Counseling and the Clergy-Penitent Privilege

When are communications protected?

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Confidential and Privileged Communications, Counseling

Church Law and Tax 1991-05-01 Recent Developments

Confidential and Privileged Communications

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

• A Pennsylvania state appeals court ruled that statements made by a murder suspect to a minister were not “privileged” since they were not made to the minister while acting in his professional role as a spiritual adviser. The facts of the case are tragic. In 1966, a 10-year-old girl and her 6-year-old friend were playing by a creek near their homes. A man approached the children, and asked them to help him “catch minnows” around a bend in the stream. He offered them chewing gum if they would accompany him. The 6-year-old declined the invitation, but the 10-year-old girl went with the man. A search for the girl was launched when she failed to return home for lunch. Her body was discovered, with her throat slashed, behind some bushes a few hundred yards from where the children had been playing. A small, plastic “sheriff’s badge” was found under her body. An intensive search was conducted, and several suspects were questioned, but no arrests were made. Twenty-two years later, a man was arrested in the same community for indecent exposure. The court appointed a local minister to counsel with the individual. While he was not an active member of the minister’s church, he and his wife occasionally attended services at the church. During a counseling session, the individual informed the minister that he was guilty of the murder of the girl 22 years before, and he asked the minister to accompany him to the police station where he stated he would confess to the crime. The minister also noticed that the individual had a plastic sheriff’s badge in his pocket. Largely on the basis of this new evidence, a murder prosecution was commenced and the individual was convicted of first degree murder. The murderer appealed his conviction on the ground that the statements he had made to the minister were protected by the clergy-penitent privilege, and accordingly should not have been introduced in evidence during the trial. A state appeals court rejected this claim, and upheld the murder conviction. The court began its opinion by noting that Pennsylvania law provides that “no clergyman … who while in the course of his duties has acquired information from any person, secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any governmental unit.” The court concluded that this statute did not apply in this case, since “the circumstances in which the statements were made were not religious, in that nothing spiritual or in the nature of forgiveness ever was discussed.” The court emphasized that “our legislature did not intend a per se privilege for any communication to a clergyman based on his status. We therefor look to the circumstances to determine whether [the murderer’s] statements were made in secrecy and confidence to a clergyman in the course of his duties.” The court noted that the minister had been appointed by the court to counsel with the murderer concerning his indecent exposure conviction, and that it was the minister who sought out the murderer. The court observed: “[The murderer] never sought [the minister] in a confessional role; further, there was no evidence that [the minister] was acting in any capacity other than that of counselor. Thus, the statements were not motivated by religious considerations or in order to seek the forgiveness of God. Accordingly, they were not made to [the minister] in the course of his duties as a minister. Instead, they were made because he was a court-appointed counselor. Further, [the murderer] never was a member of the church. Under these circumstances, we conclude that the fact that [the minister] is ordained was not relevant to [the murderer’s] statements to him and there is no basis to conclude that his statements were made confidentially or for religious, penitent purposes.” Accordingly, the clergy-penitent privilege did not apply, and the minister could testify regarding the murderer’s confession. Further, the court stressed that “we categorically reject the allegation that this privilege extends to openly-displayed objects, as was the toy sheriff’s badge.” This case illustrates two important principles. First, the clergy-penitent privilege generally extends only to those confidential statements that are communicated to a minister while acting in his or her professional capacity as a spiritual adviser. Second, the privilege ordinarily does not extend to observations made by a minister during the course of counseling. Commonwealth v. Patterson, 572 A.2d 1258 (Pa. Super. 1990).

Was the Minister Acting in a Professional Capacity?

© Copyright 1991, 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 c0391

Legal Developments

Sexual Misconduct of Counselors

A court ruled that a pastoral counseling center could be sued for a counselor’s misconduct.

