Counseling and Clergy Malpractice

Most courts have rejected clergy malpractice as a basis for liability in all cases.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Clergy - Removal, Clergy Malpractice, Counseling

Church Law & Tax Report

Counseling and Clergy Malpractice

Most courts have rejected clergy malpractice as a basis for liability in all cases.

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

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “non-religious” counseling.

* A Utah court ruled that a counselee’s lawsuit against a pastoral counselor had to be dismissed on the ground that it was in essence a claim of “clergy malpractice” that the civil courts could not resolve without violating the First Amendment. An adult male church member alleged that during a pastoral counseling session a pastor breached his fiduciary duty and intentionally inflicted emotional distress on him. The member sued the church, and a trial court dismissed the lawsuit. A state appeals court affirmed the dismissal. The appeals court noted that the state supreme court previously ruled that claims for clergy malpractice or similar claims are not recognized in Utah since recognition of such claims “would require an unconstitutional evaluation of religious philosophy and teachings, contrary to the First Amendment’s non-establishment of religion clause.” The state supreme court also noted that, regardless of the title of a claim, it “will not survive constitutional scrutiny if an adjudication of the claim would foster an excessive governmental entanglement with religion in violation of the First Amendment.” The appeals court concluded that “when a claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice or would otherwise require excessive entanglement with religion, the claim is barred.”

The court noted that “the plaintiff’s claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice. He asserts that [the pastor] breached a duty owed as part of his role as a cleric—essentially the same elements as clergy malpractice. Even if not identical to a clergy malpractice claim, the claim would require the same excessive entanglement in evaluating standards and duties in a religious setting, and would thus lead to the same violation of the First Amendment. Accordingly, the trial court correctly dismissed the plaintiff’s claim for breach of fiduciary duty.”

The court also rejected the plaintiff’s claim that the pastor intentionally inflicted emotional distress. It noted that such a claim requires proof of conduct that “may reasonably be regarded as extreme and outrageous,” and concluded that “there is nothing so shocking in [the pastor’s] conduct that evokes outrage or revulsion, or shows that the conduct was extreme.” Lowery v. Cook. 2007 WL 772782 (Utah App. 2007)

Legal Developments

Child Abuse Reporting

A Utah court ruled that a national church was not liable for the molestation of two minors by a local church leader.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
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 Utah court ruled that a national church was not liable for the molestation of two minors by a local church leader despite the fact that it had received reports for more than 30 years concerning the leader's acts of child abuse, and had failed to report these allegations to civil authorities as required by the state child abuse reporting law.

For many years, a man (George) was a lay leader in a local church and also served as a scout leader in a Boy Scout troop hosted by the church. Over the course of nearly 30 years the denomination with which the church was affiliated (the "national church") received numerous complaints from members that George was sexually abusing children, though none of these complaints alleged that the abuse was occurring on church property or in the course of church activities. Two of George's victims were Jane and John. In 1976, George enticed Jane, who was then 13 years old, into his home where he molested her. He sexually abused John (Jane's son) between 1993 and 1996 when John was 5 or 6 years old.

In 2001 Jane learned of news reports that led her to believe that the national church had prior knowledge of George's propensities to sexually abuse children. Her investigation of these reports prompted her to sue George on the basis of his molestation of both herself and her son, and the national church on the basis of negligence, breach of fiduciary duty, and emotional distress. Jane alleged that the national church did nothing in response to the numerous complaints it had received over the course of nearly 40 years concerning George, and actively concealed his sexual abuse from its members and secular authorities. Moreover, the national church allowed George to continue to serve as scout leader.

A trial court dismissed all claims against the national church on the ground that no special relationship existed between it and the victims, and therefore it had no duty to protect them from George. The victims appealed.

duty to warn

Did the national church have a legal duty, as Jane insisted, to warn her and her brother about George's prior acts of child sexual abuse? The court noted that the traditional rule is that no one has a legal duty to warn others of impending harm, unless a "special relationship" exists with either the potentially dangerous person or a victim. It rejected Jane's contention that such a relationship existed between the national church and George. It pointed out that a special relationship generally applies only to a person or entity having "custody and control" over another, since under these circumstances it should be expected that the person or entity exerting the custody and control would warn others of potential dangers. But, such a relationship simply did not exist between the national church and George. The court noted that George was not an employee of the national church, he was not a minister, and none of the acts of abuse occurred on church property or during a church activity or in connection with George's role as a scout leader.

