Man Sues Church for Abuse Suffered as Minor

Court rules that the statute of limitations bars him from suing.

Richard R. Hammar, Attorney, CPA

Bio

State: Florida
Categories: 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. The first amendment guaranty of religious freedom does not necessarily prevent the civil courts from resolving lawsuits alleging sexual misconduct by clergy.

• 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.”

A Florida court ruled that a 27-year-old man who had been molested by a priest when he was a minor was barred by the statute of limitations from suing his church. A priest committed improper acts with an altar boy starting when the boy was thirteen and continuing until he was twenty-five years old. At some point the young man realized that the priest had indeed committed horrible wrongs against him and that the church, either directly or through the bishop, might be legally responsible for these wrongs. As a result, the victim sued the priest on the basis of the sexual abuse of a minor. He also sued the church and the bishop on the basis of negligent hiring and retention of a priest they knew or should have known was unsuitable to have contact with children. The church and bishop asserted two defenses. First, that the victim waited too long to file his lawsuit, and that it was barred by the statute of limitations. Second, that the first amendment prevents a civil court from intruding into a church’s selection, training, supervision, and assignment of priests.

statute of limitations

The court agreed with the church and bishop that the victim’s lawsuit was barred by the statute of limitations. The court noted that the victim was suing the church and bishop for negligence in the hiring and retention of the priest. Under Florida law, the statute of limitations for negligence lawsuits is four years. Since this period is suspended until a minor plaintiff reaches age eighteen, the victim had until age twenty-two to file a lawsuit against the church and bishop. The victim did not sue until he was twenty-seven, but insisted that the statute of limitations should have been suspended further until he became “aware” of his injuries. The court rejected this argument:

This young man knew the identity of the [priest] and the improper conduct engaged in by the [priest] long before he reached the age of majority. This was sufficient knowledge to file an action against the priest for the wrongful sexual battery committed against him and, again assuming such cause of action is available, against the church and bishop for making such conduct possible because of the negligent retention of the priest …. [T]he negligent retention of a priest who would commit child abuse, at least insofar as this young man is concerned, must have occurred while he was still a child. Therefore, when [the victim] turned eighteen, he was aware that a priest had sexually abused him and that the church had permitted the priest to serve in the parish which made the abuse possible. Sexual abuse of a child in and of itself causes sufficient actual damages, as a matter of law, to support both the intentional tort action against the priest and the negligence action, if one exists, against the church and the bishop …. The fact that [the victim] in this case was not immediately aware of all of his resulting emotional problems might create uncertainty as to the amount of his damages but it does not toll the period of limitations.

negligent hiring and retention

Since the court ruled that the statute of limitations barred the victim’s lawsuit against the church and bishop, it was not required to decide whether or not the first amendment prevents the civil courts from resolving negligence claims brought against churches for the sexual misconduct of clergy. However, the court did make the following observation:

In any event, we are persuaded that just as the state may prevent a church from offering human sacrifices, it may protect its children against injuries caused by pedophiles by authorizing civil damages against a church that knowingly (including should know) creates a situation in which such injuries are likely to occur. We recognize that the state’s interest must be compelling indeed in order to interfere in the church’s selection, training and assignment of its clerics. We would draw the line at criminal conduct.

liability for the priest’s actions after the minor reached adulthood

The victim claimed that the priest’s inappropriate sexual behavior continued until the victim was twenty-five years of age, and that the statute of limitations did not prevent him from suing the church and bishop for at least some of this behavior. The court disagreed:

Insofar as the adult acts are concerned, we conclude that the sexual acts between the adult participants herein were not criminal. [The victim] does not contend that he did not consent to the continued relationship. It is his position that his consent should be considered invalid because the priest “deliberately and calculatingly caused a relationship whereby [he] was able to exert undue influence, dominion and control over the [victim].” We do not believe that a sexual battery has been committed when a person of normal intelligence submits to a sexual relationship due to the “emotional attachment” to another person.

Application. This case is noteworthy for the following reasons: (1) It demonstrates the obstacle that the statute of limitations poses to adults attempting to sue for incidents of molestation that occurred when they were minors. Even those courts that are willing to suspend the statute of limitations until a victim “discovers” his or her injuries are very reluctant to do so when the acts of molestation occurred when the victim was an adolescent (as opposed to a young child). (2) This court would permit churches to be sued for negligent hiring or retention of clergy in cases involving criminal misconduct. Other courts have concluded that the first amendment prevents churches from being sued for negligently hiring or retaining ministers. (3) The court emphasized that adults who engage in consensual sexual acts with a priest cannot later sue for damages. Doe v. Dorsey, 683 So.2d 614 (Fl. App. 1996). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denomina tional Liability]

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

Legal Developments

Ministers’ and Churches’ Liability for Sexual Misconduct

Who can be found liable for a minister’s misconduct?

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1997-03-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Ministers who engage in sexual contacts with adults may be legally responsible for their behavior on a number of grounds, including breach of a fiduciary duty and outrageous conduct. In addition, their employing church may be responsible for their behavior on the basis of negligent hiring, negligent supervision, outrageous conduct, and ratification. The courts can resolve such claims so long as they can do so without inquiring into religious doctrine.

A Colorado court ruled that a minister, his church, and a denominational agency could be sued by a woman with whom the minister had sexual contacts. A woman (the victim) attended a church for a few years, and began to volunteer her services for a variety of activities including the remodeling of a classroom. She engaged in these volunteer services on the recommendation of a therapist who suggested that she work in a “safe environment” to overcome her fears of the workplace. The victim’s volunteer work caused her to come in contact with her minister after normal working hours. On one occasion the minister approached her while she was remodeling a classroom, began caressing her back, and told her “I love you Dianne, you mean so much to me.” Following this incident the victim became physically ill and cried. A few days later, the minister called the victim into his office where the two of them sat next to each other on a small couch. The minister again caressed her and expressed his love for her. Following a third incident, the victim informed two other women in the church about the minister’s behavior, and one responded, “Oh my God, not you too.” A few months later a denominational agency with which the church was affiliated held a meeting in response to a formal complaint it had received regarding the minister’s conduct. Six women attended this meeting, and all described similar incidents of unwelcome verbal comments and physical contact involving the minister. As a result of this meeting, the minister was suspended. The victim later sued the minister, her church, and the denominational agency. She claimed that the minister breached his fiduciary duty toward her, and committed outrageous conduct. She claimed that the church and denominational agency breached their fiduciary duty toward her, and also engaged in negligent hiring, negligent supervision, outrageous conduct, and ratification of the minister’s actions. In particular, the victim alleged that the agency had been made aware of at least one prior act of sexual misconduct involving the minister, and was aware that he had a problem with alcohol abuse. The church and the victim reached an out of court settlement, and a trial court returned a verdict against the minister and denominational agency. The case was appealed, and a state appeals court affirmed the trial court’s decision.

The court began its opinion by rejecting the denominational agency’s assertion that the first amendment’s nonestablishment of religion clause barred the victim’s claims against it. The agency insisted that the ordination and discipline of ministers was an ecclesiastical matter involving theological concerns over which the civil courts cannot exercise jurisdiction. The court noted simply that neither the minister nor the agency claimed that the minister’s “method of communicating with parishioners by touching, hugging, and expressing affection was based on any religious tenet or belief.”

The court also rejected the claim that no fiduciary relationship existed between the victim and either the minister of the agency. The court noted that the minister had counseled the victim on personal and intimate matters, and that such counseling was enough to establish a fiduciary relationship. The court further noted that the following facts supported the existence of a fiduciary relationship between the victim and the denominational agency: the agency conducted a meeting with six women regarding the minister’s behavior; the agency provided a therapist to help the women; the agency sent a letter to the church’s membership stating in part that “we are equally concerned for the healing of any persons who have been hurt. They will continue to receive appropriate help for their healing and restoration.”

The victim claimed that the denominational agency breached its fiduciary duty by failing to provide adequate counseling to the six women; undermining the credibility of the women by informing the congregation that there was nothing in the minister’s personnel file indicating he had problems; failing to protect the women who brought complaints against the minister from verbal attacks; and not informing the congregation that it found the women’s complaints credible. The court concluded that sufficient evidence existed for the jury to conclude that the agency breached its fiduciary duty.

Finally, the court rejected the denominational agency’s argument that it was protected from liability as a result of a Colorado statute that provides: “No member of the board of directors of a nonprofit corporation or nonprofit organization shall be held liable for actions taken or omissions made in the performance of his duties as a board member except for wanton and willful acts or omissions .” Colo. Rev. Stat. § 13—21—116. Many states have enacted similar statutes to protect board members of nonprofit corporations. In most cases, the protections of the statute do not apply to compensated directors, or to wanton or willful acts or omissions. The court noted that this provision did not apply in this case, since there was no evidence that the agency “accomplished its work through unpaid volunteers.”

