty to [the widow].” The court also stressed that there was no evidence that the widow “relied” on the agency in any way.

relevance of the Book of Discipline

The widow insisted that the denomination’s official “Book of Discipline” imposed a fiduciary duty on the denomination and its officials to investigate and confront clergy for sexual misconduct. The court disagreed. It quoted from an affidavit signed by a denominational official that explained the Book of Discipline. The affidavit asserted, in part:

The Book of Discipline … contains the constitution, doctrine and general rules of our church. It defines the duties and responsibilities of [denominational agencies and officials] and local ministers. [Denominational officials] have no responsibility for the direct pastoral care of parishioners in individual congregations. Such functions are the responsibility of the local church minister.

Application. This case is important for the following reasons: (1) It illustrates that churches cannot be liable on the basis of respondeat superior for an employee’s wrongdoing if the employee is not found liable or is released from liability as part of an out—of—court settlement. (2) The court gave a useful review of cases that have addressed the question of whether a church can be liable on the basis of a breach of fiduciary duty for a pastor’s sexual misconduct. (3) The court concluded that knowledge of wrongdoing alone may not impose a fiduciary duty upon denominational officials-unless there is evidence of some active assumption of control over the matter. (4) The court rejected the widow’s argument that a denomination’s Book of Discipline imposed a fiduciary duty upon denominational officials to investigate and remove ministers who engage in sexual misconduct. The court concluded that the Book of Discipline did not create any fiduciary duties since it did not give denominational officials any authority to assume direct pastoral care of church members in individual congregations. As a result, denominational officials did not create a fiduciary relationship with the widow. L.C. v. R.P. 563 N.W.2d 799 (N.D. 1997). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m40 m62 c0697

Legal Developments

Church and Pastor Sued Over Child Molestation

Don’t ignore accusations of sexual misconduct.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-09-01

Sexual Misconduct by Clergy and Church Workers

Richard R. Hammar, J.D., LL.M., CPA

• Key point. A church may be legally responsible for a pastor’s acts of child molestation on the basis of a breach of a “fiduciary duty,” negligent hiring and supervision, and “ratification” of the pastor’s conduct as a result of its failure to investigate and address known irregularities.

• Key point. Church leaders that ignore credible evidence of misconduct by a minister or lay worker may be deemed to have “ratified” future similar acts of misconduct by the same person. As a result, it is imperative that church leaders not ignore such incidents.

The Colorado Supreme Court ruled that a church whose pastor molested a young boy could be sued on the basis of a breach of a fiduciary duty, outrageous conduct, negligent hiring and supervision of the pastor, and ratification of the pastor’s conduct. The court’s ruling addressed a number of issues that will be helpful to church leaders in reducing the risk of such incidents, and in reducing the potential for church liability. The circumstances of this case are tragic and unusual. A 7—year—old boy (the “victim”), who was experiencing emotional trauma, was encouraged by his pastor to enter into a counseling relationship with him. The boy’s mother approved, and the counseling sessions lasted for a number of years. From the very first counseling session the victim claimed that the pastor engaged in sexual contact with him, including having him sit on the pastor’s lap while the pastor massaged his thighs and genitals. While these “massages” were occurring the pastor would tell the victim that “your father loves you, your mother loves you, God loves you, and I love you.” Two other adult males claimed that the pastor had engaged in similar behavior with them when they were minors, including a physical inspection of their genitals to see if they had been “properly circumcised.” The parents of two other boys complained to the church board about the pastor’s counseling methods, and in particular his practice of inspecting genitals to check for proper circumcision. Nearly a year later the board responded by directing the pastor to discontinue his counseling of minors. A few months later the pastor was dismissed.

The victim and his mother sued the church and pastor. He claimed that the church board were made aware of the pastor’s massaging techniques and his alleged improprieties with other counselees, but made no investigation and took no steps to put a stop to his activities. A jury ruled in favor of the victim, finding that (1) both the pastor and church breached a fiduciary to the victim; (2) both the pastor and church were guilty of “outrageous conduct”; (3) the church was guilty of negligent hiring of the pastor; and (4) the church was guilty of negligent supervision of the pastor. The jury awarded damages totaling nearly $500,000. The pastor and church appealed, and a state appeals court overturned the jury’s verdict in favor of the victim. The victim appealed to the state supreme court. The supreme court concluded that the pastor and church could be sued. The key portions of the court’s decision are reviewed below.

freedom of religion defense of the pastor

The court began its opinion by rejecting the argument of the pastor that the first amendment guaranty of religious freedom prevented him from being found liable. The pastor had argued that any touching of the victim that might have occurred was not designed to satisfy any sexual desires, but was intended to facilitate the minor’s communication with God. The court concluded that the pastor’s massage technique was not entitled to constitutional protection as an exercise of religion: “Although his ultimate goal … was for counselees to receive help from God in resolving their problems … his choice to use massage with children had no biblical, doctrinal, or spiritual basis …. Despite the religious setting, the described massage technique simply reflects [the pastor’s] choice of a relaxation and communication method between himself and his counselees.”

