Sexual Harassment and Church Employees

A federal court in New York ruled that a local church and denominational agency could be sued for the sexual harassment of a church employee by two pastors.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Sexual Harassment, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Sexual Harassment and Church Employees

A federal court in New York ruled that a local church and denominational agency could be sued for the sexual harassment of a church employee by two pastors.

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

Key point 8-08. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion.

* A federal court in New York ruled that a local church and denominational agency could be sued for the sexual harassment of a church employee by two pastors. A woman (Jane) was hired by a church to operate the parish office. Her responsibilities included maintaining finances, accounting of incoming money, banking deposits, managing financial reports, cutting payroll checks, paying monthly bills, scheduling church and community functions at the parish hall, addressing parishioners telephone inquiries, and preparing bulletins. In addition to these responsibilities, she worked closely with parishioners and their families for baptisms, funerals, weddings, and other services.

A few years after Jane was hired, the church’s senior pastor handed her a “floppy disk” and instructed her to print a letter that was contained on the disk. When she opened the disk she discovered that it contained pornographic images. When she asked the pastor why he gave her a disk with pornographic images, he allegedly responded, “What do you think?” Jane told him that his behavior was unacceptable. Following this incident, Jane claimed that the pastor increased his supervision over her, ridiculed her in front of others, accused her of incompetence for incorrect financial statements and the loss of a $25,000 donation check. Jane also claimed that the church’s associate pastor sexually harassed her. She alleged that on several occasions when she was away from her office she returned to find the associate pastor in her office looking at pictures of nude men on her computer.

Jane reported the actions of both pastors to the church’s business administrator, who recommended that Jane contact a denominational office (regional church) for assistance. A denominational official went to great lengths to resolve her complaints, but was unsuccessful in doing so. As a result, Jane sued her employing church and the regional church for sexual harassment and sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits employers having at least 15 employees and engaged in interstate commerce from discriminating in employment decisions on the basis of race, color, national origin, sex, or religion. The law defines “sex” to include sexual harassment.

The employing church

The church argued that the court lacked jurisdiction over Jane’s Title VII sexual harassment claim and so the case had to be dismissed. It pointed out that Title VII only applies to employers having at least 15 employees, and since it had less than 15 employees it was not an “employer” subject to Title VII.

The court rejected this argument, based on a recent United States Supreme Court decision holding that the 15 employee requirement under Title VII was not a matter of jurisdiction, but rather an element of a plaintiff’s claim. This means that an employer cannot have a Title VII lawsuit against it dismissed by a court on the basis of a lack of jurisdiction, even though the employer has fewer than 15 employees and therefore is not an “employer” subject to Title VII. See Arbaugh v. Y&H Corporation, 126 S.Ct. 1235 (2006) (discussed in the recent developments section of this newsletter under the topic “Employment practices”). Employers with fewer than 15 employees who are sued under Title VII must raise the “fewer than 15 employees” defense in their response to a plaintiff’s lawsuit. It is not a jurisdictional defect that can be challenged by the employer at any time, even after a case is resolved.

The regional church

The regional church argued that it was not an employer under Title VII and that Jane was not its employee, and therefore her Title VII sexual harassment claim against it had to be dismissed. In support, the regional church relied solely on Jane’s admission that it did not hire her or provide her with a salary, retirement benefits, health insurance benefits, life insurance benefits, disability benefits, or premiums for any such programs.

The court noted that Title VII defines a covered employer as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” Title VII defines an “employee” as “an individual employed by an employer.” The court noted that “the question of whether someone is or is not an employee under Title VII usually turns on whether he or she has received direct or indirect remuneration from the alleged employer. The remuneration may be in the form of a salary or consist of substantial benefits not merely incidental to the activity performed.”

Jane argued that the regional church could be liable, even if it did not directly hire or employ her, under the so-called “joint employer” doctrine if she could prove that it “controlled certain aspects of her employment with the church, including her compensation, privileges, terms, and conditions.” The court concluded:

There is well-established authority under this theory that, in appropriate circumstances, an employee, who is technically employed on the books of one entity, which is deemed to be part of a larger “single-employer” entity, may impose liability for certain violations of employment law not only on the nominal employer but also on another entity comprising part of the single integrated employer. Under the “single-employer” doctrine, also known as the “joint employer” theory, an employee, formally employed by one entity, who has been assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity, may impose liability for violations of employment law on the constructive employer, on the theory that this other entity is the employee’s joint employer.

In assessing whether a joint employer relationship exists, courts generally look for evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.

The court noted that the regional church had offered no evidence disproving the elements of the single-employer theory. On the other hand, Jane testified that she was directed to perform duties by the regional church; that she attended training offered by the regional church; that she participated in the regional church’s group plan health insurance; and that the regional church controlled aspects of her compensation, hours, and job duties. These allegations were sufficient, with no contrary evidence from the regional church, to raise questions regarding common ownership and control between the employing church and regional church. As a result, the court declined the regional church’s request to dismiss Jane’s claims against it. Krasner v. Diocese, 431 F.Supp.2d 320 (E.D.N.Y. 2006).

Legal Developments

Sexual Abuse and Church Responsibility

A federal court in Nebraska ruled that two churches were not responsible on the basis of negligent hiring or supervision for a pastor’s sexual molestation of his minor daughter.

Richard R. Hammar, Attorney, CPA

Bio

State: Nebraska
Categories: Clergy - Discipline and Removal, Sexual Harassment, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Sexual Abuse and Church Responsibility

A federal court in Nebraska ruled that two churches were not responsible on the basis of negligent hiring or supervision for a pastor’s sexual molestation of his minor daughter.

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

Key point 10-09.2. Some courts have found churches not liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church exercised reasonable care in the supervision of the victim and of its own programs and activities.

* A federal court in Nebraska ruled that two churches were not responsible on the basis of negligent hiring or supervision for a pastor’s sexual molestation of his minor daughter since the acts of molestation, which spanned nine years, occurred in the family home rather than on church property. An adult female (Julie) sued two churches in which her father (Pastor John) had served as pastor, claiming that they were responsible on the basis of negligent hiring and supervision for her father’s sexual molestation of her when she was a minor. Julie claimed that her father, while serving as senior pastor of the two churches, molested her on multiple occasions beginning when she was three years old and continuing until she was twelve. The church defendants conceded that Julie had been sexually molested by her father when he was serving as pastor at each church, but insisted that they were not guilty of negligence.

Julie made the following allegations in support of her claims against the church: (1) In 1973 Pastor John had sexually molested a 14-year-old babysitter. (2) In or about 1975 Pastor John engaged in a consensual, extramarital affair with an adult parishioner in a church in Indiana where he served as pastor. (3) In 1976 Pastor John accepted a pastoral position in a church in Missouri where he engaged in a consensual, extramarital affair with an adult parishioner. (4) In 1979 Pastor John served as pastor of a church in Nebraska. In 1980, rumors circulated that Pastor John had engaged in inappropriate conduct with a 14-year-old girl. The girl submitted a report to the local police claiming that Pastor John had exposed himself to her and attempted to touch her leg. Other than the report to the police, the only other persons that the girl told of these events were two of her friends. She never informed anyone at Pastor John’s church about his behavior. The police never contacted Pastor John about these allegations, and no charges, arrests or convictions resulted. (5) In 1981 Pastor John exposed himself to an adult seamstress whom he had hired to make a swimsuit. He was charged and convicted of this crime. (6) Later in 1981, another teenage girl informed a detective that Pastor John had sexually molested her. The detective’s report stated that the girl informed him that some members of the Nebraska church learned of some of the previous incidents of sexual misconduct committed by Pastor John. (7) In 1981, while serving as pastor of the Nebraska church, Pastor John engaged in a consensual, extramarital affair with an adult parishioner. In December of 1981, Pastor John resigned his position at the Nebraska church.

In 1982, some members of the Nebraska church who thought that Pastor John had been “mistreated” formed another church and asked Pastor John to be their pastor. He agreed to do so, and served this church for nearly three years. There was no investigation conducted by the founders of this church into Pastor John’s past.

Julie claimed that her father sexually molested her on multiple occasions from 1976 through 1984. She claimed the abuse began when she was three years old and that the abuse occurred in Indiana, Missouri, and Nebraska.

Negligent hiring and supervision

The court began its opinion by observing:

The courts typically utilize a “knew or should have known” standard to determine whether an employer is negligent in either hiring or supervising an employee. Indeed, Nebraska law holds that a person charged with negligence must have had knowledge of or be reasonably chargeable with knowledge that the act or omission occasioned danger to another.

The court noted that Julie was alleging that her father “engaged in sexual intercourse and other inappropriate sexual contact with his prepubescent daughter, beginning when she was age three and continuing through age twelve.” It concluded that this conduct was “the essence of the unusual behavior known as pedophilia” according to the Diagnostic and Statistical Manual of Mental Disorders (“pedophilia involves sexual activity with a prepubescent child, generally age 13 years or younger”).

