Iowa

Legal Developments

Defamation Claim Dismissed Due to Church’s “Qualified Privilege”

Case illustrates a protection church leaders may receive when communicating negative information with members—but caution must be exercised.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-02.01. Ministers may be liable for making defamatory statements if a civil court can resolve the dispute without any inquiry into church doctrine or polity.

Key point 4-02.03. Several defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

The Iowa Supreme Court ruled that the “qualified privilege” insulated a church from liability for defamation based on email communications by a pastor to some church members in which he falsely claimed that a church member was guilty of sexually abusing the member’s three-year-old daughter.

Background

An adult male (the “plaintiff”) is a former member of defendant church. He began attending the church in 2005 and became a full member in 2007. From 2006 to 2015, he served as a volunteer leader in the church’s high school ministry.

Through his involvement with the church, he met a woman who was also an active member. The couple was married a few years later.

The couple regularly participated in a church small group where group members discussed their lives and weekly Scripture readings. The couple’s small group was attended by ten couples, including a pastor who led their small group. The church practiced what it describes as “Biblical Soul Care,” which was further defined as “speaking the truth in love in your circle of influence.” Small groups are a part of this. The plaintiff testified that the couple’s small group operated as follows:

Generally, we would get together and meet, talk, socialize for a bit of time, maybe eat some food, and then we would gather in a room and either watch a video, do a study from the Bible, and then after a time, then the men would break out and go to our own area and the women would do the same.

Essentially the congregants of the church provided counsel to one another using a “counseling in community” approach. According to the plaintiff, there was no formal confidentiality agreement, but there was discussion “[t]hat it’s a safe place to share and what’s said there stays there.”

The pastor and his wife became close friends with the plaintiff, the plaintiff’s wife, and a third couple. The pastor invited the two other couples to join him and his wife in a new regular group consisting of just the three couples. The new group met on a weekly basis. They had the same verbal commitment that “what’s said there stays there.”

The new group met over 20 times as a group of six, without men and women breaking off separately. The new group practiced “Biblical Soul Care,” but more informally. The three couples would go around the room and each couple would give an update on how things were going in their marriage and in their family. In these discussions, the plaintiff frankly discussed “all my sexual sin.” He also discussed problems with sexual intimacy.

In April 2015, the plaintiff’s wife called the pastor and reported that her three-year-old daughter told her that the plaintiff had touched her under her underwear. The wife immediately sought a temporary protective order against her husband. The court granted an order the next day.

The wife sent emails to staff members at the church about the sex abuse. She also discussed the allegations with members of the congregation and notified the police and the state Department of Human Services (DHS).

Pursuant to church policy, the following day a “Security Alert” flyer was posted in the church with a picture of the plaintiff and stating: “The court finds that the Protected Party [the wife] and the children . . . are in danger of physical harm from[the plaintiff] (husband & father).” It explained that the plaintiff “cannot be on the premises at the same time as [his wife and children]. He cannot be in contact or pick up his children from church.”

On May 3, 2015, the pastor sent an email to the members of the ten-couple small group. This email read, in part:

Well—it is with a very heavy heart that I am needing to write this email to all of you. A[s] our former small group and partners in ministry I thought it best to do it this way so that you can discreetly pass this information on to others who you think need to know. Please use much discretion. . . . [I]n the past 3 months things got to a point that intensive counseling was absolutely necessary [for the plaintiff and his wife] and we were to begin it a week from today. Unfortunately, we had to pull the plug out of fear of authorities getting involved due to the fact that [the counselor] is a mandatory reporter of child abuse. . . . We believe not going was best [because] we did not believe at that time the kids were in immediate danger and since the information came out to me in an informal setting of a home I was not a mandatory reporter. . . .

As it stands there is currently an order of protection against [the plaintiff] until at least Wed[nesday] when there will be a hearing. This came about from events that transpired last week . . . that forced [the plaintiff’s wife] to take action and get authorities involved (DHS and police)—which meant filing for the protection order and removing him from the house. . . . I trust you can connect the dots and realize that what we are talking about are horrific allegations and are tough to even discuss openly. . . .

[T]he allegations are serious enough that I would counsel you not have him stay in any of your homes if he asks to do so especially if you have children.

Following an investigation, DHS did not conclude that the child sexual abuse allegations were founded. In September 2015, the plaintiff’s wife filed a second report of child sexual abuse, which DHS likewise investigated and was unable to substantiate. In January 2016, she filed a third report of child sexual abuse, which DHS investigated and was unable to substantiate.

Law enforcement also declined to pursue criminal charges against the plaintiff. In addition, on September 14, 2016, the couple’s divorce was finalized with the court awarding physical care of the children to the plaintiff. The court presiding over the divorce proceeding determined that the plaintiff’s wife lacked credibility.

On April 17, 2017, the plaintiff filed suit against the church and its pastor (the “defendants”) on the following grounds: (1) breach of a fiduciary duty of confidentiality; (2) invasion of privacy based on placing him in a false light and public disclosure of private facts; and (3) defamation.

The trial court dismissed the breach of confidentiality and defamation claims. With respect to the duty of confidentiality, the court ruled that the pastor’s communications were subject to a “qualified privilege” because they were “made in furtherance of the church congregation’s common interest.”

The Iowa Supreme Court addressed the plaintiff’s claims

The plaintiff appealed to the Iowa Supreme Court.

The duty of confidentiality

On appeal, the plaintiff claimed that the pastor breached a duty of confidentiality—a neutral duty that does not require consideration of religious belief or practice.

The court was not persuaded that the alleged duty “can be neatly separated from [the church’s] teachings and practices.” It concluded that “[t]he question . . . boils down to whether the confidentiality duty can be defined by some neutral source or requires reference to church doctrine and practices.”

The plaintiff pointed to three sources for the confidentiality duty: (1) the clergy-penitent privilege, which the court said “clearly does not apply” because the pastor’s statements occurred in a group setting and therefore were not made in confidence as required for the privilege to apply; (2) the second source was the verbal understanding that what was said in the small groups would stay in the groups; and (3) the third source was a provision in the church bylaws that members would “neither gossip nor listen to gossip concerning any member.”

In effect, the plaintiff claimed that the second and third commitments imposed a legal duty on the pastor as a group leader not to share anything about the plaintiff with the members of the groups or with church staff.

In rejecting the plaintiff’s argument, the court observed:

[T]he second and third commitments were far from specific. We see no way for a court to interpret the scope of these vague promises, and how they apply to [the pastor’s] internal communications with group members and staff, without immersing itself in [the church’s] customs, practices, and doctrine.

In short, deciding liability here would not be a simple task of applying a well-defined secular standard but would involve weighing of both marital counseling standards and the norms by which the church is governed. . . .

[W]e believe “[t]he means by which [the church official] chose to counsel and advise the congregation is outside the purview of the government.”

Because determining whether [the pastor], and derivatively [the church], breached a fiduciary duty of confidentiality to [the plaintiff] arising out of group discipleship discussions would require our courts to interpret [church] doctrine and practices, such a claim cannot proceed in our courts.

Defamation

The plaintiff also claimed that the pastor’s emails “expressly or impliedly stated that he had abused his children.” Those statements were false and so, in the plaintiff’s view, he was entitled to a jury trial on defamation.

The church defendants argued that a “qualified privilege” applied that protected them from liability. The court referred to a past defamation claim brought by a church member against the church and church officials. Kliebenstein v. Iowa Conference of United Methodist Church, 663 N.W.2d 404 (Iowa 2003). In that case, church officials sent out a letter referring to the church member as having “the spirit of Satan.” The court in the Kliebenstein case concluded that the defamation claim would not “enjoy viability had the matter been divulged solely to the members of the church.” It continued:

[T]he common interest of members of religious associations is such as to afford the protection of qualified privilege to communications between them in furtherance of their common purpose or interest. Thus, communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged.

The qualified privilege means that otherwise defamatory statements are not defamation unless made with malice. Malice means a knowledge that the statements were false or made with a reckless disregard as to their truthfulness.

But the court in Kliebenstein concluded that the qualified privilege was not available because “publication of the letter was not limited to a ‘religious community or body’”; rather, the letter had been “mailed not only to members of the congregation but also to other persons living in the . . . community.”

In the present case, the plaintiff opposed application of the qualified privilege on the ground that the pastor sent the May 3 email to a nonmember of the church. One of the recipients of that email had ceased to be a member of the church. In rejecting the plaintiff’s argument, the court concluded:

“Qualified privilege may be lost, however, if the speaker abuses the privilege by speaking with actual malice or excessively publishing the statement ‘beyond the group interest.’ . . . In the clergy context, a statement loses its privilege if made to individuals outside the congregation.” Does it make a difference that [the pastor] sent his May 3 email to [a former church member]?

The defendants say no, and the trial court agreed. [The recipient] was no longer a member of [the church], but he was not a stranger. [The pastor] attested there was no requirement that someone be a member of the church in order to participate in small groups. [The email recipient] had remained involved with the discipleship group for [the plaintiff]. He had been checking in by email with [the plaintiff] monthly for continued discipleship with the men in the Small Group.

Moreover, [his] responses to the May 3 email show that he had a common interest in the matter. In his first email [he] said, “I’m heart-broken for [the plaintiff’s family].” In a later communication, he added that [the plaintiff] had been contacting him. He indicated that his spouse and [the plaintiff’s former wife] were close, and he asked whether he should be concerned about the safety of his girls since they spent time with the plaintiff’s children.

The court concluded:

Under these circumstances, we find as a matter of law that [the former member] retained a common interest in the subject matter of [the pastor’s email] communications. The qualified privilege for communications by religious organizations is essentially a variant of the common-interest privilege. . . . Again, no one other than Small Group members and church staff received the pastor’s emails. . . .

In sum, [the pastor’s] emails, whatever their flaws, were sent by a religious leader exclusively to staff and members of that religious community, plus one person who retained genuine ties to that religious community. The emails were in furtherance of their common purposes. We conclude that a qualified privilege applies. Given the lack of evidence of malice, summary judgment on the defamation claim was warranted.

What this means for churches

Church leaders should be familiar with this case for the following reasons.

First, pastors should be careful when disseminating damaging personal information concerning a member to other members, since this may constitute defamation. If in doubt about the propriety of doing so, seek legal counsel.

Second, this case illustrates the concept of qualified privilege. According to this widely recognized legal principle, statements made by church leaders to members regarding matters of common interest generally cannot be defamatory unless made with “malice.”

Malice in this context means that the person making the statements knew they were false or made them with a reckless disregard as to their truthfulness.

Malice is very difficult to prove, and this means that churches have significant protection when communicating with members regarding matters of common interest. But the protection is not absolute and does not extend to malicious statements as defined above. It is critical to note that the privilege only applies to communications to or among church members, the key point being that nonmembers do not have a legitimate interest in knowing matters of common interest among members, and so any disclosure to them would transcend any legitimate need to know.

Church leaders wanting to preserve the qualified privilege defense when communicating matters of common interest to the congregation should take steps to ensure that their statements are directed exclusively to members. Be sure to consult with legal counsel before making any communication that is potentially damaging to any one or more persons.

Common examples of the application of the qualified privilege would include congregational meetings that are called to inform members about the reasons for the discipline of a church staff member. Sharing negative and damaging information about a current or former employee at such a meeting can be reduced by ensuring that only members are in attendance.

959 N.W.2d 680, 2021 Iowa Sup. LEXIS 67 (2021 WL 2021643

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Legal Developments

Pastor’s Multiple Acts of Sexual Misconduct Not Necessarily Protected by First Amendment

The First Amendment does not categorically insulate religious relationships from judicial scrutiny.

Richard R. Hammar, Attorney, CPA
Bio

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

The Iowa Supreme Court ruled that finding a church liable on the basis of negligent supervision for a pastor’s multiple acts of sexual misconduct with adult women was not necessarily barred by the First Amendment guaranty of religious freedom.

In 2003, a church hired a new pastor. The pastor was respected and considered a “dynamic” and “very talented speaker.” He engaged in sexual relationships with several women in the congregation, as summarized below.

Victim 1

A couple in the church were members of the church at the time the pastor arrived. In 2005, the couple were struggling with infertility, which was taking an emotional toll on the wife. Upon learning of her struggles, the pastor began making unsolicited phone calls to her cellphone, inquiring into her personal life and fertility. In 2006, the couple were in the process of seeking an international adoption, and the wife decided to seek counseling from the pastor to help her cope. The pastor invited her to comes see him “at his study,” which was in the basement of his home. The pastor locked the door to his office during the initial counseling session, and engaged in sexual contact and intercourse. The wife consistently maintained that the sex was against her will. Following the encounter, the pastor continued to call the wife, insisting that her husband was not meeting her needs. He informed her that her emotional struggles stemmed from “sexual frustration” and unhappiness in marriage, and that he was “protecting” her by helping her release her sexual energy. He also persuaded her to loan him $70,000.

Victim 2

In 2009, victim 1’s sister confided in her that the pastor had tried to kiss her during a counseling session. Once victim 1 learned what the pastor had done to her sister, she realized he was using his pastoral position and the trust that people put in him as a pastor to recruit women to be counseling candidates so he could get them into a position of trust and vulnerability for the very purpose of abusing them.

Soon after this conversation, victim 1 called the pastor and told him he was using his position as pastor under the guise of counseling to have sexual relationships with women. She broke off contact with him, although she did not inform the church or the police of his conduct out of fear of retribution or not being believed.