freedom of religion defense of the church

The church, like the pastor, claimed that the first amendment prevented it from being found liable for the pastor’s conduct. It did not rely upon the “religious basis” for the pastor’s actions. Rather, it asserted that allowing civil judgments against pastoral counselors and their churches based upon conduct occurring during counseling sessions could so “entangle” the government with religious practices as to violate the first amendment’s prohibition of an “establishment” of religion. The court disagreed. It acknowledged that “the decision to hire or discharge a minister is itself inextricable from religious doctrine.” However, a court must “distinguish internal hiring disputes within religious organizations from general negligence claims filed by injured third parties.” It quoted from one of its prior decisions:

[w]hile claims for illegal hiring or discharge of a minister inevitably involve religious doctrine, that is not the case for a claim of negligent hiring of a minister. The claim of negligent hiring is brought after an employee has harmed a third party through his or her office of employment. An employer is found liable for negligent hiring if, at the time of hiring, the employer had reason to believe that hiring this person would create an undue risk of harm to others. Hence, the court does not inquire into the employer’s broad reasons for choosing this particular employee for the position, but instead looks to whether the specific danger which ultimately manifested itself could have reasonably been foreseen at the time of hiring. This inquiry, even when applied to a minister employee, is so limited and factually based that it can be accomplished with no inquiry into religious beliefs. Van Osdol v. Vogt, 908 P.2d 402 (Colo. 1996).

the church’s liability for “ratifying” the pastor’s behavior

The jury found the church liable for the pastor’s misconduct on the ground that it “ratified” his actions by inadequately responding to the parents’ complaints of misbehavior. The church insisted that (1) intentional misconduct by a pastor cannot be ratified; (2) it could not ratify actions of the pastor that were outside the scope of his employment; and (3) there was insufficient evidence that it ratified the pastor’s actions. The court disagreed with all three objections.

Application. What is the relevance of this ruling to other churches and ministers? First, the case illustrates some of the theories of liability that may be asserted against a church and pastor in the event the pastor molests a minor. These include (1) outrageous conduct; (2) breach of fiduciary duty by the pastor and church; (3) negligent hiring; (4) negligent supervision; (5) ratification; and (6) punitive damages. Perhaps the most significant aspect of the court’s ruling was its conclusion that the church was liable for the minor’s injuries on the ground that it “ratified” the pastor’s acts of molestation by not responding adequately to parents’ complaints of misconduct. Ignoring such complaints can expose the church to significant liability. Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo. 1996). [Clergy Malpractice, Seduction of Counselees and Church Members, Negligent Selection as a Basis for Liability, Negligent Supervision as a Basis for Liability]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m86 c0597

Legal Developments

Pastor Sued for Disclosing Confidential Information

Court ruled that a pastor and his church could be sued on the basis of malpractice and other grounds as a result of the pastor’s disclosure of confidential information shared with him by a church member.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Ministers who disclose confidential information obtained during counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of a number of grounds, including malpractice, invasion of privacy, defamation, and infliction of emotional distress.

An Arizona court ruled that a pastor and his church could be sued on the basis of malpractice and other grounds as a result of the pastor's disclosure of confidential information shared with him by a church member. A woman (the "victim") was referred to a pastor for counseling because of his many years of counseling experience. The victim met with the pastor for help with emotional problems following the breakup of an affair with another pastor with whom she had lived for nine months.

The victim later joined the counseling pastor's church, and continued to meet with him for counseling, relating to him highly personal and private matters including her feelings of guilt about having had an inappropriate relationship with the other pastor, and the fact that her father had a sexual relationship with her brother's wife. The victim's sister attended the same church, and married the pastor's son.

During premarital counseling the sister informed the pastor that her father had once embraced her in an "uncomfortable way." The marriage between the sister and the pastor's son deteriorated after the sister learned that her husband was having an affair with another woman. When the pastor's son publicly blamed his wife for the breakup of their marriage, the victim met with the pastor to defend her sister and to present evidence showing that the husband (the pastor's son) was the one who had been unfaithful.

With his wife present, the pastor told the victim that her sister was "screwed up" because she had been molested by their father, and suggested that he would reveal his knowledge of the affair between the victim and her former pastor if she and her sister did not drop their accusations against his son.

The pastor's wife told the victim to "stop lying" about her son because "we know things about your family." The next day the pastor and a church administrator had a conversation in which the pastor described the discord between the victim (and her sister) and his family. He also told the administrator that there were "incest problems" between the victim's father and his children, and that he had learned this information during his counseling sessions with the victim and her sister.

During a Wednesday evening church service, the pastor "marked" the victim and her sister as causing division in the church, and stated that their family was "incestuous" and "dysfunctional." The victim and her sister sued the pastor and the church on a number of grounds, including invasion of privacy, defamation, malpractice, and breach of fiduciary duty. The court's ruling is summarized below.