The court assumed that the church defendants “had a duty to exercise due care in hiring and supervising [Pastor John] in order that they not put a pedophile in the pulpit.” It also assumed that the churches “had a duty to warn the congregation of reasonably foreseeable harms from their employee had they known he was a pedophile.” The court conceded that the church defendants either knew or should have known of some of Pastor John’s previous incidents of misconduct. But, the court concluded that the churches could not be liable on the basis of negligent hiring or supervision for Pastor John’s acts. It concluded:

The problem for [Julie] is that facts which might raise a “red flag” about a risk of inappropriate sexual conduct with teenage females or adult women would not cause reasonably prudent churches to worry that someone would engage in the very different and aberrant behavior of molesting small children. Indeed, [Pastor John’s] wife had no such clue or concern. Thus, the church defendants breached no “duty” to protect the plaintiff from her father …. To the extent plaintiff seeks to impose liability for negligent supervision, she must of necessity assert that the churches had a duty to supervise their employee-minister in his own home. However, a church’s obligation to supervise its employee-minister does not extend to close supervision of the minister’s conduct in his own home, even if that home is provided by the church, as the minister retains rights of privacy and quiet enjoyment in the home …. [Pastor John’s] secret and ongoing abuse of [his daughter] in the privacy of the family home or during a family outing is unrelated to any negligent act or omission of the churches regarding him. No matter what the churches might have done, they could not have protected the plaintiff from the claimed predations of her father.

Application. This case is important for four reasons. First, it graphically illustrates the importance of performing pre-employment background checks on church staff members, and making prudent decisions based on the results. Most if not all of Pastor John’s previous sexual indiscretions could have been discovered by the Nebraska churches had they conducted a reasonable background check.

Second, the court stressed that a church cannot be liable on the basis of negligent hiring or negligent supervision unless it “knew of should have known” of prior conduct by an employee placing others at risk. This is a significant holding, that has been recognized by many other courts. Whenever a church worker harms another person, the argument can always be made that the church is liable for the worker’s acts on the basis of negligent supervision since the injury would not have happened if the church had done a better job of supervision. This would become a rule of absolute liability but for the clarification that churches cannot be liable on the basis of negligent supervision for a worker’s harmful acts unless it knew or should have known (in the exercise of reasonable care) that the worker posed a risk of the kind of harm that resulted. This is a critical clarification.

Third, this is one of the few cases to define the term pedophilia. This is a term that is often used incorrectly. The Diagnostic and Statistical Manual of Mental Disorders, quoted by the court, defines pedophilia as a sexual preference for prepubescent minors (generally age 13 years or younger). The various allegations of sexual misconduct by Pastor John suggest that the court’s diagnosis was in error, since it is far from clear that he had a sexual preference for prepubescent minors.

Fourth, the court concluded that the churches could not be liable on the basis of negligent hiring or supervision for a pastor’s acts of sexual misconduct occurring in the privacy of his home. Anonymous, 2006 WL 1401680 (D. Nebr. 2006).

Legal Developments

Risks of Pastoral Counseling Services

Church leaders should never ignore “warning signs” that a staff member (employee or volunteer) has a propensity to engage in a particular kind of harmful conduct.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Clergy - Discipline and Removal, Sexual Harassment, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Risks of Pastoral Counseling Services

Church leaders should never ignore “warning signs” that a staff member (employee or volunteer) has a propensity to engage in a particular kind of harmful conduct.

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

Key point 10-12. Churches face a number of legal risks when they offer counseling services by ministers or laypersons. These include negligent selection, retention, or supervision of a counselor who engages in sexual misconduct or negligent counseling. A church also may be vicariously liable for a counselor’s failure to report child abuse, breach of confidentiality, and breach of a fiduciary relationship.

* A New York court ruled that a husband whose wife was seduced by a pastor while serving as a marriage counselor could sue the pastor and church for breach of a fiduciary duty, and the church for negligent supervision and negligent retention. A pastor provided marital counseling to a couple in his church. In addition to serving as a marriage counselor, the pastor presided over various church-sponsored functions, including weekend “marriage retreats,” which the couple attended. On one occasion the pastor informed the husband that some church members were alleging that the pastor was having an affair with the wife. The wife, and the pastor, both assured the husband that the accusations were false. The husband then asked the church to investigate and was advised that the proper procedure was to file a grievance. Prior to filing the grievance, the husband and his wife met with a church officer who urged him not to file a grievance that would cause negative publicity for the church and would ultimately result in no findings because the accusations were false. The husband agreed not to file a grievance, and the pastor continued to provide marital counseling to the couple for another two years until the wife finally admitted that she and the pastor were romantically involved.

Upon learning of the relationship, the husband sued the pastor. He also sued the church and a regional denominational agency (the “church defendants”) for breach of a fiduciary duty, negligent supervision, negligent retention, and emotional distress.

Breach of a fiduciary duty

The court noted that in New York a fiduciary relationship “requires a showing of a relation between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation,” and that “emotional and psychological damages are recoverable on a claim for breach of fiduciary duty.”

The court concluded that the pastor’s decision to act as marriage counselor made him a fiduciary. It put him “in a position of trust, in which he had a duty to act honestly and advise [the husband] in furtherance of his interest in preserving his marriage, which was the object of the relationship.” The court noted that the husband’s lawsuit alleged “acts of disloyalty and injurious conduct” by the pastor, and that “this is not just a case of a minister engaged in a consensual sexual relationship while acting as a spiritual adviser.” Instead, the husband’s allegations “if proven, are sufficient to sustain a claim of breach of fiduciary duty against [the pastor], for deceiving him and undermining his marriage, while continuing to act as his marriage counselor.”

However, the court ruled that any sexual relationship between the pastor and the wife was outside the scope of the pastor’s duties, meaning that the church defendants could not be liable for the pastor’s conduct.

Negligent supervision and retention

The court noted that a claim for negligent supervision or retention arises “when an employer places an employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in supervising or retaining the employee.” An “essential element” of both negligent supervision and negligent retention is that the employer “knew or should have known of the employee’s propensity for the conduct that caused the injury.”

The court concluded that the husband’s lawsuit stated a valid claim for negligent retention and supervision against the church defendants:

A fair reading of the complaint is that [the pastor] engaged in marriage counseling and conducted church-sponsored marriage retreats on their behalf. Assuming that the church defendants knew, or should have known, that he was having sexual relations with plaintiff’s wife, then they could be held liable for negligent supervision and/or retention in light of the allegations that: (1) [a church officer] received accusations from three parishioners about the affair; (2) the plaintiff’s wife was not an isolated case; (3) the [church officer] dissuaded plaintiff from filing a grievance which would have resulted in an investigation; and (4) the [church officer] represented that the accusations were false when he knew, or should have known, otherwise. Plaintiff alleges that the officer was told that the pastor was having an affair with plaintiff’s wife and for two and a half years, the church defendants permitted the marital counseling to continue, while actively discouraging plaintiff from initiating an investigation. Thus, accepting plaintiff’s version of the facts, the church defendants knew, or should have known, of the pastor’s propensity to engage in harmful conduct, but decided to look the other way.

Emotional distress

The court dismissed the husband’s claim for emotional distress. It noted that such a claim must allege “outrageous conduct that exceeds the bounds of decency tolerable in civilized society,” and “is a theory of liability that is to be invoked only as a last resort.” Further, “when the complained-of conduct is embraced by a traditional tort which provides for emotional damages, the cause of action for infliction of emotional distress should be dismissed. Such is the case here where viable claims for the traditional torts of breach of fiduciary duty and negligent supervision and/or retention, exist.”

Application. This case illustrates two important legal principles with which church leaders should be familiar. First, when pastors serve a marriage counselors, it is much more likely that they will be deemed to be engaged in a “fiduciary relationship.” This means that they have a duty to act in the best interests of counselees and do nothing to harm them. A breach of this duty may lead to personal liability.

Second, the court ruled that a church may be liable on the basis of negligent supervision for failing to adequately supervise a pastor if it “knew or should have known” of the pastor’s propensity to commit conduct that causes injury to another person. Similarly, a church may be responsible on the basis of negligent retention for retaining a pastor after it “knew or should have known” of the pastor’s propensity to cause harm to others. The lesson is clear. Church leaders that ignore “warning signs” that a staff member (employee or volunteer) has a propensity to engage in a particular kind of harmful conduct may expose their church to liability on the basis of negligent supervision or negligent retention if the staff member harms one or more persons while engaging in the same kind of harmful conduct. Warning signs must be promptly addressed, and appropriate actions taken. A good question to ask is this, “How would a jury view our response to information suggesting that a staff member constitutes a risk of harm to others? Would a jury conclude that we have acted in a reasonable manner, and that our response was appropriate in light of the nature of the risk?” 820 N.Y.S.2d 682 (N.Y. Sup. 2006).

Legal Developments

Church Liability for Sexual Harassment

A federal court in Oklahoma ruled that a church was not liable on the basis of sexual harassment for the conduct of a minister.