Victim 3

Another couple were members of the church when the pastor was called. In 2008, the wife was going through a difficult time. She felt overwhelmed by a recent death in the family, marital problems, and her special needs child. She had been prescribed antidepressant and anxiety medications, which she was taking. The pastor called the wife and suggested that she counsel with him. As with victim 1, the wife counseled with the pastor behind a locked door in his basement office. The counseling consisted of highly personal questions regarding her personal life, her marital struggles, and whether she had engaged in premarital sex. The wife left the meeting to pick up her son, although she felt uneasy about the line of questioning.

The pastor then began calling the wife frequently, asking to see her again. During a subsequent counseling session, the pastor grabbed her and kissed her. Soon, the “counseling” evolved into regular meetings for the pastor to provide “healing” through sexual activity. Beyond sexual intercourse, the pastor would aggressively call the wife, sometimes 10 to 15 times a day.

Victim 4

Eventually, the pastor informed victim 3 about his prior relationship with victim 1 and a fourth woman. After this conversation, victim 3 “started putting all the pieces together very quickly.” She began to see what had happened to victims 1 through 4, and multiple other women in the church.

Two of the victims’ husbands met with three church elders and informed them of the pastor’s misconduct with their wives. That same evening, the pastor came to a church meeting and one elder questioned him about his conduct with victim 3. The pastor admitted to inappropriate conduct with victim 3 and voluntarily offered his resignation. The entire board of elders met later that evening and voted to accept the pastor’s resignation.

The elders sent a letter to the entire congregation explaining they had accepted the pastor’s resignation. The letter stated that his “sins are of such a nature that they warrant our acceptance of his resignation,” but did not disclose the nature of the misconduct. A few weeks later, victims 1 and 3 were called to appear before the elders. At the meeting, the women were asked to confess their sins with the pastor and ask for forgiveness, which they did. The elders understood the women to have confessed to “adultery.” The elders granted the women forgiveness.

A female church member wrote the elders and urged them to refrain from blaming the pastor’s victims or referring to the misconduct as “affairs.” The member, a social worker, explained that blaming the women for the pastor’s clergy abuse would significantly damage them, as well as the congregation as a whole. The member submitted suggested language for a letter to the elders, who declined to send the letter. In a letter circulated among the elders, the elders expressed their view that

a false dichotomy is established when it asserts that all blame is [the pastor’s]. The victims are certainly sinned against, but they are also sinning. All the parties involved failed to walk in the light (1 John 1) and the women, though not bearing the same degree of responsibility as does [the pastor], were certainly responsible for their behavior and need to be called to repentance for consenting to his advances and for violating their marital covenant. They sinned sexually, even though they can rightly in one sense be denominated as victims of the pastor’s machinations.

Some elders did not view the victims’ experiences as rape or sexual assault, and some even questioned whether the pastor engaged in any misconduct at all. One elder opined that there was “sin on both sides” and that the pastor’s conduct “was not clergy sexual abuse.”

The pastor was prosecuted for three counts of sexual abuse in the third degree, four counts of sexual exploitation by a counselor or therapist, and one count of engaging in a pattern or practice of sexual exploitation by a counselor or therapist. The pastor testified in his defense, maintaining all sexual activity was consensual, and he never provided mental health services. The jury convicted him of the five sexual exploitation charges and the court sentenced him to five years in prison.

Two of the victims sued the church and several elders on the following grounds: (1) negligently declined to invite mental health counselors and clergy sexual abuse experts to work with the congregation; (2) negligently blamed the women for their sexual exploitation, causing them severe emotional harm; (3) negligently investigated the pastor’s misconduct following the victims’ complaints; (4) negligently supervised and retained the pastor; and (5) made a number of defamatory statements against the victims.

The trial court dismissed all of the claims against the church and elders, and the victims appealed.

Negligent response to sexual abuse allegations

The plaintiffs allege the church (1) willfully disregarded the advice of professional counselors and denounced established and accepted mental health treatment concepts after it learned of the abuse; and (2) ignored any duty of care it had to the plaintiffs and instead blamed them for their actions, causing them emotional harm.

In rejecting this theory of liability the court observed:

Following the pastor’s resignation, the elders sought to help the congregation move forward and heal. The means by which they chose to counsel and advise the congregation is outside the purview of the government. The plaintiffs argue “a reasonable church would seek assistance for parishioners and not label victims ‘adulteresses.’” Yet, that is precisely the type of determination that the [First Amendment] Religion Clauses prohibit. The elders determined that certain speakers and mental health resources were outside of their faith. A court cannot dictate what teachings and services a church offers its parishioners. Nor can we disapprove of the elders deciding, pursuant to their duty as religious authorities, that the women would be best healed by simply confessing their “sins.” Because the plaintiffs’ first two negligence claims go to the very heart of religious decision-making, they are barred by the First Amendment.

Negligent investigation

The plaintiffs next claimed that the church was negligent in failing to conduct an investigation into the pastor’s conduct after the plaintiffs disclosed his abuse. The court upheld the trial court’s dismissal of this claim: “The elders were informed of the pastor’s criminal conduct on December 13, 2010. A few hours later, they accepted his resignation. While the church indeed owed a duty of care to the plaintiffs, it acted immediately and affirmed the pastor’s removal from his office, preventing him from further using his office to abuse [the victims].”

Negligent supervision

The court then addressed the victims’ negligent supervision claim: “The crux of a negligent-supervision claim is an employer’s failure to exercise ordinary care in supervising the employment relationship so as to prevent the foreseeable misconduct of an employee from causing harm to others. . . . Conduct that results in harm to a third person is not negligent or reckless unless there is a foreseeable likelihood that harm will result from the conduct.”

The church argued that negligent-supervision claims are barred by the First Amendment, as a court would be called upon to “adjudicate the reasonableness of a church’s supervision of a cleric,” which is an adjudication that necessarily requires inquiry into religious doctrine. The court disagreed: “The First Amendment does not categorically insulate religious relationships from judicial scrutiny, for to do so would necessarily extend constitutional protection to the secular components of these relationships . . . and impermissibly places a religious leader in a preferred position in our society.”

Defamation claims

The victims claimed that many of the statements made by the elders were defamatory. The church insisted that statements made by the elders were protected by a “qualified privilege.” The court acknowledged that “communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged.” The qualified privilege may be lost, however, “if the speaker abuses the privilege by speaking with actual malice or excessively publishing the statement beyond the group interest.” A statement is made with actual malice if the speaker “acted with knowing or reckless disregard of the truth of the statement.” In the clergy context, “a statement loses its privilege if made to individuals outside the congregation.”

The court concluded that none of the allegedly defamatory statements constituted defamation. For example, the victims alleged that the elders prepared and read the following statement to the congregation: “God calls it sin when someone who is married willingly has intimate relations with a person who is not their spouse and we have learned that other members rejected the manipulations of a man who never should have lead them astray.” The court concluded that this statement was not defamatory since it was qualifiedly privileged: “The elders were speaking to members of the church about the conduct of other members in their capacity as such. . . . We find that plaintiffs have not proven that the elders spoke with a knowing or reckless disregard of the truth.”

Similarly, during a home visitation with members of the church, an elder stated, “Our only wish is that the women would admit what they did was wrong and ask for forgiveness like [the pastor] did.” The court conceded that some may have found the statement offensive, but “since he was speaking as an elder to members of the church about whether other members should ask for forgiveness for their alleged sins,” the statement was qualifiedly privileged “as it is a “communication between members of a religious organization concerning the conduct of other members or officers in their capacity as such.”

What this means for churches

This case contains a number of important lessons for church leaders, including the following.

First, this case graphically illustrates the importance of establishing boundaries in the counseling activities of ministers. Amazingly, much of the illicit activities of the pastor in this case occurred in the basement of his private residence, behind a locked door with no one else present or even nearby. Church leaders should be alert to any counseling activities by clergy and other staff that are conducted in isolation.

Second, the court rejected many of the victims’ claims on the ground that they would impermissibly entangle the court in matters of church doctrine and governance, but it did allow the victims to pursue their negligent supervision claim against the church so long as the court would not be required to apply or interpret religious doctrine.

Third, the court recognized the so-called qualified privilege to defamation claims. Many courts have recognized this privilege, which shields some intra-church communications from defamation claims. The privilege applies to statements made to members concerning a matter of “common interest” among members. Such statements ordinarily cannot be defamatory unless made maliciously (meaning with a knowledge that a statement is false, or with a reckless disregard as to its truthfulness). This is why it is important for potentially damaging statements regarding matters of common interest to members (e.g., member discipline, employee terminations) be communicated only to members. The privilege does not apply if nonmembers are present. Bandstra v. Covenant Reformed Church, 913 N.W.2d 19 (Iowa 2018).

Legal Developments

Sexual Misconduct and Church Liability

Church Law and Tax Report Sexual Misconduct and Church Liability Key point 4-11.1. Clergy who

Church Law and Tax Report

Sexual Misconduct and Church Liability

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

Key point 4-11.2. Clergy who are sued for sexual misconduct may be able to assert one or more defenses.

The Iowa Supreme Court affirmed the criminal conviction and prison sentence of a pastor who engaged in sexual relations with four emotionally vulnerable women in his congregation. A pastor was employed by a church from 2003 to 2010. Church members testified that his sermons were “amazing,” “great,” and “dynamic.” He was a “very talented speaker.” “He definitely could preach the word of God.”

The pastor initiated sexual relationships with four women in his congregation.

Victim #1
The pastor began making unsolicited calls to Victim #1 on her cellphone. At the time, she was undergoing fertility treatments unsuccessfully and was struggling with her infertility. The pastor began asking questions about her personal life, and she began to confide in him. Victim #1 and her husband decided to look at international adoption, and an opportunity arose to adopt four siblings from abroad as a group. Victim #1 was personally struggling with this adoption, and at the recommendation of her husband and her mother she decided to see the pastor. The pastor asked her to come alone to his home to discuss her concerns. During an initial meeting the pastor asked her about her marriage and whether her husband was “meeting her needs.” She started to cry and said that things were difficult. At that point, the pastor made advances toward her and had sexual relations with her.

He continued to call her repeatedly on her cellphone, and would talk for two to three hours each day. This lasted for months. The pastor also arranged liaisons with victim #1 during the workday at hotel rooms and other buildings. Eventually, after victim #1 and her husband adopted a child, the relationship cooled. She called the pastor and told him she “knew what he was doing, that he was trying to get women into counseling for the purpose of trying to have sexual contact with them.” Victim #1 did not report anything to the church elders or the police at the time, because she did not think she would be believed.

Victim #2
Victim #2 and her husband were also active members of the same church. She was experiencing several crises. Her father was going through a severe illness, her husband was depressed, her best friend died, and her daughter was having problems in her marriage. The pastor called her on her cellphone while she was driving and wanted to know how she was doing. She responded that she was not doing very well, and started shaking. She pulled her car over. At this point the pastor made a comment to her that “he would like it if we could be together under the cool, crisp sheets.” He added, “You know, if you ever need anybody to talk to, call me. I’ll always be there for you.” Victim #2 was shocked by the pastor’s comment.

Several months later, Victim #2 called the pastor because she “just had absolutely nobody to talk to.” She asked him to come see her because she wanted to discuss problems in her marriage. During this and subsequent meetings the pastor initiated sexual contact with her. The pastor told her not to tell anyone, and that “the elders will never believe you. They will only believe me. I’ll make sure everybody knows you’re crazy.”

Eventually the pastor terminated the relationship. But he said to Victim #2, “Call me if you ever need me or need somebody to talk to, I’ll always be there for you night or day.”

Victim #3
Victim #3 was a married church member who asked the pastor for a meeting. It was arranged for the meeting to occur in the pastor’s home office. He assured her that it was fine to come to his home during the evening, as he “counsels women” in his home. When she arrived, the pastor took her down to his office in the basement. He began asking her very personal questions. He asked questions about her father who recently had been diagnosed with Alzheimer’s. She revealed that she had been sexually abused as a child. The conversation lasted a couple of hours. The two continued to meet. They had sexually charged conversations. Soon they began to have sexual relations. The pastor instructed her not to tell anyone because “nobody would understand this. Even if you feel close to your husband, never tell him. Never think he’s going to understand this.” The pastor and Victim #3 engaged in sexual activity over a period of years.

Victim #4
Victim #4 and her husband were also members of the church. She had a young child with special needs, her mother-in-law had passed away, and she had an overworked husband. As she put it, “My plate was very full.” She had seen a physician and had been prescribed an anti-depressant and anxiety medication, which she was taking.

The pastor called Victim #4 and asked to set up a meeting. She recounted, “He just wanted to make sure that I was doing okay.” Eventually a meeting was set for a school day in the pastor’s basement office. The pastor locked the door from the inside. They began with conversation. He asked whether she felt stressed. He asked about her family issues. He asked whether she had had premarital sex. After a while, the pastor informed her that he was very fond of her and “would like to get to know her better.” He added, “Somebody needs to take care of you. You have your hands full.” She became uncomfortable. Her feet were trembling. During this and subsequent meetings the pastor’s questions became more intimate. He asked her to provide details of her “sex life” with her husband, and whether she had been abused as a child. Victim #4 later recounted, “The questions were getting deeper and he was getting to know me more and more, I guess knowing my vulnerabilities, where the voids were in my life.”

The pastor called Victim #4 on her cellphone several times each day. Within a few months the two were having sexual relations, and continued to do so for the next two years. The pastor cautioned Victim #4 that this was a “secret relationship, and we need to keep it a secret.”

During their final encounter, in Victim #4’s home, her husband came home unexpectedly early and found the two in bed. The husband immediately went to the elders of the church to inform them of what he had witnessed. The pastor resigned immediately.

Criminal Charges

The pastor was charged with four counts of sexual exploitation by a counselor or therapist in violation of section 709.15(2)(c) of the Iowa Code. This section provides:

2. Sexual exploitation by a counselor or therapist occurs when any of the following are found …

(c) 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.