Civil court intervention in internal church disputes

The pastor and church defended themselves by insisting that the dispute was an internal church matter over which the civil courts have no jurisdiction. They noted that the pastor was motivated by a "biblical admonition" when he brought the victim and her sister's conduct to the attention of the congregation, and that their only real harm was the termination of their relationship with the church and its members. The court rejected these defenses, concluding that the general rule of judicial non—intervention in internal church disputes did not apply in this case "because this dispute can be resolved without inquiry into religious law and polity." The court continued:

We need not consider the "marking" ritual nor its origins in resolving these issues. [The pastor] revealed confidences from his counseling sessions with [the victim and her sister] and threatened to publicize [the victim's] involvement with [her former pastor]. He divulged confidences of [the victim and her sister] to his wife, mother, sister, and the church administrator and also relayed false information to them. There was no evidence that this conduct was part of the observance of the church's religious practices or beliefs; thus, the doctrine of ecclesiastical abstention has no bearing here …. That the injuries occurred in a religious setting does not render them noncompensable, nor does it deprive the court of jurisdiction.

Malpractice for disclosing confidential information

The pastor relied on several cases rejecting clergy malpractice claims because of first amendment concerns about determining a standard of care for pastors. The court concluded that:

Those cases are not applicable here because the claim submitted to the jury was for therapist malpractice, not clergy malpractice, and was based on a psychological therapist's duty not to disclose confidential information revealed in counseling sessions. [The victim's] claim arose, not out of any duty [the pastor] owed them in his capacity as their pastor, but rather out of his duty as a therapist or counselor to refrain from acting in a manner that carried a foreseeable and unreasonable risk of harm to the person being counseled.

Although we have found no Arizona cases in which the disclosure of confidential information by a counselor served as the basis of a malpractice claim, other jurisdictions have recognized causes of action arising from disclosures of confidences by providers of counseling services …. Arizona has long acknowledged and protected the confidential nature of relationships between physicians and their patients, and more recently between psychologists and other behavioral health providers and their clients, including counselors and "marriage therapists." The purpose behind these privileges is "to enhance the effective diagnoses and treatment of illness by insuring that a person requiring professional attention will not be deterred by fear that his physical or mental condition may become public, thereby subjecting him to embarrassment or humiliation."

The pastor insisted that the therapist—patient privilege only applies to licensed counselors and therapists, and that pastors should not be held to the same standards. Once again, the court disagreed:

One who holds himself out and undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. At trial [the victim] presented expert testimony that mental health therapists and counselors have a duty not to disclose confidential information, with certain limited exceptions, and that this duty applies to both pastoral and professional counselors, whether licensed or not. In Arizona, mental health counselors are not required to be licensed …. In sum [the pastor and church] offer no good reason for insulating a counselor from liability for betraying clients' confidences to their detriment merely because the counselor is a clergy member and unlicensed, and the counseling as well as wrongful disclosure takes place in a religious setting.

Here [the victim] testified that she was referred to [the pastor] for counseling to help her through emotional difficulties and depression "because of his 40 years' counseling experience," that she made an appointment with him for that purpose, and that she met with him in his office at the church.

During [her] first counseling session [the pastor] used a chart to determine her level of self—esteem and concluded it was very low and she needed to raise it. [He] also discussed ways for [her] to deal with her feelings of guilt about her relationship with [her former pastor]. The inclusion of biblical passages on the chart did not convert the session into religious counseling, especially when the purpose of the meeting was not to provide her with religious or spiritual guidance, the church's precepts and practices were not part of the counseling, and [the victim] was not a church member when she sought help from [the pastor].

What this means for churches

The importance of this case cannot be overstated. It demonstrates that pastors who disclose confidential information shared with them in counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of malpractice, invasion of privacy, breach of fiduciary duty, and infliction of emotional distress.

As this case illustrates, this conclusion may apply even when pastors share confidential information in order to discipline a member for violating church standards. The point is this-would members disclose confidential information if they suspected that their pastor would report it to the church board or congregation in order to discipline them? Clearly, the answer is "no."

Therefore, it is essential for pastors to refrain from disclosing information obtained during confidential counseling sessions-even if it relates to a person's qualifications or eligibility for membership. Of course, the church board can still discipline the individual, but not on the basis of any information shared with the pastor in the course of a confidential counseling session. Another alternative is for a pastor to obtain the permission of the counselee to share confidential information with the board or with some other person. If this permission is obtained (in writing), this will serve as a defense in the event that the pastor is later sued for disclosing the information.

Finally, note that the court suggested that in limited contexts pastors may not be subject to legal liability for disclosing confidential information obtained during a counseling session-because they are serving as pastoral counselors rather than as secular counselors or therapists. Facts supporting this limited exception, according to this court, include the following:

  1. the counselee did not seek out the pastor as a counselor for relief of emotional difficulties;
  2. the pastor did not engage in psychotherapeutic techniques, testing, or diagnoses;
  3. the purpose of the counseling was to provide religious or spiritual guidance;
  4. the church's precepts and practices were part of the counseling; and
  5. the counselee was a church member.

    6. Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).