The court conceded that the national church had the authority to remove George as a lay leader in his church, and to excommunicate him, but these facts alone were "insufficient to establish that the national church had custody and control over him. As a result, the court concluded that no special relationship existed between the national church and George that would give rise to a duty on the part of the national church to warn Jane and her son about George. The court concluded, "Because the national church did not have custody or control over George, the plaintiffs' claim that it had thirty years of notice that he was uniquely dangerous is irrelevant. Although his history certainly suggests that it was foreseeable that he would sexually abuse other minor church members, the state supreme court has emphasized that foreseeability of harm, by itself, is unrelated to whether a special relationship exists."

The court also rejected Jane's argument that a special relationship existed between the national church and herself and her son that gave rise to a duty to warn since they were church members at risk of harm by a suspected child molester. Once again, the court pointed out that a special relationship would only arise if the national church exercised custody and control over Jane and her son when they were molested. The court concluded that "if a church lacks custody, it has no protective obligation and no special relationship exists."

The court acknowledged that the national church's president wielded considerable authority and had "the power to greatly minimize the harm George was causing." However, the court noted that "the ease with which a party may fulfill a duty is irrelevant to whether a special relationship exists because that question assumes a party already has a duty." The court concluded, "The sexual abuse in this case was unconnected to the national church and did not occur while plaintiffs were in the national church's custody. Accordingly, we also reject plaintiffs' argument that church membership alone was sufficient to establish a special relationship between the national church and plaintiffs that created a duty on the national church's part to warn plaintiffs about George."

failure to report child abuse

Jane and her son claimed that national church officers who were apprised over the course of 30 years of George's acts of child abuse had a legal duty to report the abuse to civil authorities pursuant to the state child abuse reporting law, and that their failure to do so allowed many children, including themselves, to be molested. They claimed that the national church should be liable on this basis for George's acts of molestation. The court disagreed. It conceded that Utah law provides for criminal sanctions for failing to report suspected child sexual abuse. However, "when a statute makes certain acts unlawful and provides criminal penalties for such acts, but does not specifically provide for a private right of action, we generally will not create such a private right of action." In other words, the child abuse reporting law did not contain a provision allowing molested children to sue mandatory reporters who failed to report prior abuse committed by the person who molested them, and any such basis of civil liability would have to be created by the legislature rather than the courts.

Application . This case is important for the following reasons. First, the court refused to impose a "duty to warn" upon a denominational agency despite reports stretching back more than 30 years that a church member holding a position of leadership in an affiliated church had repeatedly molested children. A duty to warn, the court concluded, only arises when a "special relationship" exists, and such a relationship did not exist between the national church and either the offender or the victims. This conclusion will be surprising if not shocking to some, and it certainly should not be viewed as a model for others to emulate. Courts in other states may well not agree with this conclusion. And, even if they do, church leaders should realize that while they may not have a legal duty to warn potential victims absent a special relationship, they may have an ethical duty to do so. Also, note that even under this court's reasoning a special relationship will arise between a national church and its clergy, and in any case involving custody or control over a perpetrator or victim (e.g., minors at a church-operated camp).

Second, the court refused to hold the national church liable for the molestation of the plaintiffs on the basis of its failure to comply with its child abuse reporting obligation under state law. The plaintiffs claimed that if church officials had complied with their duty to report the numerous allegations of child abuse concerning George, then he would have been apprehended and would never have been able to molest them. This is a compelling argument, but it was rejected by the court on the ground that "when a statute makes certain acts unlawful and provides criminal penalties for such acts, but does not specifically provide for a private right of action, we generally will not create such a private right of action." Note, however, that some state child abuse reporting laws have specifically created a private right of action which allows victims to sue mandatory reporters for failing to report abuse. See a summary of the child abuse reporting laws for all 50 states. Doe v. The Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 98 P.3d 429 (Utah App. 2004).