Richard R. Hammar, Attorney, CPA

Bio

State: Oklahoma
Categories: Denominations - Legal Liability, Sexual Harassment, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Church Liability for Sexual Harassment

A federal court in Oklahoma ruled that a church was not liable on the basis of sexual harassment for the conduct of a minister.

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

Key point 8-08.2. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if they have adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by non-supervisory employees, and even non-employees.

* A federal court in Oklahoma ruled that a church was not liable on the basis of sexual harassment for the conduct of a minister. A woman (Karen) was employed as an administrative assistant at a regional denominational office. Her supervisor was one of the regional church’s officers. Karen sued the regional church for unlawful sexual harassment based on the following conduct of her supervisor: (1) Karen claimed that her supervisor offered to boost her husband’s compensation if she would “cooperate” with him, which she interpreted to mean a sexual relationship. Her husband was a pastor of a local church affiliated with the regional church. (2) Karen alleged that on another occasion her supervisor blocked her path by standing in a doorway, and began rubbing her shoulders while saying that “I’m sorry it has to be this way.” (3) She further alleged that her supervisor continued to sexually harass her for the next few months by brushing against her as he took things from her or handed them to her. Karen’s supervisor terminated her, and she sued the supervisor and regional church for sexual harassment.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of several grounds, including sex. Sex discrimination includes sexual harassment. Title VII applies to any employer engaged in commerce and having at least 15 employees. There are two kinds of sexual harassment under Title VII: (1) “hostile work environment” harassment, which consists of offensive conduct of a sexual nature that is severe or pervasive; or (2) “quid pro quo” harassment, which “occurs when submission to sexual conduct is made a condition of employment benefits.” Karen claimed that she was subjected to both forms of harassment.

Hostile environment

The court noted that for the regional church to be liable for the supervisor’s “hostile environment” sexual harassment, Karen had to show that “the workplace was permeated with discriminatory intimidation, ridicule and insult, that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment.” The court quoted from a Supreme Court decision:

A sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile and abusive, and one that the victim in fact did perceive to be so …. Simple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

The court concluded that Karen failed to show that the conduct of her supervisor was “so extreme as to change the terms and conditions of her employment.” It concluded, “While no woman should be made to feel uncomfortable in the workplace by virtue of a male supervisor leaning into her and brushing against her, because Karen can point to only two incidents, her work environment cannot be perceived as being pervaded by hostility toward women. Consequently, there is insufficient evidence to support a hostile work environment claim.”

Quid pro quo

The essence of quid pro quo harassment is that “job benefits are conditioned on an employee’s submission to conduct of a sexual nature and that adverse job consequences result from the employee’s refusal to submit to the conduct.” Karen argued that her supervisor’s invitation to prevent financial harm to her family in exchange for sexual favors amounted to quid pro quo harassment in violation of Title VII. Once again, the court disagreed, noting that Title VII makes it unlawful for a covered employer to discriminate on the basis of sex against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment.” The court concluded that “the plain text of Title VII requires that the person whose employment conditions are adversely affected also be the person who is discriminated against on the basis of sex.” Bolin v. Oklahoma Conference, 397 F.Supp.2d 1293 (D. Okla. 2005).

Legal Developments

Negligent Supervision and Sexual Offenses

A court rejected a plaintiff’s attempt to treat national, regional, and local churches as a “single employer” for liability purposes.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Denominations - Legal Liability, Sexual Harassment, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law & Tax Report

Negligent Supervision and Sexual Offenses

A court rejected a plaintiff’s attempt to treat national, regional, and local churches as a “single employer” for liability purposes.

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

Key point 10-10.2. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.

Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of First Amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.

* A federal court in Washington ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a former church office administrator’s claim that a denominational agency was responsible on the basis of negligent supervision for sexual offenses made toward her by the church’s senior pastor. Sarah was employed as a church’s office administrator by a “missions” church that had recently been started by a denominational agency (the “national church”). Due to its missions status, the church was administered and supported by the national church. Sarah’s responsibilities included assisting in church organization, providing administrative support for the church’s senior and associate pastors, managing the office assistant and the music director, and handling church correspondence. Sarah alleged that a few months after she was hired, the church’s senior pastor began to make romantic advances toward her. These advances increased in intensity and persistence, ultimately culminating in the church’s dismissal of both Sarah and the senior pastor. Sarah sued the national church, and a regional church, for wrongful dismissal as well as negligent supervision of the pastor. The court dismissed both claims.

Wrongful discharge

The court acknowledged that the state of Washington has “a clear, well-defined public policy against sex discrimination and retaliation.” However, it noted that the courts “do not impose liability for wrongful discharge on parties not properly considered employers of the complaining party.” Since neither the national church nor regional church was Sarah’s “employer,” neither could be liable on the basis of wrongful discharge.

The court rejected Sarah’s argument that the local church, regional church, and national church should all be considered a “single employer” that could be sued for wrongful discharge. It noted:

Even if the court had found that the defendants could be exposed to liability under a single employer or an indirect employer theory, the plaintiff has failed to show that there is a genuine issue of material fact that either the [national church or regional church] are properly considered a single employer (together with the local church). With respect to plaintiff’s single employer theory, many of allegations regarding the intertwining of the [national, regional, and local churches] have to do with the two umbrella organizations’ involvement with the pastors of affiliated churches. However, involvement with and even complete control over the pastors of the churches does not rise to the level of “interrelation of operations” and “centralized control of labor relations” [required by the single employer theory].

The court referred to a federal appeals court decision finding that a parent corporation and a subsidiary corporation were an “integrated enterprise” for liability purposes because, among other things, the parent kept the subsidiary’s accounts, issued its paychecks and paid its bills; the parent’s vice president was the subsidiary’s president; and, the parent had the authority to hire and fire the subsidiary’s employees. Kang v. U. Lim America, Inc. 296 F.3d 810, 815 (9th Cir. 2002). This “interrelation of operations” and “centralized control of labor relations” was sufficient to treat the two corporations as a single employer or “integrated enterprise” for liability purposes. But, the Washington court pointed out that the relationship between the national, regional, and local churches was far from the level of interrelationship required for them to be treated as a single employer, and therefore the national and regional churches were not liable for the local church’s dismissal of Sarah.

Negligent supervision

The court noted that Sarah’s lawsuit alleged that the national and regional churches had a duty to supervise the senior pastor in his interactions with her, and “knew or should have known that he was engaging in conduct that was causing severe emotional distress to her.” These allegations, the court concluded, challenged national and regional churches’ supervision of the pastor, and as such “fell within the scope of the ministerial exception, a constitutionally-derived exception to civil rights legislation that insulates a religious organization’s employment decisions regarding its ministers from judicial scrutiny.” The court concluded: “Plaintiff’s negligent supervision claim specifically challenges the [national and regional churches’] supervision of [the pastor] rather than a decision not to intervene to stop or curtail the sexual harassment. Judicial scrutiny of the defendants’ supervision of [a pastor] would require the court to examine the church’s decisions regarding its pastor. As a result, the court finds that the First Amendment bars plaintiff’s negligent supervision claim against the [national and regional churches].”

Application. This case is significant for two reasons. First, the court rejected the plaintiff’s attempt to treat national, regional, and local churches as a “single employer” for liability purposes. Every other court that has addressed this issue has reached the same conclusion. A judicial recognition of the single employer theory would make every national religious denomination automatically liable for every employment-related offense committed by an affiliated church. Such a rule of absolute liability would force denominational agencies to assume risks of catastrophic proportion that would jeopardize their viability. While this court did not address the issue, it is likely that such a result would violate the First Amendment guaranty of religious freedom. 2006 WL 1009283 (W.D. Wash. 2006)

Legal Developments

Sexual Misconduct by Clergy, Lay Employees, and Volunteers

A federal appeals court ruled that various church agencies and officers could not be liable on the basis of negligence for the sexual molestation.

Richard R. Hammar, Attorney, CPA

Bio

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

Key point 10-07.2. Many courts have ruled that the first amendment prevents churches from being legally responsible on the basis of negligent retention for the misconduct of ministers.

Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of first amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.
Denominational Liability

A federal appeals court ruled that various church agencies and officers could not be liable on the basis of negligence for the sexual molestation of an adolescent boy by a pastor.

An adult male (the plaintiff) alleged that in 1994 and 1995 when he was a minor he was sexually molested on a number of occasions by a pastor (Pastor Fred) who was serving as a "pastor emeritus" in a church in Massachusetts affiliated with the Lutheran Church-Missouri Synod (LCMS). In 1997 Pastor Fred was prosecuted and convicted of various criminal charges relating to his molestation of the plaintiff.

The plaintiff sued various LCMS agencies and officers (the church defendants) on the ground that they employed or supervised or retained Pastor Fred in a position of trust with the knowledge that he had a history of sexually assaulting minors. Plaintiff alleged that in 1977, while serving as a pastor in New York, Pastor Fred was forced to leave his post because of "inappropriate behavior" towards female members including minors. The plaintiff further alleged that an LCMC officer having jurisdiction over churches in New York had personal knowledge of Pastor Fred's misconduct. However, in 1980 when Pastor Fred transferred to Massachusetts, this officer failed to inform church officials in Massachusetts of the prior misconduct knowing that during his ministry in that state he would have unsupervised access to children. The plaintiff claimed that this failure constituted negligent retention and negligent supervision, and was the cause of his injuries. A federal district court disagreed and dismissed the lawsuit.