Legal Developments

School’s Liability for a Student’s Suicide

Officials who hear of a student’s suicide threat may be liable for the minor’s later suicide.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-07-01

Personal Injuries-on Church Property or During Church Activities

Richard R. Hammar, J.D., LL.M., CPA

• Key Point. School or church officials who receive a report of a minors suicide threat may or may not be liable for the minors later suicide, depending on how they respond to this information.

• An Illinois court ruled that a school was not legally responsible for the suicide of a student, despite the fact that it was aware of a suicide threat made by the student. The facts of this case are tragic, but instructive. A high school student told other students that he was going to kill himself. He also wrote a suicide note. Several students reported the victims intentions to a school counselor. The counselor questioned the victim, but took no action other than to call the victims mother and suggest that she take her son to a hospital for drug overdose treatment. The counselor did not inform the mother of the victims suicide threats. The mother picked her son up from school, and while driving him to a hospital he jumped from the car and later leapt off a highway overpass, killing himself. The mother later sued the school, claiming that it was responsible for her sons death by failing to exercise reasonable care for his safety. She insisted that the school should have called an ambulance or other medical personnel, informed her of his threat to commit suicide, and implemented a suicide prevention program. A state appeals court rejected the mothers lawsuit. The court concluded that teachers and school officials who serve in loco parentis (in the place of the parents) are immune from liability under Illinois law for their ordinary negligence. They may be legally responsible only for their willful and wanton misconduct. The court ruled that the acts of the school or its counselor did not satisfy this standard:

The suicide of a teenage is tragic. School counselors and other school personnel should take every suicide threat seriously and take every precaution to protect the child. If [the counselor] had failed to take any action upon learning of [the victims] statements, her inaction could constitute willful and wanton conduct. However, the [lawsuit] admits that [the counselor] contacted [the mother] and advised her to take [her son] to the hospital, albeit for a drug overdose. While the nondisclosure of [the victims] suicide threats, if proven, could well constitute negligence, the [mother] has failed to allege sufficient facts that would support a finding that either [the counselor] or any other school official acted with [willful or wanton misconduct].

Application. This case addresses a difficult question-the potential legal liability of school officials for the suicide of a student. The court reached a number of conclusions that will be useful to church leaders, whether or not they operate a private school: (1) In many states, teachers are considered to be in loco parentis , meaning that they serve temporarily in the place of a students parents. This ordinarily means that they cannot be legally responsible for injuries to a student unless they engage in willful and wanton misconduct. Obviously, this is a difficult standard to prove. Persons who serve as teachers in church schools may benefit from this rule. Other church workers may as well, to the extent that they satisfy their states definition of in loco parentis. (2) Church or school staff members who do not serve in loco parentis may be responsible for a childs death or injury on the basis of ordinary negligence-a much easier standard to prove. (3) The court concluded that “doing nothing” in response to a suicide threat constitutes willful and wanton misconduct which exposes teachers to liability. The court noted that the counselor took sufficient steps in response to the victims suicide threat to avoid liability based on willful and wanton misconduct. However, the court noted that the counselors failure to advise the victims mother of the suicide threat was negligent. While this was not sufficient to impose liability on the counselor, it would have been enough to impose liability on a person not meeting the definition of in loco parentis. Grant v. Board of Trustees, 676 N.E.2d 705 (Ill. App. 1997). [Legal Liability for Student Injuries]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m65 c0497

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Legal Developments

Teacher Seduces High School Student

School found not liable on the basis of negligent supervision.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-07-01

Sexual Misconduct by Clergy and Church Workers

Richard R. Hammar, J.D., LL.M., CPA

• Key Point. An employer is not liable on the basis of negligent supervision for an employees misconduct that could not have been anticipated or discovered through the normal exercise of reasonable care.

The Minnesota Supreme Court ruled that a school was not liable on the basis of negligent supervision for the sexual seduction of a high school student by a female teacher. The teacher used a counseling relationship with a male student as the basis for a sexual relationship that continued for several months. Most of the sexual encounters occurred during regular school hours on school premises. The victim later sued the school, claiming that it was responsible for his injuries on the basis of negligent supervision. In rejecting the victims claim that the school was guilty of negligent supervision, the court observed:

[The school] performed standard teacher evaluations of [the teacher]. In addition to the evaluations [school officials] made several unannounced visits to [the teachers] classrooms. Because the school had no public address system, all messages were hand—delivered by staff and students to classrooms throughout the course of the school day. Even with all of this interaction during the school day, the [secret] relationship between teacher and student was never observed.

A school cannot be held liable for actions that are not foreseeable when reasonable measures of supervision are employed to insure adequate educational duties are being performed by the teachers, and there is adequate consideration being given for the safety and welfare of all students in the school. The safety and welfare of the students in a school setting is paramount. However, in this case, closer vigilance would not have uncovered the relationship because both participants worked hard to conceal it.

We hold that in this case the [school] is not liable for the intentional [wrongs] of its employee even though the acts occurred within work—related limits of time and place, where such acts were unforeseeable and were unrelated to the duties of the employee.