Sexual exploitation by a counselor or therapist is a “serious misdemeanor.” It is a class “D” felony for a counselor or therapist to engage in a “pattern or practice or scheme of conduct” of sexual exploitation.

The statute defines “counselor or therapist” as follows:

“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. (emphasis added)

During the pastor’s trial, all four victims testified. The pastor and his wife testified for the defense. The pastor acknowledged having sexual relations with all four women, but maintained that it was consensual. He denied having provided “mental health services” to any of the women, and therefore he had not committed sexual exploitation or a pattern of exploitation as defined by state law.

The jury found the pastor guilty on the four sexual exploitation charges. He was sentenced to ten years imprisonment.

On appeal, the Iowa Supreme Court upheld the pastor’s conviction over the pastor’s objection that there was insufficient evidence to convict him:

We begin by noting a few common facts. All four women were members of [the same church]; the [pastor] had been their pastor for several years. Three of the four had preexisting marital problems in addition to other difficulties in their personal lives. The fourth developed such problems after getting involved with the pastor, who claimed to be resolving them. Two of the four went to the pastor’s office initially thinking they would receive help from him, and he quickly ended up having sex with both of them (one of them in the office that day). Before and during his sexual encounters with each of the four women, the pastor asked each of them deeply personal and probing questions, purporting to guide them through their personal difficulties … .

We find sufficient evidence to sustain the convictions on all of the sexual exploitation counts. There is substantial evidence that he counseled each of the four women for an “emotional … or social dysfunction, including an intrapersonal or interpersonal dysfunction.” See Iowa Code § 709.15(1)(d) … . This went beyond an “informal exchange of advice,” or “the giving of general spiritual advice or guidance from a clergy member to congregants.” There is substantial evidence that a relationship was established between the pastor and each victim, at least initially, “for the purpose of addressing particular mental, intrapersonal or interpersonal dysfunctions.” To some extent … it appears sexual contact was part of the pastor’s program of pseudotherapy and treatment for his victims.

Constitutionality

The pastor claimed that section 709.15(2) (quoted above), as applied to him, unconstitutionally burdened his fundamental right to enter into sexual relationships. He claimed that section 709.15(2) “creates a ban on all sexual relations between certain categories of individuals regardless of the existence or nonexistence of consent.” The pastor insisted that his sexual relations with all four women was consensual and not criminal. The court disagreed:

Based upon their testimony, the relationships between the pastor and each of the four women did not involve full and mutual consent. In each case, the pastor used—misused—his position of authority as a counselor to exploit the vulnerabilities of his victim. The relationships were of a kind where “consent might not easily be refused … .” The pastor is not the first person to assert that any sexual exploitation laws that criminalize consensual sexual relations between adults are unconstitutional. Similar arguments have been raised, generally without success, in other jurisdictions. For the most part, the courts have reasoned that the statutes do not implicate fundamental rights … because the relationship is imbalanced and not fully consensual.

What This Means For Churches:

Note the following:

1. This case illustrates that sexual misconduct by clergy with adult congregants may result in criminal liability under state laws making such conduct illegal. Presently, the following 12 states have laws that specifically make sexual contact between a minister and a counselee a crime:

Arkansas
Code § 5-14-126

Connecticut
Statutes §§ 53a-65 et seq.

Delaware
11 Del. Code §§ 761 et seq.

Iowa
Code §§ 709.15 et seq.

Minnesota
Statutes §§ 148A.01 et seq.

Mississippi
Code § 97-5-23

New Mexico
Statutes §§ 30-9-10 et seq.

North Dakota
Century Code § 12.1-20-06.1

South Dakota
Codified Laws §§ 22-22-27 et seq.

Texas

Penal Code, § 22.011

Utah
Code § 76-5-406

Wisconsin
Statutes §§ 895.441 et seq.

2. Several states have laws that make sexual contact between a psychotherapist and a counselee a crime, and, unlike the statutes mentioned above, do not specifically define “psychotherapist” to include a member of the clergy. However, the definition of “psychotherapist” under some of these laws may be broad enough to include a member of the clergy.

3. Every state has enacted laws making it a crime to engage in nonconsensual sexual contact with another person. These laws constitute another potential basis of criminal liability for ministers who engage in sexual contact with a counselee or member of their congregation. A typical statute makes it a felony for anyone to “engage in sexual contact with another person without consent of that person.”

4. Every state has enacted a law making assault and battery a crime. These laws constitute another potential basis of criminal liability for ministers who engage in nonconsensual sexual contact with a counselee or member of their congregation.

5. Church insurance policies exclude any claims based on intentional or criminal misconduct. As a result, ministers who are prosecuted for a sexual offense involving a counselee or member of their congregation ordinarily cannot expect the church insurance company to pay for a legal defense.

6. There are many other consequences of clergy sexual misconduct. To illustrate, clergy who engage in such behavior may have to register as a sex offender under state law; and, churches and denominations increasingly are revoking the ministerial credentials of ministers who engage in such behavior. Removal of ministerial credentials generally is motivated by several considerations, including the protection of others, the scriptural standards for ministry, accountability, and an avoidance of legal liability for a minister’s future misconduct. State v. Edouard, 854 N.W.2d 421 (Iowa 2014).

Legal Developments

Arbitration of Disputes

Arbitration is a potential way to resolve church disputes without going to the civil courts.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax

Arbitration of Disputes

Arbitration is a potential way to resolve church disputes without going to the civil courts.

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

Key point 7-04. Churches and denominational agencies can avoid church property disputes by adopting appropriate nondoctrinal language in deeds, trusts, local church bylaws, or denominational bylaws.

Key point 10-16.8. Churches have various defenses available to them if they are sued as a result of a personal injury. One such defense is an arbitration policy. By adopting an arbitration policy, a church can compel members to arbitrate specified disputes with their church rather than pursue their claim in the civil courts.

An Iowa court compelled a church to submit to the arbitration of a dispute it had with a denominational agency as a result of an arbitration provision in the agency’s governing documents. A pastor wrote his denomination (the “national church”) informing it that his church had voted unanimously to withdraw from the national church. An officer of the national church informed the pastor that the actions of his church violated the denominational Book of Discipline in several respects, including a requirement that all disputes be resolved through Christian arbitration. The Book of Discipline specifies that the national church and its affiliated congregations “agree that they will attempt to resolve all non-doctrinal disputes among themselves without resort to the courts. A non-doctrinal dispute is a dispute … that a civil court could otherwise decide and, therefore, does not include matters of church doctrine.”

When the pastor refused to resolve the dispute through arbitration, the national church responded by asking a court to compel arbitration as required by the Book of Discipline. The court granted the national church’s request and ordered the dissident church to submit to arbitration. The church appealed, claiming that there was no enforceable agreement to arbitrate.

A state appeals court began its opinion by noting that arbitration “is a matter of contract and parties cannot be compelled to arbitrate a question which they have not agreed to arbitrate.” The court cited a state statute requiring agreements to arbitrate to be contained in a “written contract.” The court ruled that the Book of Discipline constituted a written contract requiring disputes to be settled through arbitration even though it did not use the term “contract.” It construed the Book of Discipline as an “offer” to local churches to join the national church, and churches “accepted” the offer by adopting a resolution for affiliation. The court concluded that “based on general principles of contract law, the record supports there was an offer and acceptance between the parties in their assent to be bound and formally affiliated.”

Having found that a valid arbitration agreement existed, the court addressed the question of whether the conflict in this case was non-doctrinal in nature, since such a finding would compel arbitration under the Book of Discipline. The court agreed with the national church that the dispute was non-doctrinal since it involved control of church property, which is an issue that the civil courts may resolve. It concluded:

Because either a proper withdrawal under the Discipline or an improper withdrawal where [the church’s] building could be left in the hands of [the national church] will affect the property interests of both parties, and these property interests are contemplated in and embraced by the language of [the Book of Discipline] we find that a non-doctrinal dispute exists between the parties and that the dispute concerning the property, which stems from the proposed withdrawal, is subject to resolution via the agreed upon method under the Discipline utilizing “Christian conciliation, mediation, or arbitration.” We therefore affirm the district court’s ruling, granting [the national church’s] application for order to compel arbitration.

What This Means For Churches:
This case is important because it illustrates that arbitration is a potential means of resolving internal church disputes without having to go to the civil courts. It is imperative that any arbitration provision be drafted by an attorney, since several courts have refused to enforce arbitration provisions in the governing documents of churches and religious denominations on the basis of a technical defect that was not understood by the laypersons who drafted the provision. General Conference v. Faith Church, 809 N.W.2d 117 (Iowa 2012).

This article first appeared in Church Law & Tax Report, March/April 2013.

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840.© 2013 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold 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. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Breaking Away from the Parent Denomination

Binding arbitration clause controls church property dispute.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Breaking Away from the Parent Denomination

Binding arbitration clause controls church property dispute.

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

Arbitration

Key point 7-04. Churches and denominational agencies can avoid church property disputes by adopting appropriate nondoctrinal language in deeds, trusts, local church bylaws, or denominational bylaws.

An Iowa court ruled that a dispute over control of a church’s property following its attempt to withdraw from a parent denomination was governed by a binding arbitration clause in the denomination’s governing document. In 2002, an Iowa church requested formal affiliation with the Evangelical Methodist Church (EMC), headquartered in Indianapolis, Indiana. In 2010, the church voted unanimously to sever its affiliation with the EMC, which prompted the EMC to ask a court to compel the dispute to be resolved through binding arbitration. Iowa law specifies that “a provision in a written contract to submit to arbitration a future controversy arising between the parties is valid, enforceable, and irrevocable unless grounds exist at law or in equity for the revocation of the contract. This subsection shall not apply to any of the following: A contract of adhesion, a contract between employers and employees, or unless otherwise provided in a separate writing executed by all parties to the contract, any claim sounding in tort whether or not involving a breach of contract.”

existence of a valid contract to arbitrate

EMC claimed that its governing document (the “Discipline”) “is contractual even though it does not specifically use the term ‘contract’ in identifying the parties’ relationship.” In essence, the Discipline functions as an offer to local churches to join the EMC, and the terms of the offer are the terms contained in the Discipline. Paragraph 701 of the Discipline states, in pertinent part:

The Evangelical Methodist Church, its districts and congregations (collectively, the “Parties,” individually, “party”) agree that they will attempt to resolve all non-doctrinal disputes among themselves without resort to the courts. A non-doctrinal dispute is a dispute within the Evangelical Methodist Church that a civil court could otherwise decide and, therefore, does not include matters of church doctrine. For example, all disputes between the Parties concerning real and personal property, including all property questions arising out of or related to the withdrawal of a congregation from the Evangelical Methodist Church, are non-doctrinal disputes. The Parties agree to abide by the requirements of the Discipline regarding withdrawal and other non-doctrinal disputes. This Chapter does not govern disputes regarding a minister’s or member’s alleged violation of church doctrine.

The court noted that “a valid contract must consist of an offer, acceptance, and consideration,” and that “in this case, the Discipline contained EMC’s offer and the Resolution for Affiliation was the church’s acceptance. By its statement in its Resolution for Affiliation to accept ‘the collection of rules and procedure and organization entitled, Discipline of Evangelical Methodist Church,’ it agreed to be bound by the provisions of the Discipline, including the arbitration provision …. Based on general principles of contract law, the record supports there was an offer and acceptance between the parties in their assent to be bound and formally affiliated.”

The third element of a valid contract is “consideration,” which the court concluded was satisfied by “the mutual benefits obtained through the denominational relationship.” The court concluded: “Because the three requisite elements of a contract—offer, acceptance, and consideration—were present between the parties … the parties agreed to be bound by the provisions encompassed in the Discipline.”

The church claimed that even if a contract to arbitrate the dispute existed, it was unenforceable since it was a “contract of adhesion.” A contract of adhesion is a contract “drafted unilaterally by the dominant party and then presented on a take-it-or-leave-it basis to the weaker party who has no real opportunity to bargain about its terms.” The church argued that when it signed the Resolution for Affiliation, “there was no negotiation back and forth with EMC relative to any terms and conditions in the discipline,” nor was it “advised by EMC or made aware by them of any provisions in the Discipline relative to arbitration or any provisions relative to withdrawal from the church. Rather, all that was discovered later.”

EMC claimed that the church’s Resolution for Affiliation was not a contract of adhesion because it “freely chose to affiliate with EMC [and so] the Discipline is a contract among equals and not an adhesion contract.”

The court concluded that the Discipline was not a contract of adhesion: “The determination of whether a contract is a contract of adhesion involves the issue of unconscionability …. Factors which may contribute to a finding of unconscionability in the bargaining process include the following: belief by the stronger party that there is no reasonable probability that the weaker party will fully perform the contract; knowledge of the stronger party that the weaker party will be unable to receive substantial benefits from the contract; knowledge of the stronger party that the weaker party is unable reasonably to protect his interests by reason of physical or mental infirmities, ignorance, illiteracy or inability to understand the language of the agreement, or similar factors.” The court concluded that “none of these factors, nor any other facts provided by the parties, indicate the agreement between the two parties and contained in the Discipline was unconscionable. We therefore conclude that the agreement between the parties was a valid contract—and not a contract of adhesion.”

a dispute covered by the arbitration agreement

Having found that a valid arbitration agreement existed, the court turned its attention to the question of whether the dispute over the church’s property was the kind of “nondoctrinal” dispute the Discipline required to be arbitrated. The EMC insisted that the dispute was nondoctrinal, while the church claimed the dispute was doctrinal since the underlying dispute “concerns doctrinal differences between the pastor and EMC.”