A federal appeals court affirmed the lower court's ruling. It began its opinion by observing that "under New York law, which the parties agree applies in this case, a defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others." The plaintiff sought to avoid this rule by basing liability on the theories of negligent retention and negligent supervision. The court noted that to state a claim for negligent supervision or retention under New York law, a plaintiff must show: (1) an employee-employer relationship, (2) that the employer "knew or should have known of the employee's propensity for the conduct which caused the injury" prior to the injury's occurrence, and (3) that the injury was committed on the employer's premises or with the employer's property.

The court concluded that the plaintiff failed to prove the second requirement: "Prior to 1997 [church officials] were unaware that Pastor Fred had ever engaged in, or been accused of engaging in, sexual misconduct. The plaintiff, for his part, failed to counter this assertion with admissible evidence from which a reasonable juror could infer that the church defendants, at any time prior to the relevant incident, knew or should have known of Pastor Fred's propensity to assault minors or otherwise to engage in inappropriate sexual conduct. The trial court therefore properly [dismissed the] negligence claims."

The court also concluded that the third requirement was not met since the incidents of sexual assault did not occur on church property but instead were perpetrated at the plaintiff's home and at Pastor Fred's home. Given these facts, "the plaintiff cannot satisfy the third element of a negligent supervision cause of action—the requirement that the injury must have been committed on the employer's premises or with the employer's property."

The court noted that to the extent that the plaintiff's complaint could be read to assert a claim against the defendants for breach of a fiduciary relationship, "the defendants' lack of actual or constructive knowledge of Pastor Fred's sexual proclivities would also be fatal to this claim."

Application. This case is important for the following reasons.

1. It is a precedent that can be used to defend against claims of negligence in the hiring, retention, or supervision of ministers by churches and denominational agencies. While not every court will agree with this court's conclusions, the case stands as a forceful and persuasive precedent, especially since it is an opinion of one of the most highly respected federal appeals courts.

2. The case underscores the significance of knowledge of prior misconduct. When church leaders learn of information suggesting that a minister (or lay employee or volunteer) poses a risk of harm to others, this may serve as the basis for liability based on negligent selection or retention if the person commits foreseeable harm to one or more persons. In such a case, the issue will be whether the church acted reasonably in response to the information that it received.

3. The court suggested that a 16-year-old incident of misconduct of "an unspecified sexual nature" does not necessarily constitute notice that the person will commit an act of child molestation. Other courts may disagree with this conclusion, but this case suggests that a person's unspecified acts of misconduct occurring many years ago may not make a church liable for that person's future acts of child molestation.

4. In order to prove negligent hiring, supervision, and retention, a plaintiff must show that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury." The trial court noted that there is no "common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee."

5. Denominational agencies that lack the authority to remove a pastor from a congregation cannot be liable for the pastor's misconduct based on negligent retention. Ehrens v. The Lutheran Church-Missouri Synod, 385 F.3d 232 (2nd Cir. 2004).

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

State: Michigan
Categories: Counseling, Fiduciary Duty, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

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

Prior Acts of Sexual Misconduct

Evidence of prior “bad acts” is generally not admissible in court.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1997-11-01

Sexual misconduct-by clergy and church workers

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

• Key point. The fact that a person accused of child molestation engaged in sexual misconduct in the past may not be relevant in establishing the person’s guilt, unless the prior acts were substantially similar to the current allegations.

An Illinois court ruled that evidence regarding a priest’s prior acts of sexual misconduct were not relevant and therefore were not admissible in proving that the priest molested a young boy. A minor (the “victim”) sued a priest and a Roman Catholic Diocese on account of the priest’s alleged molestation of the victim while the victim was an elementary school student at a parochial school. The victim claimed that the priest molested him sexually and physically in the principal’s office during recess periods. A jury ruled in favor of the priest and diocese. The trial judge refused to allow the victim to present the following evidence to the jury: (1) an adult female claimed that the priest had made sexual advances toward her in the past; (2) another minor claimed that the priest had sexually assaulted him in parochial school bathrooms on three occasions; and (3) the priest allegedly molested a young girl 40 years earlier. The victim appealed the case on the ground that the trial judge had erred in refusing to allow this evidence to be presented to the jury. According to the victim, this evidence tended to prove his accusations against the priest.

A state appeals court disagreed. The court pointed out that evidence of prior “bad acts” is generally not admissible to prove that a person committed a particular offense-unless the prior bad acts “show a method of behavior that is so distinct that separate wrongful acts are recognized to be the handiwork of the same person.” This test was not met in this case. The court noted that the adult female’s claim of inappropriate sexual conduct by the priest did not share “distinct, common features” with the victim’s accusations, and that “the common features are not sufficient to indicate the handiwork of the same person.” Similarly, the court noted that the allegations by the other minor “differ from [the victim’s] allegations in several respects.” In particular, the court pointed out that the victim alleged that he had been both sexually and physically molested by the priest in a principal’s office at school during recess periods, while the other minor claimed that the same priest had only sexually assaulted him, and the acts occurred in school bathrooms. Finally, the court noted that evidence of the priest’s alleged molestation of a female student some 40 years earlier was not admissible because the incident differed in significant ways from the present case. The court noted that the earlier case involved a female who was much older than the victim at the time of the alleged acts, and no physical abuse had occurred.

Application. As a general rule, a church cannot be legally responsible for an employee’s acts of child molestation unless the employee is found guilty of the offense. Often, alleged victims attempt to demonstrate the guilt of the accused by introducing evidence of prior “bad acts.” This case demonstrates that victims may not be able to “prove their case” through evidence of prior bad acts unless those prior acts closely resemble the current allegations. This court went so far as to dismiss evidence of two other alleged incidents of child molestation by the same priest-on the ground that they were substantially different from the facts of the present case. This case will be a useful precedent to churches and denominational agencies that are sued as a result of the sexual misconduct of an employee or volunteer. Doe v. Lutz, 668 N.E.2d 564 (Ill. App. 1996). [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 m10 c0697

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

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

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]

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

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

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]

Legal Developments

Prosecution of Child Molesters

Public statements made by accused molesters may be used against them in court.

Richard R. Hammar, Attorney, CPA

Bio

State: Rhode Island
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1997-11-01

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

• Key point. Statements made to a church congregation by a staff member who is accused of child molestation may be admissible in a later criminal prosecution.

• Key point. Prior incidents of misconduct are often helpful in refuting a church youth worker’s claim that his inappropriate touching of a child was accidental and innocent.

! The Rhode Island Supreme Court ruled that a statement made by a child molester to his church congregation could be used against him in a criminal prosecution. A 6—year—old girl (victim) and her family attended a church for the first time on a Sunday morning. Following the worship service, the victim went upstairs to the church’s gymnasium where she saw an adult male (the defendant) giving piggyback rides to young children. There were no other adults present. While the defendant was giving the victim a piggyback ride, he reached his hand beneath her underwear. The victim immediately told him to stop because her mother had taught her that no one should touch her “private parts.” Later that day the girl made the following entry in her diary: “Today is Sunday. We went to church. A guy lift me up and he put his hands in my panties.” The victim later showed this diary entry to her mother, who went into shock. The mother immediately informed the church of what happened. The next Sunday, the defendant appeared before the congregation and said that he came from a dysfunctional family, that he had a “problem,” that he spoke with a pastor about it, and that the pastor was going to get him counseling. A few days later the mother contacted the police. The defendant was later prosecuted for child molestation. He insisted that he was innocent, and that his contact with the victim had been “accidental.” The jury disagreed, and found the defendant guilty. He was sentenced to 25 years in prison.

The defendant appealed his conviction on two separate grounds. First, he claimed that his statement to the congregation should not have been disclosed to the jury. The court disagreed. It concluded that the defendant’s statement to the congregation was “an implicit admission of wrongdoing toward the victim” and was properly disclosed to the jury. The defendant also claimed that the prosecutor erred in disclosing that the defendant had previously molested a child in another church. During the trial, the prosecutor informed the jury that ten years earlier, in another state, the defendant had molested another child. The defendant had approached two young boys in a church sanctuary and asked them to show him a particular Sunday School classroom that was located upstairs. The boys agreed, and while the three of them were in an isolated classroom the defendant showed the boys a pornographic magazine and then molested one of them. He was later sentenced to five years in prison for this offense. The court concluded that it was permissible for the prosecutor to disclose this prior conviction, since it tended to refute the defendant’s claim that he had touched the victim innocently and accidentally.