Application. This case illustrates that churches and schools are not “guarantors” of the safety of minors on their premises. Some injuries cannot be avoided no matter how much supervision is exercised. This court recognized that this is particularly true in cases of sexual misconduct, which are actively concealed from others. Churches are held to a standard of reasonable care in the supervision of their programs and activities. If this standard is met, then a church ordinarily cannot be liable on the basis of negligent supervision for injuries that occur. This case will be a useful precedent to any church that is sued on the basis of negligent supervision for an injury to an adult or child, if it exercised reasonable care in supervising its facilities and programs. The decision is of special significance because it came from a state supreme court. P.L. v. Aubert, 545 N.W.2d 666 (Minn. 1966). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m65 c0497

Legal Developments

Woman Sues Church Over Molestation by Former Pastor

Her lawsuit was barred by the statute of limitations.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-05-01

Sexual Misconduct by Clergy and Church Workers

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Minors who are sexually molested by church workers may not sue their church after the statute of limitations has expired. Generally, the statute of limitations begins to run on a minor’s 18th birthday. In some states the statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. Other states do not recognize this so-called “discovery rule.”

An Indiana court ruled that an adult female who was molested by her former pastor was prevented from suing her church by the statute of limitations. The victim was born to a large family in 1968. A high achiever, she was elected president of her class all four years of high school and ultimately graduated as valedictorian. The victim began seeing a minister in her church for counseling when she was sixteen. The minister was a married man about twice the victim’s age. The minister soon abused the counseling relationship to manipulate the victim into having a sexual relationship with him. He claimed that having sexual intercourse with him would be “therapeutic,” and assured her that it was an appropriate part of the counseling process. The sexual relationship continued until the victim was twenty years old. The minister convinced her that they had a “love” relationship. Through domination and manipulation, he persuaded her to keep the sexual relationship secret.

The victim was aware that the minister was married and that her sexual relationship with him was prohibited by church teaching. She was also aware that her parents and others would not approve and would have believed that the minister was harming her. Nevertheless, she kept the sexual relationship secret because she understood that the minister might lose his job or even be arrested if found out. While attending college, the victim would skip classes and tests to be with the minister, despite the adverse effect upon her grades. Even after the sexual relationship ended, the minister continued to exert domination and control over the victim by expressing his love and affection for her.

The victim continued to suffer from depression and sought professional help in 1988. During the next few years, she received counseling and medical attention from several different health care professionals. These professionals were unanimous in their opinion that the victim’s relationship with the minister was destructive, and all encouraged her to end it. However, the victim continued to defend the minister and her “love” relationship with him and could not be persuaded to understand or accept that the relationship was harmful to her. She eventually became suicidal, was hospitalized on four occasions, and received electroconvulsive therapies.

In 1991, the victim’s therapists held an intervention-type family meeting which was attended by her mother, father, and siblings. At this meeting, the victim was required to disclose that she had been having a sexual relationship with the minister. Neither of her parents, nor any other family member, had any previous knowledge of the sexual relationship. Her family reacted with outrage. About twenty months later, when the victim was twenty-five years old, she sued the minister claiming that he had committed sixty acts of sexual battery and rape against her. The lawsuit also named her church as well as state and national church agencies claiming that they were responsible for her injuries on the basis of negligent retention, training, and supervision of the minister.

An appeals court concluded that the lawsuit against the church defendants had to be dismissed on the ground that it was filed after the statute of limitations had expired. Under Indiana law, lawsuits for personal injuries have to be brought within two years of the injury. The statute does not begin to run for a minor until his or her eighteenth birthday. However, Indiana, like many states, recognizes the so-called “discovery rule.” Under this rule, the statute of limitations does not begin to run until a plaintiff “knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the [wrongful] act of another.” The victim claimed that the minister exercised such domination and control over her that she did not discover that his actions were wrong and were harmful to her before the family meeting in 1991 when her therapists and family finally convinced her that the minister’s conduct had been abusive and that the minister’s actions were the cause of her depression and emotional injuries. As a result, the victim insisted that her lawsuit was brought within the two-year statute of limitations. The court disagreed. It observed:

Where the plaintiff understands the significance of the events and their moral character, a reasonable person would have known that she had been the victim of abuse and that her injuries had been caused by the abuse …. It is not possible that a reasonable person in her situation would discuss past instances of sexual abuse during a treatment session for severe psychological problems without understanding at some level that the past incidents had some connection to her current situation.