The court concluded that “because either a proper withdrawal under the Discipline or an improper withdrawal where the church’s building could be left in the hands of EMC will affect the property interests of both parties, and these property interests are contemplated in and embraced by the language of paragraph 701 [quoted above] we find that a non-doctrinal dispute exists between the parties and that the dispute concerning the property, which stems from the proposed withdrawal, is subject to resolution via the agreed upon method under the Discipline utilizing ‘Christian conciliation, mediation, or arbitration.’ We therefore affirm the district court’s ruling, granting EMC’s application for order to compel arbitration.”

What This Means For Churches:

This case demonstrates that a binding arbitration provision in denominational governing documents represents one way to resolve church property disputes, so long as the provision meets any applicable legal requirements and clearly applies to property disputes. General Conference of Evangelical Methodist Church v. Faith Evangelical Methodist Church, 809 N.W.2d 117 (Iowa App. 2012).

Legal Developments

Clergy-Penitent Privilege Doesn’t Apply in Molestation Case

Pastor’s account stands because statements made by member weren’t confidential; privilege had been waived.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Clergy-Penitent Privilege Doesn’t Apply in Molestation Case

Pastor’s account stands because statements made by member weren’t confidential; privilege had been waived.

Richard R. Hammar

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

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

* An Iowa court ruled that the clergy-penitent privilege did not apply to incriminating statements made by a church member to his pastor since the statements were not confidential and any privilege had been waived. A single mother frequently used a 28-year-old male (the “defendant”) to babysit her three minor sons. After several months, the defendant began watching the boys in his own residence, and eventually the boys were staying with the defendant overnight at his apartment almost every weekend. The defendant engaged in frequent acts of sexual molestation with all three boys. One of the boys finally decided to tell his mother about what the defendant had been doing, and by the time he told her, the molestation had been going on for about a year. This victim stated that he had not disclosed the molestation sooner because he was afraid that the defendant would hurt him.

The boys’ mother contacted her pastor and informed him about the boys’ allegations. After church services the following Sunday evening the pastor and one of the church deacons met with the defendant, who also attended the church, to discuss the boys’ allegations. When the pastor asked him what should be done about the situation the defendant replied that he would need to “get saved.” The pastor spoke with the defendant again the following Wednesday at church; the defendant asked if he could go before the church to apologize for “what he had done.” The pastor told him he could not. The two met again the next Saturday. A church deacon was present at this meeting as well. The pastor discussed possible church disciplinary actions at this meeting.

The pastor testified at the defendant’s trial, describing the incriminating statements the defendant made during their meetings at the church. The defendant was convicted on all counts, and appealed his conviction on the ground that his pastor’s testimony should not have been permitted since all of his conversations with his pastor were protected from disclosure by the clergy-penitent privilege.

the clergy-penitent privilege

The appeals court began its opinion by quoting the Iowa statute recognizing the clergy-penitent privilege: “A member of the clergy shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person’s professional capacity, and necessary and proper to enable the person to discharge the functions of the person’s office according to the usual course of practice or discipline.” Iowa Code § 622.10(1). The statute further provides that the privilege does not apply to cases where the person in whose favor the prohibition is made waives those rights.

The court concluded: “In order to [be privileged] a communication to a member of the clergy must be: (1) confidential; (2) entrusted to a person in his or her professional capacity; and (3) necessary and proper for the discharge of the function of the person’s office.” The court concluded that for the following reasons the defendant’s communications with the pastor were not confidential:

First, the pastor testified he did not consider either of his meetings with the defendant to be confidential and did not ever tell the defendant, or lead him to believe, they were going to be confidential. The pastor testified he did not consider the meeting confidential because a third person was present. The pastor discussed the meeting with his wife, other deacons, his former pastor, and the boys’ family. He testified that if he believed the meeting to be confidential or privileged he would not have shared it with all of these people. Second, the pastor made it clear to the defendant that the scripture says the church falls under the legal system so if a law had been broken it was his responsibility to turn the matter over to the legal system and it would then be for the authorities to deal with this as need be. Finally, the pastor testified that the defendant himself generally knew of the church’s discipline procedure and the fact that if the defendant were found to have done something that “brings public reproach to the name of Christ” the person either goes before the church to publicly apologize or the pastor makes a recommendation and the church as a whole votes on the matter. Thus, the defendant was aware that his statements would not be kept confidential based on these church practices. At their Saturday meeting the pastor specifically told the defendant that it was going to be a matter of church discipline and the defendant continued to discuss the matter with the pastor. Furthermore, the pastor told the defendant the matter might be discussed with the police, the Department of Human Services, or both, also indicating to the defendant the statements were not considered to be confidential. Accordingly, we agree with the district court that the defendant’s communications with the pastor were not confidential in nature and thus do not fall within the purview of the priest-penitent privilege.

The court also noted that the first meeting was initiated by the pastor, not the defendant, and “the defendant merely thought the pastor wanted to speak with him about a possible job.” The pastor testified the meeting was “not him coming to me to confess. It was me confronting him.” The meeting was to investigate the allegations that had been made by the boys. The pastor specifically denied that at least the first part of the meeting dealt with spiritual needs. As a result, “the pastor did not intend, and the defendant did not consider, the meeting to be for the defendant to confess to the pastor or to be for spiritual or pastoral purposes.”

waiver

The court noted that even if the conversations between the pastor and defendant were privileged, the defendant waived the privilege when he made the statements in the presence of third parties. The court explained that “although all the necessary elements for a communication to be privileged may be met, the privilege may be lost if the otherwise privileged statements are made in the presence of a third person.” The court clarified that “the presence of a third person during an otherwise confidential communication does not automatically destroy the privilege.” For example, “if the third person is present to assist in the discharge of another’s professional function or the third person’s presence is in some other way necessary, then the privilege will protect confidential communications made in the presence of the third person.”

The court noted that a deacon was present at both of the defendant’s meetings with the pastor. It concluded:

Thus, unless it can be shown the deacon’s presence was to assist the pastor in the discharge of his pastoral functions or was otherwise necessary in order for the pastor to discharge his pastoral duties, any priest-penitent privilege the defendant would have was waived. The pastor testified that none of the deacons in their church provide any kind of counseling services in an official capacity, they have no special responsibilities in the church, and that they were at the meeting simply as witnesses and not to aid in any kind of spiritual advisement. Further, the pastor testified he believed the presence of the deacons was fatal to any claim that the communications with him were privileged. We conclude the deacons’ presence at the meetings was not to assist the pastor in the discharge of his pastoral functions or otherwise necessary to the discharge of his pastoral duties. Thus, their presence at the meetings waived any potential priest-penitent privilege.

Application. This case illustrates two important points. First, not all conversations between a pastor and church member are privileged. The court concluded that the defendant’s conversations with his pastor in this case were not confidential and therefore not privileged for the following reasons:

  • The conversations were initiated by the pastor, not the defendant, to investigate the mother’s allegations of child abuse.
  • The defendant did not initiate the conversations for the purpose of seeking spiritual counsel.
  • A third person (a deacon) was present during both conversations.
  • The pastor did not consider the conversations to have been privileged, as illustrated by his disclosure of the substance of the conversations to others.
  • The defendant was familiar with the church’s disciplinary procedure which requires the pastor to inform the congregation of the nature of a disciplined member’s infractions.
  • The pastor informed the defendant that he might have to discuss the matter with the police or Department of Human Services.

Second, even if the conversations were privileged, any privilege was waived because of the presence of a third party. Most states have adopted the Uniform Rules of Evidence which defines confidentiality in the context of the clergy-penitent privilege as “a communication … made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” There are two points to note about this definition. First, the communication must be “private,” and second, it must not be intended for further disclosure except to “other persons present in furtherance of the purpose of the communication.” According to this definition, other persons can be present, and listening, when a person seeks out a minister for spiritual counsel so long as their presence is “in furtherance of the purpose of the privilege.”

But some states have adopted a clergy-penitent privilege not based on the Uniform Rules of Evidence, and in these states the presence of a third party may preclude the privilege. This Iowa court’s decision is important because the Iowa privilege is not based on the Uniform Rules of Evidence and yet the court acknowledged that the presence of a third person during a conversation between a pastor and church member does not necessarily preclude the privilege. The key consideration, according to the Iowa court, is whether “the third person is present to assist in the discharge of another’s professional function or the third person’s presence is in some other way necessary.” The court concluded that the deacon’s presence during the defendant’s conversations with the pastor did not qualify for this exception since the deacon’s presence was not necessary in order for the pastor to discharge his pastoral duties. But consider the following situations in which a court might conclude that one or more persons, in addition to the minister and penitent, were present in furtherance of the purpose of the communication:

  • A minister engages in marital counseling with a husband and wife, and often all three are present during counseling sessions.
  • An adolescent female informs her youth pastor that she is being sexually abused by a relative. The youth pastor urges the victim to seek out the senior pastor for spiritual advice. She agrees to do so, and later that day she and the youth pastor meet with the senior pastor.
  • An adolescent male confesses to his youth pastor that he has committed a crime. The youth pastor encourages him to seek spiritual counsel from the senior pastor, and he agrees to do so. The youth pastor, and the minor, both meet with the senior pastor.
  • Same facts as the previous scenario, except that the minor’s parents attend the meeting.
  • A church adopts a policy prohibiting the senior pastor from engaging in opposite sex counseling without the presence of a third person.
  • A state penitentiary has a policy prohibiting clergy from visiting incarcerated persons without the presence of a guard.
  • A man confesses to his neighbor that he committed an unsolved crime. The neighbor encourages him to confess to her pastor. He agrees to do so, but only if the neighbor accompanies him “for moral support.” The two of them meet with the pastor, and he confesses to the crime and seeks spiritual guidance. State v. Hesse, 767 N.W.2d 420 (Iowa App. 2010).

Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold 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. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

What’s Protected by the Clergy-Penitent Privilege

Not all conversations with a minister are covered by the privilege.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

What’s Protected by the Clergy-Penitent Privilege

Not all conversations with a minister are covered by the privilege.

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

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

Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

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

An Iowa court ruled that a pastor could testify concerning a church member’s confession that he had sexually molested a child since the confession was not in confidence and therefore the clergy-penitent privilege did not apply. The state of Iowa charged an adult male (“Brian”) with three counts of indecent contact with a child based on allegations from three minor boys, their parents, and their church pastor that he had engaged in indecent contact with the boys over the previous year. The trial court permitted Brian’s pastor to testify regarding a conversation.

A pastor was informed that three minor boys had been sexually molested by an adult church member (“Brian”). The pastor immediately spoke with the boys individually, and asked them to tell him what happened and they did so. After church services the following Sunday evening the pastor and one of the church deacons met with Brian to discuss the boys’ allegations.

The pastor and a different deacon met with Brian the following Saturday. During these meetings Brian made incriminating statements that the pastor repeated during Brian’s trial. Brian was found guilty, and he appealed his conviction on the ground that the pastor should not have been allowed to testify about their conversation since it was privileged.

A state appeals court began its opinion by quoting the Iowa clergy-penitent privilege statute: “A member of the clergy shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person’s professional capacity, and necessary and proper to enable the person to discharge the functions of the person’s office according to the usual course of practice or discipline.” Iowa Code § 622.10(1).

The court, applying this language, concluded that for a communication to a member of the clergy to be privileged it must be: “(1) confidential; (2) entrusted to a person in his or her professional capacity; and (3) necessary and proper for the discharge of the function of the person’s office.”

Confidential

The court concluded that Brian’s communications with the pastor were not confidential, and therefore failed the first requirement of privileged status:

First, the pastor testified he did not consider either of his meetings with Brian to be confidential and did not ever tell him, or lead him to believe, they were going to be confidential. The pastor testified he did not consider the meetings confidential because a third person was present. The pastor discussed the meetings with his wife, other deacons, his former pastor, and the boys’ family. He testified that if he believed the meetings to be confidential or privileged he would not have shared it with all of these people.

Second, the pastor made it clear to Brian that the scripture says the church falls under the legal system so if a law had been broken it was his responsibility to turn the matter over to the legal system and it would then be for the authorities to deal with this as need be.

Finally, the pastor testified that Brian himself generally knew of the church’s discipline procedure and the fact that if he were found to have done something “that brings public reproach to the name of Christ” the person either goes before the church to publicly apologize or the pastor makes a recommendation and the church as a whole votes on the matter. Thus, Brian was aware that his statements would not be kept confidential based on these church practices …. The pastor specifically told Brian that it was going to be a matter of church discipline and Brian continued to discuss the matter. Furthermore, the pastor told Brian the matter might be discussed with the police, the Department of Human Services, or both, also indicating to Brian the statements were not considered to be confidential.

Accordingly … Brian’s communications with the pastor were not confidential in nature and thus do not fall within the purview of the priest-penitent privilege.

Professional capacity

The court also noted that the meetings were initiated by the pastor, not Brian, and that Brian thought the pastor wanted to speak with him about a possible job. The pastor testified that the meetings were “not him coming to me to confess. It was me confronting him.” The meetings were to investigate the allegations that had been made by the boys. The pastor denied that “at least the first part of the meetings dealt with spiritual needs. Thus he did not intend, and Brian did not consider, the meetings to be for him to confess or to be for spiritual or pastoral purposes.”

Presence of a third party

The court noted that even if the privilege could somehow apply to Brian’s statements to the pastor, he waived the privilege when he made the statements in the presence of a third party:

Although all the necessary elements for a communication to be privileged may be met, the privilege may be lost if the otherwise privileged statements are made in the presence of a third person. However, the presence of a third person during an otherwise confidential communication does not automatically destroy the privilege. If the third person is present to assist in the discharge of another’s professional function or the third person’s presence is in some other way necessary, then the privilege will protect confidential communications made in the presence of the third person.