Application. (1) This case provides an excellent opportunity for church leaders to identify the mistakes that the church made in this case that directly or indirectly contributed to the defendant’s act of molestation. How many can you identify? Here are a few obvious ones. First, the church allowed the defendant to interact with young children in an isolated gymnasium without any other adults present. Second, the church allowed the defendant to engage in close, physical contact with young children. Third, the church may not have done a sufficient background check to discover that the defendant molested a child in another church. If church leaders were aware of the prior conviction, they never should have allowed the defendant to have any contact with minors.

(2) This case also demonstrates that statements made to a congregation by persons who are guilty of misconduct may be used against them in criminal trials. Generally, statements that persons make against their own interests are admissible in court as an exception to the hearsay rule. This does not mean that such statements should not be requested, or are not appropriate. Quite to the contrary, they can be very appropriate in bringing about healing and reconciliation. This case illustrates that they may be admissible in court.

(3) This case illustrates the difficulty that is often experienced in evaluating alleged child molesters’ claims of innocence. Such persons often claim that the alleged molestation was purely accidental and innocent. This case suggests that such a defense can be rebutted by proof of prior similar acts of misconduct. Remember, the court upheld the defendant’s criminal conviction, meaning that it was satisfied that his guilt had been established beyond a reasonable doubt.

(4) Finally, this case illustrates the seriousness with which the courts view cases of child molestation. The defendant was sentenced to 25 years in prison-though the act of molestation lasted only a few seconds. State v. Davis, 670 A.2d 786 (R.I. 1996). [ Defamation, Negligent Selection as a Basis for Liability, Negligent Supervision as a Basis for Liability]

Legal Developments

Statute of Limitations Bars Group’s Lawsuit

Seven adults, molested by a priest as children, attempted to sue their former church.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1997-11-01

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.”

The Wisconsin Supreme Court ruled that seven adults who were molested as children by parish priests were barred by the statute of limitations from suing the priests, their churches, and a diocese. Wisconsin law gives minor victims of sexual molestation until their 20th birthday to sue the perpetrator (a longer period applies in cases of incest). The victims in this case were all terribly molested over a number of years by priests in four separate parishes. Some of the victims were only 6 or 7 years of age when they were molested, while others were teenagers. Some claimed to have been molested on hundreds of occasions. They all sued the offending priests, as well as their church and diocese. They claimed that the churches and diocese were legally responsible for their injuries on the basis of negligent supervision, “apparent agency,” negligent training, negligent placement, and a failure to comply with child abuse reporting requirements. A trial court dismissed all of the victims’ claims on the ground that they were brought long after the statute of limitations had expired. The victims insisted that they were unable to file lawsuits by their 20th birthday, because they had “repressed” their memories of the priests’ wrongdoing and did not “discover” that their emotional damages were caused by the priests’ behavior until they sought professional counseling many years later.

The Wisconsin Supreme Court ruled that all of the victims’ claims were barred by the statute of limitations. The court began its opinion by observing that “the statute of limitations should not commence to run until the plaintiff discovers, or in the exercise of reasonable diligence, should have discovered his or her injury and that the injury may have been caused by the defendant’s conduct.” The court noted that all of the victims knew the perpetrators, and knew that they had engaged in various sexual acts with them on multiple occasions. As a result, they “knew at least the identity of the responsible [person] and the nature of their injury no later than the time of the last sexual assault.” Did they also know and appreciate that their emotional injuries were caused by the priests’ misconduct? Yes, concluded the court. It categorically rejected the victims’ claim that they failed to “discover” the cause of their emotional injuries until many years after the statute of limitations had expired:

In cases where there has been an intentional … assault by one known to the plaintiff, and the plaintiff sustains actual harm at the time of the assault, the causal link is established as a matter of law. These plaintiffs knew the individual priests, knew the acts of sexual assault took place, and knew immediately that the assaults caused them injury. We therefore conclude that these plaintiffs discovered, or in the exercise of reasonable diligence, should have discovered all the elements of their causes of action against the individual perpetrators at the time of the alleged assaults, or by the last date of the alleged multiple assaults.

The court rejected the victims’ claim that younger children should be given more time to file lawsuits because they view their abusers “with respect and reverence” and cannot discover the nature of their injuries until much later in adulthood. The court simply noted that younger children have longer until their 20th birthday to file a lawsuit, and so the statute of limitations “automatically” accounts for the fact that younger children need a longer time to determine the nature of their injuries and to decide whether or not they want to file a lawsuit.

The court acknowledged that 19 other states have extended the statute of limitations for victims of child molestation, but it concluded that any modification of the statute would have to be done by the state legislature. The court cautioned that extending the statute of limitations for child abuse victims creates formidable problems. For example, those persons and organizations that are sued by victims of child abuse will have a much more difficult time defending themselves. After all, how could a church defend itself against a 50—year—old’s accusation that he was molested by a volunteer worker in the church when he was 5 years old? A related concern is fraud-that is, extending the statute of limitations will encourage fraudulent claims. The court also rejected the victims’ claim that they had suffered from “repressed memory” and therefore were unable to file their lawsuits earlier. The court concluded that “a claim of repressed memory of past sexual abuse does not delay the accrual of a cause of action for … sexual assault, regardless of the victim’s [age] and the position of trust occupied by the alleged perpetrator.”

Application. This case will be a helpful to any church that is sued as a result of acts of child molestation occurring many years in the past. Note, however, that many states have enacted statutes that extend the period of time during which victims of child molestation may file a lawsuit. Also, courts in other states have reached this same result. Further, other courts have recognized “repressed memories” as a basis for delaying the statute of limitations until a victim of sexual misconduct “discovers” the connection between his or her emotional injuries and the prior misconduct. Doe v. Archdiocese of Milwaukee, 565 N.W.2d 94 (Wis. 1997). [ Negligence as a Basis for Liability—Defenses, Denominational Liability]

Legal Developments

Insurance Coverage of Sexual Misconduct

Be sure to know what your policy covers.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1997-09-01

Insurance

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

• Key point. Church insurance policies may provide no coverage to clergy and other church staff who engage in sexual misconduct.

A Colorado court ruled that a church insurance policy could not be tapped to pay a judgment rendered against a minister in a sexual misconduct case. A woman sued her former minister and her church on the basis of injuries she suffered as a result of the minister’s sexual misconduct. A jury ruled that the minister was liable for the woman’s injuries and awarded a monetary judgment in her favor. The minister insisted that the judgment against him was covered under a church insurance policy. A trial court disagreed, concluding that the policy clearly excluded any coverage for such acts. A state appeals court agreed with the trial court. The court noted that “if the meaning of the insurance policy is expressed in plain, certain, and readily understandable language, it must be enforced as written.” The church’s insurance policy provides: “The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to any person arising out of sexual misconduct or sexual molestation which occurs during the policy period.” Exclusions to the policy, however, specifically provide that the insurance does not apply “[t]o any person who personally participated in any act of sexual misconduct or sexual molestation.” The minister claimed that by denying coverage to the perpetrator of the sexual misconduct, the exclusion renders any coverage under the policy for sexual misconduct “illusory”. The court disagreed, noting that coverage exists under the policy for the church.

The court also rejected the minister’s claim that the insurance company had “waived” its right to deny coverage by providing a defense to the minister under a “reservation of rights.” Under such a reservation, an insurance company agrees to defend an insured, but reserves the right to deny any obligation to pay an adverse verdict or judgment as a result of an exclusion in the policy. This is a common arrangement, and the court concluded that an insurance company’s decision to provide a legal defense to an insured under a reservation of rights does not amount to a waiver of any exclusions under the policy.

Application. This case illustrates an important principle. While church insurance policies provide coverage for churches that are sued as a result of an incident of sexual misconduct, they often exclude any coverage for the perpetrator. Further, such an exclusion is not affected or “waived” by the fact that the insurance company provides a legal defense for the perpetrator. This exclusion can result in substantial personal liability for perpetrators of sexual misconduct. In some cases insurance companies refuse to provide a legal defense for the perpetrator, meaning that the perpetrator will be responsible for hiring and paying his or her own attorney. Church Mutual Insurance Company v. Klein, 1996 WL 544193 (Colo. App. 1996). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability—Defenses]

Legal Developments

Church and Pastor Sued Over Child Molestation

Don’t ignore accusations of sexual misconduct.

Richard R. Hammar, Attorney, CPA

Bio

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

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]

Legal Developments

The Clergy-Penitent Privilege and Consent to Disclosure

Minister’s confession of misconduct not protected from disclosure.

Richard R. Hammar, Attorney, CPA

Bio

State: West Virginia
Categories: Confidential and Privileged Communications, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1997-07-01

Confidential and Privileged Communications

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

• Key Point. Confidential communications made to a minister are not protected from disclosure by the clergy—penitent privilege if the person making the communications consents to their disclosure.