What is the significance of this ruling? Consider the following points: First, it illustrates the risks churches face in not establishing appropriate boundaries. The church never should allowed the victim to work after hours when the minister was present. Second, the case illustrates the risk that churches and denominational agencies face when they employ a minister with a record of prior misconduct. The court concluded that the denominational agency was guilty of negligent hiring because it appointed the minister to the church despite knowledge of prior acts of sexual misconduct. Third, the case illustrates how easily a denominational agency can become involved in a “fiduciary relationship” with church members. Such a relationship exposes the agency to liability if its fiduciary duty to church members is violated. Fourth, the court’s discussion of how the agency breached its fiduciary duty is instructive. Winkler v. Rocky Mouton Conference, 923 P.2d 152 (Colo. App. 1995). [ Seduction of Counselees and Church Members, Negligent Selection as a Basis for Liability]

Legal Developments

Church Liability for the Sexual Misconduct of Ministers

Church and denominational agency not responsible for pastor’s misconduct

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1997-01-01

Church Liability For The Sexual Misconduct Of Ministers

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

Church and denominational agency not responsible for pastor’s misconduct – Alpharetta First United Methodist Church v. Stewart, 473 S.E.2d 532 (Ga. App. 1996)

[ Negligence as a Basis for Liability, Denominational Liability]

Article summary. A Georgia court addressed the complex legal issues surrounding the sexual seduction of a woman by a pastor in the course of a counseling relationship. The court concluded that a church and denominational agency were not responsible for the woman’s injuries on the basis of respondeat superior or negligence, since they had no prior knowledge of misconduct by the offending pastor. The court cautioned that churches and denominational agencies are potentially liable on the basis of negligence for injuries sustained by victims of sexual misconduct if they have knowledge of prior misconduct. However, since the woman could not prove that church officials either knew or should have known of any previous sexual misconduct by the offending pastor, the negligence claims had to be dismissed.

In a decision that will be relevant to both churches and denominational agencies, a Georgia court dismissed a lawsuit brought by a woman against her church and a denominational agency as a result of injuries she allegedly sustained during a sexual relationship with her pastor. The court’s decision addresses a number of important legal issues, including respondeat superior, the statute of limitations, negligence, and the effect of prior notice of inappropriate conduct. This article will summarize the facts of the case, review the court’s ruling, and assess the significance of the case to other churches and denominational agencies.

Facts

A husband and wife joined a church in 1990. The woman sought counseling from an associate pastor at the church because of an incident involving a pastor in her former church. She informed the senior pastor of her former church about a “drunken assault” by the church’s associate pastor during a mission trip. The woman claimed that her former pastor did not believe her, told her she was “a troublemaker,” and asked her to leave the church. The woman was concerned that her new pastors had been told about this incident, and she met with an associate pastor to find out what had been said about her. The associate pastor met with the woman on a number of occasions, but eventually informed her that she should discontinue the counseling sessions with him and find another counselor because he was sexually attracted to her. Despite this request, the woman did not discontinue the counseling sessions, and the two began having “phone sex” conversations. The woman claimed that the associate pastor initiated the first such conversation but that at times she would call him. She insisted that while she led him to believe she was participating in the “phone sex,” she was, in reality, only pretending.

The woman alleged that toward the end of their counseling relationship the associate pastor called her at home and asked her to come to his office so they could have sex. She drove to his office and the two engaged in intercourse. The woman did not see the associate pastor anymore for counseling after this incident because by that time he had referred her to another counselor. However, the two continued to engage in “phone sex” and they engaged in sexual intercourse on several other occasions, even after the associate pastor was assigned to another church. The woman quit seeing the associate pastor when she learned that he was engaged to be married to another woman.

The woman informed her church’s new associate pastor of her involvement with his predecessor. However, she refused to permit him to disclose the information on the ground that she was “not ready to tell anyone else.” A few months later the woman sent a letter to a denominational office, describing her sexual relationship with the former associate pastor. The day denominational officials received the letter they confronted the former associate pastor and he submitted his resignation.

The woman and her husband sued the pastor, their church, and a denominational agency. They claimed that they both had suffered serious emotional damages as a result of the associate pastor’s behavior. The woman sued the associate pastor, church, and denominational agency for

battery
intentional infliction of emotional distress
false imprisonment
assault
breach of trust, and
professional malpractice

The husband sued the associate pastor, church, and denominational agency for loss of consortium. The couple both sued the church and denominational agency, claiming that they were legally responsible for the pastor’s misconduct on the basis of respondeat superior, negligent hiring, and negligent retention.

The couple insisted that while the woman appeared to consent to the sexual contacts she was in reality the victim of the associate pastor’s manipulation of the “transference” phenomenon. Transference is defined as “a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make.” Jacobsen v. Boyle, 196 Ga.App. 411, 412, 397 S.E.2d 1 (1990).

The church and denominational agency claimed that the statute of limitation barred the lawsuit and that the first amendment guaranty of religious freedom protected them from the negligent hiring and negligent retention claims. They also insisted that the sexual relationship was consensual, and even assuming “transference” did occur and the woman was incapable of resisting the pastor’s sexual advances, they could not be guilty for the pastor’s sexual misconduct. The church and denominational agency filed a motion for summary judgement, asking the court to summarily dismiss all claims against them. A trial court rejected this request, and the case was appealed.

The court’s decision

A state appeals court reversed the trial court’s decision, and ruled that all claims against the church and denominational agency had to be dismissed. The court based its conclusion on the following grounds:

Statute of limitations

The court agreed that the couple’s claims were barred by the statute of limitations, which requires lawsuits to be filed within a specified period of time. The couple had two years to file their lawsuit under the Georgia statute of limitations, yet the lawsuit was not filed for nearly three years after the associate pastor left the church to accept a new assignment. The court also noted that the woman admitted that for more than two years prior to the time the lawsuit was filed she had progressed in her therapy to the point where she was able to tell the associate pastor “no” if he approached her about sexual relations. The court concluded that any acts of sexual intercourse occurring after this time were by her own admission consensual. The court rejected the couple’s argument that the statute of limitations was “suspended” due to the woman’s depression, noting that “this is not evidence of incompetency sufficient to toll the statute of limitation.”

Respondeat superior

Under the legal doctrine of respondeat superior, an employer is liable for the acts of its employees occurring within the scope of their employment. In rejecting the couple’s claim that the church and denominational agency could be liable on this basis, the court observed:

Even assuming that the relationship between [the woman and her pastor] was not consensual, it is well settled under Georgia law that an employer is not responsible for the sexual misconduct of an employee. The basis for these holdings is that these types of torts, being purely personal in nature, are unrelated to the employee’s duties and, therefore, are outside the scope of employment because they were not in furtherance of the master’s business. This is especially true of the sexual misconduct of a minister. The record shows that such behavior is clearly contrary to the tenets and principles of the [church] and is not a part of, or in any way incidental to, a minister’s duties and responsibilities. Therefore, even if her tort claims were not time—barred [the woman] cannot recover against the church and [denominational agency] under a theory of respondeat superior.

Negligent selection

The couple claimed that the church and denominational agency were responsible for their injuries on the basis of negligent selection. Specifically, they claimed that both the church and denominational agency failed to exercise reasonable care in the selection of the associate pastor. In rejecting this claim, the court observed:

An employer may not be held liable for negligent hiring or retention unless the [victim] shows the employer knew or should have known of the employee’s violent and criminal propensities. Specifically, the [couple] must show that the church and the [denominational agency] knew or should have known of [the associate pastor’s] propensity for sexual misconduct …. There is nothing in the record before us to show the church or [denominational agency] should have been on notice prior to ordaining [the associate pastor] that he had a propensity for sexual misconduct.

The court noted the following precautions that were taken prior to the time the associate pastor was ordained:

He had graduated from seminary and then worked for two years in a lay position before applying to be ordained.

As part of the ordination process he was required to submit letters of recommendation to the ordination committee.

As part of the ordination process he was required to submit academic transcripts to the ordination committee.

As part of the ordination process he was required to undergo psychological testing.

As part of the ordination process he was required to undergo extensive interviews by the ordination committee.

As proof that the church and denominational agency had been negligent in ordaining or hiring the associate pastor, the couple noted that he had been suspended for a year while in seminary for cheating on a Hebrew examination, and that his psychological evaluation indicated certain problems, such as difficulty controlling his impulses, a tendency to use poor judgment, a tendency to disregard the rights of others, and a likelihood to express aggression in a physical manner. The court disagreed that these facts proved that either the church or denominational agency was guilty of negligent selection: “These types of generalized findings, without more, are not sufficient to put the church and [denominational agency] on notice of a propensity for sexual misconduct.” The court pointed out that the psychological evaluation (which consisted of the Minnesota Multiphasic Personality Inventory, the Interpersonal Behavior Survey, the Strong—Campbell Interest Inventory, and the Sentence Completion Test) also showed several positive characteristics such as: “He is very social and interested in leadership in service to other people …. He shows a pattern of interest moderately like those of successful ministers or social workers.”

Negligent retention

Finally, the couple claimed that the church and denominational agency were responsible for their injuries on the basis of negligent retention. Specifically, they argued that both organizations left the associate pastor in his position despite knowledge that he posed a risk of harm to women. This knowledge consisted of the following three facts:

There were rumors at the church about the pastor’s relationship with another woman who was a church employee.