The court pointed out that the victim knew that her parents and others would not have approved of her sexual relationship with the minister and would have viewed the minister as harming her. Also, she admitted that she was aware that her sexual relationship with the minister was prohibited by church teaching, and that he might lose his job or be arrested if the conduct were discovered. Finally, she was repeatedly advised by her mental health care professionals that she was the victim of the minister’s abuse and that it was harmful to her emotional and mental health. The court concluded: “The sexual relationship ended in 1988 when [the victim] was twenty years old. It is not possible that a reasonable person in [her] position would not have understood, on some level, that the minister’s actions were wrong and had some connection to her current situation …. [W]e must conclude, as a matter of law, that in the exercise of ordinary diligence, [she] should have discovered that she had sustained injury as a result of [the minister’s] abusive acts in excess of two years before her lawsuit was filed. Accordingly, her action is time-barred.” Doe v. United Methodist Church, 673 N.E.2d 839 (Ind. App. 1996). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denomina tional Liability]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m86 c0397

Legal Developments

Counselors’ Liability for Counselees’ Actions

Counselors may sometimes be legally responsible for injuries caused by their counselees.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-05-01

Counseling

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Counselors may not be legally responsible for injuries caused by their counselees, unless they are aware of a specific threat of harm toward a particular victim

• A South Carolina court ruled that a counselor was not legally responsible for the murder of an individual by one of his counselees since the counselee never made a specific threat toward the murder victim. A psychiatrist had as a patient a severely disturbed woman who worked as a nurses’ aid in a nursing home. The woman attempted to commit suicide while at work, and was hospitalized in a psychiatric ward for one month. She returned to work following her release, and within a few days set fire to several rooms. Her actions resulted in the death of one resident. Several others were injured. The family of the deceased resident sued the psychiatrist, claiming that he was guilty of negligence in failing to warn nursing home employees and residents of the danger his patient posed to them. A state appeals court ruled that the psychiatrist was not liable. It noted that South Carolina, like most states, does not recognize “a general duty to warn of dangerous propensities of others.” However, a duty to warn arises “when a person … has made a specific threat of harm directed at a particular person.” The court stressed that “it is not simply foreseeability of the victim which gives rise to a person’s liability for failure to warn; rather, it is the person’s awareness of a distinct, specific, overt threat of harm which the individual makes towards a particular victim.” The psychiatrist certainly was aware of his patient’s emotional problems, and perhaps could have anticipated that she might pose a risk of harm to others. The court concluded that such knowledge is not enough to impose a duty to warn. The psychiatrist must have been aware of specific threats made by this patient toward the individual who was killed. Since no such threats were ever made, the psychiatrist could not be liable.

Application. Are pastors or church counselors personally liable for injuries caused by their counselees? Do they have a legal duty to warn persons of a counselee’s potentially dangerous propensities? These are important questions that many counselors have asked. The court in this case concluded that counselors will not be legally responsible for failing to warn of a counselee’s dangerous propensities unless the counselee made specific threats involving an identified person. A “generalized” risk of harm is not enough. This conclusion is sensible. After all, if a counselee has emotional problems making him or her a “generalized” risk of harm to others, who should the counselor warn? Where would the duty to warn end? Very few courts have addressed these difficult questions, which makes this decision especially important. Gilmer v. Martin, 473 S.E.2d 812 (S.C. App. 1996). [Clergy Malpractice]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m37 c0397

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Legal Developments

Woman Sues Church Over Affair with Pastor

Court allowed lawsuit on the basis of clergy malpractice.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-03-01

Malpractice

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Some courts have allowed pastors to be sued on the basis of “clergy malpractice” for engaging in sexual relations with a counselee in the course of a counseling relationship.

• Key point. Churches may be sued for invasion of privacy or defamation if they disclose to church members that a pastor has engaged in sexual relations with a counselee in the course of a counseling relationship.

A New Jersey court allowed a woman to sue her church for “clergy malpractice” as a result of a sexual relationship that was initiated by her pastor. The woman’s lawsuit alleged that she had sought counseling from a pastor of her church, and that the pastor became aware of her emotional vulnerabilities and exploited those vulnerabilities to induce her to engage in sexual acts with him. The woman filed a complaint with a “standing committee on clergy ethics” of her denomination, and the committee later determined that the minister had “violated his pastoral relationship” with the victim by engaging in inappropriate sexual behavior toward her.” The committee “sanctioned” the minister. The woman then sued her church, claiming that the pastor’s actions amounted to “clergy malpractice.” A trial court dismissed the case on the ground that clergy malpractice is not a recognized theory of liability because it would unduly “entangle” the courts with religion in violation of the first amendment. The woman appealed, and a state appeals court ruled that the woman could sue the church for clergy malpractice.

The court acknowledged that a number of courts have rejected liability based on clergy malpractice. The most notable example was the California Supreme Court’s decision in the Nally case in 1988 (fully addressed in a prior issue of this newsletter). The Nally case involved a lawsuit by parents seeking damages for the suicide of their son. The parents sued their son’s church and four pastors who had counseled him. The parents claimed that the church and four pastors had failed in their duty to recognize that their son was suicidal and to refer him to psychiatric care. The court held that the four pastors, as “nontherapist counselors,” had no duty to refer a counselee to psychiatric care. The court refused to extend the duty to prevent suicide, previously imposed on psychiatrists and hospitals caring for a suicidal patient, to non—licensed nontherapist counselors who provide counseling on “spiritual matters.” The court observed that “it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The New Jersey court concluded that the Nally case was not relevant for three reasons: “First, constitutional considerations played a minimal role in the court’s analysis. Second, the alleged breach of duty was closely connected with the content of the counseling and advice provided by the counselors. Lastly, Nally did not involve exploitation of the counselee for the counselors’ sexual gratification.”