Legal Developments

Child Abuse

The Utah Supreme Court ruled that a pastor could not be sued by a victim of child molestation for advising her to forgive the offender.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah

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.

The Utah Supreme Court ruled that a pastor could not be sued by a victim of child molestation for advising her to forgive the offender and forget the incident rather than reporting it to the police.

Beginning in 1986, a 7-year-old girl (Leah) was sexually abused by a 14-year-old boy (Drew). At the time the abuse occurred, Leah and Drew were members of the same church. The sexual abuse was so extreme that Leah repressed the memory of the abuse until 1992, when she was 14. Upon recalling these incidents, Leah and her parents sought counseling from their minister. During these counseling sessions, the minister advised Leah to "forgive, forget, and seek atonement." At some point in the process of the counseling, Leah determined that she needed additional help and was referred by the minister to a counselor. While this counselor held himself out as a professional counselor, he was not licensed. The counselor encouraged Leah and her parents to forgive Drew and forget the incidents of sexual abuse rather than to inform the police. Leah and her parents were not comfortable with this advice, and they sought out another counselor who immediately reported the incidents of sexual abuse to the police. After the abuse was reported to the police, Leah alleged that she was "ostracized and denigrated" by the members of her church, causing her to withdraw.

Leah and her parents sued the minister and church, alleging (1) clergy malpractice; (2) gross negligence; (3) infliction of emotional distress; (4) breach of fiduciary duty; and (5) fraud. The church asserted that a resolution of the lawsuit would create an excessive governmental entanglement with religion in violation of the first amendment because it would require the court to impose a secular duty of care on pastoral counselors. Leah claimed that all of her claims could be resolved by the court without any inquiry into the church's doctrines, practices, or beliefs and therefore they were not barred by the first amendment. The trial court agreed with the church and dismissed all of Leah's claims. It concluded that Leah was asking the court to impose a secular duty of care on pastoral counselors in the performance of their spiritual counseling duties in violation of the first amendment guarantees of religious freedom and nonestablishment of religion. Leah appealed this ruling to a state appeals court.

The appeals court began its opinion by noting that "it is well settled that civil tort claims against clerics that require the courts to review and interpret church law, policies, or practices in the determination of the claims are barred by the first amendment under the entanglement doctrine" and that churches must have "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." The court noted that this principle has caused the courts to "uniformly reject" claims of clergy malpractice since "a determination of such claims would necessarily entangle the courts in the examination of religious doctrine, practice, or church polity."

Leah insisted that the court could resolve her other claims, including negligence, infliction of emotional distress, and breach of fiduciary duty. The court disagreed. It observed,

An examination of Leah's complaint reveals that each of her … claims alleges that while counseling with Leah in the context of an ecclesiastical counseling relationship, the [minister] breached a duty owed to Leah by advising her to "forgive, forget, and seek atonement" or by advising her to seek outside help from … an unlicensed therapist. Accordingly, like her clergy malpractice claim … the essence of [the other claims] is that the [minister] mishandled the pastoral counseling relationship by giving bad advice-claims necessarily directed at the … performance of ecclesiastical counseling duties. Therefore, despite Leah's characterization of [these other claims] as gross negligence, negligent infliction of emotional distress, and breach of fiduciary duty, we must deal with the real issue here-clergy malpractice …. Because [these claims] allege that the [minister] generally mishandled his ecclesiastical counseling duties, a determination of the claims, like the clergy malpractice claim … could not be made without first ascertaining whether the [minister] performed within the level of expertise expected of a similar professional, i.e., a reasonably prudent bishop, priest, rabbi, minister, or other cleric in this state. Indeed, malpractice is a theory of tort that would involve the courts in a determination of whether the cleric in a particular case … breached the duty to act with that degree of skill and knowledge normally possessed by members of that profession. Defining such a duty would necessarily require a court to express the standard of care to be followed by other reasonable clerics in the performance of their ecclesiastical counseling duties, which, by its very nature, would embroil the courts in establishing the training, skill, and standards applicable for members of the clergy in this state in a diversity of religions professing widely varying beliefs. This is as impossible as it is unconstitutional; to do so would foster an excessive government entanglement with religion in violation of the [first amendment's "nonestablishment of religion" clause]. Accordingly, we conclude that the trial court correctly determined that Leah's claims against the [minister and church] are barred by the first amendment.