A deacon was present at the meetings with the pastor. Thus, unless it can be shown the deacons’ presence was to assist the pastor in the discharge of his pastoral functions or was otherwise necessary in order for him to discharge his pastoral duties, any priest-penitent privilege would have was waived. The pastor testified that none of the deacons in their church provide any kind of counseling services in an official capacity, they have no special responsibilities in the church, and that they were at the meetings simply as witnesses and not to aid in any kind of spiritual advisement. Further, the pastor testified he believed the presence of the deacons was fatal to any claim that the communications with him were privileged. We conclude the deacons’ presence at the meetings was not to assist the pastor in the discharge of his pastoral functions or otherwise necessary to the discharge of his pastoral duties. Thus, their presence at the meetings waived any potential priest-penitent privilege.

In summary, the court ruled that the communications between Brian and the pastor were not confidential and were not made to the pastor in a professional capacity, and that Brian had waived any potential privilege by making his statements in the presence of third persons.

Application. Not all conversations with a pastor are protected against future disclosure in court by the clergy-penitent privilege. While the definition of this privilege varies slightly from state to state, it is generally acknowledged that only confidential communications made to a pastor acting as a spiritual advisor can be privileged. Some states prevent the privilege from applying to conversations made in the presence of third parties, either because they are not confidential, or speaking to a pastor in the presence of third parties amounts to a waiver of the privilege. It is essential for pastors to be familiar with their state law to be sure they understand the significance of a third party being present when speaking with another. State v. Hesse, 767 N.W.2d 420 (Iowa App. 2009).

This Recent Development first appeared in Church Law & Tax Report, January/February 2010.

Legal Developments

Will Ministers Be Forced to Perform Same-Sex Marriages?

The Iowa Supreme Court legalized same-sex marriage, but does not require ministers to perform ceremonies.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Will Ministers Be Forced to Perform Same-Sex Marriages?

The Iowa Supreme Court legalized same-sex marriage, but does not require ministers to perform ceremonies.

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

Key Point. The recognition of same-sex marriages by a state court or legislature will not require clergy to perform such marriages, or compel churches to allow their facilities to be used for them, in violation of their religious beliefs.

The Iowa Supreme Court unanimously ruled that a state law defining marriage as a union between a man and a woman was invalid because it violated the constitutional rights of same-sex couples who desired to marry. The Iowa legislature amended its marriage statute in 1998 to define marriage as a union between only a man and a woman. Despite this law, the six same-sex couples (the “plaintiffs”) asked a county recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the plaintiffs were unable to marry. Except for the statute defining marriage as a union between a man and a woman, the plaintiffs met the legal requirements to marry in Iowa.

The plaintiffs asked a court to declare the marriage statute unconstitutional so they could obtain the array of benefits of marriage enjoyed by heterosexual couples. They identified several disadvantages associated with their inability to marry, including: (1) the legal inability to make many life and death decisions affecting their partner, including decisions related to health care, burial arrangements, autopsy, and disposition of remains following death. Various plaintiffs told of the inability to share in their partners’ state-provided health insurance, public-employee pension benefits, and many private-employer-provided benefits and protections; (2) denial of several tax benefits; (3) more cumbersome adoption proceedings.

The county identified five reasons in support of the statute defining marriage as a union between a man and a woman: (1) promoting procreation; (2) promoting child rearing by a mother and a father within a marriage; (3) promoting stability in an opposite-sex relationship to raise and nurture children; (4) conservation of state resources; and (5) promoting the traditional notion of marriage.

The plaintiffs claimed that most scientific research has repudiated the commonly assumed notion that children need opposite-sex parents or biological parents to grow into well-adjusted adults. They noted that many organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, supported the conclusion that same-sex parents are as effective as heterosexual parents in raising children. For example, the official policy of the American Psychological Association declares, “There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: [Same-sex] parents are as likely as heterosexual parents to provide supportive and healthy environments for children.”

A trial court concluded the state marriage statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and ruled in favor of the plaintiffs. The case was appealed to the state supreme court.

The supreme court’s decision

The state supreme court ruled that a statute that treats persons differently will be permissible under the state constitution’s guarantees of due process and equal protection of the laws only if “substantially related to an important governmental objective.” The court considered each of the five justifications cited by the county in support of the marriage statute, and concluded that none of them was substantially related to a governmental objective. It observed, in part:

We begin with the county’s argument that the goal of the same-sex marriage ban is to ensure children will be raised only in the optimal milieu. In pursuit of this objective, the statutory exclusion of gay and lesbian people is both under-inclusive and over-inclusive. The civil marriage statute is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. Such under-inclusion tends to demonstrate that the sexual-orientation-based classification is grounded in prejudice or “overbroad generalizations about the different talents, capacities, or preferences” of gay and lesbian people, rather than having a substantial relationship to some important objective. If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people …. The ban on same-sex marriage is substantially overinclusive because not all same-sex couples choose to raise children. Yet, the marriage statute denies civil marriage to all gay and lesbian people in order to discourage the limited number of same-sex couples who desire to raise children ….

The county also proposes that government endorsement of traditional civil marriage will result in more procreation. It points out that procreation is important to the continuation of the human race, and opposite-sex couples accomplish this objective because procreation occurs naturally within this group. In contrast, the county points out, same-sex couples can procreate only through assisted reproductive techniques, and some same-sex couples may choose not to procreate. While heterosexual marriage does lead to procreation, the argument by the county fails to address the real issue in our required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation? If procreation is the true objective, then the proffered classification must work to achieve that objective …. The statute is significantly under-inclusive with respect to the objective of increasing procreation because it does not include a variety of groups that do not procreate for reasons such as age, physical disability, or choice. In other words, the classification is not substantially related to the asserted legislative purpose ….

Having examined each proffered governmental objective … we conclude the sexual-orientation-based classification under the marriage statute does not substantially further any of the objectives. While the objectives asserted may be important (and many undoubtedly are important), none are furthered in a substantial way by the exclusion of same-sex couples from civil marriage. Our equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute.

Religious institutions and clergy

Will ministers in Iowa be forced to perform marriages for same-sex couples in violation of their religious beliefs? Will churches be compelled to make their facilities available for same-sex marriages? Here is how the court responded to such concerns:

It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained-even fundamental-religious belief ….

We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. This proposition is the essence of the separation of church and state. As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more ….

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—.religious or otherwise—.by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

Application. The court’s ruling contains an unequivocal recognition of two fundamental principles: (1) no church will be required to perform a same-sex marriage, or any other marriage, that violates its religious beliefs; and (2) no minister will be required to perform a marriage in violation of his or her religious beliefs. In other words, the very concerns that are being raised by some church leaders in the aftermath of the court’s decision were anticipated and addressed by the court itself. Varnum v. Brien, 2009 WL 874044 (Iowa 2009).

Resource. For a comprehensive look at this topic, purchase the downloadable Feature Report, “What Clergy Should Know About Same-Sex Marriages,” at ChurchLawAndTaxStore.com.

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.

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Legal Developments

Determing Disability Discrimination

Most courts have concluded that they are barred by the First Amendment from resolving challenges by dismissed clergy to the legal validity of their dismissals.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Determing Disability Discrimination

Most courts have concluded that they are barred by the First Amendment from resolving challenges by dismissed clergy to the legal validity of their dismissals.

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

Key point 2-04.1. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

* A federal court in Iowa ruled that the First Amendment guarantee of religious freedom prevented it from resolving a rabbi’s claim that her dismissal violated the Americans with Disabilities Act and amounted to a breach of contract. A rabbi (“Beth”) entered into an employment contract with a Jewish congregation for a period of three years. The contract specified that it could be terminated by the congregation for gross misconduct or an ongoing inability to perform the duties described in the agreement. According to the agreement, Beth’s duties included leading religious services, serving as principal and teacher in the Hebrew school, visiting ill or confined congregants, satisfying pastoral needs of members, maintaining regular office hours, and writing newsletter articles.

Beth claimed that she suffered a physical disability related to a broken foot, which limited her ability to stand, walk, and move, and that she provided the congregation with a set of accommodations that would permit her to work. Despite her disability, she continued to perform her job duties in a manner that she believed met the congregation’s expectations.

In fact, some congregational leaders were dissatisfied with her communication with congregants, office hours, pastoral care, and religious services. The congregation gave Beth a written memorandum of concerns regarding her job performance and provided specific instructions for the timeliness of returning phone calls and number of visits to ill or confined congregants. She responded with a written memorandum, stating she had posted her office hours and made every reasonable effort to return congregants’ phone calls and messages. She also stated that the visitation requirements outlined in the memo were not reasonable, given her foot injury. A few months later, the congregation’s board of directors determined that Beth’s performance had not improved, and it voted to terminate her employment.

Beth insisted that she performed her job adequately at all times, despite her foot injury disability. She sued the congregation, claiming that its decision to terminate her violated the Americans with Disabilities Act and amounted to a breach of contract.

Americans with Disabilities Act

The Americans With Disabilities Act (ADA) prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of disability. The ADA defines a “disability” as a physical or mental impairment that substantially limits one or more major life activities. Beth claimed that her foot injury met this definition. The congregation conceded that after her injury Beth used crutches and a cane to assist her mobility.

The court noted that an analysis of Beth’s discrimination claim “quickly implicates whether the performance she was providing could meet her religious obligations. The issue is further complicated by the record of complaints regarding communication with congregants, pastoral care, religious services, and complaints … within and without the confines of the congregation. From this type of record, there understandably arises a reluctance of courts not only to avoid the ultimate entanglement but to avoid the essential inquiry.” The court cited the following cases as examples of a judicial reluctance to decide if a church’s decision to terminate a minister was discriminatory or based on legitimate performance-related concerns:

  • A federal appeals court held that a minister’s age discrimination claim was properly dismissed because “the First Amendment prohibits the government from regulating internal church decisions about the promotion of pastors, because churches have broad discretion in determining who may speak for the church.” The minister had asserted that since there was no church policy or doctrine in favor of age discrimination, there was no First Amendment implication in having a secular court decide his claim. The court concluded that it need not wade into the nuances of church policy, since as a determination of the church leader “is per se a religious matter. We cannot imagine an area of inquiry less suited to a temporal court.” Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (D.C.Cir. 1990).
  • A federal appeals court dismissed a pastor’s claims of racial and sexual discrimination in a church’s hiring process. The court found the constitutional questions mandated refrain from inquiry into clergy selection: “The right to choose ministers without government restriction underlies the well-being of religious community, for perpetuation of a church’s existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines.” The court held that any governmental attempt “to restrict a church’s free choice of its leaders thus constitutes a burden on the church’s free exercise rights.” Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).
  • A federal appeals court ruled that the First Amendment precluded civil court review of a minister’s sex discrimination claim. Calling the relationship between church and clergy the “lifeblood” of the church, the court determined that matters affecting that relationship are “of prime ecclesiastical concern” and thus outside the purview of the secular courts. McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972).
  • A federal appeals court ruled that “the overwhelming weight of precedent going back over a century” precluded it from intervening in a minister’s race discrimination, sex discrimination and retaliation claims. The court concluded that a church’s selection of its clergy is “primarily an ecclesiastical matter” that is the exclusive province of the church. The court determined that the First Amendment prohibits civil court review of church procedures regarding clergy employment decisions. Young v. Northern Illinois Conference of United Methodist Church, 21 F.3d 184 (7th Cir. 1994).
  • A minister alleged several physical and mental conditions but claimed he was able to perform his ministerial duties with slight accommodations. He sued the church pursuant to the ADA, asserting the church failed to accommodate his disability and that the failure to make reasonable accommodations forced him to resign. The court held that it could not consider such a claim, as it “clearly fits into this long recognized category of ministerial personnel decisions exempt from consideration by the civil courts,” noting that the very act of decision was protected—even the reasoning behind such a decision was outside the legitimate purview of the court. Werft v. Desert Southwest Annual Conference of the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004).

Beth insisted that judicial resolution of a minister’s disability discrimination claim is a neutral act involving no analysis of religious doctrine. The court disagreed, noting that “it is the very inquiry into those decisions that constitutes excessive entanglement with a church’s internal affairs.” The court noted that a resolution of Beth’s claim would pit her theory of disability discrimination against the congregation’s view that her termination was solely related to unsatisfactory performance of her religious duties. Resolving these competing claims would invite “improper scrutiny by the court of the congregation’s expectations as a religious institution. Any such investigation presses the civil court to become excessively entangled in internal church affairs and is prohibited by the First Amendment.” As a result, the court dismissed Beth’s disability discrimination claim.

breach of contract

The court concluded that Beth’s claim for breach of contract “similarly raises the compelling question of whether religious determinations are at issue or whether this is merely a civil contract dispute defined by the terms the congregation sought. Though the congregation’s insistence on a contract document increases the stark nature of the legal collision, the result ultimately is the same.”

Beth argued that the court should entertain her breach of contract claims because the congregation made numerous secular legal references in drafting the employment agreement, including (1) health and disability insurance, (2) the Internal Revenue Code, (3) insurance coverage by the congregation, (4) termination based upon gross misconduct, and (5) termination based on an inability to perform duties. In addition, the contract had an addendum which referred to certain statistics published by the U.S. Department of Labor regarding the calculation of Beth’s annual compensation adjustment.

The court concluded: “Had Beth brought a claim for breach of contract based on the congregation’s refusal to provide the agreed-upon insurance coverage or failure to make the annual compensation adjustment, it may well be that the court could adjudicate those claims by factual determinations that do not involve the court in internal, ecclesiastical matters. However, the congregation claims to have discharged her pursuant to misconduct and an inability to perform her duties. As the above analysis has repeatedly noted, the ability of church members to obtain clergy of their choosing is a matter of prime constitutional consideration and outside the proper inquiry of a civil court.”