• The West Virginia Supreme Court ruled that statements made by an imprisoned pastor to another pastor were not protected by the clergy—penitent privilege. The facts of this case are tragic. In 1991, seven—year—old Joshua, his two sisters, and his parents began attending a local church after Joshua’s mother had received counseling from the church’s pastor. The pastor and his wife soon became friends with Joshua’s family, and the two families often visited in each other’s homes and had dinner together. The pastor also befriended Joshua and one of his sisters, taking them places and inviting them to spend the night at his apartment that he shared with his wife. After a period of time, the pastor began inviting only Joshua to spend the night. These overnight visits progressed from one night per week to approximately two nights per week. During these visits, Joshua slept on a mattress on the pastors basement floor. Joshua told his mother that the pastor often slept on the mattress with him and sexually molested him on at least three or four occasions. Joshua also indicated he was afraid to report this abuse earlier because the pastor told him he would regret revealing this information. Joshuas mother immediately reported the information to the local sheriffs department. The pastor was later charged with several counts of molestation, and was imprisoned awaiting trial. While in prison, he was visited by another local pastor who met with him in order to provide comfort and solace. The two prayed together.

At the pastors trial, the visiting pastor testified regarding the conversation that occurred in prison. He related that he and the accused pastor spoke about the allegations that the pastor had sexually assaulted male children who attended his church. While speaking of these charges, the pastor allegedly stated that “he knew what was happening was wrong, [but he] couldn’t quit.” The visiting pastor also testified that the accused pastor gave him permission to “use [their conversation in] any way that [he thought] would be helpful” to others. The pastor was found guilty of several counts of molestation, and sentenced to not less than 50 years or more than 110 years in prison. The pastor appealed his conviction, in part because his conversation with the visiting pastor was protected by the clergy—penitent privilege and therefore should not have been disclosed. With regard to his conversation, he testified at his trial that he believed that “what I talked to [him] about would be between us.” He admitted that he had never before sought spiritual guidance or forgiveness from the visiting pastor and that he did not “confess to [the visiting pastor] as a communicant confesses to a priest when [he] talked to [him] that day.” The pastor also testified that he could not remember whether he gave the visiting pastor permission to disclose their conversation to others, but that he may have granted such permission. Nevertheless, he insisted that he spoke with the visiting pastor in his professional capacity as a minister, and believed that he had visited him for the sole purpose of providing comfort and strength during his confinement.

The state argued that the clergy—penitent privilege was not available in this case because the pastor failed to show that he spoke with the visiting pastor in his role as a professional counselor. The state pointed out that the pastor admitted that he did not attend the visiting pastors church and that he had never before confided in him as a pastor. More importantly, the state contends that the pastor waived any privilege by granting permission for the visiting pastor to use the information in “any way that [he thought] would be helpful” to others.

The state supreme court concluded that the clergy—penitent privilege was not available, and it affirmed the pastors conviction and sentence. It quoted the West Virginia clergy—penitent privilege statute:

No priest, nun, rabbi, duly accredited Christian Science practitioner or member of the clergy authorized to celebrate the rites of marriage in this state … shall be compelled to testify in any criminal or grand jury proceedings or in any domestic relations action in any court of this state: (1) With respect to any confession or communication, made to such person, in his or her professional capacity in the course of discipline enjoined by the church or other religious body to which he or she belongs, without the consent of the person making such confession or communication …. W. Va. Code § 57—3—9.

The court noted that the rationale for such a privilege “seems to be the demands of religious liberty, the need for individuals to be able to disclose sinful acts to a spiritual counselor, and the desire to avoid confrontation with clergy who refuse to divulge communications they feel ethically and religiously obligated to keep secret.”

The court concluded that a communication is privileged if four tests are met:

(1) the communication must be made to a clergyman; (2) the communication may be in the form of a confidential confession or a communication; (3) the confession or communication must be made to the clergyman in his professional capacity; and (4) the communication must have been made in the course of discipline enjoined by the rules of practice of the clergyman’s denomination.

The court concluded that the communications in this case met the first three requirements of the privilege-they were made to a clergyman, they were confidential, and the clergyman was acting in his professional capacity. However, the court had trouble deciding if the fourth requirement was met-that the communications to the visiting pastor were “in the course of discipline enjoined by the church or other religious body to which he … belongs.” The court noted that “[n]owhere in this record do we find evidence demonstrating one way or another that there was a course of discipline enjoined by [the visiting pastors] church.” However, the court concluded that it did not have to resolve this issue since it was clear that the pastor “consented to the testimony and therefore waived the confidentiality of the communication” by giving the visiting pastor permission to use their conversation in any way that he thought would be helpful to others.

The court made two important clarifications. First, the privilege is not limited to “confessions” but also includes “communications”. The court observed that although the term “confession” ordinarily means “a penitential acknowledgment to a clergyman of actual or supposed wrongdoing while seeking religious or spiritual advice, aid, or comfort,” the term “communication” is not so limited and is not restricted to incriminatory statements. Second, “[i]t is only where the church of the clergyman requires that the communicant must belong or be a member of the … church that we find such a relationship necessary to invoke the privilege.”

Application. This case is important for the following reasons: (1) It demonstrates the severe consequences that can befall persons who molest children. The pastor was sentenced to a minimum of 50 years in prison for his actions. (2) It demonstrates the risk parents incur when they allow their children to spend time with adults. This of course is not to say that such relationships cannot be positive and nurturing. But they also can be highly destructive. Church leaders should be alert to such arrangements occurring among their members, and never allow minors to spend time in staff members homes unless at least two adults are present at all times. (3) The case contains an excellent four—step analysis to apply in determining whether or not the clergy—penitent privilege exists. (4) The case illustrates that communications with a pastor may not be privileged, even if all of the elements of the privilege are satisfied, if the person making the communications consents to their disclosure. State v. Potter, 748 S.E.2d 742 (W. Va. 1996). [ The Clergy-Penitent Privilege]

Legal Developments

Man Sues Over Molestation by School Counselor

The lawsuit was barred by the statute of limitations.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1997-07-01

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.”

The Minnesota Supreme Court ruled that a 33—year—old adult’s lawsuit against a school counselor who molested him when he was 11 years old was barred by the statute of limitations. The counselor expressed an interest in the victim, and visited him in his home on several occasions. He eventually asked the boy’s mother if he could take her son to a remote cabin that he owned. The mother agreed, and the counselor took the victim to the cabin several times. During these trips the counselor repeatedly raped the boy. Prior to these incidents, the victim had no childhood problems. He was a well—adjusted, active student who enjoyed school. His mother described him as having been, before the abuse, a bright, energetic child and a talented student. The victim’s behavior changed drastically after he became acquainted with the counselor. He skipped school, became involved with crime, and abused drugs and alcohol. He was transferred to a correctional institution, and never graduated from high school. He entered a chemical dependency program when he was 19, but continued to abuse alcohol until he was 28. The victim never discussed the abuse with his mother or anyone else, because he was embarrassed and ashamed and thought of himself as a “bad person.” When the victim was 22 years old he unexpectedly encountered the counselor again when the counselor and a young boy entered his place of employment. The victim became enraged and “freaked out” because he suspected that the counselor was molesting the young boy and such behavior “shouldnt happen to little kids.” He did not explain to his co—workers the reason for his reaction.

In 1991, when he was 32 years old, the victim came across a man who had attended elementary school with him. They began talking about their school days, and problems they had experienced since school. The man informed the victim that he had been molested by the counselor, and that he associated most of his problems with the molestation. This revelation was a “spark” that enabled the victim to realize that the counselor’s acts of molestation may have caused his own behavioral problems. He sued the counselor the next year (1992), along with his former school. A trial court threw the case out on the ground that it had been filed after the “statute of limitations” had expired. A state appeals court reversed this decision and ruled that the statute of limitations did not bar the victims lawsuit. The state supreme court overturned this result, and reinstated the trial court’s decision that the lawsuit was barred by the statute of limitations.

Under Minnesota law, adults may file a lawsuit for incidents of molestation occurring when they were minors if they do so within six years of the time they “knew or had reason to know that the injury was caused by the sexual abuse.” The supreme court concluded that it did not have to decide when the victim “had reason to know” that his emotional injuries were caused by the abuse, because the victims own testimony “overwhelmingly demonstrates that he knew of the sexual abuse long [ago] and that the cause of action expired prior to the commencement of this action.” The court noted that the victim refrained from sharing the incidents of abuse with counselors during his adult chemical dependency treatment because of his sense of shame over what had occurred. Further, his reaction to the surprise encounter with his former school counselor “demonstrates with utmost clarity that by that time he was fully aware of the abusive nature of their relationship because he was concerned for the welfare of the young boy accompanying [the counselor].” As a result, “a reasonable person should have known at either point in time that he had been injured by [the counselors] conduct.”

Application. This case illustrates the dilemma that adult survivors of child sexual abuse often face when they sue the offender (and his employer)-they must demonstrate that they were injured by the abuse, but doing so may result in the dismissal of their claim since it will trigger the statute of limitations. Blackowiak v. Kemp, 528 N.W.2d 247 (Minn. App. 1995). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability—Defenses]

Legal Developments

Denomination Not Liable for Pastor’s Misconduct

A denomination is not necessarily responsible for the acts of its pastors.