Richard R. Hammar, Attorney, CPA

Bio

State: Alaska
Categories: Counseling, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1991-01-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• The Alaska Supreme Court ruled that a pastoral counseling center could be sued by a woman who was sexually seduced by a counselor. The woman claimed that she had visited the counselor on several occasions, and that the pastoral counselor “negligently handled the transference phenomenon” by taking advantage of her sexually. She allegedly suffered severe emotional injuries, and as a result sued the center and two of its directors for damages. She claimed that the center was legally responsible for the counselor’s misconduct on the basis of “respondeat superior”—a legal theory the makes an employer responsible for the actions of its employees committed within the scope of their employment. In explaining the “transference phenomenon,” the director of the center explained that “transference is a phenomenon that occurs that is similar to a state of dependency in which the client begins to project the roles and relationships and the images and experiences that they have had with other people previously in their life, especially other significant people such as mother, father, brothers, sisters, early teachers and adult models, upon the therapist.” The director acknowledged that the transference relationship is very “delicate” and “fragile,” and that a counselor has “a professional and ethical responsibility to manage that relationship so that the client is not damaged in any way.” A trial court summarily dismissed the lawsuit, concluding that the center was not responsible for the intentional and unauthorized misconduct of a counselor. The case was appealed directly to the state supreme court, which reversed the trial court’s decision and ordered the case to proceed to trial. The court announced a very broad interpretation of the respondeat superior doctrine. The court concluded that an employer could be responsible for an employee’s sexual misconduct that “arises out of an is reasonably incidental to the employee’s legitimate work activities”—even if the misconduct was intentional and unauthorized by the employer. This ruling ignores the vast majority of court rulings that have rejected an employer’s legal responsibility for the intentional misconduct of an employee. Perhaps the most significant aspect of the case is the lengthy and articulate opinion of a dissenting justice, who ably described the many weaknesses in the court’s decision. With regard to the claim that employer liability will “provide a spur toward accident prevention,” the dissenting justice observed: “Since a therapist’s sexual misconduct stems from his intentional disregard of well-established standards of professional conduct, there is little that an employer can do to reduce its occurrence.” The dissenting justice also rejected the argument that employer liability is necessary to “provide greater assurance of compensation for accident victims.” He observed: Imposing vicarious liability would tend to make malpractice insurance, already a scarce and expensive resource, even harder to obtain. It is also unclear whether malpractice insurance would even cover sexual misconduct. Whether or not mental health employers could insure against this risk, they would have to raise the cost of their services dramatically. Mental health services would be denied to those who are least able to pay. While victims of therapist sexual misconduct may enjoy a greater chance of being compensated, the cost of creating that benefit in reduced access to mental health services is unacceptable.” Finally, the dissenting justice rejected the argument that employer liability was required to “distribute” the costs of an enterprise among its beneficiaries: “Spreading the cost of therapist-patient sex to the consumers of mental health services is unfair. Therapist-patient sex, although not uncommon, is not an inevitable cost of mental health care. It is a cost imposed by therapists who intentionally disregard the standards of conduct of mental health professionals for personal sexual gratification.” There is little doubt that most courts will be more persuaded by the thoughtful analysis of the dissenting justice than by the aberrant ruling of the court. For now, the case proceeds to trial. In the meantime, churches and pastoral counseling centers in the state of Alaska should carefully review with legal counsel their counseling activities. Any further developments will be reported in future editions of Church Law & Tax Report. Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990).

Legal Developments

Counseling Center’s Request for Building Permit Denied

The services offered would not have been for “religious purposes” as required by zoning law.

Richard R. Hammar, Attorney, CPA

Bio

State: Massachusetts
Categories: Church Property, Counseling, Zoning

Church Law and Tax 1991-01-01 Recent Developments

Zoning

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

• A Massachusetts appeals court upheld a city’s denial of a pastoral counseling center’s application for a building permit to convert space in a church building into a counseling center. A Congregational church opened a pastoral counseling center in 1976. To extend its reach beyond the immediate congregation to the broader community, the center relocated to the Andover-Newton Theological School and became an ecumenical practice. To emphasize the continuity between pastoral counseling and church activity, the center later decided to relocate in a local church. It made arrangements with a Baptist church to rent a portion of its facilities for a ten-year term. The counseling center planned to use 6 pastoral counselors who would see about 120 clients per week. Counseling sessions would last about fifty minutes, for which a fee of $35 to $50 would be charged. The counselors were prepared to treat a variety of problems, including depression, grief, marital difficulties, substance abuse, job stress, and loneliness. The counseling center is open to the general public, and its clientele is not limited to Baptists, Christians, or even believers in God. Further, the counselors do not proselytize. The city denied the center’s application for a permit to remodel a portion of the church into a counseling center, since this activity would not be for “religious purposes” as required by the zoning law. The court noted that “the services offered by the center, and its method of delivering them are not significantly different from what a neutral observer coming upon the scene would size up as a mental health center applying standard psychological and psychiatric techniques.” The court acknowledged that “religious activity, to be sure, may involve more than prayer and worship.” However, on the other hand, “some theological, inspirational or spiritual content does not automatically imbue an activity with a religious purpose.” The court emphasized that the center would be operated by a tenant rather than by the church itself, and “is not designed primarily for parishioners of that church. Specific religious doctrine is subordinated, and the doctrinal faith of the counselors is to play no role in the counseling sessions. The readiness to give psychological counseling to nonbelievers illustrates that, depending on the reaction of the particular client, religion may be absent from certain counseling sessions altogether.” Under these circumstances, the court agreed with the city’s conclusion that the center would not be operated for a “religious purpose” as required by law. The court did acknowledge that a pastoral counseling center located in a church building and operated by the church primarily for its own members would be a religious purpose. Such was not the case here. Needham Pastoral Counseling Center, Inc. v. Board of Appeals, 557 N.E.2d 43 (Mass. App. 1990).

