• 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).

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