Richard R. Hammar, Attorney, CPA

Bio

State: South Carolina
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1997-07-01

Sexual Harassment

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

• Key Point. Denominational agencies are not necessarily liable for a pastors acts of sexual harassment on the basis of negligence, invasion of privacy, breach of fiduciary duty, emotional distress, fraud, or clergy malpractice.

A South Carolina court ruled that a denominational agency and one of its officials were not liable on the basis of negligence, invasion of privacy, fiduciary duty, emotional distress, or fraud for a pastors acts of sexual harassment. Three female church members claimed that their pastor sexually harassed and abused them over a period of several months. The district superintendent of a state denominational agency (the “Conference”) learned of the allegations, and asked the three women to appear before a “staff—parish relations committee” of their church. At the meeting each woman was given an opportunity to describe the pastors allegedly inappropriate behavior. The pastor attended this meeting, but the women were not permitted to hear his responses to their complaints. After hearing the accusations against their pastor, the committee gave the pastor a vote of “no confidence” and submitted the charges to the Conference for a full review. The pastor then requested six weeks’ paid vacation followed by a leave of absence, and the committee granted his request. The pastor spoke to the church congregation the following Sunday, and explained he was taking a paid vacation. In advance of this service the pastor telephoned several members of the congregation to gain support in response to the three womens charges. The women later claimed that the tone of the pastors voice as he spoke to the congregation made it appear that he had been falsely charged. The district superintendent visited the church the following two Sundays to explain the pastors leave of absence. He informed the congregation that allegations had been made but did not reveal the true nature of the complaints or that any investigation was being conducted.

The pastor resigned from his denomination before it could review the charges of sexual harassment. The Conference accepted the resignation as a “withdrawal under complaint or charges,” and discontinued its investigation into the womens charges. The Conference later spent $4,000 for training pastors in handling sex abuse allegations and for sending the three women to a “survivors of clergy sexual abuse” retreat. The women later met with the bishop to discuss their disappointment with the handling of their complaints by both the district superintendent and Conference. They assured the Bishop that they did not want to bring a lawsuit against the church, but they wanted the situation resolved. The bishop allegedly assured them that someone would write a letter to the church congregation explaining what really happened between the pastor and the three women, and that the women would have input in the establishment of the sexual ethics policy that was to be presented at the next annual meeting of the Conference. The bishop in fact presented the women with a copy of the proposed policy at the annual meeting and solicited their input. They informed him that the proposed policy was a start but that the Conference “had a long way to go.” The Conference adopted the policy. However, no one ever wrote the church explaining what actually happened between the pastor and the three women. The women later learned that certain ministers in the Conference knew that the pastor had previously acted inappropriately toward women while ministering at another church but “swept it under the rug.”

The women sued the Conference and district superintendent, claiming that they were responsible for the pastors sexual harassment on the basis of negligence, invasion of privacy, breach of fiduciary duty, emotional distress, fraud, and clergy malpractice.

Negligent hiring and negligent supervision

The court ruled that the women were barred by the statute of limitations from suing the Conference for negligent hiring or supervision. Had the women filed their lawsuit earlier, the Conference might have been found liable on the basis of negligent hiring since there was evidence that it was aware of prior incidents of misconduct involving the pastor, but took no action.

Negligence in responding to the womens complaints

The women claimed that the Conference and district superintendent “had a duty to prevent the sexual harassment of its parishioners by a member of the clergy and to help in healing afterward rather than being indifferent.” They insisted that the Conference should be found guilty of negligence for violating this standard. The court disagreed, noting that the women “have cited no precedent and we are aware of none that stands for the proposition a church owes its parishioners a duty of care regarding its handling of their complaints.”

Clergy malpractice

The court concluded that South Carolina does not recognize clergy malpractice as a basis for legal liability.

Invasion of privacy

An invasion of privacy may occur in a number of ways. One way is for a person to publicly disclose private information about another-even though the information is true (and therefore cannot be defamatory)-if the disclosure would be highly offensive and likely to cause serious mental injury to an ordinary person. A second way is to publicly place another person in a “false light.” The women claimed that the Conference and district superintendent committed one or both of these kinds of invasion of privacy by the following actions: (1) They asked the women to appear before a church committee to disclose their accusations; (2) they permitted the pastor to make some final remarks to the congregation, at which time he made it appear that he was being falsely accused; (3) they “acquiesced” in the decision of the staff—parish relations committee to permit the pastor to go on paid vacation after his final service, and this further implied that the womens charges were groundless; and (4) they failed to inform the congregation of the true reason for the pastors resignation.

The court ruled that neither the Conference nor the district superintendent was guilty of invasion of privacy. In concluding that the first type of invasion of privacy (public disclosure of private facts) had not occurred, the court observed:

First, the only “publicizing” of facts concerning the [women] was done by the [women] themselves. [They] communicated their complaints to a small committee of the local church. There is no evidence that either [the Conference or district superintendent] “publicized” [the womens] complaints other than within the official channels of the local church and Conference and to those charged with dealing with such allegations. Further, insofar as [the pastor] was the pastor of the church, allegations of his sexual misconduct were certainly matters of some notoriety within the church community. [Finally] the facts disclosed were of some legitimate public interest, albeit to a limited group. [The women] made their disclosures expecting and intending that both the committee and [Conference] would act on those complaints. [They] therefore intended that their complaints should become public to the limited extent that occurred under these circumstances. [The actions of the Conference and district superintendent] were nothing more than an attempt to further the legitimate interests of all parties involved, including [the women].

With regard to the womens claim that the Conference and district superintendent invaded their privacy by publicly placing them in a “false light,” the court simply noted that no South Carolina case has recognized this theory of liability. And, even if it were to be recognized, neither the Conference nor district superintendent did anything to “give rise to such a claim under these circumstances.”

Breach of fiduciary duty

The court rejected the womens claim that the Conference and district superintendent breached a fiduciary duty. First, it concluded that no fiduciary relationship existed between the women and either the Conference or district superintendent. It noted that the women had no contact with the Conference and their only direct contact with the district superintendent was a single meeting involving one of the women. The court stressed that while the district superintendent received the womens initial accusations, “his mere occupation of the position of superintendent did not create a fiduciary relationship with these [women].” Further, the womens personal expectation that the Conference or district superintendent would “take action” on their complaints did not create a fiduciary relationship: “The steps taken unilaterally by the [women] do not constitute an attempt on their part to establish the relationship alleged, and there is no evidence that [the Conference or district superintendent] accepted or induced any special, fiduciary bond with any of [the women] under these facts in any event.”

The court also concluded that even if a fiduciary relationship did exist, it was not violated since “there is no evidence of a breach of that duty. There is no evidence that [the Conference or district superintendent] acted other than in good faith and with due regard to [the womens] interests.”

Emotional distress

Did the actions of the Conference and district superintendent amount to an intentional infliction of emotional distress? No, said the court, since nothing in the actions of the Conference or district superintendent “could be characterized as extreme and outrageous, as exceeding possible bounds of decency, or which might be regarded as atrocious and utterly intolerable in a civilized community.”

Fraud

The women claimed that the Conference and district superintendent were guilty of fraud because they fraudulently represented that they would (1) provide counseling to the women to help in the healing and recovery process, and (2) create a policy on sexual harassment for presentation and adoption at an annual meeting of the Conference. The court noted that “[t]here is no evidence that whatever statements were made by church officials were more than representations or promises of future action, which cannot be the basis for a cause of action for fraud. In order to be actionable, the representations must be a statement concerning an existing fact.” Further, the court pointed out that the Conference in fact did make funds available to the women for counseling. The court observed: “It is apparent [the womens] contentions in this regard amount to nothing more than mere disappointment with the level of response of the Conference and [district superintendent]. That disappointment is not legally actionable on any basis, much less fraud.” With regard to the womens claim that the Conference failed to adopt a sexual harassment policy, the court noted that this claim “was completely contradicted by the clear evidence in this case.”

Application. This case illustrates a number of important points: (1) It demonstrates once again the risk that churches and denominational agencies face when they receive allegations of misconduct involving a pastor or other staff member and take no action. As noted above, had the women filed their lawsuit earlier, the Conference might have been found liable on the basis of negligent hiring since there was evidence that it was aware of prior incidents of misconduct involving the pastor, but took no action. (2) The court rejected the womens claim that the Conference could be legally liable for failing to properly handle allegations of sexual harassment. (3) The court noted that the Conference could not be liable on the basis of invasion of privacy for publicly disclosing private facts about the women since the women themselves had revealed the same information. In other words, if church leaders share private facts about a member to others, the member cannot claim that the church has “invaded his privacy” if he previously disclosed the same information himself. Brown v. Pearson, 1997 WL 115857 (S.C. App. 1997). [Invasion of Privacy, Clergy Malpractice, Seduction of Counselees and Church Members, Negligent Selection as a Basis for Liability, Negligent Supervision as a Basis for Liability, Denominational Liability]

Legal Developments

Priest Molests Children

Court rules that diocese may be sued for negligent retention and supervision.