Legal Developments

Clergy – Part 1

Legal Liability

Richard R. Hammar, Attorney, CPA

Bio

State: Minnesota
Categories: Counseling

Church Law and Tax 1990-05-01 Recent Developments

Clergy – Legal Liability

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

• A Minnesota minister was convicted on four felony counts of “psychotherapist-patient criminal sexual conduct” for engaging in sexual relations with a female counselee. The minister served as senior pastor of a Christian Missionary Alliance Church. In 1985, he was approached by a married female member who desired counseling for low self-esteem, suicidal thoughts, grief, compulsions, an eating disorder, and premenstrual syndrome (PMS). The first several counseling sessions consisted of a discussion of Bible passages. In time, the pastor began discussing sexual issues although the woman insisted that she had not sought counseling for such matters. The pastor persisted in discussing sex, saying that sex was a “gift from God” and that he was “working” with her on her sexuality. After several sessions, the woman’s husband and a close friend advised her to seek other help since she did not appear to be improving. The pastor insisted that terminating the counseling relationship had to be a mutual decision, and that it was “nobody else’s business”. At the conclusion of one counseling session that explored the subject of grief, the pastor gave the woman a brief hug, which she thought was appropriate but did not want to continue. The following week she asked the pastor if they were engaged in “normal counseling,” and he replied that he loved her. The session ended with the two engaged in hugging and passionate kissing. Two days later, the woman went back to clarify that their relationship would remain “platonic” and non-sexual. At that meeting, the two engaged in hugging and kissing. The pastor gave the woman a rose as a symbol that their relationship would forever remain “pure and chaste from afar” and that he would “maintain her virginity”. A couple of weeks later, the woman returned to the pastor’s office one evening and again the following morning. The two engaged in sexual fondling. This conduct was during her menstrual period, and the pastor assured her that their behavior would “help her work through negative issues about her menstrual period.” A month later, the two went to a motel and engaged in sexual intercourse for the first time. The woman testified that the pastor assured her that it was a “good” sexual encounter because he was unselfish. He also informed her that sex between a counselor and counselee was a felony in Minnesota. Shortly after this incident, the woman gave the pastor a signed letter stating “I, the undersigned, have given [my pastor] control of my life—my future—out of my abiding love for him.” The two engaged in sexual intercourse on at least two other occasions over the next few months. The woman testified that the pastor assured her that sexual contact and intercourse was consistent with her “treatment” because it would remove her inhibitions about sex “set her free” from her sexual “hang-ups”. A short time later, the two left town at the pastor’s request. At his request, the woman issued him checks amounting to $11,000. The pastor was later prosecuted for four felony counts of criminal sexual contact. Minnesota law imposes a penalty of up to 15 years in prison for either (1) “sexual contact” by a “psychotherapist” with an “emotionally dependent” patient, or (2) sexual contact by a psychotherapist with a patient occurring by means of “therapeutic deception”. Minnesota law imposes a penalty of up to 20 years for either (1) sexual intercourse by a “psychotherapist” with an “emotionally dependent” patient, or (2) sexual intercourse by a psychotherapist with a patient occurring by means of “therapeutic deception”. A jury convicted the pastor on all four felony counts, and he appealed. In upholding the conviction, a state appeals court concluded that the pastor was a psychotherapist since he had assumed the role of a counselor, and that he had in fact committed both sexual contact and sexual intercourse with an “emotionally dependent” patient, and that the sexual contact and intercourse occurred because of “therapeutic deception”. In concluding that the woman was “emotionally dependent” on the pastor, the court relied on the testimony of expert witnesses who stated that “there is a power imbalance in a pastoral counseling setting because the client idealizes the pastor.” The court also referred to (1) 32 notes and cards the woman had sent the pastor, (2) the fact that the woman had “signed over her life” to the pastor, (3) the fact that the woman had violated her strongly held religious beliefs and instincts to engage in what she felt was a very sinful relationship, and (4) the $11,000 she gave the pastor at his request. The court also concluded that the sexual contact and sexual intercourse had occurred “because of therapeutic deception”. In reaching this conclusion, the court referred to the pastor’s frequent assurances that sexual contact and intercourse were part of the woman’s “ongoing treatment” and were necessary to remove her inhibitions and hang-ups. In rejecting the pastor’s claim that he had a constitutional right to engage in consensual sexual relations with whomever he chose, the court ruled that no constitutional right protects a pastor who engages in sexual activity as part of religious counseling. The court observed: “These statutes are meant to protect vulnerable persons and allow them to reposit trust in those who can help them. The legislature has recognized the emotional devastation that can result when a psychotherapist takes advantage of a patient.” State v. Dutton, 450 N.W.2d 189 (Minn. App. 1990).