A letter to the senior pastor from a prospective church member put the church and denominational agency on notice of the associate pastor’s propensity for sexual misconduct. In the letter, a woman claimed that the associate pastor came to her house in an intoxicated condition, made inappropriate comments and touched her on the knee.

The woman informed the church’s new associate pastor of her relationship with his predecessor.

The court concluded that this evidence did not render the church or denominational agency negligent for retaining the associate minister. It based this conclusion on the following factors:

With regard to the rumors of an improper relationship with the female church employee, the court noted that (1) the associate pastor later married this woman; (2) the associate pastor denied any inappropriate conduct with this woman when confronted about it by the senior pastor; (3) the senior pastor recommended that the associate pastor be transferred to another church on the basis of these rumors; and (4) the associate pastor’s “personal, consensual relationship with [the employee] is totally unrelated to the type of conduct complained of by [the woman in this lawsuit].”

With regard to the letter, the court noted that (1) the senior pastor immediately called the woman and met with her to discuss the letter; (2) the senior pastor also discussed it with the associate pastor who denied the events in the letter; (3) the senior pastor conducted a thorough investigation and determined the woman was not telling the truth; (4) the senior pastor testified that at no time did any woman come to him and say she was having a sexual relationship with the associate pastor; (5) the senior pastor testified that he was never, at any time, led to believe that the associate pastor was a threat to women parishioners; and (6) the senior pastor stated, in an affidavit, that “[i]n fact, I believe that [the associate pastor] possibly had an excellent future in the ministry.”

With regard to the woman’s disclosure to the church’s new associate pastor of her relationship with his predecessor, the court noted that she also told him she was not ready to come forward and tell anyone else about the relationship. Therefore she “cannot now complain of [his] failure to act when she told him she was not ready to disclose her relationship with [the associate pastor]. The court also noted that the woman’s communications to the new associate pastor were privileged and could not be disclosed without her permission.

The court concluded:

The record is also devoid of any probative evidence tending to show the church or [denominational agency] were or should have been on notice of a propensity for sexual misconduct after [the associate pastor] became a minister at the church. The [couple] make numerous allegations as to [the associate pastor’s] conduct with different women but have submitted no admissible evidence in support of this contention.

Relevance of the case to other churches

What is the relevance of this ruling to other churches? Obviously, a decision by a Georgia appeals court is of limited significance since it has no direct or binding effect in any other state. Nevertheless, there a number of aspects to the ruling that will be instructive to church leaders in every state. Consider the following:

1. The risks of counseling. There have been a number of lawsuits over the past few years brought by women who claim to have been seduced or sexually assaulted by male clergy and mental health professionals during counseling sessions. In some cases, the minister or counselor denies any wrongdoing, and the case becomes one of “her word against mine.” There is no doubt that some of these allegations are without basis, and are brought by women seeking a legal settlement (or some other ulterior motive). On the other hand, in many cases these allegations are true. As much as we would like to deny it, private counseling sessions involving dependent and emotionally vulnerable persons can present unique and sometimes formidable temptations.

Because of the unique temptations that counseling can present, and the possibility of false claims being brought against counselors, “defensive measures” should be taken by pastors and others who engage in counseling. Unfortunately, such measures were not taken in this case. No restrictions or “boundaries” were placed by the church on the offending pastor’s counseling activities. There are a number of ways to deal with this risk, including the following:

Method #1 – the third person rule

One effective way to deal with this risk is to adopt a policy prohibiting any male minister or counselor on staff from counseling privately with an unaccompanied female (i.e., opposite sex counseling) unless a third person is present. The third person should be the minister’s or counselor’s spouse, another minister on staff, or a mature and trusted church employee (preferably female). The presence of a third person probably will negate the “clergy—penitent” privilege for clergy counselors, meaning that either the pastor or counselee can be compelled to answer questions in a court of law regarding the communications that occurred. In most cases, loss of the clergy—penitent privilege is more than outweighed by the reduced risk that will occur.

There have been no reported cases involving a claim of sexual seduction of a male counselee by a female counselor. As a result, churches using female counselors are reducing their risks significantly. Of course, there remains the possibility of an unstable male counselee making unfounded accusations against a female counselor, and as a result churches using female counselees may want to consider adopting the same precautions that apply to male counselors.

Method #2 – women counsel women

Since the vast majority of cases of inappropriate sexual behavior involve male counselors and female counselees, churches can significantly reduce their risk by using women to counsel women.

Method #3 – “intermediate measures”

There are other defensive measures that some churches have tried, such as use of a plate glass window in the pastor’s office making all counseling sessions clearly visible to office staff, or leaving the door to the counseling room open. Such practices can be effective in reducing risk, so long as there are other persons visible in the church office during all counseling sessions. Obviously, this may not be possible in all situations. For example, many smaller churches have no other office workers who can observe counseling sessions.

Some churches seek to reduce risk by imposing “boundaries” on the counseling ministry. For example, some churches (1) require a third person to be present for any counseling occurring off of church premises; (2) allow one—on—one counseling on church premises only during office hours if other staff members are present and visible; (3) limit counseling sessions to 45 minutes; and (4) permit no more than 5 counseling sessions with the same person during a calendar year.

Churches that adopt these lesser measures must recognize that they are not reducing risk as much as if they applied the “third person rule” or required women to counsel women. It is absolutely imperative that churches adopting these lesser measures incorporate them into official church policy and strictly monitor them to prevent any deviations. Remember, windows or open doors are of no value if a counseling session extends beyond normal office hours and the church staff leaves-or if there is no staff to “observe” counseling sessions.

2. Transference recognized. It is significant that the court recognized what psychologists call the “transference phenomenon.” The court defined transference as “a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make.” Recognition of the transference phenomenon makes it more likely that a court would reject “consent” as a defense to an incident of sexual misconduct by a counselor.

3. Counselees who forbid disclosure. The woman informed her church’s new associate pastor of her involvement with his predecessor. However, she refused to permit him to disclose the information on the ground that she was “not ready to tell anyone else.” The court concluded that the associate pastor was prohibited by the woman’s own instructions to disclose to anyone what she had told him regarding the former pastor’s misconduct.

The court also noted that the woman’s communications to the new associate pastor were privileged and could not be disclosed without her permission.

4. Negligent selection. The court concluded that the church and denominational agency were not responsible for the woman’s injuries on the basis of negligent selection. The court acknowledged that employers can be liable on the basis of negligent selection for injuries caused by their employees, but only if they “knew or should have known” of an employee’s “propensity for misconduct.” The court concluded that neither the church nor the denominational agency was guilty of negligent selection, since neither had knowledge of any prior activities by the offending pastor suggesting that he posed a risk of harm to others.

In addition, the court noted the precautions that were taken prior to the time the associate pastor was ordained, including the following: (1) he had graduated from seminary and then worked for two years in a lay position before applying to be ordained; (2) as part of the ordination process he was required to submit letters of recommendation to the ordination committee; (3) as part of the ordination process he was required to submit academic transcripts to the ordination committee; (4) as part of the ordination process he was required to undergo psychological testing; and (5) as part of the ordination process he was required to undergo extensive interviews by the ordination committee.

5. Negligent retention. The court rejected the woman’s claim that the church and denominational agency were responsible for her injuries on the basis of negligent retention of the offending pastor. The court concluded that the church and denominational agency were not negligent in retaining the pastor despite their knowledge of (1) rumors about the offending pastor’s relationship with another woman who was a church employee; (2) a letter to the senior pastor from a prospective church member claiming that the offending pastor came to her house in an intoxicated condition, made inappropriate comments and touched her on the knee; and (3) the woman’s disclosure of the offending pastor’s misconduct to the new associate pastor. The court concluded that the circumstances surrounding each allegation did not demonstrate negligence on the part of the church or denominational agency in retaining the offending pastor.

Legal Developments

Church Employee Dismissed After Making Accusations of Sexual Misconduct

Woman sues church for dismissing her after she complained against another minister.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1997-01-01

Sexual Misconduct by Clergy and Other Church Workers

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

• Key point. The civil courts are compelled by the first amendment guaranty of religious freedom to refrain from interfering with the internal decisions of hierarchical churches, including decisions regarding the discipline or dismissal of clergy.

• Key point. Some courts have concluded that the first amendment guaranty of religious freedom prevents them from interfering with the relationship between a church and its ministers, and this rule bars church liability on the basis of negligence for inadequately screening or supervising clergy.

The Colorado Supreme Court threw out a lawsuit brought by a woman alleging that her church acted improperly and unlawfully when it dismissed her after she made complaints of sexual harassment and child molestation against another minister. The woman alleged that between 1968 and 1975, when she was a minor, her stepfather committed various acts of sexual assault against her when they resided together. Her stepfather was a minister at the time, and later became president of his denomination. The woman pursued ministerial studies and was licensed as a minister. After serving as a minister in the State of Washington she moved to the Denver area to start a new church. She later learned that her stepfather, with whom she had severed all ties, was also pastoring a church in the Denver area. She learned that her stepfather was allegedly sexually harassing women church employees and a woman parishioner in his Denver church. She reported this alleged harassment, as well as the sexual abuse she had suffered from her stepfather as a minor, to denominational officers. In response, the stepfather filed charges with the denomination against the woman, claiming that her allegations were false and demanding a full investigation. After an investigation, denominational officers revoked the woman’s license and denied her the opportunity to open a new church. The woman responded by filing a lawsuit against her stepfather, and her denomination, alleging several theories of liability including (1) illegal retaliation by denominational officials in response to her charges of sexual harassment, in violation of Title VII of the Civil Rights Act of 1964; (2) breach of fiduciary duty by denominational officials; (3) breach of contract; and (4) intentional interference with contract. A trial court dismissed most of these claims on the ground that it lacked jurisdiction to resolve an ecclesiastical dispute. A state appeals court concurred with this result, and the woman appealed to the state supreme court.

