Federal Court Notes Limits and Protections of Psychotherapist-Patient Privilege and Clergy-Penitent Privilege

Church Law and Tax Report Federal Court Notes Limits and Protections of Psychotherapist-Patient Privilege and

State: Rhode Island
Categories: Confidential and Privileged Communications

Church Law and Tax Report

Federal Court Notes Limits and Protections of Psychotherapist-Patient Privilege and Clergy-Penitent Privilege

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 3-08.06. Federal courts generally apply state clergy-penitent privilege statutes.

Key point 3-08.08. Clergy who are mandatory reporters of child abuse are excused from a duty to report in many states if they learn of the abuse in the course of a conversation covered by the clergy-penitent privilege. Some state child abuse reporting laws do not contain this exception.

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 district court in Rhode Island ruled that the psychotherapist-patient privilege did not apply to counseling records maintained by a counselor with a doctorate in counseling since he was not a state-licensed psychotherapist, but that the clergy-penitent privilege did apply since the counselor also was an ordained minister who provided spiritual counsel. A federal prosecutor in a criminal prosecution for child abuse attempted to subpoena the counseling records of the defendant’s counselor for presentation to a grand jury. The defendant sought to quash the subpoena on the ground that the counselor’s records were protected against disclosure by the psychotherapist-patient and clergy-penitent privileges.

Psychotherapist-patient privilege

The government acknowledged the existence of a psychotherapist-patient privilege, “which undoubtedly applies to confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment.” But the government claimed that this privilege did not apply in this case because the counselor was not a licensed psychotherapist. Rather, his credentials included a Ph.D. in Christian Counseling from the American Christian College and Seminary, a Doctorate of Ministry in Christian Counseling from Patriot University, a Master’s in Theological Studies and a Master’s in Christian Ministry, both from the International School of Theology, and a Bachelor’s in Business Administration from Texas Christian University. He is a Board Certified Professional Counselor with the American Psychotherapy Association and an ordained minister, although he was not engaged in pastoral ministry. The government insisted that although the counselor “had amassed substantial credentials in the field of counseling, he has chosen not to pursue licensing by the state.”

The defendant, on the other hand, argued for use of a “reasonable belief” test, asserting via that the counselor “was known to me as a licensed professional counselor and psychotherapist who also conducted Christian counseling.” He further contended that he considered the information he divulged to the counselor to be personal and confidential absent his signing of a release.

According to the court, the issue was “whether the defendant has established he is entitled to the privilege, because it is not limited to licensed psychotherapists, as to include [his counselor] or because the privilege extends to persons who the patient reasonably believed were licensed.”

The court conceded that “there is no consensus among federal courts that have been faced with this issue.” But it concluded that the psychotherapist-patient privilege only applies to psychotherapists licensed by the state. It reasoned that

the licensing requirement establishes a bright line for the boundaries of the privilege so that both professional and patient may be clear about the confidentiality of their communications. Moreover, the … overriding public good justifying the privilege is promoting the mental health of the citizenry [and] licensure provides a minimum, if rough, measure of assurance that the privilege is implicated only when the patient communicates with one who, by satisfying the requirements for licensure, has demonstrated some threshold level of ability to assist the patient in improving her mental health … . The court hereby … concludes that there is indeed a bright-line rule requiring licensing of the psychotherapist and in the absence of licensing of [the defendant’s counselor] the court declines to extend the privilege to his records.

“Clergy-communicant” privilege

The defendant insisted that the “clergy-communicant privilege” applied to his communications with the counselor based on his knowledge that the counselor was an ordained minister and that he had sought spiritual counseling from him.

The court concluded that the defendant established that “he conveyed information to the counselor for purposes of spiritual advisement,” and was willing “to extend the clerical privilege to the counselor in light of his ordination and the fact that his practice is devoted to Christian counseling and spiritual advisement.” The court noted that the counselor was an ordained minister “and performs baptisms, marriages, and engages in Christian counseling.” During their counseling sessions, the counselor prayed with the defendant, which was his normal practice in counseling patients. In addition, there was no dispute that both the counselor and defendant believed that what the defendant said to the counselor was confidential. As a result, the court concluded that the counselor’s notes of his counseling sessions with the defendant were protected from disclosure to the grand jury by the clergy-communicant privilege.