© Copyright 1990, 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: m29 m37 m67 c0390

Legal Developments

Personal Injuries – Part 1

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

State: Oregon
Categories: Counseling

Church Law and Tax 1990-03-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Can a woman who is sexually seduced by her Lutheran minister during counseling sessions sue the minister, her church, and her denomination? That was the issue before an Oregon state appeals court in a recent decision. The woman sued the minister for “intentional infliction of emotional distress” and “breach of confidential relationship”. She sued her church on the grounds that it was legally responsible for the acts of its minister and for “negligent supervision” of its minister. She also sued the regional office (North Pacific District) of the American Lutheran Church, arguing that it was also liable for alleged negligent supervision of its churches and clergy, and also that its procedure for removing the minister from office involved her in a confrontational process that caused her emotional harm. The woman alleged that her minister abused his pastoral and counseling relationships with her by “manipulating” her into have sexual relations with him. She claimed to have suffered sexual abuse, extreme emotional distress, physical illness, loss of sleep and memory, clinical depression, and loss of her “ability to trust other adults, to trust authority, and to deal with religion and faith in God.” A trial court dismissed the entire lawsuit, and the woman appealed to a state appeals court. The appeals court began its opinion by emphasizing that dismissing a lawsuit is an extraordinary act of a trial court and requires that the plaintiff’s petition state no facts that could give rise to legal liability. The court concluded that the woman’s lawsuit did state facts, which if proven true, could possibly result in legal liability. As a result, it reversed the trial court’s dismissal of the case, and ordered the case to proceed to trial. The court concluded that the facts alleged in the lawsuit stated a claim for breach of confidential relationship and intentional infliction of emotional distress by the minister. It rejected the minister’s argument that the claims against him were really an attempt to sue him for “seduction”—a legal theory that had been eliminated by the Oregon legislature in 1973. The fact that the minister allegedly used seduction as a means of breaching his confidential relationship with the woman, and to intentionally cause her emotional distress, did “not convert her claim into one for seduction.” The court also rejected the minister’s claim that the lawsuit violated his constitutional guaranty of religious freedom. The court also found that the lawsuit stated facts that, if proven true, would create legal liability for the church on the basis of both “negligent supervision” and “respondeat superior.” Under the respondeat superior doctrine, an employer is legally responsible for the acts of an employee committed within the scope of employment. The court conceded that the church may well be able to prove at trial that the minister’s acts were not committed within the scope of his employment. But it could not agree with the trial court that the lawsuit failed to state facts that might establish legal liability. Similarly, it concluded that the lawsuit stated facts that could give rise to church liability for “negligent supervision.” Specifically, the lawsuit alleged that the church “knew or should have known that [the minister] was not adequately trained as a counselor and that it knew or should have known that he had misused his position in the past to take advantage or parishioners and counseled persons … [and] failed to investigate claims of his sexual misconduct [or] warn parishioners of his misuse of his position ….” The court stressed that it was not finding the church responsible. Rather, it simply was rejecting the trial court’s conclusion that the lawsuit failed to state facts for which the law provides a remedy. Finally, the court found that the trial court improperly dismissed the claims against the North Pacific District of the American Lutheran Church, since the lawsuit stated facts which (if true) could result in legal liability. The court again emphasized that it was not finding the District liable. On the contrary, it acknowledged that the constitutional guaranty of religious freedom “may provide the [District] with an affirmative defense at some later stage of the proceeding.” What is the relevance of this case to other churches and denominations? Consider the following: (1) It suggests that churches can be sued for the sexual improprieties of their ministers. While it is doubtful that a church will be liable under the respondeat superior doctrine (seduction is not within the “scope of employment”), it is conceivable that a church could be legally liable for “negligent supervision” if it knew (or should have known) of previous sexual improprieties of a minister but failed to limit further counseling opportunities, closely supervise the minister, or warn counselees. (2) It suggests that denominations can be sued for negligently supervising clergy who are known to have engaged in sexual improprieties. Of course, if a church or denomination is unaware of any information that would cause it to believe that a particular minister is a potential threat, then it is very unlikely that it would ever be found liable for negligent supervision. Further, the potential liability of a denomination will depend largely on the degree of control and supervision that it retains over the day-to-day activities of its clergy. The less authority that a denomination has to supervise clergy, the less likely a claim of negligent supervision becomes. Erickson v. Christenson, 781 P.2d 383 (Or. App. 1989).