The court began its opinion by noting that all four of the woman’s claims arose from the denomination’s decision to revoke her minister’s license and to cancel the decision to allow her to open a new church. As a result, “each claim arises out of [the denomination’s] choice of whether or not to employ [her] as a minister of its church.” The court concluded that it was barred from resolving the woman’s lawsuit on the basis of the first amendment’s free exercise and nonestablishment of religion clauses.

Free exercise of religion

In concluding that allowing the woman to sue her denomination would violate the first amendment’s free exercise of religion clause, the court observed:

However, by challenging [the denomination’s] decision not to hire her as a minister [the woman] inevitably leads the court into analysis of [the denomination’s] choice of a minister, even for purposes of a pretextual inquiry. The decision to hire or discharge a minister is itself inextricable from religious doctrine. The great majority of cases find that a minister holds a special and unique position as the leader of the church and the embodiment of the church’s religious beliefs. Thus, the church’s decision of who to hire as a minister necessarily involves religious doctrine. The decision may involve non—religious reasons as well, but those reasons cannot be separated from the basic belief that a particular person embodies or does not embody the religious beliefs of the church.

The court found support in the decisions of several other courts. For example, it referred to a federal appeals court decision holding that the mere maintenance of a lawsuit concerning matters related to a pastoral appointment violates the free exercise clause: “We cannot imagine an area of inquiry less suited to a temporal court for decision; evaluation of the `gifts and graces’ of a minister must be left to ecclesiastical institutions.” Minker v. Annual Conference, 894 F.2d 1354 (D.C. Cir. 1990).

The court cautioned that its ruling did not “bar the large number of non—clergy employees from suing the church on discrimination claims. It does not even bar ministers from bringing employment discrimination claims that do not stem directly from a hiring or discharge decision. Instead, our holding recognizes a small, inviolable area in which the decision of a church is not subject to governmental scrutiny.” Similarly, the court noted that

[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.

The court rejected the woman’s claim that most of the prior court rulings refusing to resolve disputes concerning the relationship between a church and its ministers occurred prior to the Supreme Court’s 1990 decision in Employment Division v. Smith, 494 U.S. 872 (1990). In the Smith case the Supreme Court said that a neutral, generally applicable law prevails over claims of religious exemption. The woman claimed that Title VII of the Civil Rights Act of 1964 was such a neutral law and therefore her claim of retaliation could not be rejected on the basis of the first amendment. The court disagreed, noting that the Supreme Court surely did not intend in the Smith case to allow the courts to intrude into ecclesiastical decisions regarding the tenure of ministers.

Nonestablishment of religion

The court also concluded that any resolution of the woman’s claims would violate the first amendment’s nonestablishment of religion clause, since it would create excessive government entanglement with religion.

Conclusion

The court also rejected the woman’s claim that the civil courts could resolve her lawsuit if she could demonstrate that the denomination acted with “fraud” or “collusion.” The court acknowledged that the United States Supreme Court had suggested, in earlier cases, that the civil courts may be able to resolve disputes concerning the status or tenure of ministers when churches act with fraud or collusion. The Colorado Supreme Court rejected this exception to the general rule of judicial nonintervention: “In order to determine whether a church employed fraudulent or collusive tactics in choosing a minister, a court would necessarily be forced to inquire into the church’s ecclesiastical requirements for a minister. The first amendment makes such inquiry into religious beliefs impermissible.” Van Osdol v. Vogt, 908 P.2d 402 (Colo. 1996). [ Termination, The Civil Rights Act of 1964, Judicial Resolution of Church Disputes, The Establishment Clause, The Free Exercise Clause]

Legal Developments

Texas Statute Imposes Liability on Some Ministers and Churches

Focus is on cases of sexual misconduct.

Richard R. Hammar, Attorney, CPA

Bio

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

Summary. The Texas legislature has enacted a statute that imposes criminal liability on some ministers who engage in sexual contact with counselees. The statute also imposes potential liability on a minister's employing church.

The Texas legislature has enacted a statute that provides for the criminal liability of some ministers who engage in sexual misconduct with counselees. The statute also provides for employer liability under certain conditions. Here is a summary of the statute's key points:

Application to ministers

The law provides that a mental health services provider is liable to a patient or former patient of the mental health services provider for damages for sexual exploitation if the patient or former patient suffers, directly or indirectly, a physical, mental, or emotional injury caused by, resulting from, or arising out of:

(1) sexual contact between the patient or former patient and the mental health services provider;

(2) sexual exploitation of the patient or former patient by the mental health services provider; or

(3) therapeutic deception of the patient or former patient by the mental health services provider."

Many of these terms are defined by the statute as follows:

Mental health service provider. This term is defined to include a "member of the clergy" who engages in "assessment, diagnosis, treatment, or counseling in a professional relationship to assist an individual."

Key point. The statute adds that "mental health services, as defined by this section, provided by a member of the clergy does not include religious, moral, and spiritual counseling, teaching, and instruction." This presumably means that a minister is subject to liability under the statute, but only if he or she is engaged in non—religious or purely secular counseling, teaching, and instruction.

Sexual contact. The statute defines sexual contact to include requests for sexual contact.

Sexual exploitation. The statute defines sexual exploitation as a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The statute defines therapeutic deception as a representation by a mental health services provider that sexual contact with, or sexual exploitation by, the mental health services provider is consistent with, or a part of, a patient's or former patient's treatment.

Employer liability

The statute specifies that the employer of a mental health services provider "is liable to a patient or former patient of the mental health services provider for damages if the patient or former patient is injured" by sexual contact, sexual exploitation, or therapeutic deception, but only if the employer falls within one of the following categories:

The employer fails to make inquiries of an employer or former employer, whose name and address have been disclosed to the employer and who employed the mental health services provider as a mental health services provider within the five years before the date of disclosure, concerning the possible occurrence of sexual exploitation by the mental health services provider of patients or former patients of the mental health services provider.

The employer knows or has reason to know that the mental health services provider engaged in the sexual exploitation of the patient or former patient and the employer failed to: (A) report the suspected sexual exploitation [as noted later]; or (B) take necessary action to prevent or stop the sexual exploitation by the mental health services provider."

An employer or former employer of a mental health services provider is liable to a patient or former patient of the mental health services provider for damages if the patient or former patient is injured by sexual contact, sexual exploitation, or therapeutic deception, but only if the employer (1) knows of the occurrence of the sexual exploitation by the mental health services provider of the patient or former patient; (2) receives a specific request by an employer or prospective employer of the mental health services provider, engaged in the business of providing mental health services, concerning the possible existence or nature of sexual exploitation by the mental health services provider; and (3) fails to disclose the occurrence of the sexual exploitation.

Application of employer liability provision to churches

The statute specifies:

If a mental health professional who sexually exploits a patient or former patient is a member of the clergy and the sexual exploitation occurs when the professional is acting as a member of the clergy, liability if any under this section is limited to the church, congregation, or parish in which the member of the clergy carried out the clergy member's pastoral duties: (1) at the time the sexual exploitation occurs, if the liability is based on a violation of Subsection (a); or (2) at the time of the previous occurrence of sexual exploitation, if the liability is based on a violation of Subsection (b).

Nothing in [the previous paragraph] shall prevent the extension of liability under this section beyond the local church, congregation, or parish where the current or previous sexual exploitation occurred … if the patient proves that officers or employees of the religious denomination in question at the regional, state, or national level: (1) knew or should have known of the occurrences of sexual exploitation by the mental health services provider; (2) received reports of such occurrences and failed to take necessary action to prevent or stop such sexual exploitation by the mental health services provider and that such failure was a proximate and actual cause of the damages; or (3) knew or should have known of the mental health professional's propensity to engage in sexual exploitation.

Damages

The statute authorizes victims who prevail in a lawsuit to "recover actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown." Victims also may recover "exemplary damages and reasonable attorney fees."

Defenses

The statute has the following provisions on defenses available to mental health services providers and their employers:

(a) It is not a defense … that the sexual exploitation of the patient or former patient occurred: (1) with the consent of the patient or former patient; (2) outside the therapy or treatment sessions of the patient or former patient; or (3) off the premises regularly used by the mental health services provider for the therapy or treatment sessions of the patient or former patient.

(b) It is a defense to [a lawsuit brought by a former patient] that the person was not emotionally dependent on the mental health services provider when the sexual exploitation began and the mental health services provider terminated mental health services with the patient more than two years before the date the sexual exploitation began.