The government argued that members of the clergy are mandatory reporters under the Oklahoma child abuse reporting law, and this negated the defendant’s claim that the counselor’s notes were protected from disclosure by the clergy-communicant privilege. But the court concluded that the fact that the counselor was a mandatory reporter of alleged child abuse did not preclude application of the clergy-communicant privilege. It pointed out that the counselor chose not to report the alleged abuse to the state Department of Human Services as required by statute in cases involving reasonable belief that child abuse had occurred. The court noted that the counselor and his attorney concluded that he did not have sufficient evidence triggering a duty to report. Furthermore, “any such reporting would not eliminate the privilege with regard to statements made by defendant to the counselor that were not directly relevant to any allegations of child abuse.” As a result, “certain of the statements gleaned from the counselor’s records that the government contends would not be subject to the privilege would remain privileged even if the counselor had complied” with the child abuse reporting law.

What This Means For Churches:

This case is important because of the court’s conclusion that state child abuse reporting laws designating clergy as mandatory reporters, and eliminating the clergy-communicant privilege as a bar to reporting, do not necessarily eliminate the privilege in contexts other than the reporting of child abuse. To illustrate, if a state’s child abuse reporting law designates clergy as mandatory reporters of child abuse, and specifies that the clergy-communicant privilege does not excuse ministers from the reporting obligation, this does not necessarily preclude the privilege with respect to the content of communications a minister has outside the context of child abuse. United States v. Durham, 93 F.Supp.3d 1291 (W.D. Okla. 2015).

Legal Developments

Churches May Have Some Exemptions Without Violating Nonestablishment Clause

Church Law and Tax Report Churches May Have Some Exemptions Without Violating Nonestablishment Clause Key

State: Rhode Island
Categories: Church Property

Church Law and Tax Report

Churches May Have Some Exemptions Without Violating Nonestablishment Clause

Key point 7-09. A nuisance is any use of property that results in significant annoyance or discomfort to neighboring landowners. Some church activities may constitute a nuisance. The courts will weigh the annoyance and discomfort to neighboring landowners with the church’s constitutional right to exercise its religion. In some cases the courts may order a church to limit the activity causing the nuisance, or eliminate it entirely.

A federal district court in Rhode Island ruled that a city’s sound ordinance that exempted church bells did not violate the nonestablishment of religion clause of the First Amendment. A homeowner (the “plaintiff”) claimed that the excessive clapping, gonging, tolling, pealing, ringing, and chiming of the bells of two neighboring churches profoundly disturbed his right to the quiet enjoyment of his home, effectively forcing on him a “call to worship” that he does not want to hear. The plaintiff sued the city, claiming that its noise ordinance’s exemption of church bells violated his constitutional rights and constituted a public nuisance.

In 1995, a man (the plaintiff), his wife, and four children moved into an older home in the seaside Town of Narragansett, Rhode Island, located three blocks from the shores of Narragansett Bay. Because of the cooling effect of the Bay breezes, the home has never been air-conditioned. The family’s home was a block away from two churches, both of which had bell towers housing at least one bell. However, at that time, the bell in “Church A’s” belfry was inoperable and silent, while “Church B’s” bell was unamplified.

In 2001, Church A repaired and upgraded its bell, adding electronic amplification, a motor, a timer and a clapper. Church B also added electronic amplification. Since then, the bells of Church A chime four times on Saturday and Sunday, three times on Monday through Friday, in addition to marking weddings, funerals, and other special occasions. At 6 p.m. daily, the bells of Church A ring out a call to pray “the Christian prayer and devotion, the ‘Angelus.’ Meanwhile, the bells of Church B mark the hours during daylight. The plaintiff has measured the intensity level of the chiming, gonging, clapping, pealing, and pounding of these bells and alleges that it has approached 100 decibels.

The plaintiff claimed that the impact of this accumulation of sound has been catastrophic: despite no air-conditioning, he is forced to keep the storm windows closed and to wear earplugs, his marriage has collapsed, and he has been alienated from his children. Fearful of the impact of the amplified sound, he refrains from inviting his infant grandchildren to his home. Further, as someone who professes no religion, he alleges that he is deeply troubled by being forced to hear a call to worship in which he is not interested; he perceives that the amplified bells are forcing him to listen to proselytizing from which he cannot escape even in the privacy of his home.

The Town of Narragansett has had a noise ordinance that is designed to “promote an environment free from excessive noise without unduly prohibiting, limiting, or otherwise regulating the function of certain noise-producing equipment which is not amenable to such controls and yet is essential to the quality of life in the community.” The ordinance contains several exemptions, including “devices used in conjunction with places of religious worship” along with various secular bell exemptions.