Application. This case is important for two reasons. First, it extends the so-called “ministerial exception” to ministers’ claims of employer discrimination under the Americans with Disabilities Act. Second, the court concluded that the ministerial exception prohibits the civil courts from inquiring into the reason why a church dismissed a minister. The very act of deciding if a church’s decision to terminate a minister was legitimately related to job performance, or illegitimately based on discriminatory intent, would impermissibly entangle a court in a matter of “prime ecclesiastical concern.” Leavy v. Congregation Beth Shalom, 490 F.Supp.2d 1011 (N.D. Iowa 2007).

Legal Developments

Control of Church Property

An Iowa court ruled that a local church that was experiencing internal problems did not enter into an enforceable agreement to transfer governance responsibilities to a denominational agency.

Richard R. Hammar, Attorney, CPA
Bio

Key point 7-03.3. Most courts apply the "neutral principles of law" rule in resolving disputes over the ownership and control of property in "hierarchical" churches. Under this rule, the civil courts apply neutral principles of law, involving no inquiry into church doctrine, in resolving church property disputes. Generally, this means applying neutral legal principles to non-doctrinal language in any one or more of the following documents: (1) deeds to church property; (2) a church's corporate charter; (3) a state law addressing the resolution of church property disputes; (4) church bylaws; or (5) a parent denomination's bylaws.

An Iowa court ruled that a local church that was experiencing internal problems did not enter into an enforceable agreement to transfer governance responsibilities to a denominational agency. A church was founded in 1967, and became affiliated with the Evangelical Free Church of America (EFCA).

The EFCA is a national association of churches that is divided into regional districts that assist affiliated churches. By 2001, the church was suffering from internal problems and was in danger of closing. The church's congregation had dwindled to 35 members, and its pastor and three board members had resigned. The only remaining board member learned of a program in the EFCA to rescue struggling churches. The program involves transferring governance and control of church assets to a regional district of the EFCA for a period of time while the district assists the church in reorganizing and rebuilding. The board member was hopeful the same program could be implemented for his church, and so he contacted an official with the regional district for assistance.

The church had ongoing discussions with the district for several months regarding options for the church and the district's willingness to assist the church in rebuilding its congregation. These discussions culminated in a special congregational meeting at which the church members unanimously passed a resolution to "turn all governance, property and management over to the district" with the expectation that the district would be "responsible for the development of a healthy church." The resolution further provided that "as the church becomes healthy and viable again, all funds, property and governing authority will be returned to the church making it a healthy autonomous church."

The district sent a letter to the church indicating its willingness to "immediately begin the process of overseeing," governing, and managing the church's assets and property. The letter cautioned the church that "in turning over this ministry to us you are giving us full governing authority until we believe it is wise to return that authority to the local church." In response, the church conducted another meeting in which the members voted to amend the church's articles of incorporation to provide that all of the church's property would be transferred to district, but only in the event the corporation dissolved.

The church attempted to revitalize itself, and continued to conduct its own daily operations and exercise independent corporate functions. Updates on the church's progress occasionally were sent to the district.

It soon became evident that the church and district had different understandings of their relationship and different intentions regarding the future of the church. The congregation believed that the church would not close and that control of the church's property would be returned to them at some point. The district reminded the church that control of the church's property would be returned to the congregation only in the event it became a healthy church. The church held another meeting in which the members approved a resolution to "end our special relationship with the district and begin to manage our own affairs and assets."

A short time later, the district informed the church that it had determined that the church was "no longer a viable congregation and that efforts of the district to revitalize the same have failed." The district changed the locks on the church and indicated the property would be listed for sale. The church asked a court for relief, and the court issued an order prohibiting church members from having access to the church building. The court based its ruling on what it deemed an "enforceable agreement" between the church and district to transfer permanent control of the church's property to the district. The church appealed.

A state appeals court noted that the United States Supreme Court has recognized two primary methods for resolving church property disputes. The first is the "compulsory deference" rule. Under this rule, "the decision of the highest authority in a hierarchical church is conclusive on the civil courts in church property disputes." A hierarchical church exists where a local church is subordinate to the authority of a higher church tribunal or adjudicatory body. The second method is the "neutral principles approach" pursuant to which church property disputes are resolved through the use of neutral principles of law affecting ownership. The neutral principles approach promises neutrality in relying "exclusively on objective, well-established concepts of trust and property law."

The district argued that the compulsory deference approach should apply because the church's polity was converted to a hierarchical form when the church voted to transfer control of its assets to the district. The court rejected this argument, noting that the EFCA "is not a hierarchical church" but rather is "organized as an association of autonomous but interdependent congregations of like faith."

Its governing documents "reflect a congregational organization where each local church governs itself." The court found the neutral principles approach better-suited to the resolution of "the central question presented by this dispute: whether there was an enforceable agreement between the parties to transfer control of the church's property to the district."

The court noted that an enforceable agreement or contract requires an offer by one party and an acceptance of the offer by another party. It concluded that there was insufficient evidence that the district accepted the church's initial offer to transfer governance and control of the congregation. It based this conclusion on the following facts:

  1. After receiving the church's offer, the district authorized one of its officers to "further investigate and evaluate and bring a report to the district board whether we should take legal responsibility" for the church's property.
  2. A district officer informed the church that acceptance of the congregation's offer was contingent on a final vote at a district board meeting that would be conducted on a specified date. But, a final vote on the transfer did not occur at that meeting. Instead, the board noted that "details are being worked on."
  3. At one point, the church requested clarification from the district regarding their relationship due to the ambiguity of the arrangement.
  4. Church members assumed control of the church would be returned to them at some point, while the district believed it had the absolute right to control and dispose of the church's assets.
  5. The church continued to conduct its own daily operations, such as organizing church activities and services, paying bills, receiving donations, and accepting new members into the congregation, without interference from the district.
  6. The church continued to exercise independent corporate functions, such as refinancing a loan and amending its articles of incorporation. The congregation did not always request permission from the district before performing these tasks.

    7. These facts convinced the court that "although the church received assistance, control really never passed or was assumed by the district." As a result, the district did not "accept" the church's offer to transfer control of the congregation. At best, the parties "had an agreement to agree to enter into a contract with certain essential terms that were not agreed upon. An agreement to agree is not a binding contract. Therefore, the trial court erred in finding the parties had an enforceable agreement to transfer governance and control of the church to the district."

    The court granted the church's request for a permanent injunction enjoining the district from transferring and managing the assets of the church.

    What this means for churches

    The governing documents of many denominations authorize affiliated churches to transfer governance responsibilities to a denominational agency. This case demonstrates that such a transfer may be legally unenforceable without unequivocal evidence of an acceptance by the denominational agency of the transfer. Freedom Church v. Central District Conference of Evangelical Free Church of America, 2007 WL 914038 (Iowa App. 2007).

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Legal Developments

Breach of Fiduciary Duty

Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Breach of Fiduciary Duty

Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister.

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

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

* A Connecticut court ruled that a priest and archdiocese were not liable on the basis of a breach of a fiduciary duty for the priest’s sexual relationship with an adult woman since no fiduciary duty arose under the circumstances. A 40-year-old woman (the “plaintiff”) with a long history of psychiatric and emotional problems sought out the “advice, counsel and friendship” of a priest. At the time, the priest was serving as an associate priest at a local church and was also an employee of the archdiocese. The plaintiff did not engage in formal counseling with the priest; rather, their relationship involved mainly recreational activities such as home visits, lunch and dinner dates, shopping trips, walks on the beach and trips to see movies. According to the plaintiff, the priest provided her emotional, spiritual and friendly support and that her “whole relationship” with him was one of counseling. At some point during their association, the priest became aware of her emotional problems and, nevertheless, engaged in a sexual relationship with her. The plaintiff alleged that she eventually ended the sexual aspect of their relationship after which the priest terminated all involvement with her.

The plaintiff sued the priest claiming that a fiduciary duty arose by virtue of the priest-parishioner relationship, and the priest breached this duty when, despite knowledge of her emotional problems, he engaged in “a close physical and intimate relationship” with her. The plaintiff also sued the archdiocese, claiming that it breached its duty to supervise the priest. Specifically, the plaintiff alleged that the archdiocese “knew or should have known that the priest had engaged in inappropriate behavior with the plaintiff” and, as a result, the archdiocese was liable for the priest’s breach of a fiduciary duty. A trial court dismissed the claims against the priest and archdiocese, and the plaintiff appealed.

Breach of a fiduciary duty

The appeals court defined a fiduciary or confidential relationship as “a relationship that is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.” The court acknowledged that “various state and federal courts” have concluded that a clergy-parishioner relationship may constitute a fiduciary relationship, but in each of those cases “something more than a general clergy-parishioner relationship was present.” For example, “the existence of a formal pastoral counseling relationship between a clergy member and a parishioner has been deemed significant in determining whether a fiduciary relationship was created. The court summarized the following precedent:

  • Colorado. (1) Court found that a fiduciary relationship existed between a clergyman and plaintiff, in part, because the clergyman had served as counselor to plaintiff. Moses v. Diocese of Colorado, 863 P.2d 310 (Colo. 1993). (2) A fiduciary duty was created when a priest undertook to counsel plaintiffs. Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988).
  • Federal district court in Iowa. Court dismissed plaintiff’s breach of fiduciary duty claim because plaintiff simply alleged clergy-parishioner relationship, not counseling relationship. Doe v. Hartz, 52 F. Supp.2d 1027 (N.D. Iowa 1999).
  • New Jersey. The New Jersey Supreme Court concluded that a breach of fiduciary duty claim arising out of the sexual relationship between a clergyman and a parishioner who was seeking marital counseling was permissible under New Jersey law. In so doing, the court placed considerable weight on the fact that the plaintiff was engaged in a specific pastoral counseling relationship with the clergyman. According to that court, “trust and confidence are vital to the counseling relationship between parishioner and pastor. By accepting a parishioner for counseling, a pastor also accepts the responsibility of a fiduciary.” The court explained that “establishing a fiduciary duty essentially requires proof that a parishioner trusted and sought counseling from the pastor.” F.G. v. MacDonell, 696 A.2d 697 (1997).
  • Federal appeals court. A federal appeals court permitted a breach of fiduciary duty claim to proceed against a clergyman because the fiduciary duty allegedly arose out of a counseling relationship, not simply a clergy-parishioner relationship. Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir. 1998).

The court concluded that “something more” than the general clergy-parishioner relationship must be present to establish a fiduciary relationship, and it declined the plaintiff’s invitation to establish a fiduciary relationship “between all clergy and their congregants.” The court concluded that the plaintiff’s relationship with the priest in this case was not fiduciary in nature because it “was not characterized by the unique degree of trust and confidence required of a fiduciary relationship.” In particular, the court noted that the plaintiff had not alleged a formal pastoral counseling relationship between herself and the priest. Rather, she claimed that her “whole association” with the priest was one of “counseling.” The court disagreed:

The plaintiff’s interactions with the priest were largely social. She did not meet him for specific counseling appointments, but, rather, the two went on lunch and dinner dates, shopping trips, walks on the beach and trips to see movies. Also, the plaintiff has admitted that many of the conversations she considered counseling took place immediately after mass with other congregants present and that the counseling primarily involved discussions about their relationship …. While the priest may have counseled the plaintiff from time to time, as a priest may for any parishioner, he was not her counselor. Moreover … the plaintiff was well over the age of majority throughout the time of their consensual interactions. While we do not condone the defendant’s behavior, we conclude that no fiduciary relationship existed between him and the plaintiff; consequently, no fiduciary duty was breached.

Archdiocese

The court also dismissed the plaintiff’s negligent supervision claim against the archdiocese on the ground that there can be no negligent supervision if an employee does not engage in wrongful behavior. Since the priest had not breached a fiduciary duty, the archdiocese could not be liable on the basis of negligent supervision for his actions.

Application. This case is important because it is one of the most extensive discussions of the liability of ministers and churches for acts of sexual misconduct on the basis of a breach of a fiduciary duty. The court refused to find that a priest who was not involved in a counseling relationship with a church member has a fiduciary duty toward that person, and therefore the priest could not be liable on the basis of a breach of such a duty for any inappropriate sexual conduct. There may be other bases of liability, but not this one. Further, since the priest was not liable, the archdiocese could not be liable since its liability (whether on the basis of negligent hiring or supervision, or breach of a fiduciary duty) required that the priest’s acts be wrongful. Ahern v. Kappalumakkel, 903 A.2d 266 (Conn. App. 2006).

Legal Developments

Civil Liability for Failure to Report Child Abuse

Mandatory reporters who fail to report abuse can be subject to possible criminal liability and can be sued for money damages by the victims of abuse.

Richard R. Hammar, Attorney, CPA
Bio


Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A federal court in Washington ruled that a mandatory child abuse reporter’s failure to report the abuse of a minor by a church worker could result not only in criminal liability for the reporter, but also civil liability for the reporter and his employing church. A minor (the “plaintiff”) who was sexually molested by a church worker sued the church, claiming that it was liable for the worker’s acts on the basis of its failure to comply with the state child abuse reporting statute.

The church insisted that the state child abuse reporting law imposes criminal liability on mandatory reporters who fail to report abuse, but does not explicitly impose civil liability, and therefore the plaintiff could not sue the church for monetary damages in a civil lawsuit. The court conceded that courts in other states have generally refused to allow victims of child abuse to sue mandatory reporters who fail to report, but it noted that all of those rulings were in other states.

The plaintiff acknowledged that the reporting statute did not explicitly authorize civil lawsuits for failure to report, but argued that such a right could be “implied” from the statute. It pointed to a Washington Supreme Court case that articulated three factors for the courts to consider in deciding if a statute creates a civil remedy: “First, whether the plaintiff is within the class for whose benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.”