(c) A person is considered not emotionally dependent for purposes of this chapter if the nature of the patient's or former patient's emotional condition and the nature of the treatment provided by the mental health services provider are not such that the mental health services provider knows or has reason to believe that the patient or former patient is unable to withhold consent to the sexual exploitation.

Duty to report

The statute contains a section that imposes a new reporting obligation. Here is what it says:

(a) If a mental health services provider or the employer of a mental health services provider has reasonable cause to suspect that a patient has been the victim of sexual exploitation by a mental health services provider during the course of treatment, or if a patient alleges sexual exploitation by a mental health services provider during the course of treatment, the mental health services provider or the employer shall report the alleged conduct not later than the 30th day after the date the person became aware of the conduct or the allegations to: (1) the prosecuting attorney in the county in which the alleged sexual exploitation occurred; and (2) any state licensing board that has responsibility for the mental health services provider's licensing.

(b) Before making a report under this section, the reporter shall inform the alleged victim of the reporter's duty to report and shall determine if the alleged victim wants to remain anonymous.

(c) A report under this section need contain only the information needed to: (1) identify the reporter; (2) identify the alleged victim, unless the alleged victim has requested anonymity; and (3) express suspicion that sexual exploitation has occurred.

(d) Information in a report is privileged information and is for the exclusive use of the prosecuting attorney or state licensing board that receives the information. A person who receives privileged information may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the person first obtained the information. The identity of an alleged victim of sexual exploitation by a mental health services provider may not be disclosed by the reporter, or by a person who has received or has access to a report or record, unless the alleged victim has consented to the disclosure in writing.

(e) A person who intentionally violates Subsection (a) or (d) is subject to disciplinary action by that person's appropriate licensing board and also commits an offense. An offense under this subsection is a Class C misdemeanor.

The statute does provide reporters with immunity from civil or criminal liability for filing a report in good faith.

Application to ministers and churches

What is the relevance of this new statute to ministers and churches? Unfortunately, it is too early to say. It will take time for this statute to be interpreted and applied by the courts. For now, consider the following:

A Texas statute. The statute was enacted by the Texas legislature, and has no effect in any other state. However, it is possible that other states will enact similar legislation.

Application to ministers. The statute defines the term "mental health services provider" to include a member of the clergy. However, the statute goes on to clarify that the term "mental health service," when provided by a member of the clergy, does not include "religious, moral, or spiritual counseling, teaching, and instruction." This apparently means that clergy who engage in pastoral counseling of a religious nature are not engaged in "mental health services" and accordingly are not a "mental health services provider" with respect to such counseling. This means that such a minister cannot be liable under the statute as a result of sexual misconduct. Of course, the minister may be liable on the basis of other theories of liability, including assault and battery, emotional distress, breach of fiduciary duty, and negligence. Presumably, the statute will apply only to those ministers who engage in counseling that is both secular and amoral.

Key point. The courts will need to address the difficult distinction between "religious" and "secular" counseling. Perhaps even more difficult will be the distinction between "moral" and "amoral" counseling. The statute does not apply to ministers who engage in counseling that is either religious or moral.

Key point. It is possible that ministers who are licensed by the State of Texas as counselors or psychologists will more easily be exposed to liability under the statute, since it is more likely that they will be viewed by a civil court as having engaged in counseling that is not religious, moral, or spiritual. The risk of such a conclusion can be reduced through appropriately worded brochures and other literature provided to counselees, affirming the religious, moral, and spiritual nature of the counseling services.

Key point. The Texas statute has not been interpreted by the courts. Ministers and churches in Texas should consult with a local attorney for advice concerning the specific meaning of the statute and its application to particular situations.

Application to churches. Local churches that employ either ministers who engage in counseling of a purely secular and amoral nature, or non—minister counselors, are subject to possible legal liability for injuries resulting from the counselor's acts of sexual contact, sexual exploitation, or therapeutic deception—if one or more of the conditions summarized above is met.

Application to religious denominations. Liability for the sexual misconduct of a minister engaged in secular and amoral counseling, or non—minister counselors, cannot be imputed to a regional, state, or national religious denomination unless a victim can prove that the denomination:

(1) knew or should have known of the occurrences of sexual exploitation by the mental health services provider;

(2) received reports of such occurrences and failed to take necessary action to prevent or stop such sexual exploitation by the mental health services provider and that such failure was a proximate and actual cause of the damages; or

(3) knew or should have known of the mental health professional's propensity to engage in sexual exploitation.

Churches that use non—minister counselors. Some churches employ counselors who are not ministers. The Texas statute is much more likely to apply to such persons, and to churches that employ them, since they will not benefit from the exception that applies to ministers engaged in "religious, moral, and spiritual" counseling and instruction. Such churches should recognize that employing such a counselor will elevate their legal risk.

Reporting. The statute imposes a legal duty upon employers who are informed by a counselee of sexual misconduct by a "mental health service" provider to report such misconduct to the local prosecuting attorney and any state licensing board with which the mental health service provider is licensed. The contents of a report are summarized above.

Key point. The reporting requirement only applies to employers that are informed of sexual misconduct by a an employee who is a mental health service provider. As noted above, ministers who engage in counseling are not mental health service providers with respect to their religious, moral, and spiritual counseling.

Consent. The statute stipulates that the consent of a counselee is not a defense to the liability of a mental health service provider or his or her employer.

Legal Developments

Church Liability for Murders Related to Ministers’ Affairs

A Georgia court dismissed such a case.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax1994-09-01Recent Developments

Sexual Misconduct by Clergy and Church Workers

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

• A Georgia appeals court dismissed a daughter’s lawsuit against a priest and Catholic diocese claiming that her father murdered her mother and then killed himself as a result of an adulterous affair between the mother and a priest. The daughter claimed that her mother had been seduced by the priest, and that her father shot and killed her mother and then shot himself after finding out about it. The daughter claimed that the diocese was responsible for her parent’s deaths on the basis of negligent hiring and retention of the priest. She insisted that if the diocese had adequately investigated the matter and “defrocked” the priest, the deaths would not have occurred. The priest denied any wrongdoing and insisted that “the only relationship between him and [the mother] was that of the usual relationship between a priest and his parishioner.” A trial court granted the motion of the priest and diocese for a “summary judgment” in their favor on the ground that there was no competent evidence that an affair ever occurred. The daughter appealed, arguing that evidence of the affair did exist. Specifically, the daughter alleged that her mother told her sister that she had been seduced by the priest several days after the seduction allegedly occurred. The daughter acknowledged that this was hearsay evidence, but that it was admissible in court under the so-called “necessity” exception to the general rule that hearsay testimony is not admissible. Under the necessity exception, hearsay testimony is admissible in court if there is a special necessity to do so (for example, the person who spoke the words is now deceased) and there is ample proof of the trustworthiness of the alleged testimony. The appeals court concluded that this test was not satisfied, since it did not find the deceased mother’s alleged statements to be trustworthy. The court observed: “We find no evidence of trustworthiness. To the contrary, all signs point to the unreliability of [the mother’s] declarations. She told a friend that she did not have an affair with [the priest] and in an official church investigation by the church she denied any involvement with the priest. She wrote a letter to [her] archbishop in which she stated that she had fantasized an affair with [the priest] because her husband was away on business and she was lonely. She asked the archbishop for forgiveness and stated that she was seeking professional help. What is more [the father] believed [his wife] was having an affair with [another person, named Michael]. In a suicide note, he fingered [Michael] as his wife’s lover. Finally, a greeting card was found at the scene of the [parents’] murder/suicide. The care was addressed to Michael and bore [the mother’s] handwriting.” The court concluded that the priest and diocese “produced evidence demonstrating that [the priest] did not have a sexual relationship with [the mother]. [The daughter] has failed to come up with evidence to the contrary. It follows that the trial court did not err in granting summary judgment to [the priest and diocese]. The court’s decision is strengthened by the fact that it was upholding the trial court’s summary judgment in favor of the priest and diocese. The significance of a summary judgment cannot be overstated, since it represents a decision that the prevailing party is entitled to win as a matter of law without the necessity of a jury trial. The court in essence says that reasonable minds could not disagree as to the outcome of the case, and therefore it should be disposed of summarily. Such a ruling is an especially strong statement of the merits of the prevailing party’s position. Clearly, it is a much stronger vindication of the position of the priest and diocese than a jury verdict in their favor. Boehm v. Abi-Sarkis, 438 S.E.2d 410 (Ga. App. 1993).

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m29 mm40 c0594

Legal Developments

Lawsuits by Victims of Child Abuse

Court rules that man abused as child can sue his former diocese for injuries.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax1994-09-01Recent Developments

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.”