The plaintiff sued the city of Narragansett, claiming its noise ordinance violated the nonestablishment of religion clause of the First Amendment. The court noted that the most common test for evaluating the constitutionality of a government practice challenged under the nonestablishment of religion clause was announced by the United States Supreme Court in a 1971 ruling, Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the so-called Lemon test, a government law or regulation must satisfy three criteria to survive a challenge under the First Amendment’s nonestablishment of religion clause: It must (1) reflect a clearly secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) avoid excessive government entanglement with religion. The court concluded that each of these three conditions was met, and therefore the noise ordinance did not violate the First Amendment:

First, the noise ordinance’s “expressly stated purpose is purely secular—it regulates decibels, blind to the content of the affected speech, to protect town residents from noise disturbances while permitting noises that are essential to the quality of life.” The court noted that the noise ordinance exempted “performances by the ringing of bells in a tower,” a purely secular exemption “unrelated to religion since it applied equally to bells in a school, university, governmental building, factory, in short anywhere, and represent the secular determination of the town council that bells are a positive contributor to the quality of life in Narragansett and should not be subject to restrictions on sound.” The court concluded, “Mindful of the history and tradition of bell-ringing in Rhode Island and New England, I find that the noise ordinance reflects a clearly secular purpose.”

Second, the court concluded that the noise ordinance’s primary effect was not the advancement of religion. It acknowledged that the ordinance may benefit places of worship that have bells, but noted that “the nature of the benefit is secular and totally unrelated to whatever content the churches might choose to inject. Moreover … allowing people with religious faith to advance their religions is not what is meant by ‘establishment of religion.'” The court noted that Church B used it bells solely to toll time—an activity devoid of religious significance.

Third, the court concluded that the noise ordinance created no excessive entanglement between church and state.

The court referred to prior rulings by the Supreme Court concluding that two “religious” practices (legislative chaplains and opening city council meetings with prayer) survived establishment clause challenges on the basis of their long-standing status dating back to the founding of the nation and its Constitution. For example, the very Congress that adopted the First Amendment itself opened sessions with prayer and approved the employment of chaplains. The appeals court summarized the historical significance of bell ringing:

In New England, at the time of the founding of the nation, “eighteenth-century Americans inhabited a world in which bells sounded frequently, in different ways, and for a variety of purposes,” quoting Lubken, Joyful Ringing, Solemn Tolling: Methods and Meanings of Early American Tower Bells, 69 Wm. & Mary Q. 823, 823 (2012). For example, “tolling bells rang in Providence, Rhode Island, on March 2, 1775, when the Sons of Liberty consigned East India tea to the flames of a bonfire. Most communities used ringing to mark the passage of time, to open markets, to summon churchgoers to religious services and civic leaders to meetings, and to call inhabitants to mutual assistance in moments of danger. Ringing was also the method used for veneration and celebration: to observe the king’s (and later the president’s) birthday, to honor the arrival of important figures, to mark significant dates such as Christmas Eve and the anniversary of the thwarted Gunpowder Plot, and to respond to news of military and political victories.” As one historian put it, “bells and other devices—some seldom thought of as sonic instruments—did more than ring out to the heavens; they rang in the state.” Rath, How Early America Sounded 50 (2003). “New England towns used instrumental sounds to order their worlds. Bells were important from the very beginning of Puritan New England.” Id. Since the seventeenth century, they have become deeply embedded in both the New England and the national tradition. Narragansett’s decision to exempt performing and signaling bells—both secular and sectarian—reflects this historic legacy … .

Accordingly, this court must “acknowledge a practice that was accepted by the Framers [of the Constitution] and has withstood the critical scrutiny of time and political change.” (quoting the Supreme Court’s decision in Town of Greece, 134 S.Ct. at 1819)

The court noted that the United States Supreme Court “has long recognized a zone of permissible accommodation of religion within which governments may, and sometimes must, exempt religious practice from regulation without running afoul of the Establishment Clause” (citing Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987)). It then added:

To the extent that they have considered the question, courts have concluded that an exemption to a noise ordinance for church bells and chimes, even when allegedly content-based because linked to religious services, is a legitimate accommodation to religious belief. Such an exemption is not an impermissible establishment of religion under the First Amendment because church bells are a common part of the background noise of a city, a “traditional and generally unobtrusive aspect of a tranquil environment,” and have become “part of the fabric of our society … a tolerable acknowledgment of beliefs widely held among the people of this country.”