Legal Developments

Clergy – Part 1

Taxes

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1990-01-01 Recent Developments

Clergy – Taxes

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

• Do counseling services performed by a minister for a “Christian counseling practice” qualify for a housing allowance exclusion? No, ruled the IRS in a recent private letter ruling. The minister established a family counseling practice to “meet human needs based on the principles of his faith.” A local church (with which the practice originally had been associated) “endorsed” the practice and referred persons to it. The minister claimed that he was eligible for a housing allowance since his church in effect had “assigned” him to the counseling practice. The IRS acknowledged that clergy may qualify for a housing allowance exclusion with respect to services they perform for organizations to which they have been assigned by their church or denomination. However, it stressed that such an assignment “must be significant, in that the minister must have been assigned to the church for reasons directly related to the accomplishment of purposes of the church. More is required than mere ordained status and the perfunctory ratification by religious authority of secular employment obtained by the minister for non-church-related reasons.” The IRS concluded that counseling services performed by the minister were not pursuant to a valid assignment by his church. It observed: “Although the church states that if commissions and endorses the minister in his counseling practice, this does not constitute an assignment or designation by the church. The church is supportive of the minister’s counseling practice, but we find no evidence to suggest that the church specifically assigned the minister to perform any counseling services on its behalf. Also, it does not appear that the counseling services the minister performs directly further the purposes of the church. The minister performs his services free from the church’s control …. The intent of the counseling services is not to further any of the church’s purposes (although the church may benefit from the minister’s counseling). While the minister may provide his counseling services based on his church’s religious beliefs, this does not meet the requirement that the minister be assigned to perform his services in order for them to qualify as services performed in the exercise of his ministry.” The IRS also pointed out that the minister had conceded that his church “does not assign … its ministers to any particular work.” This ruling will be of interest to those clergy who are working for schools, parachurch organizations, and secular organizations, and who are basing their eligibility for a housing allowance exclusion on an “assignment” by their church or denomination. The ruling suggests that the IRS will interpret “assignments” very strictly, and that effective assignments must have the following characteristics: (1) the practice or organizing documents of the church or denomination authorize assignments; (2) the church or denomination specifically assigned the minister to perform services on its behalf; and (3) the assignment furthers the purposes of the church or denomination. Private Letter Rulings 8826043 and 8930038.

Legal Developments

Clergy – Part 2

Taxes

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1990-01-01 Recent Developments

Clergy – Taxes

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

• In another ruling, the IRS concluded that a minister who was employed by a crisis counseling center qualified for a housing allowance. The center was not affiliated with any particular church, but it was operated as nonprofit religious organization. The minister’s duties included Bible teaching, spiritual counseling, seminars, speaking engagements in churches, and acting as a liaison with area churches. The IRS ruled that the center could provide the minister with a tax-excludable housing allowance. In support of its ruling, the IRS cited an income tax regulation specifying that if a minister is performing “service in the conduct of religious worship or the ministration of sacerdotal functions, such service is in the exercise of his ministry whether or not it is performed for a religious organization.” In other words, the minister qualified for a housing allowance exclusion not because he was employed by a church, but because he performed religious worship and sacerdotal functions for a non-church-related organization. Private Letter Ruling 8825025.

Legal Developments

Child Abuse – Part 2

Church Law and Tax 1989-05-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Counseling