The court observed that “malpractice” is nothing more than the negligent performance of a professional service and “a deviation from the standards of performance applicable to the professional service in question.” The court expressed concern over potential first amendment violations when civil courts apply the concept of malpractice to members of the clergy. However, it was unwilling to conclude (as many other courts have done) that the first amendment bars recognition of civil liability for clergy malpractice in all cases. The court observed:

Regarding the risk of undue entanglement in ecclesiastical affairs arising out of a case of clergy malpractice, we share the concerns of those courts that have addressed the issue. We are, however, persuaded that those concerns are overstated in circumstances, such as the present case, involving a cleric’s sexual misconduct …. We conclude that one test to determine whether a cause of action against a cleric is cognizable in civil courts is whether adjudication of the claim requires an evaluation of dogma or ritual, or other matters of purely ecclesiastical concern. In the present case, it is unlikely that [the church] will assert that sex with a counselee by a pastoral counselor is sanctioned by or somehow involves tenets of the … church, or would otherwise create an entanglement with religious beliefs or rituals of first amendment concern.

Moreover, there is a bright line between counseling culminating in a sexual relationship with a counselee and other types of harms allegedly resulting from a failed counseling relationship. Thus, we do not share the concern … that to recognize a cause of action for the sexual exploitation of a child would place civil courts “on the slippery slope.”

The court concluded that “[w]e perceive no impenetrable barrier … to establishing a standard of care applicable to cleric—counselors in the context of an allegation that the counselor used his position to sexually exploit the counselee.” The court cautioned that it was now up the woman to prove “an applicable standard of care, show that [the pastor] breached this standard, and prove the damages flowing from that breach.”

The court then turned its attention to another claim made by the woman-the legal liability of another pastor at the same church who informed the congregation of the sexual relationship. The woman sued this pastor as well, claiming that by informing the congregation the pastor had breached a fiduciary duty, invaded her privacy, made negligent misrepresentations, committed defamation, and placed the woman in a “false light.” The appeals court ruled that the woman could pursue this claim as well.

This case is important for a number of reasons. First, it demonstrates the liability of clergy and churches on the basis of “clergy malpractice” is not dead. It is still recognized as a viable claim by some courts in the context of inappropriate sexual behavior. Second, it reaffirms the view of nearly all courts that clergy cannot be sued on account of the content of their counseling. It is only their actions that may result in liability. Third, the court announced a new test for determining whether or not a lawsuit against a minister can be resolved by the courts-would resolution of the lawsuit require the court to engage in “an evaluation of dogma or ritual or other matters of purely ecclesiastical concern”? Fourth, the court allowed the woman to sue another pastor who informed the congregation of the affair. This illustrates the risks associated with communicating such information, even to members. The woman asserted that it was inappropriate for her name to have been mentioned, since this suggested that she was equally at fault for a relationship that she insisted was due entirely to the pastor’s exploitation of her emotional vulnerability. F.G. v. MacDonell, 677 A.2d 258 (N.J. Super. 1996). [Invasion of Privacy, Clergy Malpractice, Seduction of Counselees and Church Members, Judicial Resolution of Church Disputes]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m54 m67 c0297

Legal Developments

Church Liability for the Sexual Misconduct of Ministers

Church and denominational agency not responsible for pastor’s misconduct

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-01-01

Church Liability For The Sexual Misconduct Of Ministers

Richard R. Hammar, J.D., LL.M., CPA

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.

Facts

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

  • battery
  • intentional infliction of emotional distress
  • false imprisonment
  • assault
  • 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.”

Respondeat superior

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.

Negligent selection

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.”

Negligent retention

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.

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m86 m40 c0197

Legal Developments

Psychologist Loses License for Religious Counseling

Patient was demon possessed, psychologist said.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1996-03-01

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Key point. The state can never regulate a person’s religious beliefs. But, under some circumstances it can regulate conduct that is based on religious beliefs.

The New Hampshire Supreme Court upheld a state board’s permanent revocation of a psychologist’s license in part because of his use of religion in the course of counseling. A psychologist’s license was revoked by a state board on the basis of “grossly incompetent and plainly unprofessional conduct.” The board concluded that the psychologist’s continued practice posed a threat to the safety of future patients. The board’s decision was based in part on the following acts: the psychologist insisted that a patient was possessed by demons; the psychologist used treatment that included praying with this patient to renounce Satan; and, the psychologist told the patient that she had been raised in a house of demons. The psychologist sued the state board, claiming among other things that its decision to revoke his license infringed upon his constitutional right to freely exercise his religion. The state supreme court disagreed. It observed:

The state constitution prohibits the state from revoking [a psychologist’s] license for his religious views but does not prohibit revocation for acts that otherwise constitution unprofessional conduct, regardless of their religious character. There can be little doubt that it is unconstitutionally impermissible for the state to revoke a medical license on the basis of the holder’s religious views, however unorthodox they may be. But, the holder of a license cannot rely on [his] religious views to excuse failures to comply with state medical licensing requirements. The board explicitly stated that the proceedings pertained to [the psychologist’s] competency and professionalism under [state law] and were not an inquiry into the validity of his religious beliefs.