What This Means For Churches:

This case represents the most thorough analysis of the constitutional status of city noise ordinances that exempt specified religious and secular uses of bells from regulation. To the extent that such ordinances are neutral in scope, and do not accord religious organizations special favor that is denied secular organizations, there is no constitutional violation. Devaney v. Kilmartin, 88 F.Supp.3d 34 (D.R.I. 2015).

Legal Developments

The Clergy-Penitent Privilege: Acting as a Spiritual Advisor

Court rules protection does not apply to statements made to a former minister acting as a psychiatrist.

Richard R. Hammar, Attorney, CPA

Bio

State: Rhode Island

Church Law & Tax Report

The Clergy-Penitent Privilege: Acting as a Spiritual Advisor

Court rules protection does not apply to statements made to a former minister acting as a psychiatrist.

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

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 Rhode Island Supreme Court ruled that the clergy-penitent privilege did not apply to conversations between a pastor and a criminal defendant who was charged with child molestation, and therefore the pastor could testify at the defendant’s criminal trial regarding the conversations. A man was charged with sexually molesting his stepdaughter over the course of two years. The victim told no one of the abuse while it was occurring because the defendant told her “not to tell anybody. It was our secret.” However, the pastor at the church that the victim’s family attended began to notice that the victim was “manifesting some real angry behavior.” She asked the child why she was so angry, and eventually the child revealed that the defendant had sexually abused her. The pastor informed the defendant of the victim’s accusations and, at first, he denied that anything improper had occurred between them. Eventually, however, he acknowledged that on one occasion the victim had approached him while he was sleeping on the couch and reached into his underwear. When he realized what was happening, he scolded the victim. The pastor referred the defendant to a psychiatrist for counseling. The psychiatrist was also a pastor. Before becoming a psychiatrist, he had served as a pastor for 20 years. The pastor often referred persons to him for counseling because “he’s a Christian psychiatrist and former pastor and very good in that. He works with people with addictive problems, sexual abuse, and the whole bit.” The psychiatrist described his meeting with the defendant as a “consult … to see if there was any interest in getting into therapy for the alleged problem.” At the defendant’s trial, the psychiatrist testified about his conversations with the defendant.

A jury convicted the defendant of three counts of first-degree sexual assault and three counts of first-degree child molestation. He was sentenced to concurrent terms of 40 years on each count. The defendant appealed on several grounds. One of his arguments was that the psychiatrist should not have been allowed to testify because their conversations were protected by the clergy-penitent privilege. The court disagreed. The Rhode Island clergy-penitent privilege provided:

In the trial of every cause, both civil and criminal, no clergyman or priest shall be competent to testify concerning any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs, without the consent of the person making the confession. No duly ordained minister of the gospel, priest or rabbi of any denomination shall be allowed in giving testimony to disclose any confidential communication, properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office in the usual course of practice or discipline, without the consent of the person making such communication.

The court concluded that the clergy-penitent privilege did not apply to the communications between the defendant and the psychiatrist because the latter was not acting in the capacity of a pastor:

[The psychiatrist] undeniably was a pastor, but any information he received from the defendant was not properly entrusted to him in that capacity, nor was it “necessary and proper to enable him to discharge the functions of his office in the usual course of practice or discipline.” Simply because one communicates with a clergyman does not mean that every communication is properly entrusted to the individual in that capacity. There is no indication that the meeting, which the psychiatrist described as a “consult … to see if there was any interest in their getting into therapy for the alleged problem,” was conducted with him in his capacity as a pastor …. Indeed [the defendant] was referred to him because he possessed a greater level of expertise in therapeutic counseling than she could provide. Therefore [we] believe that the psychiatrist was not acting in his professional capacity as a pastor during his communications with the defendant, and thus the privilege did not apply to these discussions. Brown v. State, 964 A.2d 516 (R.I. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2009.

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

State: Arkansas
Categories: Child Abuse, Child Abuse Reporting

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

Recent Developments in the Rhode Island Regarding Sexual Misconduct by Clergy and Church Workers

A federal court in Rhode Island ruled that the first amendment did not prevent it from resolving a lawsuit brought by victims of clergy sexual misconduct against church officials.

Richard R. Hammar, Attorney, CPA

Bio

State: Rhode Island

Church Law and Tax1999-03-01

Sexual Misconduct by Clergy and Church Workers

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

• Key point. Several courts have concluded that churches and denominational agencies cannot be legally responsible for a minister’s sexual misconduct, since allowing such organizations to be sued for failing to exercise sufficient care in the selection, training, or supervision of ministers would violate the first amendment guaranty of religious freedom. A minority of courts have ruled that the first amendment does not prevent churches from being sued in such cases.