Church Law and Tax 1989-05-01 Recent Developments

Child Abuse

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

• Can a diocese and bishop be sued for damages resulting from the alleged sexual molestation of minors by a Catholic priest? That was the issue before a Washington state appeals court in a recent case. In 1984, a Catholic diocese in Louisiana suspended a priest from performing his “priestly duties” after he admitted to sexual misconduct with minors. The priest was asked to leave the diocese and he eventually was admitted (with the approval of the diocese) to the Jesuit House in Spokane, Washington. A representative of the Louisiana diocese noted that “because of the nature of the complaints, we did not want to take any chances of him just running free. We had no police control over him. We could not lock him up or anything like that. So, we had to leave him in a place where he could have some supervision and a place to stay.” Just prior to the priest’s discharge from the Jesuit House, the diocese informed him that his “options in the ministry were severely limited if not nil,” and that “because of the possibility of legal action and the responsibility on the part of any institution that might hire you, I think realistically that for Church employment you are a very poor risk.” The diocese further advised the priest that he would not be permitted to perform priestly duties upon his release, and that he was not to return to the diocese. Following his release from the Jesuit House, the priest accepted a job as a counselor of adolescents in an alcohol/drug rehabilitation center in a private hospital. He was terminated from this job because of complaints of sexual abuse by former patients. Eight adolescents and one adult sued the hospital, the priest, as well as his diocese and bishop. The plaintiffs alleged that the diocese had negligently supervised the priest, and that it should have warned the private hospital of his pedophilia. The appeals court agreed that “an employer may be held liable for acts beyond the scope of employment because of its prior knowledge of the dangerous tendencies of its employee.” The diocese argued that it could not be liable for the misconduct of the priest, since his actions did not arise out of his priestly duties and accordingly were not within the scope of his employment relationship with the diocese. In rejecting this claim, the court observed that “the duty of obedience which [the priest] owed the diocese encompassed all phases of his life and correspondingly the diocese’s authority over its cleric went beyond the customary employer/employee relationship …. Despite his employment with [the hospital], the employment relationship between [the priest] and the diocese continued.” The court sent the case back to the trial court to determine whether the diocese had been negligent in supervising the priest, and whether it should have warned the hospital of his pedophilia. If the courts of Washington ultimately determine that the diocese was negligent for not having warned the hospital of the priest’s pedophilia, then this would suggest that church denominations (and even local churches) may be at risk if they are aware that a minister is a pedophile but do nothing to warn a prospective employer (religious or otherwise) of the individual’s pedophilia. Further developments in this case will be reported in future issues of Church Law & Tax Report. Does 1-9 v. Compcare, Inc., 763 P.2d 1237 (Wash. App. 1988).

© Copyright 1989, 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: m10 m67 m40 m86 c0389

Legal Developments

Confidential Communications

Church Law and Tax 1989-03-01 Recent Developments Confidential Communications Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1989-03-01 Recent Developments

Confidential Communications

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

• Can a church be sued if its minister fails to report a child molester to the civil authorities? That was one of the issues before an Arizona state appeals court in a recent case. Here are the facts. A member of the Church of Jesus Christ of Latter-Day Saints (the church) informed three church officials that he had sexually molested a number of children. The mother of one of the victims sued the church, arguing that its negligence in not reporting the molester to civil authorities and in carelessly counseling with him had contributed to the molestation of her daughter. The molester later confessed to at least 33 acts of child molestation, and freely disclosed to the police the confessions that he had made earlier to the church officials. The mother sought to compel the church officials to testify regarding the confessions as part of her attempt to demonstrate that the officials had been aware of the risks posed by the molester and had been negligent in failing to report him to the authorities. This request was opposed by the church officials, who claimed that the confessions previously made to them were shielded from disclosure in court by the “clergyman-penitent privilege.” The court ruled that under Arizona law the clergyman-penitent privilege “belongs to the communicant, not the recipient of a confidential communication,” and accordingly only the molester could assert it. Further, the court concluded that the molester had “waived” the privilege by his voluntary disclosures to the police. The court rejected the church’s claim that the church officials to whom the confessions were made could independently assert the clergyman-penitent privilege as a means of avoiding the obligation to testify. It observed that the clergyman-penitent privilege was a response “to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one’s self and others can be realized. This urgent need is the penitent’s, not the clergyman’s. And once the penitent has waived the privilege, his penitential need is unserved and the public’s evidentiary need disserved by permitting a clergyman to assert the privilege independently.” The court acknowledged that “complex issues” would be raised if the church officials, like Roman Catholic or Episcopalian clergy, were bound by an absolute obligation of silence “unwaivable by a penitent”. However, it observed that the church officials had failed to demonstrate that they were similarly bound by an absolute obligation of silence, and therefore it refused to rule on this issue. In summary, the church officials were required to testify in court about the confessions that the molester had made to them in the course of counseling. It remains to be seen whether such evidence will demonstrate that the officials were negligent in not promptly reporting the molester to the authorities. The eventual outcome of the case will be reported in a future issue of Church Law & Tax Report. Church of Jesus Christ of Latter-Day Saints v. Superior Court, 764 P.2d 759 (Ariz. App. 1988).