• A federal court in Vermont ruled that an adult who claimed to have been sexually abused by a nun some 40 years earlier could sue a Catholic diocese for his alleged injuries. In 1992, an adult male (the plaintiff) began receiving intensive psychotherapy for what he alleges were severe emotional problems. As a result of this therapy, the plaintiff claims that he discovered he was the victim of “childhood sexual abuse, physical abuse and psychological abuse” allegedly occurring forty years ago when he was a resident of a church orphanage. The plaintiff filed a lawsuit in 1993 against “Sister Jane Doe,” the alleged perpetrator whose identity is yet unknown, and various religious organizations allegedly responsible for hiring and supervising Sister Jane Doe. The plaintiff alleged in his lawsuit that he has “used all due diligence, given the nature, extent, and severity of his psychological injuries and the circumstances of their infliction, to discover the fact that he has been injured by the sexual abuse.” The lawsuit listed the following five theories of liability against Sister Jane Doe: childhood sexual abuse, assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and invasion of privacy. In addition, the lawsuit claimed that the orphanage and Catholic diocese were liable for his injuries on the basis of negligence. The diocese urged the court to dismiss the case on the ground that the statute of limitations had expired long before. Under Vermont law, when a plaintiff sues to recover damages for injuries “suffered as a result of childhood sexual abuse,” the lawsuit must be brought within “six years of the act alleged to have caused the injury or condition, or six years of the time the victim discovered that the injury or condition was caused by that act, whichever period expires later.” The diocese claimed that since the alleged abuse occurred over forty years ago it is reasonable to assume that the plaintiff should have discovered the cause of his injuries long ago. It also argued that forcing it to defend against an alleged injury occurring so long ago violates the very purpose of a statute of limitations—relieving defendants of the difficult if not impossible task of defending against such claims. The court rejected these arguments, and ruled that the statute of limitations had not expired on any of the plaintiff’s claims (except for assault and battery, which the court deemed to be unrelated to childhood sexual abuse). The court observed that under Vermont law the test is when the plaintiff in fact discovered that his injuries were caused by childhood abuse, and not when he reasonably could have made this discovery.

The diocese also argued that forcing it to defend against an alleged injury occurring 40 years ago violates due process of law because there is no meaningful way to defend against a claim that is so old. The diocese would be without recourse to witnesses and records because of the passage of time. In rejecting this argument, the court observed: “[The diocese] provides no support for its theory that the prospect of an absence of records or witnesses violates a defendant’s constitutional due process rights. [It] has made no showing that it has no access to records or witnesses, only that it will be burdensome for it to attempt to locate records and witnesses. That burden alone does not implicate an individual’s due process rights.”

Finally, the court rejected the argument of the diocese that the plaintiff’s lawsuit was barred by the first amendment guaranty of religious freedom. Specifically, it argued that by permitting the plaintiff to sue the diocese, the court will be forced to determine what is acceptable behavior by a minister or other religious practitioner in a religious institution such as a church-run orphanage. The court agreed in part with this argument:

This argument has some merit. However, in this case it is unclear whether the actions taken by Sister Jane Doe had their origin in secular or religious activities. Tort claims which are based on purely secular activities do not invoke the protections of the [Constitution] because they are unrelated to the religious efforts of a cleric (for example, negligent operation of church van). But to the extent that a cleric’s actions are related to his or her religious endeavors, judicial review may foster excessive entanglement. Not having a sufficient factual basis for determining the circumstances surrounding Sister Jane Doe’s alleged misconduct, it is not clear to the Court that a first amendment defense would lie. Dismissal of the claims against her … would thus be premature at this stage.

Similarly, dismissal of plaintiff’s indirect and direct claims against [the diocese] is premature. Although the prohibitions of the first amendment may be implicated when a plaintiff seeks to hold a religious organization vicariously liable for wrongful conduct of its servant, it is not yet apparent whether the underlying claims against Sister Jane Doe are related to secular or religious activities, nor whether or to what extent the alleged activities were conducted within the scope of her employment at the orphanage. Thus, just as the claims against Sister Jane Doe must await further factual development, so must the claims of respondeat superior against [the diocese].

The plaintiff’s allegations of intentional and negligent conduct on the part of [the diocese] in hiring and supervising Sister Jane Doe and in fostering an environment in which sexual and physical abuse could occur give rise to serious constitutional concerns. Inquiry by a court or jury into the policies and practices of a religious organization in supervising and hiring clergy and other religious officials may foster excessive entanglement with religion. On the other hand, if hiring was done with knowledge that a prospective employee had perverted sexual proclivities, the institution might well be held accountable even though the hiring was part of the administration of a religious facility. Resolution of these issues must await further factual development.

What is the significance of this case to churches and denominational agencies? Consider the following: (1) It illustrates the possibility, in some states, of facing lawsuits for the alleged abuse of children occurring decades ago. According to this court, such a prospect does not violate due process of law. Of course, plaintiffs themselves will have a difficult time convincing skeptical juries that abuse occurred so long ago, particularly when the plaintiff cannot even identify the offender. (2) The court conceded that the first amendment guaranty of religious freedom may prevent the civil courts from deciding whether or not a religious institution is responsible on the basis of the “respondeat superior” doctrine for the acts of ministers or other religious practitioners occurring in the course of their religious duties. The respondeat superior doctrine imposes liability upon employers for the negligent acts of their employees committed within the scope of their employment. The court also conceded that a religious institution would not be liable under this theory for the acts of an employee that were not committed within the scope of his or her employment. (3) Perhaps most importantly, the court recognized that any attempt by a civil court to find a church or denominational agency liable for a minister’s sexual misconduct on the basis of “negligent hiring” or “negligent supervision” would “give rise to serious constitutional concerns”. Why? Because it would entangle the court in internal ecclesiastical determinations including the selection, training and fitness of clergy. Further proceedings in this case will be discussed in future issues of this newsletter. Barquin v. Roman Catholic Diocese, 839 F. Supp. 275 (D. Vt. 1993).

Legal Developments

Statute of Limitations and Victims of Abuse

Minors who were abused by clergy may not sue after the statute of limitations expires.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1994-07-01 Recent Developments

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 state court ruled that the statute of limitations prevented two adult survivors of childhood sexual abuse from suing the ministers who allegedly abused them. In 1960, two girls (8 and 9 years of age) were placed as wards in a children’s home affiliated with a church. The girls remained in the home for nearly 9 years. While in the home, the girls were repeatedly molested by an ordained minister who served as activities director. The molestation included repeated acts of sexual intercourse. The minister frequently gave the girls quinine pills which caused severe vomiting, bleeding, and diarrhea, in at effort to induce abortions. The girls also were molested by a second ordained minister who was superintendent of the home. The abuse caused the girls to develop severe psychological distress, which manifested itself in the form of shame, guilt, self-blame, denial, depression, nightmares, and ultimately disassociation from their experiences. Through these coping mechanisms the girls were unable to comprehend that they suffered damages as a result of the abuse. Thirty years later, in 1990, both girls experienced several “flashbacks” of the abuse. It was at this time that the victims began to realize that many of their nightmares were in fact true. The victims separately confronted the ministers. The former activities director admitted to having molested the girls “hundreds of times.” The former superintendent also admitted his acts of abuse. The victims filed a lawsuit against the ministers and the children’s home in 1990. The victims alleged that the ministers were guilty of sexual battery, clergy malpractice, breach of fiduciary duty, and intentional infliction of emotional distress. They alleged that the children’s home was liable for the ministers’ acts on the basis of negligent hiring, negligent supervision, and negligent retention. The ministers and children’s home sought to have the lawsuit dismissed on the ground that the statute of limitations had expired many years before. A trial court ruled that the statute of limitations did not barr the lawsuit, and the case was appealed. A state appeals court agreed that the statute of limitations did not prevent the victims from suing, even though the abuse occurred thirty years before. The court acknowledged that the statute of limitations for personal injuries under Indiana law requires lawsuits to be commenced within two years “after the cause of action accrues.” It noted that this rule is subject to two exceptions. First, in cases involving injuries to minors, the statute of limitations does not begin to run until the minor reaches his or her 21st birthday. Second, the Indiana Supreme Court ruled in 1992 that the statute of limitations does not begin to run in any case involving personal injury until the victim “knew, or in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another.” The Indiana appeals court observed: “In the case before us the plaintiffs have asserted both that they had repressed knowledge that a number of the acts had occurred such that they had no memory of the act having happened until 1990, and that while they were aware of other acts and of feelings of guilt, depression, low self-esteem, etc. they were without knowledge of any causative connection between their psychological and personality problems and the alleged molestations until 1990.” The court found the victims’ allegations of repressed memory sufficient to overcome the statute of limitations. However, it did acknowledge that “what knowledge each [victim] might be charged with based upon the exercise of ordinary care remains a disputed question of fact.” That is, the case was sent back to the trial court where the women would have to prove that they in fact could not have known prior to 1990, through the exercise of reasonable care, that they had suffered emotional injuries as a result of the acts of molestation that occurred when they were children.

This case illustrates the important fact that the statute of limitations does not necessarily shield churches and other religious institutions from liability for incidents of molestation that occurred many years ago. This is another reason for churches to implement effective screening procedures for any employee or volunteer who will work with minors. Shultz-Lewis Child & Family Services, Inc. v. Doe, 604 N.E.2d 1206 (Ind. App. 3 Dist. 1992).

Legal Developments

Missionaries’ Sexual Misconduct

Is a denomination liable for the misconduct of its missionaries?