A federal court in Rhode Island ruled that the first amendment did not prevent it from resolving a lawsuit brought by victims of clergy sexual misconduct against church officials. Three adult males sued diocesan officials for injuries they allegedly sustained when they were molested by two priests in the 1970s and 1980s. The victims claimed that prior to the acts of molestation, the diocese knew that the priests were pedophiles and not only failed to take appropriate preventative action, but also actively concealed the priests’ sexual misconduct. The diocese claimed that the first amendment prevented the civil courts from resolving these claims.

Freedom of Religion

The court conceded that an internal church dispute cannot be resolved by a civil court if resolution of the dispute would require the court to interpret religious doctrine or ecclesiastical law. But the court rejected the proposition that a secular court lacks jurisdiction over a case simply because it “calls into question the conduct of someone who is a church official.” The court concluded that this dispute was not an internal church matter:

What is alleged is that church officials conducted themselves in a manner that allowed several minors to be sexually abused. The dispute is not one between factions within the church or between the church and its clergy or employees. Rather, it is a dispute between church officials and third persons who allege that they were seriously injured by the negligence of the church officials. Such a dispute hardly can be characterized as a dispute involving an internal church matter. Nor does this dispute turn on interpretations of religious doctrine or ecclesiastical law. Determining whether the hierarchy defendants negligently failed to take appropriate preventative action is a matter governed by tort law. Making that determination will not require the Court to resolve any “controversies over religious doctrine and practice.” In short, the so-called “religious autonomy doctrine” does not divest the court of jurisdiction over this case, at least insofar as the plaintiffs’ core claims are concerned.

The court rejected the diocese’s argument that the first amendment guaranty of religious freedom prevents the civil courts from imposing liability on religious organizations for failing to properly screen or supervise clergy:

[T]here is no indication that the reasonably prudent person standard established by tort law and the requirements of Roman Catholic doctrine are incompatible. The [diocese does] not claim that the Roman Catholic Church either condones or tolerates sexual abuse of children. On the contrary, they have made it clear that the Catholic Church considers such conduct to be opprobrious. . . . Briefly stated, there is no indication that, by taking the kind of preventative action required by tort law, the [diocese] would have violated any “doctrine, practice or law” of the Roman Catholic Church. In the absence of such a conflict, subjecting the [diocese] to potential tort liability does not violate [its] right to the free exercise of religion.

Neutral Laws of General Application

The court noted that the Supreme Court ruled in 1990 that neutral laws of general application do not violate the first amendment simply because they have the incidental effect of burdening a particular religious practice. Smith v. Employment Division, 494 U.S. 872 (1990). The court concluded that “in this case, there is no question that the principles of tort law, at issue, are both neutral and generally applicable. It is not even alleged that they are directed at or were designed to suppress the religious practices of the Roman Catholic Church or that they selectively burden religiously-inspired conduct. On the contrary, it is clear that these principles have evolved without regard to the practices of any religion and that they are uniformly applicable whether the conduct in question is religiously inspired or not. Consequently, judging the [diocese’s] liability in accordance with these principles does not violate their free exercise rights.”

Excessive Entanglement

The court conceded that excessive entanglement between church and state is prohibited by the first amendment’s nonestablishment of religion clause. The court acknowledged that this standard might be violated by addressing a “breach of fiduciary duty” claim, but not necessarily in addressing negligence claims:

Here, adjudication of, at least, the negligent supervision claim does not require any interpretation of religious doctrine. A determination with respect to whether the [diocese] exercised reasonable care in supervising the priests subject to [its] authority can be made solely in accordance with well established tort law principles. Unlike some breach of fiduciary duty claims, there is no need to interpret church doctrine in order to establish the nature of the duty owed to the plaintiffs. Consequently, it is unlikely that exercising jurisdiction over this case will result in any “excessive entanglement” between church and state.