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1997-07-01

Sexual Misconduct by Clergy and Church Workers

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

• Key Point. The first amendment guaranty of religious freedom prevents churches and denominational agencies from being sued as a result of “negligent ordination.”

• Key point. Some courts require that a lawsuit brought against a church by a victim of sexual misconduct plead specific facts demonstrating that the church knew of prior similar acts of misconduct by the perpetrator. Vague allegations of what the church “should have known” are not sufficient. Other courts have rejected this view.

• Key point. Churches that obtain a positive letter of reference on a worker may not be legally responsible for the workers misconduct on the basis of an alleged failure to investigate further.

• A New York court ruled that a Catholic diocese could not be sued on the basis of negligent hiring for a priests acts of child molestation, but it could be sued for negligent supervision and negligent retention. The offending priest was ordained in Venezuela and moved to the United States in 1983 with a letter of reference from his archbishop. He later molested at least one minor (the “victim”). The victim later sued the local diocese, claiming that it was legally responsible for the priests conduct on the basis of negligent hiring, negligent supervision, and negligent retention. A trial court dismissed all of the victims claims against the diocese, and the victim appealed. A state appeals court agreed with the trial court that the diocese could not be sued on the basis of negligent hiring, but it concluded that the diocese could be sued for negligent supervision and negligent retention. There are a number of important points to the court’s decision that are summarized below.

Pleading specific facts

The diocese claimed that a religious organization cannot be sued by an alleged victim of sexual misconduct unless the lawsuit pleads specific facts demonstrating that the organization was aware that the offender posed a risk of harm to others. The diocese insisted that vague allegations concerning what it “should have known” were insufficient. As noted in previous issues of this newsletter, some courts have reached this very conclusion. The court in this case declined to do so, noting that the state legislature had not adopted such a rule. However, the court did acknowledge that a lawsuit which contains “bare legal conclusions or factual claims which are flatly contradicted by documentary evidence should be dismissed.”

Negligent hiring

The victim claimed that the diocese “had prior knowledge or should have known that the [the priest] was a sexual deviant” and therefore it was negligent in hiring him. The victim further asserted that the diocese failed to “establish proper guidelines and procedures,” failed to “properly screen and hire applicants to the priesthood,” and failed to have the priest examined psychologically to determine his fitness for serving as a priest.

The court conceded that “ordination to the priesthood confers a religious, not legal status, and may be characterized as a quintessentially religious matter. Imposing liability for conferring that status would create serious concerns of excessive entanglement in religious affairs, in violation of the first amendment of the United States Constitution.” However, the court concluded that the question of whether liability “could ever be imposed for ordination to the priesthood” did not have to be answered in this case since the local diocese could not be legally responsible on the basis of negligent hiring for the decision by church officials in Venezuela to ordain the priest. As a result, the local diocese could not be responsible on the basis of negligent hiring for the priests acts of molestation.

A duty to investigate

The victim conceded that the diocese may not have known of the priests propensities when he arrived from Venezuela with a letter of reference, but he insisted that the diocese had a duty to investigate his background before hiring him. The court disagreed. It observed that

[t]here is no common—law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee. Since [the priest] came to the [diocese] with a letter of reference from his Archbishop, which gave the [diocese] no reason to believe there was any problem, [it] cannot be charged with negligence for failing to investigate further.

Negligent supervision and negligent retention

The victim alleged that the diocese became aware of the danger the priest posed to minors after hiring him as a result of comments both he and the priest made to other priests regarding inappropriate behavior. The court noted that if the victim or the priest made such statements to other priests, then the diocese might be legally responsible for the priests actions on the basis of negligent retention and negligent supervision.

The court insisted that imposing liability on the diocese under such circumstances “would not violate constitutional and statutory guarantees of free exercise of religion and separation of church and state.” The court conceded that other courts have concluded that the first amendment may bar victims from suing churches or clergy on the basis of conduct “finding its basis in religious beliefs and practices.” This was not the case here, however, since “there is no indication that requiring increased supervision of [the priest] or the termination of his employment by the [diocese] based upon [his] conduct would violate any religious doctrine or inhibit any religious practice.” This result is not affected by the Religious Freedom Restoration Act, which specifies that a law that “substantially burdens” the exercise of religion must further a compelling state interest to be legally permissible. The court concluded that there was evidence that the level of supervision exercised over the offending priest, or his retention by the diocese, was dictated by religious doctrine. It insisted that “religious entities have some duty to prevent injuries incurred by persons in their employ whom they have reason to believe will engage in injurious conduct.”

Application. The most important aspect of the court’s ruling was its conclusion that the diocese could not be legally responsible for the priests misconduct on the basis of negligent selection since it obtained a positive letter of reference when he was hired from a former employer. Further, the court concluded that when an employer receives a positive letter of reference on a prospective worker revealing no previous problems, it has no duty to investigate further. While not every court will agree with these conclusions, they can be cited in defending against a claim of negligent hiring. Finally, note that while the diocese could not be guilty of negligent hiring since it relied on the reference letter from the priests former bishop, the court concluded that the diocese could be liable for the priests misconduct on the basis of negligent retention and negligent supervision if it became aware of allegations of misconduct after he was hired but did nothing to respond to them. Kenneth R. v. Roman Catholic Diocese, 1997 WL 97185 (N.Y.A.D. 1997). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

Legal Developments

Man Sues Diocese and Two Priests Over Abuse

The lawsuit was barred by the statute of limitations.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1997-07-01

Sexual Misconduct by Clergy and Church Workers

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

A Maryland court ruled that a 34—year—old adult’s lawsuit against a diocese and two priests who molested him when he was a minor was barred by the statute of limitations. The victim was repeatedly molested by the two priests while serving as an altar boy over a period of 6 years. The priests gained his trust by giving him money and gifts. One of the priests used pornographic materials while molesting the victim, and also took pornographic pictures of him. The victim claimed that the archdiocese learned as early as 1967 that one of the priests was a pedophile, and required him to undergo therapy. The priest was later assigned to the parish in which the victim served as an altar boy. The victim claimed that it was not until he was 33 years old (in 1994), when his marriage was “falling apart,” that he first became aware that he had been injured as a result of the priests actions. He sued the priests and the archdiocese in 1995, when he was 34 years old. He claimed that the archdiocese was legally responsible for his injuries on the basis of negligent hiring, placement, and supervision. A state appeals court concluded that the victims lawsuit was barred by the Maryland statute of limitations, which requires personal injury lawsuits to be filed within 3 years of the date a victim “knew or, with due diligence, reasonably should have known of the wrong.” The victim claimed that he was aware of the priests conduct but did not appreciate the offensiveness of it or realize that he had been harmed until he began experiencing marital difficulties in 1994, and therefore the statute of limitations should not start running until that date. A state appeals court disagreed, concluding that “if any memory of sexual abuse suffered during childhood survives into adulthood, the statute of limitations begins to run when the victim reaches the age of majority.” Further, “even if no memory at all survives into adulthood, the limitations period still begins to run on the date the victim reaches the age of majority.”

The court also ruled that the victims claims against the archdiocese were barred by the statute of limitations. The victim insisted that under Maryland law the statute of limitations may be suspended if the archdiocese fraudulently prevented him from learning of a legitimate legal claim. The court conceded that the statute of limitations may be suspended when a victims knowledge of a legal claim is prevented by anothers fraud. However, it concluded that the archdiocese had not engaged in any fraudulent attempt to prevent the victim from discovering his legal claims. The court observed:

[W]hen the priests molested [the victim] he was immediately on notice of potential claims against the priests as well as against the archdiocese as their employer …. Once on notice of one [legal claim] a potential plaintiff is charged with responsibility for investigating, within the limitations period, all potential claims and all potential defendants with regard to the injury ….

Nowhere does [the victim] allege that, once he inquired of the archdiocese, the church negligently or deliberately misled him as to what it knew about the priests …. [T]he alleged wrongdoing described in portions of the [lawsuit] occurred [before] the sexual battery that harmed [the victim]. [He] is alleging that, at some time before he was abused, the archdiocese knowingly put the priests in a position to abuse him by concealing prior incidents in which the priests abused other children. This cannot support a claim that the archdiocese concealed a cause of action from [the victim]. [He] does not allege that after the priests abused [him] the archdiocese committed a fraud that prevented him from knowing of its wrongdoing or from discovering his claims.

Application. This case is important for the following reasons: (1) It illustrates the dilemma that adult survivors of child sexual abuse often face when they sue the offender (and his employer)-they must demonstrate that they were injured by the abuse, but doing so may result in the dismissal of their claim since it will trigger the statute of limitations. (2) This case also demonstrates another important principle-churches and denominational agencies can be legally responsible on the basis of negligent selection for the sexual misconduct of clergy and other workers if they had prior knowledge of similar acts of misconduct. However, such prior knowledge may be insufficient grounds to suspend the statute of limitations (on the basis of “fraudulent concealment” of a legal claim) in cases of child sexual molestation. Doe v. Archdiocese of Washington, 689 A.2d 634 (Md. App. 1997). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability—Defenses]

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

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

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]