The court concluded that these factors supported a finding in this case that the state child abuse reporting law created a civil remedy in favor of abused minors and against mandatory reporters who fail to report abuse:

The plaintiff, a victim of childhood sexual abuse, certainly falls within the class of persons the statute is designed to protect. Washington courts have clearly stated that the mandatory reporting statute is designed “to secure prompt protection or treatment for the victims of child abuse ….” Second, the legislative intent behind the statute supports the creation of a civil remedy. It is true that [the statute] provides a penal remedy, but not a civil remedy. [The church] asserts that such a penal remedy indicates that the legislature did not intend to imply a civil remedy also. However, this court recognizes, just as Washington state courts have recognized, that when a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned therein …. The logical conclusion is that the legislative intent supports the creation of a civil remedy for victims of child sexual abuse when those mandated to report the abuse fail to do so. Likewise, the Court finds that implying a civil remedy is consistent with the underlying purpose of the statute. The declared intent of the statute is “to prevent further abuses, and to safeguard the general welfare of such children.” RCW 26.44.010. Implying a civil cause of action against those who are mandated to report child abuse, but fail to do so, will motivate those required to report to take action, and furthers the goals of the statute itself. Accordingly, the Court finds that there is an implied private cause of action stemming from the statutory requirement to report child abuse.

Application. Eight states (Arkansas, Colorado, Iowa, Michigan, Montana, New York, Ohio, and Rhode Island) have enacted laws that create civil liability for failure to report child abuse. In these states victims of child abuse can sue adults who failed to report the abuse. Not only are adults who fail to report abuse subject to possible criminal liability (if they are mandatory reporters), but they also can be sued for money damages by the victims of abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law.

Most state child abuse reporting laws do not specifically authorize victims of abuse to sue mandatory reporters who failed to report the abuse. Several courts have addressed the issue of whether to recognize such a civil remedy apart from any specific language in the statute creating one. Most have not. The decision of the Washington federal court reflects the minority position. As a result, mandatory reporters in Washington may be subject to both criminal and civil liability for failing to report known or reasonably suspected incidents of child abuse. Fleming v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 WL 753234 (W.D. Wash. 2006).

See a summary of the child abuse reporting laws of all 50 states.

Legal Developments

Personal Injuries on Church Property and During Church Activities – Part 5

The Iowa Supreme Court ruled that a school could be sued by the father of a ninth-grade boy who had been sent home alone on a bus after being caught smoking

Richard R. Hammar, Attorney, CPA
Bio

Key point 10-06. A church may be legally responsible on the basis of negligent selection for injuries resulting from the acts of a minister or other worker not involving sexual misconduct.
Negligence as a Basis for Liability

The Iowa Supreme Court ruled that a school could be sued by the father of a ninth-grade boy who had been sent home alone on a bus after being caught smoking a cigarette in a hotel room while on an out-of-town school band trip. It is every youth pastor's nightmare to have a minor on an out-of-town trip who flagrantly violates the rules. In some cases, minors are sent home. Such a decision may expose a church to legal risk, no matter how justified it may seem. Consider a recent case involving a public school in Iowa. The school adopted a "zero tolerance" policy concerning students' use or possession of tobacco, alcohol, and drugs. A ninth grader was caught with cigarettes while on an out-of-town school band trip in Texas, and was taken to a Greyhound bus station at midnight and placed on a bus for the trip home. The trip included stops and layovers in Dallas, Tulsa, Kansas City, Des Moines, and Iowa City. A teacher remarked that "if we hadn't acted on it, I'm afraid that we would have had other rules broken, possibly more serious rules, possibly more serious consequences."

The youngster survived the 1,100-mile journey, but his distraught father sued the school for "negligent endangerment" and other alleged wrongs. The boy's father never challenged school officials' right to punish his son for his misbehavior. He insisted, however, that in exercising its disciplinary function, the school and its employees breached a duty of due care for his son's safety and were guilty of negligent supervision. The school asserted that it had a wide latitude in disciplining students, especially while on field trips, and that its actions were a legitimate exercise of discipline. It noted that school field trips often present greater, not lesser, challenges to school officials trying to maintain order and discipline than do the relatively orderly confines of a school.


Application
. This case suggests that sending a minor home while participating on a church-sponsored out-of-town trip may expose a church to liability, no matter how dangerous or unacceptable the minor's behavior may be. Other, less restrictive, options must be considered. These would include (1) sending the child home accompanied by two adults; (2) asking the minor's parents to come and take him or her home; (3) calling the local public school administration to find out what policies they follow in similar cases. Ette v. Lin-Mar Community School District, 2002 WL 31828114 (Iowa 2002).

Posted:

Legal Developments

Confidential and Privileged Communications – Part 1

The Iowa Supreme Court ruled that a conversation that a rapist had with a minister on the day of the rape was not protected by the clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA
Bio

• Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

The Iowa Supreme Court ruled that a conversation that a rapist had with a minister on the day of the rape was not protected by the clergy-penitent privilege. A woman broke off her relationship with her live-in boy friend (the "defendant"). A few days later, the defendant appeared at the woman's residence, threatened her with a knife, and forced her to have sex. Afterwards the defendant stated, "I might as well call the police and turn myself in." He then began to talk to the woman about getting counseling. Later that day he later called a minister he had seen for counseling several months earlier. The minister, who was a part-time unlicensed marriage and family counselor, agreed to see the defendant that day. They met at the minister's church while no one else was present.

As a result of the attack, the defendant was charged with second-degree sexual abuse. At his trial, the minister was called as a witness by the prosecution and repeated what the defendant had related to him regarding the assault. The defendant was convicted, and he later appealed his conviction on the ground that the trial court erred in allowing the minister to testify about their conversation since the conversation was protected by the clergy-penitent privilege.

The supreme court ruled that the conversation between the defendant and the minister was not protected by the clergy-penitent privilege, and therefore it was proper for the minister to testify during the trial. The court observed:

Early statutory forms of the priest-penitent privilege limited the privilege to people whose faith recognized penitential communications as part of the discipline of their church. Such a restricted view no longer prevails. Many states have broadened their statutes to extend the privilege [to] "confidential communications by a person to a clergyman in his professional character as a spiritual advisor."

We have said that in order to determine whether a communication to a member of the clergy falls within the [privilege] the communication must be: (1) confidential; (2) entrusted to a person in his or her professional capacity; and (3) necessary and proper for the discharge of the function of the person's office. The state does not contest that the first element, confidentiality, has been met, but argues that [the defendant's] statements to [the minister] were not made in [the minister's] professional capacity as a minister, therefore there was no privilege. We agree there is a glaring hole in [the defendant's] claim that he directed his remarks to [the minister] in the latter's capacity as a minister. The record strongly supports the trial court's finding that [the defendant] did not consult [the minister] in his priestly capacity. [The defendant] himself concedes that it was not for any spiritual reason but for advice on his relationship with [his former girl friend]. [T]he minister testified he was under the same impression. The claim of priest-penitent privilege thus fails.

The court cautioned that its ruling in this case "should not be understood as an abandonment of a properly invoked claim of the priest-penitent privilege. It is highly risky for prosecutors to bolster a case by resorting to evidence that is subject to such a claim."

The court also rejected the defendant's claim that his conversation with the minister was protected from disclosure by a "counselor-client" privilege. The court noted that "we take a limited view on who qualifies as a counselor under the state counselor-client privilege, and are not anxious to expand on the category in the absence of legislative mandate. [The minister] did not offer his services as a certified professional."


Application.
 This case is unfortunate, for it constitutes a far too narrow interpretation of the clergy-penitent privilege. The court concluded that the defendant's conversation with the minister was not privileged since the defendant had met with the minister for advice concerning his relationship with his former girl friend, and not "spiritual" advice. This is a completely unwarranted conclusion. After all, many of the confidential counseling sessions that ministers have with church members concern personal relationships. Yet, according to this case, such encounters are not for "spiritual" reasons and accordingly are not privileged.

Here is an important tip for ministers in Iowa (it applies to ministers in other states as well). Whenever you are counseling with a person about any matter that a civil court might later construe as "non-spiritual," ask the counselee during the counseling session if he or she has sought you out in your professional capacity as a spiritual adviser. If the answer is yes, as it almost always will be, then you will be able to inform a court at a later time of this important information if you are asked to testify about the conversation. This will make it much more likely that a civil court will consider the conversation to be privileged. State v. Richmond, 590 N.W.2d 33 (Iowa 1999). The Clergy-Penitent Privilege

Legal Developments

Recent Developments in Iowa Regarding Constitutions, Bylaws, and Charters

The Iowa Supreme Court suggested that it was barred by the first amendment guaranty of religious freedom from resolving a dispute involving the interpretation of church bylaws, but it refused to dismiss the case on procedural ground.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-07-01

Constitutions, Bylaws, and Charters

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

• Key point. The civil courts are barred by the first amendment guaranty of religious freedom from resolving internal church disputes involving the meaning of church bylaws.

The Iowa Supreme Court suggested that it was barred by the first amendment guaranty of religious freedom from resolving a dispute involving the interpretation of church bylaws, but it refused to dismiss the case on procedural ground. Can the civil courts resolve an internal church dispute in which one group of members claims that the church’s leadership has violated the church bylaws? That was the issue addressed by the Iowa Supreme Court in a recent ruling. A group of church members filed a lawsuit, claiming that the pastor and other members had violated the church bylaws in the following ways: (1) Placed plaintiffs and other members on probation as punishment for unspecified misdeeds when no such procedure or status exists; (2) terminated longtime members of the congregation without reason or cause without authority under the articles and bylaws; (3) removed duly elected members from boards and committees for asking questions or suggesting ideas; (4) severed its affiliation with the United Church of Christ in an illegal manner and by improper procedures; (5) allowed the minister and his wife to take money from the church treasury and funds for their own personal and private use; (6) appointed members to leadership positions illegally; (7) refused to honor a proper request for a meeting of the congregation called for the purpose of exploring the relationship of the church and its minister; (8) cut off the right of appeal to the congregation by refusing to post minutes of board meetings over a period of years; (9) punished members who asked questions of the minister by terminating them from membership in the church and ousting them from positions of leadership; (10) punished members of the church who merely nominated other members to serve on boards or committees in accordance with the articles and bylaws; (11) leased church property to private individuals in violation of the articles and bylaws; (12) disposed of property belonging to the church to private individuals in violation of the articles and bylaws; (13) eliminated church committees illegally; (14) held illegal meetings of the congregation; (15) failed to follow the articles and bylaws in connection with the actions of the nominating committee; (16) participated in a “palace coup” resulting in their obtaining the recently remodeled church building and a trust fund of $300,000; (17) violated church spending limits; and (18) participated in a decision to allow the pastor to engage in “double dipping” of expense money in order to avoid the payment of income tax.

To be sure, these were serious allegations, and if true, represented substantial violations of the church bylaws. The pastor’s attorney filed a motion to dismiss the case, arguing that the first amendment guaranty of religious freedom prevents the civil courts from resolving such disputes. The trial court agreed, and dismissed the lawsuit. The disgruntled members appealed. The Iowa Supreme Court began its ruling by noting that “civil courts are precluded by the first amendment from deciding doctrinal issues,” including “membership in a church organization or church discipline.” It observed:

[O]rdinarily the courts have no jurisdiction over, and no concern with, purely ecclesiastical questions and controversies, including membership in a church organization, but they do have jurisdiction as to civil, contract, and property rights which are involved in or arise from a church controversy.

As a result, the court concluded that “it is clear that at least much of the controversy indicated by the pleadings would-if appropriately attacked-be deemed impervious to court intervention.” However, the court pointed out that the pastor’s attorney had filed a motion to dismiss the case with the trial court, which was granted. On appeal, the validity of such a motion is determined solely on the basis of the wording of the pleadings and “can be sustained only if the petition shows on its face no right of recovery under any stated facts.” The court concluded that “we cannot say, looking only to the face of the petition, that no recovery is possible under any allegation.”

Application. What is the relevance of this case to church leaders? It illustrates two important points:

(1) The court acknowledged that this dispute, involving allegations that the pastor violated the church’s bylaws, was an internal church dispute beyond the jurisdiction of the civil courts.

(2) The case illustrates a very important procedural point. When defending against a meritless lawsuit, an attorney has a number of options, including a motion to dismiss and a motion for summary judgment. Often, attorneys will file a motion to dismiss with the trial court. But, as this case illustrates, such a motion may be much more difficult to defend on appeal, since an appeals court will evaluate such a motion solely on the basis of the matters contained in the pleadings. The court cannot look to the merits of the case, or consider any other evidence, since such a motion asserts that the plaintiff’s petition cites no viable cause of action. As a result, it is common for such motions to be reversed on appeal, even if the underlying case has no merit. On the other hand, a motion for summary judgment attacks not the pleadings, but the merits of the case. On appeal, the party who won the motion can defend it by demonstrating the weakness of the other side’s case. Such motions are far more likely to be affirmed on appeal.

In conclusion, if your church is engaged in a civil lawsuit, you may want to share this case with your attorney. Sometimes, attorneys will opt for a motion to dismiss, which will result in a quicker disposition of the case. This often proves to be a hollow victory, however, when the motion is reversed on appeal. The result is that the case goes back to the trial court for disposition, which requires additional time and expense. Holmstrom v. Sir, 590 N.W.2d 538 (Iowa 1999). [Corporations]

© Copyright 1999 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m47 m16 c0499

Legal Developments

Recent Developments in Iowa Regarding Sexual Misconduct by Clergy and Church Workers

A federal court in Iowa ruled that a woman who had been seduced by a priest could not sue her church and diocese for violating the federal Violence Against Women Act.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1999-03-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Churches are subject to a new theory of liability for the sexual misconduct of clergy who engage in counseling-they may be liable for such misconduct under the federal Violence Against Women Act if the offending minister’s behavior constitutes a felony under state law.