Application. In recent years, many courts have refused to allow victims of clergy sexual misconduct to sue their church on the ground that it was negligent in the selection or supervision of the offending minister. Such courts have concluded that any resolution of these claims would violate the first amendment. This case demonstrates that this conclusion is not universal, and that in some states churches continue to face a risk of being sued for negligently selecting or supervising clergy who engage in sexual misconduct. Smith v. O’Connell, 986 F.Supp. 73 (D.R.I. 1997). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

© 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 m47 m40 c0299

Legal Developments

Prosecution of Child Molesters

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

Richard R. Hammar, Attorney, CPA

Bio

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

Church Law and Tax 1997-11-01

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

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

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

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

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

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

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

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

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

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 c0697

Legal Developments

Church Exemption from Unemployment Tax

Churches are exempt from unemployment taxes in most states.

Richard R. Hammar, Attorney, CPA

Bio

State: Rhode Island

Key point. Churches are exempt from unemployment tax in most states.

A federal court in Rhode Island ruled that the exemption of churches from unemployment tax did not violate the first amendment's nonestablishment of religion clause.

The Salvation Army dismissed an employee for budgetary reasons. The employee applied for unemployment benefits, and was informed that she was not eligible since her former employer was a religious organization that was exempt from unemployment tax. The employee filed a lawsuit claiming that the exemption of religious organizations from the unemployment law violated the first amendment. A federal court disagreed in an important decision that reaffirms the historic exemption of churches from unemployment taxes.

Background

Congress enacted the Federal Unemployment Tax Act (FUTA) in 1935 in response to the widespread unemployment that accompanied the great depression. The Act called for a cooperative federal—state program of benefits to unemployed workers. It is financed by a federal excise tax on wages paid by employers in covered employment. An employer, however, is allowed a credit for "contributions" paid to a state fund established under a federally approved state unemployment compensation law. All fifty states have employment security laws implementing the federal mandatory minimum standards of coverage. States are free to expand their coverage beyond the federal minimum.

Prior to 1970 the Act exempted most nonprofit organizations, including churches, from coverage. This meant that charities were exempt from paying both federal and state unemployment taxes. A 1970 amendment narrowed this broad exemption of nonprofit organizations by conditioning federal approval of state compensation plans on the coverage of all nonprofit organizations except those specifically exempted. The Act was then amended to exempt service performed in the employ of (1) a church or convention or association of churches, or (2) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.

Rhode Island law exempts from unemployment tax service performed for the same religious organizations exempted under the federal law quoted above. The employee who had been dismissed by the Salvation Army claimed that the exemption of churches was unconstitutional since it singled them out for preferential treatment.

The court's decision

The court applied the United States Supreme Court's so—called Lemon test in determining whether the exemption of churches from the Rhode Island unemployment law constituted an impermissible establishment of religion. Under this test, first announced in a 1971 decision (Lemon v. Kurtzman) , a law challenged as an establishment of religion will be valid only if it satisfies the following three conditions-a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement between church and state. The court concluded that all of these tests were met. First, the Rhode Island law had a "clearly secular purpose" which the court described as

the facilitation of the administration of the federal and state unemployment benefits programs by excluding employees who are typically not fully active or permanent members of the stable workforce. The [elimination of the exemption of some nonprofit organizations] does not reflect … an increasing government interest in the promotion of religion. Instead [this reflects] government's recognition of the increasing role that certain nonprofit organizations have in our society as a whole and more specifically in providing members of the stable workforce. Thus, absolutely no sectarian purpose is evinced by these statutes. Any religious benefit that results as a consequence off this secular purpose is purely incidental.

Next, the court concluded that the Rhode Island unemployment law's exemption of churches and certain other charities had a "primary effect" that did not advance religion. The court observed: "It can hardly be said that the government's actions (i.e., unemployment tax exemptions) advance religion. No reasonable person is likely to form a religious belief based in any part on the fact that the organization does not have to pay unemployment tax …. Additionally … the statutes in question provide exemptions to nonreligious groups and services as well. Thus the primary effect of the statutes is not to advance religion." The court pointed out that the exemption of churches actually might be a disadvantage rather than a benefit, since it may discourage persons from wanting to work for them.

Finally, the court concluded that the Rhode Island unemployment law's exemption of churches did not create an excessive entanglement with religion. Quite to the contrary, "rather than promoting entanglement with religion the [law] fosters the separation of church and state that the first amendment requires." Because of the exemption of churches the federal government and state government need not continuously monitor and audit exempt religious organizations to ensure compliance with [the law].

In fact, the Supreme Court addressed this very issue [in 1970], stating that the primary effect of a tax exemption was not to sponsor religious activity but to "restrict the fiscal relationship between church and state" and to "complement and reinforce the desired separation insulating each from the other."