The court concluded that the state board’s decision to revoke the psychologist’s license did not violate his constitutional right to religious freedom since the board’s decision was based “not on his religious views but for his conduct in the treatment [of a patient].” Petition of Smith, 652 A.2d 154 (N.H. 1994). [ State Regulation of Psychologists and Counselors, The Free Exercise Clause]

© Copyright 1996, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m47 m37 c0296

Legal Developments

Penitent Privilege Not Applicable When Religious Counselors Aren’t Ordained, Court Rules

Court also limits penitent privilege to statements made in the sacrament of confession.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1995-11-01Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: Statements made to a nonordained church counselors are not protected by the clergy-penitent privilege.

• Key point: The clergy-penitent privilege has been limited in Washington state to statements made to clergy in the course of the sacrament of confession.

• In an unfortunate decision a Washington state court single-handedly repealed the clergy-penitent privilege outside of the context of penitents who make statements during the sacrament of confession. A woman served as a babysitter for a 3-year-old girl. One day the girl told her mother about sexual acts the babysitter had engaged in with her. The mother was shocked. She confronted the babysitter, who said that she had “not hurt” the child and that she had engaged in sexual acts “only a couple of times.” The babysitter was later convicted of rape of a child in the first degree. At the trial, a religious worker from the babysitter’s church testified that the babysitter had informed her that she had been “sexually involved” with the child. The babysitter appealed her conviction, claiming that the religious worker should not have been permitted to testify since the conversation she had with her was protected from disclosure by the clergy-penitent privilege. The religious worker was a nonordained “family minister” at her Catholic church who served as an assistant to a priest and, due to a priest shortage, helped carry out the work of the church. She provides a young adult ministry, a singles ministry, and other services. The trial court found that the babysitter’s statements to the religious worker were outside the clergy-penitent privilege because (1) the statements were not made in the course of the sacrament of confession but rather during a referral for counseling, and (2) the religious worker was not an ordained member of the clergy. A state appeals court agreed. It noted that Washington law contains the following clergy-penitent privilege: “A member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.” The crucial issue in this case, concluded the court, was whether or not “nonordained church counselors” satisfy the definition of “a member of the clergy.” The court concluded that they do not. It further concluded that the clergy-penitent privilege in Washington applies only to statements made by penitents to Catholic priests during the sacrament of confession. It noted that the clergy-penitent privilege statute (quoted above) applies only to statements that are a “confession … in the course of discipline enjoined by the church.” The religious counselor in this case “did not administer the Catholic sacrament of confession in the narrow, ecclesiastical sense,” and a narrow reading of “confession” or “course of discipline” in the clergy-penitent privilege statute “includes only the sacrament of confession, which did not occur.” The court continued:

By its terms, the statute is very narrow. Its language indicates that confessions must be in accordance with church discipline concerning confessions. Only confessions specifically authorized by particular churches seem to be included. Such confessions are authorized in relatively few religious denominations. The apparent purpose of the statute is to protect formal church doctrines and procedures by protecting confessors who are constrained by such doctrines to follow confession procedures. Nothing in the record suggests that [the babysitter] was constrained by her religious doctrines to disclose her criminal actions to [the religious counselor]. Extension of the privilege to [her] counseling is not consistent with either the wording or the purpose of [the privilege].

The court rejected the babysitter’s claim that restricting the clergy-penitent privilege to the Catholic church (and those few Protestant denominations that recognize a sacrament of confession) would demonstrate a preference for some religious faiths over others in violation of the Constitution. It concluded:

Such criticism, however well taken, does not answer the question of whether the legislature or the courts should remedy the situation. To the extent there is a public policy basis for protecting a broader variety of ministry-related confidential relationships, it is offset by an equally weighty policy of allowing (or in some cases requiring) disclosure of known child abuse. The legislature is the source of statutory privileges and we leave to that body the responsibility of determining whether church-related counseling activities should be privileged.

Clergy in the State of Washington may want to contact their state legislators to introduce legislation expanding the clergy-penitent privilege. As an example, Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, provides that

“[a] person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to the clergyman in his professional character as a spiritual adviser.” The term “confidential communication” is defined as a communication “made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” This is a much broader expression of the clergy-penitent privilege, since it is not limited to sacramental confessions. The full text of Rule 505 is set forth in chapter 3 of Richard Hammar’s text, Pastor, Church & Law (2d ed.). State v. Buss, 887 P.2d 920 (Wash. App. Div. 1 1995).[PCL3G3, PCL3G5]

See Also: Were the Statements Made to a Clergyman? | Was the Communication Made in the Course of Discipline?

© Copyright 1995, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0695

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