Legal Developments

Freedom of Religion – Part 1

Church Law and Tax 1989-03-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1989-03-01 Recent Developments

Freedom of Religion

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

• Can a county hospital hire a full-time chaplain who is paid with tax revenues? Yes, concluded a federal appeals court in a significant decision. A county hospital in Iowa hired a full-time chaplain in 1984 after a volunteer chaplaincy program proved inadequate to meet patients’ needs. Fifty percent of the hospital’s inpatient population were in a psychiatric ward, and many of these patients had been committed involuntarily and were not free to leave at will. The hospital also confined prisoners who were referred to it for treatment or evaluation. The chaplain’s duties included calling on patients prior to surgery, being available for counseling in intensive care and surgery waiting rooms, visiting patients who requested a visit, and conducting worship services and a Bible study class for patients who chose to attend. The court concluded that the act of hiring the chaplain did not violate the first amendment’s “nonestablishment of religion” clause, since it served a valid secular purpose, did not have a primary effect of advancing religion, and did not unduly entangle church and state. The court emphasized that the hospital practiced a “wholistic” approach to medicine, which recognizes that a patient’s overall health and recovery is based on spiritual as well as physical and emotional conditions, and accordingly that spiritual needs must be addressed in the lives of patients who express an interest. Such an approach, concluded the court, constituted a permissible “secular purpose” and precluded a finding that the primary effect of the chaplaincy program was the advancement of religion. The court emphasized that the chaplain “avoided proselytizing” and engaged in no “direct advancement” of religion by “inculcating any religious belief or practice.” The court further held that “the chaplaincy is a permissible accommodation of at least some patients’ free exercise [of religion] rights. There was evidence that a large percentage of patients were prisoners or had been involuntarily committed … in the psychiatric ward. Such restrictions constitute a state-imposed burden on the patients’ religious practices that the state may appropriately adjust for.” The court permitted the chaplain to counsel with outpatients and with the families of patients, but prohibited the chaplain from engaging in religious counseling with hospital employees (secular counseling with employees was permitted). Finally, the court ruled that (1) the chaplain could not review the medical records of any patient without that person’s consent, (2) the chaplain could wear a name tag and park in a reserved lot, (3) the hospital could use an admissions form that permitted patients to list their religious preference, and (4) the practice of conducting optional religious services was permissible. Carter v. Broadlawns Medical Center, 857 F.2d 448 (8th Cir. 1988).

Legal Developments

Court Concluded a Counselor’s Free Exercise of Religion Did Not Permit Him to Use Religious Counseling Methods

Can a juvenile court counselor be fired for using a "Christian perspective" in counseling emotionally

Richard R. Hammar, Attorney, CPA

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State: Virginia
Categories: Counseling, Freedom of Religion

Can a juvenile court counselor be fired for using a "Christian perspective" in counseling emotionally disturbed adolescents? Yes, concluded a federal court in Virginia.

The counselor, who was a county employee, was discharged for his "stubborn insistence upon injecting his religious views into his counseling against the wishes of his superiors." The counselor sued the county, claiming that his discharge violated his constitutional right to religious freedom.

In rejecting this claim, the court observed that the counselor's right to exercise his religion was not absolute, but had to be balanced against the state's duty to avoid violating the first amendment's nonestablishment of religion clause and protecting the religious beliefs of others. The court concluded that "when the exercise of an individual's first amendment rights potentially violates free exercise rights of others or the mandates of the establishment clause, the individual's rights are not absolute. On the facts of this case, the court concludes that [the counselor's] constitutional right to the free exercise of his religion does not go so far as to permit him to use religious counseling methods against the orders of his superiors."

This conclusion was reinforced by the fact that the counselor was in a position of trust and his clients, "all of whom were young and many of whom were troubled, were a captive, impressionable audience." The court also observed that the counselor's behavior raised questions as to his suitability to work with emotionally disturbed youth. In particular, the court observed that the counselor had called one of his supervisors an "evil witch," encouraged clients to "go with The Force" (an allusion to the Star Wars films), and sent his superiors a letter accusing them of "crucifying the word and intention of the Lord as it was acting through him" (a copy of this letter was sent to President Reagan, Pope John Paul, and Billy Graham).

This case illustrates the danger of using government employment to engage in proselytizing. Cases upholding the legality of government chaplains serving the military, prisons, and tax-subsidized hospitals have similarly suggested that active proselytizing may raise questions as to the legality of such positions.

Langlotz v. Picciano, 683 F. Supp. 1041 (E.D. Va. 1988)

Legal Developments

Court Ruled That a Building Used as a Training Center for Religious Counseling Did Not Qualify for a Property Tax Exemption

A New Jersey state appeals court ruled that a building used in part as a

Richard R. Hammar, Attorney, CPA

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State: New Jersey
Categories: Counseling, Taxation - Church Property

A New Jersey state appeals court ruled that a building used in part as a training center for religious counseling did not qualify for a property tax exemption.