What this means for churches

This case will be a helpful precedent in other states if the exemption of churches from unemployment law is challenged. Unfortunately, the Oregon Supreme Court has ruled that the exemption of churches from the Oregon unemployment law is unconstitutional. Also note that unemployment law and workers compensation are often confused. Churches are exempt from unemployment taxes in most states, but they are covered by workers compensation in many states. Workers compensation is a state program that provides benefits to workers who are injured (or become ill) in the course of their employment. Rojas v. Fitch, 928 F. Supp. 155 (D.R.I. 1996).

Legal Developments

Woman Killed Crossing Street to Attend Mass

Court rules that church had no duty to control traffic.

Richard R. Hammar, Attorney, CPA

Bio

State: Rhode Island
Categories: Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1994-07-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• Key point: A church is not necessarily responsible for injuries occurring to members who are struck by vehicles when crossing a street to access a parking lot.

• The Rhode Island Supreme Court ruled that a church was not responsible for the death of a parishioner who was killed when she was struck by a vehicle while crossing a street to enter a parking lot. Three adult members of a Catholic church drove to the church to attend midnight mass on Christmas Eve. As was the practice of many parishioners, they parked their car in a small parking lot across the street from the church. The parking lot was owned by a neighboring commercial establishment, but church members were allowed to use the parking lot during church services by common consent. The parking lot was separated from the church by a public street. After mass ended, the three members left the church and proceeded to cross the street to reach their car in the parking lot. While in a crosswalk they were struck by a vehicle driven by a drunk driver. One of the members was killed, and another received severe and permanent injuries. On prior occasions the church had asked the city police to provide a traffic officer to control traffic after church services. The police occasionally provided officers in response to the church’s requests if any were available. At no time did the church have a contract with the police to provide traffic officers. No representative of the church had asked the police to provide a traffic officer on the night of the accident. A lawsuit was brought against the church by the injured member and the estate of the member who was killed (the “plaintiffs”). The plaintiffs claimed that the church was responsible for the accident on the basis of the following factors:

The church owed members a duty to control traffic on the street in question because it knew that a large number of parishioners crossed the street to reach a parking lot. The plaintiffs stressed that the church did not have adequate parking facilities available on its property.
The church voluntarily assumed a duty to patrol traffic by its past conduct of occasionally contacting the police and requesting the assignment of traffic officers.

A trial court dismissed the lawsuit against the church, and the plaintiffs appealed. The Rhode Island Supreme Court upheld the trial court’s dismissal of the lawsuit. The court noted that “the generally accepted rule” is that a landowner has no duty to protect another from intentional or criminal acts of third parties that occur on a public street or highway. This rule is based on 3 considerations: (1) a landowner has no right or ability to control public streets since they are neither owned nor possessed by the landowner; (2) the landowner has no control over the third party who commits the intentional or criminal act; and (3) the protection of the general public “is a duty allocated to the government.” The court observed:

[T]he duty to control traffic has traditionally rested squarely with the government. Historically the control of traffic flow on public ways has been a function carried on by the government in discharge of its obligation for the public health, safety, and welfare …. This factor weighs heavily against the imposition of a duty on an abutting landowner to control traffic. [Further], the church had no control over the property on which the injury occurred. The facts clearly establish that plaintiffs’ injuries occurred not on the church’s premises but on [a public street]. Because one may not control land owned or possessed by another, the church had no right of control over [the street] which is a public way …. This factor also weighs against imposing a duty on an abutting landowner ….

The fact that a landowner may request public traffic control on a public street does not vest in that landowner the personal right or obligation to control such a public way. Consequently, the church’s request for public traffic control would not confer on the church any authority or obligation to control a public highway ….

Traffic control is inherently and traditionally a governmental function and not a burden to be placed upon the private citizenry. Having no duty itself to control traffic, neither would the church have a duty to contact the police and request the stationing of a traffic officer [on the street in question].

In rejecting the plaintiffs’ claim that the church had a duty to control traffic on the adjoining street because it provide in adequate on-site parking for its parishioners, the court observed: “Neither the lack of adequate parking nor the foreseeability that many parishioners would park in the nearby lot requiring them to cross [the street] warrants the imposition of a duty to control traffic on a public highway.” The court also rejected the plaintiffs’ claim that the church assumed a duty to control traffic on the adjoining street by previously requesting the police to provide traffic control officers on a number of occasions:

[W]hether or not the church had followed a practice of requesting aid from the police, however sporadically or frequently, no such duty could be assumed by an abutting landowner …. [A]n abutting landowner, such as a theater, a department store, a restaurant, or any other entity that may from time to time attract large numbers of patrons may have a significant interest in the condition of traffic on abutting highways. However, this interest cannot be transformed into a duty of control by a landowner’s requests to municipal or other governmental authorities to perform duties that are wholly governmental in nature.”