A federal court in Iowa ruled that a woman who had been seduced by a priest could not sue her church and diocese for violating the federal Violence Against Women Act. An adult female claimed that when she arrived at church one evening to participate in the choir during evening mass she was sexually assaulted by her priest. In particular, the woman alleged that the priest “came up behind her, grabbed her with both of his hands and pulled her back into his body, held her tightly and kissed her neck.” Later that same evening he allegedly “rubbed [her] back up and down with his hand” while she was “standing and talking with other parishioners.” As a result, the woman claimed she suffered severe emotional trauma. The woman later sued the priest, her church, and diocese, on the basis of a number of theories. The first count of her lawsuit asserted that the priest’s actions amounted to a violation of the federal Violence Against Women Act (VAWA). VAWA, which was enacted by Congress in 1994, declares that all persons “have the right to be free from crimes of violence motivated by gender.” It further specifies that a person who commits a “crime of violence” motivated by gender “shall be liable to the party injured” for both compensatory and punitive damages. VAMA defines a “crime of violence” as an act or series of acts that would constitute a felony. The woman claimed that the priest’s behavior would constitute a felony under a state law making it a crime for a pastoral counselor to engage in sexual contacts with a counselee. The Iowa statute in question prohibits “[s]exual exploitation by a counselor or therapist.” Iowa Code § 709.15.1.f. A “counselor or therapist” is defined to include members 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.” Mental health service is defined as “the treatment, assessment, or counseling of another person for a cognitive, behavioral, emotional, mental, or social dysfunction.” The woman alleged that the priest “served as a counselor to [her].” A federal district court in Iowa ruled in favor of the woman, and also found that the church and diocese were liable for the priest’s behavior on the basis of negligent supervision.

A federal appeals court reversed the lower court decision, for the following reasons:

No Counseling Relationship

The appeals court concluded that the woman failed to prove that the priest was her “counselor or therapist” within the meaning of the Iowa statute. It noted that nothing in the woman’s lawsuit claims that she received “mental health services” from the priest. Yet, the receipt of such services was essential in order for the priest to meet the statute’s definition of a “counselor or therapist”. The court pointed out that the woman’s lawsuit contained no allegations suggesting that she received services for any sort of dysfunction. Nor did it allege that she was receiving such services from the priest at the time of his alleged sexual advances. Since the woman failed to establish a violation of the Iowa statute, she could not maintain her claim under VAWA. The court noted that the statute requires that the sexual conduct occur either during the time at which the patient is emotionally dependent, or within one year after the termination of the mental health services. As a result, if the priest had counseled the woman within one year of the date of the alleged assault, then he may have violated the statute and the woman could pursue her VAWA claim. However, she failed to allege that she had counseled with him during the year preceding the alleged assault.

No Felony

For the priest’s actions to violate VAWA, those actions would have to be a “crime of violence” amounting to a felony under state law. The court concluded that this requirement was not met. Under the Iowa statute, a “pattern or practice or scheme of conduct” to engage in any sexual conduct with a patient or client is a felony. Sexual conduct with a patient or client that is not part of a pattern, practice, or scheme is an aggravated misdemeanor. The court concluded that “we believe the Iowa Supreme Court would hold that the two instances of sexual conduct alleged in the complaint, which happened on the same day and within about an hour of each other, do not constitute a pattern, practice, or scheme of conduct within the meaning of [the statute]. Therefore, even accepting [the woman’s] allegations, the most serious violation [the priest] allegedly committed under state law is an aggravated misdemeanor.”

While the court dismissed the woman’s lawsuit, it did acknowledge that she was free to pursue her negligent supervision claims in state court.

One judge dissented from the court’s opinion. He was of the opinion that the woman had demonstrated a “pattern or practice or scheme of conduct” by the priest to engage in any sexual conduct. He noted that the same priest had made sexual advances on another woman, had been professionally evaluated because of sexual advances on other people in other communities, and had been accused of fondling a young girl in the church’s school.

Application. This case illustrates a new basis of liability for churches. In those states in which sexual misconduct by a minister with a counselee is a felony, a church may be liable (for both compensatory and punitive damages) for its minister’s acts of sexual misconduct with a counselee on the basis of the federal Violence Against Women Act. Ministers who engage in counseling activities are subject to criminal liability in many states for engaging in sexual contact with a counselee, and so the importance of this case to church leaders is clear. However, as this court noted, this basis of liability is subject to important limitations. Most importantly, the acts of the minister must constitute a felony under state law. As a result, the requirements of applicable state statutes must be reviewed to determine a church’s potential liability under the Violence Against Women Act. In many states, this will be a new basis of liability. Doe v. Hartz, 134 F.3d 1339 (8th Cir. 1998). [Seduction of Counselees and Church Members]

© Copyright 1999 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m40 m86 c0299

Posted:

Legal Developments

Priest Sued for Failure to Report Child Abuse

Court rules that man is not legally responsible for damages.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-03-01

Child Abuse

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

• Key point. Persons who are mandatory reporters of child abuse under state law may be civilly liable for an abused child’s injuries if they fail to report known or reasonably suspected abuse.

A New York court ruled that a teacher could be sued by a child who was molested by an uncle because she failed to report the abuse to civil authorities. An 8—year—old girl lived with her parents in New York. She began spending portions of her summer vacation at the home of her aunt and uncle in New Jersey. When the girl was 12 years old, she told two of her girlfriends that she had been sexually abused by her uncle when staying at his home during two previous summers. Encouraged by her girlfriends to tell an adult about the abuse, the victim decided to tell her sixth grade teacher because she felt she could trust her. The girlfriends interrupted the teacher’s class and asked the teacher to speak with the victim in the hallway. The victim, who was crying uncontrollably, and her friends then told the teacher of the abuse. The teacher told the victim there was “nothing she could do” because the uncle was in New Jersey. The victim pleaded with her teacher not to tell her mother, who also taught at the school. The teacher made no report of the abuse, and the victim continued to visit her aunt and uncle in New Jersey. A year later, she told a school guidance counselor about the sexual conduct of her uncle. The guidance counselor told the victim’s mother and a report was filed. The victim’s parents sued the school, seeking to recover damages for the psychological and emotional trauma the daughter suffered after she informed her teacher of the abuse because of the teacher’s failure to report it. A trial court dismissed the lawsuit, and the parents appealed.

A state appeals court ruled that the parents could sue the school as a result of the teacher’s failure to report the abuse. The court noted that teachers are mandatory reporters of child abuse under state law. The school insisted that the teacher was not required to report the abuse since the incidents in question did not constitute child abuse under the statute. The school asserted that the statute requires that the child be abused by a parent or other person “legally responsible” for his or her care, and that because the victim was not continuously or regularly in the same household as the uncle he could not be a “person legally responsible” for her care and therefore the teacher had no duty to report the abuse. The court rejected this reasoning. It agreed that under New York law child abuse is defined to include only those acts of abuse that are committed by a parent or other person responsible for a child’s care. But it pointed out that the statute defines “person responsible for a child’s care” to include “any other person responsible for the child’s care at the relevant time.” The court concluded that the uncle clearly satisfied this definition since the victim visited with her uncle in New Jersey on a regular basis during school holidays and vacations and her parents were not with her on those occasions. Further, the teacher was aware of these trips, and so she had sufficient information to conclude that reportable abuse had occurred.

Most importantly, the court concluded that the school could be sued by the victim’s parents for the molestation that occurred following the teacher’s failure to report: “We conclude that a mandated reporter is obligated to report suspected cases of child sexual abuse based upon facts and circumstances within the knowledge of the reporter at the time the abuse is suspected and may be held liable for a breach of that duty even though it might ultimately be determined that the abuse was not committed or allowed to have been committed by a person legally responsible for the child.” In other words, the school’s civil liability would not be affected by the fact that the uncle was not found guilty of child abuse. As long as reasonable suspicion of reportable abuse existed, and a mandatory reporter failed to report it, civil liability arises.

The court agreed with the school that there was no “common law duty” to report the abuse. It noted that schools are “under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries [directly] related to the absence of adequate supervision.” However, in this case the acts of abuse “did not occur while [the child] was in the custody and control of school officials.” Rather, the acts of abuse “occurred in another state during school vacations” and were “well beyond the supervisory responsibility of the school.” As a result, the school had no “common law duty” to report the abuse to anyone.

It is very important for church leaders to be familiar with this case for the following reasons: First, and most significantly, the court ruled that a school could be legally responsible for the molestation of a child occurring after a teacher learns of the abuse or has reasonable suspicion that it occurred. In other words, there is a significant risk if a mandatory reporter fails to report child abuse. This is an important point for church leaders to keep in mind when evaluating whether or not to report suspected abuse. In New York, and in a number of other states (as noted in previous issues of this newsletter), mandatory reporters and their employer may be civilly liable for failing to report abuse. Second, the court gave a broad interpretation to the term “person responsible for a child’s care.” In many states, reportable child abuse must be inflicted by a parent or person responsible for a child’s care. According to this court, this definition includes a relative who a child visits on a periodic basis. Third, the court rejected the parents’ claim that the teacher had a “common law duty” to report the abuse. This is a significant conclusion since it means that school personnel who are not mandatory reporters of abuse are under no “common law duty” to report. This conclusion will be helpful to persons who are not mandatory reporters of abuse but who are sued for failing to report on the basis of a “common law duty.” Kimberly S.M. v. Bradford Central School, 649 N.Y.S.2d 588 (A.D. 1966). [Failure to Report Child Abuse]

© 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: m10 c0297

Legal Developments

Unsigned Wills

What happens when an unsigned will is found after the writer’s death?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-09-01 Recent Developments

Wills, Trusts, and Estates

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

• Key point: An unsigned copy of a will leaving an entire estate to a church may be admitted to probate if the original cannot be found and the church can overcome the presumption that the deceased revoked the will prior to death.

• What happens when a church member dies and an unsigned will is found leaving his entire estate to two churches? Do the churches have any right to the estate, or must it pass to surviving relatives? That was the issue addressed by an Iowa court in a recent case. A church member executed wills in 1959, 1973, 1974, 1983, and 1986. His final will, in 1986, left his entire estate to two churches with which he had been associated throughout his life. Following his death in 1990, the only will that could be found was an unsigned copy of the 1986 will in his safety deposit box. The church member was not survived by his wife, and he had no children. Various nephews and nieces claimed that the unsigned will could not be admitted to probate, and that the entire estate should pass to them. The court acknowledged that when only an unsigned will is found a presumption arises that the deceased revoked the will prior to death. However, it pointed out that this presumption can be overcome by clear and convincing evidence that the deceased did not destroy the will with an intent to revoke it. The court concluded that two churches produced sufficient evidence to rebut the presumption that the will had been revoked. This evidence included the following: (1) the deceased told several people in the years preceding his death that he did not like his relatives and they would not receive any portion of his estate; (2) the deceased had little if any contact over the years with any of his relatives; (3) the deceased had close and meaningful associations with the two churches (he and his wife had been married in one, and they attended both for many years); (4) in none of the deceased’s prior wills did he leave any portion of his estate to his relatives; (5) there was no direct evidence that the deceased in fact destroyed his original 1986 will or ever expressed a desire to revoke it; and (6) the deceased never spoke to his attorney about revoking the 1986 will. The court also noted that if the deceased had revoked his 1986 will he either would have destroyed the unsigned copy or not left it with his other valuables in a safety deposit box. Matter of Estate of Wiarda, 508 N.W.2d 740 (Iowa 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: m80 0594

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Legal Developments

Report Requirement for Homeschool Students Constitutional

Iowa law upheld.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1993-11-01 Recent Developments

Schools

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

• Key point: Parents who choose to educate their children at home on the basis of their religious beliefs may be required to comply with reporting requirements under state law.

• The Iowa Supreme Court ruled that a state law requiring parents who “homeschool” their children to submit annual reports to the state did not violate the constitutional guaranty of religious freedom. A couple educated their children (ages 8 and 10) at home on the basis of their religious beliefs. They failed to file an annual report required by Iowa law for all parents who educate their children at home. The required report asks parents to provide several items of information including an outline of the course of study to be pursued, the texts to be used, and the name and address of the instructor. The parents refused to submit this report, and they were prosecuted and convicted for failing to do so. They defended themselves on appeal by arguing that compliance with the reporting law would impede the free exercise of their religious beliefs. The state supreme court disagreed in a unanimous decision. It concluded that the state has a right to set minimum educational standards for all children, and that this right authorizes the state to require parents who educate their children at home to comply with reporting requirements designed to ensure that minimum education standards are being met. The court concluded that the parents’ constitutional right to freely exercise their religion is subordinate to the state’s authority to establish and enforce minimum education standards. It observed: “The state has a clear right to set minimum educational standards for all its children and a corresponding responsibility to see to it that those standards are honored. When such standards are set in place, compliance with them falls within the ambit of the fundamental contract between the citizens and society …. We see no alternative to reasonable reporting requirements if the state does not choose to abdicate responsibility to see that these standards are honored.” State v. Rivera, 497 N.W.2d 878 (Iowa 1993).

See Also: “Homeschools”

© Copyright 1993, 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: m65 m47 c0693

Legal Developments

Sexual Misconduct of Counselors

The Iowa legislature passed a law regarding this matter.

Richard R. Hammar, Attorney, CPA
Bio

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.”]

See Also: Seduction of Counselees and Church Members

© 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: m29 m37 c0492

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