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

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

• The Supreme Court of Virginia threw out a $1.5 million jury verdict against the Foreign Missions Board of the Southern Baptist Convention. A foreign missionary sexually molested his own children. He was prosecuted, convicted, and sentenced to a 12-year prison sentence. His wife and one of his daughters later sued the missions board. The mother maintained that at a missionary candidates conference conducted just before the family left for missionary service in Africa, she entered into an “oral contract” with the board whereby the board promised that if she and her husband became missionaries the board would provide protection for the health, welfare, and safety of their family. The jury returned a verdict of $1.5 million in favor of the mother and her daughter, and the board appealed to the state supreme court. The supreme court began its opinion by noting that “the standard for determining the intent of the parties to an oral contract is one of reasonable expectation—that is, the meaning which the party using the words should reasonably have expected them to be given by the other party.” The court acknowledged that issues of health and safety were discussed in the context of overseas missionary assignments, and that the mother was concerned about potential physical danger “from sources external to the family unit” stemming from living conditions overseas. However, the court insisted that “there is no evidence which would support a finding that the parties contemplated that the board would be obligated to protect one family member from the criminal actions of another family member. Indeed … although [the father’s] actions were unconscionable and the impact on the family tragic, no reasonable person could conclude that either [the mother] or the board intended that the oral contract regarding the protection of the health, safety, and welfare of the [missionary] family encompassed the board’s protection of the children from the felonious acts of [their father].” Since the parties could not have intended or expected that their “oral contract” extended to the protection of the family against the criminal conduct of the father, “the board did not have a contractual duty to protect [the mother and her children] from the unlawful actions of [the father].” Accordingly, the jury’s verdict was reversed and the court entered judgment in favor of the board. Foreign Missions Board of the Southern Baptist Convention v. Wade, 409 S.E.2d 144 (Va. 1991).

See also the feature article in this newsletter entitled “Liability of Churches and Denominations for the Sexual Misconduct of Clergy.” See also Church records, Hutchison v. Luddy, 606 A.2d 905 (Pa. Super. 1992), and Employment practices, Wheeler v. Catholic Archdiocese of Seattle, 829 P.2d 196 (Wash. App. 1992), in the recent developments section of this newsletter.
See Also: Cases Finding Denominations Not Liable

© Copyright 1992, 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: m40 m67 m10 c0692

Legal Developments

Sexual Misconduct of Counselors

The Iowa legislature passed a law regarding this matter.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1992-07-01 Recent Developments

Clergy – Legal Liability

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

• The Iowa legislature passed the following law addressing sexual exploitation of counselees by counselors and therapists. The law, which specifically applies to clergy, took effect July 1, 1991. Minnesota has enacted a similar law. It is likely that many other states will do so in the next few years.

709.15. Sexual Exploitation by a Counselor or Therapist

1. As used in this section:

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

b. “Mental health service” means the treatment, assessment, or counseling of another person for a cognitive, behavioral, emotional, mental, or social dysfunction, including an intrapersonal or interpersonal dysfunction.

c. “Emotionally dependent” means that the nature of the patient’s or client’s or former patient’s or client’s emotional condition or the nature of the treatment provided by the counselor or therapist is such that the counselor or therapist knows or has reason to know that the patient or client or former patient or client is significantly impaired in the ability to withhold consent to sexual conduct, as described in paragraph “f”, by the counselor or therapist. For the purposes of paragraph “f”, a former patient or former client is presumed to be dependent for one year following the termination of the provision of mental health services.

d. “Former patient or client” means a person who received mental health services from the counselor or therapist.

e. “Patient or client” means a person who receives mental health services from the counselor or therapist.

f. “Sexual abuse by a counselor or therapist” occurs when either or both of the following are found:

(1) A pattern or practice or scheme of conduct to engage in any of the conduct described in subparagraph (2) or (3).

(2) Any sexual conduct, with a patient or client or emotionally dependent former patient or client for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the patient or client or emotionally dependent former patient or client, which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.17.

(3) Any sexual conduct with a patient or client or former patient or client within one year of the termination of the provision of mental health services by the counselor or therapist for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the patient or client or former patient or client which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.17. “Sexual abuse by a counselor or therapist” does not include touching which is part of a necessary examination or treatment provided a patient or client by a counselor or therapist acting within the scope of the practice or employment in which the counselor or therapist is engaged.

2. A counselor or therapist who commits sexual abuse in violation of subsection 1, paragraph “f”, subparagraph (1), commits a class “D” felony.

3. A counselor or therapist who commits sexual abuse in violation of subsection 1, paragraph “f”, subparagraph (2), commits an aggravated misdemeanor.

4. A counselor or therapist who commits sexual abuse in violation of subsection 1, paragraph “f”, subparagraph (3), commits a serious misdemeanor. In lieu of the sentence provided for under section 903.1, subsection 1, paragraph “b”, the offender may be required to attend a sexual abuser treatment program.

[The law also amends section 614.1 of the Iowa Statutes to specify that the “an action for damages for injury suffered as a result of sexual abuse by a counselor or therapist shall be brought within five years of the date the victim was last treated by the counselor or therapist.”]

Legal Developments

Minister’s Liability for Youth Director’s Sexual Misconduct

Who is liable for a church worker’s misconduct?

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1992-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• A Louisiana state appeals court ruled that a minister was not legally responsible for the sexual molestation of 4 children by a church youth director. The parents of the 4 children alleged that the pastor had counseled privately with the youth director, and had learned of previous incidents of child molestation. The parents asserted that the pastor had breached his “counselor’s duty” to warn them of “potential future criminal activity” by his counselee. They also asserted that the pastor had been aware of the youth director’s molestation of their children for more than a year without disclosing the fact to anyone. A trial court dismissed the lawsuit, and the parents appealed. A state appeals court upheld the trial court’s dismissal of the lawsuit. The court began its opinion by observing: “We further recognize the legal principle that [a person] has no duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless a special relationship exists between the [person] and the other so as to afford the other a right to protection …. Where such relationship exists, the law currently characterizes the duty as one to warn of risks of which the actor knew or should have known.” The court concluded that the pastor had no duty to warn the parents of the youth director’s dangerous propensities, since no “special relationship” existed between them which would “afford them a right of protection from [the youth director’s] criminal conduct.” The court continued: “There are no allegations that the alleged molestations occurred in connection with [the youth director’s] functions as youth director or that the parents and children are members of the [church]. The allegations … do not show that [the youth director] acted under the auspices of [the pastor]. Simply stated, the allegations do not state that a special relationship existed between [the pastor and the parents], therefore, [the parents] were owed no duty by [the pastor].” This case is important, for it is one of the few decisions to address the issue of a minister’s duty to warn potential victims of a counselee’s misconduct. According to this decision, such a duty does not exist unless a “special relationship” exists between the pastor and the potential victims. The court did not define a “special relationship” in the context of pastoral counseling, other than to say that such a relationship does not exist (in cases of child molestation) if the following elements are present: (1) the acts of molestation do not occur in the course of a church activity, (2) the victim (and the victim’s family) are not members of the church, and (3) the molester did not act under the authority of the pastor. Miller v. Everett, 576 So.2d 1162 (La. App. 1991).

Legal Developments

Charitable Immunity Law and Sexual Misconduct

Does a charitable immunity law protect from liability for sexual misconduct?

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax1992-05-01Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• A New York court ruled that a “charitable immunity” law granting limited legal immunity to the uncompensated directors of a nonprofit organization did not protect a church’s trustees from liability for the sexual misconduct of their minister. An unincorporated church and its trustees were sued as a result of their minister’s alleged rape of a number of minor females in the church. Among other things, the lawsuit alleged that the church and trustees were responsible for the victims’ suffering as a result of their “negligent supervision” of the minister’s actions. In their defense, the trustees relied on a state law granting uncompensated directors of nonprofit organizations limited immunity from liability for their actions. The court rejected this defense for two reasons: “The [trustees] did not present presumptive evidence of uncompensated status in that they did not present an affidavit of a chief financial officer of the [church]. Further, there is a reasonable probability that the specific conduct of such [trustees] constitutes gross negligence. If the [trustees] did act as the [victims] allege, they may be found to have proceeded in reckless disregard of the consequences of their acts.” This case illustrates two very important limitations associated with many state laws conferring immunity on the directors of nonprofit organizations. First, such laws typically only apply to uncompensated directors. This case illustrates that directors must be prepared to submit appropriate evidence to a court of their uncompensated status (such as an affidavit of the church treasurer). Second, the case illustrates that director immunity laws generally do not apply to “gross negligence” or “reckless conduct.” Finally, it is interesting to note that the court ruled that the unincorporated church should be dropped as a defendant in the lawsuit, presumably because or its unincorporated status. This probably explains why the church’s trustees were sued personally. Church officers and directors should keep in mind this potential basis of liability when considering the unincorporated form of organization. Karen S. v. Streitferdt, 568 N.Y.S.2d 946 (A.D. 1 Dept. 1991).