This decision, while limited to the state of Rhode Island, will be useful precedent to churches in other states that own (or utilize) parking lots across public streets. Ferreria v. Strack, 636 A.2d 682 (R.I. 1994).

See Also: Premises Liability – Defenses

© 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: m58 m86 c0494

Legal Developments

Unemployment Taxes

Church Law and Tax 1990-01-01 Recent Developments Unemployment Taxes Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Rhode Island

Church Law and Tax 1990-01-01 Recent Developments

Unemployment Taxes

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

• The Rhode Island Supreme Court ruled that a state law denying unemployment benefits to employees discharged for “proved misconduct” did not apply to an employee of a Catholic parochial school who was dismissed for marrying “outside the Catholic church” contrary to school policy. The court agreed that “every employer has a right, to some extent, to govern its employees through the establishment of performance standards and rules of conduct the violation of which may be grounds for dismissal.” However, “even though it is the employer who determines whether the violation of such a rule is grounds for dismissal, whether such a violation amounts to [proved misconduct for purposes of unemployment benefits] is another matter. Therefore, even though the employee’s marriage gave [the school] grounds to dismiss her from her teaching position … that fact would not necessarily disqualify her form receiving unemployment compensation benefits.” The court concluded that the “employee’s marriage … did not, in our opinion, constitute the type of misconduct contemplated by [the unemployment compensation law].” Unfortunately, the court chose not to explain its conclusion. St. Pius X Parish Corporation v. Murray, 557 A.2d 1214 (R.I. 1989).

See Freedom of religion, Frazee v. Illinois Department of Employment Security, 109 S. Ct. 1514 (1989).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m76 m43 c0190

Legal Developments

Schools

Church Law and Tax 1988-09-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Schools

Church Law and Tax 1988-09-01 Recent Developments

Schools

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

• Private schools may be eligible to seek a deferral until May 9, 1989 of the October 12, 1988 deadline for submitting an asbestos management plan to their state government. Deferrals will only be granted if several conditions are satisfied. First, a school must submit an application for deferral to the appropriate state office. Second, the application must explain why, despite good faith efforts, the school will not be able to meet the original October 12, 1988 deadline for submitting an asbestos management plan. Third, the application must indicate that one of the following documents is available for inspection at the school: (1) a solicitation by the school to contract with an accredited asbestos contractor for inspection or management plan development; (2) a letter certifying that school district personnel are enrolled in an EPA-approved training course for inspection and management plan development; or (3) documentation showing that suspected asbestos-containing material from the school is being analyzed at an accredited laboratory. Fourth, the application must indicate that the school has notified affected parent, teacher, and employee organizations of its intent to file for a deferral. Fifth, the application must contain a proposed schedule outlining the activities that will lead up to the submission of a management plan by May 9, 1989, including inspection of the school. This schedule must contain a deadline of no later than December 22, 1988 for entering into a contract with an accredited inspector (unless inspections are to be performed by accredited school personnel). Schools in the states of Connecticut, Illinois, New Jersey, and Rhode Island have slightly different requirements, since these states independently sought waivers of the October 12, 1988 deadline. Schools in these states must also submit an application for deferral, but their applications need only contain the following assurances: (1) their state requested a waiver from EPA prior to June 1, 1988, and (2) the school has notified affected parent, teachers, and employees groups about its intention to apply for a deferral. Other conditions apply. For more specific information regarding deferral requests, and a listing of the state agencies in each state to which deferral requests should be submitted, contact the EPA at 1-202-554-1404.

© Copyright 1988, 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 c0588

Legal Developments

Internal Revenue Service

Administration

Richard R. Hammar, Attorney, CPA

Bio

State: Alaska

• Your chances of being audited by the IRS are highest (2.61%) in Nevada and lowest (0.47%) in Rhode Island, according to recently released IRS data. The five states with the highest audit risk are Nevada, Alaska, Utah, Wyoming, and California. The five states with the lowest risk are Rhode Island, Kentucky, Indiana, Massachusetts, and New Hampshire. The national average in 1986 was 1.1%, down from 2.3% in 1975. The IRS plans to audit 1.23% of all individual income tax returns in 1987, and 1.32% in 1988.