A state law exempts from taxation "buildings actually and exclusively used in the work of … corporations organized exclusively for the moral and mental improvement of men, women, and children, or for charitable purposes, provided … [the activities] are not conducted for profit."

The court, in rejecting the organization's claim that the property was used exclusively for nonprofit, charitable purposes, observed that "counselors charged fees that were only slightly lower than comparable rates for private psychologists." It concluded that "where there is what might be considered a duplication of a private practice or service, the applicant for a tax exemption has a duty to demonstrate that the circumstances, charges, and public betterment justify exemption and do not reflect merely private practices cloaked in charitable coverings."

Church Contribution Trust v. Mendham Borough, 541 A.2d 249 (N.J. App. 1988)

Legal Developments

Court Refused to Extend the Clergy-Penitent Privilege to an Unordained, Self-Proclaimed Minister

A Louisiana state appeals court refused to extend the clergy-penitent privilege to an unordained, self-proclaimed

Richard R. Hammar, Attorney, CPA

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State: Louisiana
Categories: Confidential and Privileged Communications, Counseling, Ministerial Exception

A Louisiana state appeals court refused to extend the clergy-penitent privilege to an unordained, self-proclaimed minister to whom a murder suspect made certain statements.

The minister characterized himself as a "self-ordained minister," which he defined as "a person who takes it upon himself to guide others in religious matters." He had taken a Bible study correspondence course from a college in California, and while in the armed services participated in a Bible study group in his church. Such a background, concluded the court, was not enough to justify application of the clergy-penitent privilege under Louisiana law, which provides that "no clergyman is permitted, without the consent of the person making the communication, to disclose any communication made to him in confidence by one seeking his spiritual advice or consolation, or any information that he may have gotten by reason of such communication."

The court observed that "simply because [the alleged minister] studied the Bible and took it upon himself to give religious guidance to others does not make him a clergyman." Further, the evidence did not demonstrate that he had been "approached for spiritual counseling." As a result, the communications made to the minister by the murder suspect were not privileged, and were properly admissible in court. State v. Hereford, 518 So.2d 515 (La. App. 1987)

Legal Developments

Court Concluded That in Alleging Damage to Marital Relationship Couple Waived the Privilege of Their Communication with Priest

A New York case dealt with the clergy-penitent privilege. A husband and wife brought a

Richard R. Hammar, Attorney, CPA

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State: New York
Categories: Confidential and Privileged Communications, Counseling

A New York case dealt with the clergy-penitent privilege.

A husband and wife brought a medical malpractice suit against a physician, alleging, among other things, that the malpractice had resulted in injury to the marital relationship. To refute the claim of marital injury, the physician sought to obtain the counseling records of a Roman Catholic priest to whom the couple had gone for marriage counseling.

The priest refused to comply on the ground that such records were protected by the New York clergy-penitent privilege, which provides: "Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion … shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor."

The court concluded that alleging damage to their marital relationship the couple had "waived the privilege of their communication with [the priest] during his counseling with them, solely as to their marital problems. Insofar as other communications with [the priest] not pertaining to marriage counseling, the privilege remains intact."

The court suggested that the couple delete their claim for damages to their marital relationship as a means of avoiding the necessity of having the priest's counseling records subject to disclosure. Ziske v. Luskin, 524 N.Y.S.2d 145 (1987)

Legal Developments

Lawsuit that Initiated the National Debate Over Clergy Malpractice

A California appeals court recently overturned a state trial court's dismissal of the lawsuit that

Richard R. Hammar, Attorney, CPA

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State: California
Categories: Clergy Malpractice, Counseling

A California appeals court recently overturned a state trial court's dismissal of the lawsuit that initiated the national debate over clergy malpractice several years ago.

The appeals court ruling sets the stage for a trial on the merits. The lawsuit was filed in 1980 by the parents of a young man who had committed suicide. The parents claimed that four ministers of a local church negligently counseled their son, dissuaded him from seeking psychiatric help, and advised persons that God sometimes approves of suicide.

The church and its ministers maintained that they had in fact referred the victim to a number of mental health professionals during the last months of his life, and that they could not be found liable for counseling person on the basis of biblical principles since this would violate the constitutional guaranty of religious freedom.

The appeals court, in a 70-page opinion, attempted to steer clear of the constitutional issue, emphasizing that the only issue was whether counselors can be guilty of "negligent failure to prevent suicide … whether those counselors are affiliated with a religious institution or not."

The court's ruling is appealable to the state supreme court. Nally v. Grace Community Church, ___ Cal. Rptr. ___(1987).