Legal Developments

Minister Receives Two Life Sentences

Clergy face significant liability for acts of sexual misconduct.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1992-05-01 Recent Developments

Clergy – Legal Liability

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

• A minister was sentenced to two consecutive life sentences for 3 acts of rape and 8 first-degree sexual offenses perpetrated on 4 women. The minister professed his innocence during his trial, but the prosecutor introduced into evidence several “love letters” the minister had written to at least one of the victims, along with several pornographic magazines and videos found in the minister’s apartment. The magazines and videos were introduced by the prosecutor to rebut the minister’s attempt to portray himself as an exemplary “family man” and minister. A North Carolina appeals court rejected the minister’s claim that the 2 consecutive life sentences constituted “cruel and unusual punishment” in violation of the Constitution. This case illustrates the significant criminal liability that clergy face for acts of sexual misconduct. Of course, this is in addition to civil liability. State v. Woodard, 404 S.E.2d 6 (N.C. App. 1991).

See Personal injuries—on church property and during church activities, Miller v. Everett, 576 So.2d 1162 (La. App. 1991).

Legal Developments

Denominations’ Liability for Ministers’ Sexual Misconduct

A Minnesota court ruled that a denomination could be sued.

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1991-03-01 Recent Developments

Denominations – Legal Liability

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

• A Minnesota state appeals court ruled that a religious denomination incorporated in Illinois could be sued in Minnesota for the alleged sexual misconduct of one of its ministers. The Evangelical Covenant Church (ECC) is a body of evangelical churches, administratively organized into regional conferences. The ECC bylaws specify that its “board of ministry” exercises “general supervision over Covenant ministers, including ordination, license, discipline, and the maintenance of high ministerial standards.” The ECC is responsible for investigating claims of misconduct lodged against its ministers, and for administering such discipline as it deems appropriate. Such discipline may include counseling, training, temporary removal from ministry, or permanent dismissal from the ministry. A minister who had served an ECC church in Minnesota for 25 years was accused of sexually molesting boys in the church. This information was shared with the superintendent of the Northwest Conference of the ECC, who relayed it directly to the ECC. The ECC suspended the minister pending the outcome of an investigation into the charges. While the investigation was in process, the minister tendered his resignation to the ECC. Shortly thereafter, the parents of six boys filed lawsuits in a Minnesota state court against the minister and the ECC. The lawsuits alleged that the boys had been sexually molested by the minister, and that their injuries had been caused by ECC’s negligent supervision of the minister. The ECC asked the court to dismiss the lawsuit against it on the ground that a Minnesota court had no “personal jurisdiction” over an Illinois corporation. The trial court rejected the ECC’s request, and the ECC immediately appealed this decision to a state appeals court. The appeals court acknowledged that the United States Constitution protects a corporation from being sued unless the court has personal jurisdiction over it. This means that an organization that is incorporated and operated in one state cannot be sued in another state unless it has sufficient contacts with the other state so that compelling it to defend itself there would not “offend traditional notions of fair play and substantial justice.” But how many “contacts” must a corporation have in another state to subject it to the jurisdiction of that state’s courts? The United States Supreme Court recently observed that the out-of-state corporation must have “purposefully directed its activities at residents” of the other state. The Minnesota appeals court concluded that “a local church’s membership in a national religious organization does not, by itself, automatically establish sufficient minimum contacts by the national organization to support jurisdiction in the local church’s home forum. However, the court observed that this case involved much more than mere passive membership by local churches in a national religious organization: “Rules and regulations governing the legal relationship between ECC and [local churches] establish that ECC assumed responsibility for the discipline of … ministers. ECC contemplated that in the event a minister … was charged with sexual abuse, it would become involved in the subsequent investigation and would regulate the minister’s privilege to carry out pastoral duties.” The court noted that after the ECC was apprised of the Minnesota minister’s misconduct, it “was in complete charge of the ensuing investigation and disciplinary action.” These acts, plus meetings the ECC had with the minister, convinced the court that the ECC had sufficient contacts with Minnesota to subject it to the jurisdiction of Minnesota courts. It concluded that “in our view, its contacts with Minnesota were sufficiently significant so that ECC had fair warning that it would be made subject to Minnesota jurisdiction for litigation arising out of its alleged failure to adequately investigate and discipline a minister.” This significant case now proceeds to trial. Developments will be reported in future editions of this newsletter. Olson v. Magnuson, 457 N.W.2d 394 (Minn. App. 1990).

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m40 m67 c0291

Legal Developments

Sexual Misconduct of Counselors

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

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1991-01-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

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

Legal Developments

Personal Injuries – Part 4

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

State: Maryland
Categories: Defamation, Invasion of Privacy, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax 1990-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Can a youth pastor be sued for publicizing information regarding an alleged illicit affair between an associate minister and a church employee? Yes, concluded a Maryland state court. The employee had been raised in the church, and had been active in church work. When she became old enough, she volunteered to work with the church youth group, and with a traveling drama group. The drama group was under the direction of the associate pastor, with whom the employee worked very closely. She accompanied the group for four months each year as a counselor. When she graduated from college, she was hired by the church as the associate director of youth ministry (a salaried position). Because she continued to work with the drama group on a volunteer basis, the employee worked for both the associate minister and youth minister. While she was on a church-sponsored trip to the Holy Land (led by the associate minister), the youth minister entered her office to look for a file he needed. While there, he discovered a file containing personal notes from the associate minister to the employee. The notes confirmed the youth minister’s growing suspicion that the two were engaged in a sexual relationship. He immediately shared the notes with the associate minister’s wife, and offered specific details of when and where he believed the two had met privately. A few days later, the youth minister shared his allegations with the employee’s mother, and suggested to her that her daughter and the associate minister may not return from their trip overseas. The associate minister’s wife discussed the allegations with her husband, and concluded that the relationship was not sexual in nature. The youth minister accepted the wife’s decision, and retracted his allegations. He apologized to the associate minister and the female employee for the pain he had caused them, and promised never to repeat his suspicions again. Despite his promise, the youth minister soon repeated his suspicions to members of the drama group, and in very little time the entire congregation was aware of the allegations. Soon the employee began receiving unsettling telephone calls and mail from church members. Eventually, the church convened a special committee that investigated the matter and dismissed the employee. Subjected to scorn in her church and neighborhood, and unable to find a job commensurate with her skills, the former employee sued the youth pastor for defamation of character and invasion of privacy. She also sued the church, claiming that by dismissing her it had “ratified” the youth pastor’s allegations. A jury awarded the former employee $230,000 in general damages, and an additional $105,000 in “punitive damages”. Both the youth pastor and church appealed, and a state appeals court upheld the jury’s verdict. The court acknowledged that a plaintiff suing a “public figure” (such as a pastor) for defamation of character must prove not only that the pastor publicized false statements that injured the plaintiff’s reputation, but also that the defendant acted with “malice”. Malice in this context means that the defendant either knew that the statements he uttered were false, or that he uttered them with a reckless disregard as to their truth or falsity. The court concluded that the former employee had established that the youth pastor acted with malice—since he had repeated statements that he had acknowledged were not true. St. Luke Evangelical Lutheran Church v. Smith, 568 A.2d 35 (Md. 1990).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m29 c0390

Legal Developments

Court Ruled Church Was Not Liable for Repeated Acts of Sexual Assault by a Sunday School Teacher

Can a church be liable for repeated acts of sexual assault on a minor by

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Child Abuse, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Can a church be liable for repeated acts of sexual assault on a minor by a Sunday School teacher? No, concluded a California appeals court in an important ruling.

A volunteer Sunday School teacher began picking up a second grade boy each Sunday morning and evening allegedly for church services, and on Thursday evenings to participate in a church visitation program. This relationship continued for two years, during which time the teacher frequently molested the boy. The boy's mother had no suspicion that her son was being sexually abused by the teacher. On the contrary, she felt the teacher was an ideal adult who was fulfilling the role of "second father" for her son, whose real father was suffering from a serious illness.

Eventually, the teacher was arrested and charged with 47 counts of child molestation, including 9 counts against the boy in question. Thereafter, a lawsuit was brought against the church, alleging assault, battery, and infliction of emotional distress. The state appeals court began its opinion by observing that an employer can be liable for the misconduct of employees or volunteers only if the misconduct was committed "within the scope of the employment."

The court continued: "Certainly [the teacher] was not employed to molest young boys. There is no evidence the acts occurred during Sunday School …. There is no evidence to suggest that [the teacher's] conduct was actuated by a purpose to serve [the church]. Rather, the acts were independent, self-serving pursuits unrelated to church activities. Finally, [the teacher's] acts of sexual molestation were not foreseeable 'in light of the duties he was hired to perform.' There is no aspect of a Sunday School teacher's or member's duties that would make sexual abuse anything other than highly unusual and very startling. We conclude [the teacher's] acts against [the boy] were neither required, incidental to his duties, nor foreseeable. They were, therefore, not within the scope of his employment."

The court based its decision in part on an earlier California appeals court ruling that had dismissed a lawsuit against the Archbishop of Los Angeles Diocese of the Roman Catholic Church for the alleged sexual molestation of a 16-year old girl by two priests. The court in the earlier case had similarly concluded that "it would defy every notion of logic and fairness to say that sexual activity between a priest and a parishioner is characteristic of the Archbishop of the Roman Catholic Church. There is simply no basis for imputing liability for the alleged conduct of the individual priests … to the Archbishop." Scott v. Central Baptist Church, 243 Cal. Rptr. 128 (4th Dist. App. 1988)