Leah also claimed that the minister had committed fraud by falsely representing that the first counselor she was referred to "had a Ph.D. in counseling or psychology or was a licensed psychiatrist." In rejecting this claim, the court simply noted that the counselor in fact did have a doctorate degree in counseling and therefore the minister did not make a false representation.

Application. What is the significance of this case to other churches and ministers? Consider the following points:

1. Civil liability. Pastors often receive information about child abuse during counseling. In some cases, like this one, the victim discloses the abuse. In other cases, the offender confesses, or a third party with knowledge of the abuse discloses it. According to this court, a pastor who urges a victim to forgive the offender and forget the matter, and does not report it to the civil authorities, cannot be sued for malpractice, emotional distress, or negligence since such claims are barred by the first amendment.

2. Criminal liability. In Utah, as in about half the states, pastors are mandatory reporters of child abuse. As such, they can be criminally liable for not reporting known or reasonably suspected incidents of abuse. Pastors who are mandatory reporters should recognize that a decision not to report an incident of child abuse may result in criminal liability. However, in some states pastors who are mandatory reporters are excused from the duty to report child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Utah is such a state. Therefore, the pastor in this case could not have been criminally prosecuted if he learned of the abuse in the course of a privileged communication. It is important for ministers to be familiar with the child abuse reporting law in their own state. See a summary of the child abuse reporting laws of all 50 states.

3. Referrals. Pastors often refer church members to mental health professionals for counseling. This case suggests that pastors are not liable for the advice given by these counselors. However, the case also suggests that pastors who refer members to a mental health professional for further counseling who they represent is "licensed" or "has a Ph.D. in counseling" may be liable for fraud if such representations are false. It is therefore prudent for pastors to refrain from making these kinds of statements about a counselor without verifying their accuracy. Franco v. The Church of Jesus Christ of Latter Day Saints, 2001 WL 228354 (Utah 2001).

Legal Developments

Boy Scouts of America Sued for Scoutmaster’s Negligence

Court rules that organization is not responsible for man’s activities.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Personal Injuries on Church Property or During Church Activities

Church Law and Tax 1997-05-01

Personal Injuries-on Church Property or During Church Activities

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

• Key point. National churches cannot be responsible for injuries occurring in the course of a local church’s activities unless it has the authority to control those activities.

The Utah Supreme Court ruled that the local and national offices of the Boy Scouts of America were not legally responsible for a scoutmaster’s negligence. A boy scout troop conducted its weekly meetings in a church. One evening, following a scout meeting, the scoutmaster’s 13-year-old son asked if he could drive home. The scoutmaster agreed, and sat in the front passenger seat while his son drove the car. As the car left the parking lot, three scouts on roller blades grabbed onto the back of the car. The scoutmaster shouted to the boys to let go, but they just laughed at him. He then instructed his son to “drive slowly.” About one block from the church, one of the boys fell when he tried to move from the back to the side of the car. The rear right tire of the car rolled over his head. The victim’s parents later sued the local and national BSA offices, claiming that they were responsible for the scoutmaster’s negligence in allowing his son to drive the car. The parents relied on the following evidence:

(1) an application for volunteers to become scoutmasters or hold other leadership positions which is submitted to the hosting church as well as the local and national BSA offices

(2) an application for boys to join the boy scouts in which the BSA represents that the boy “is joining more than four million members of the BSA,” that “major departures from BSA methods and policies” by community sponsors “are not permitted,” and that “[l]eadership is restricted to qualified adults”

(3) activity permit and health record forms prepared by BSA for use by local troops to use

(4) portions of BSA publications directing scoutmasters to wear specific uniforms and BSA patches

(5) portions of BSA handbooks and guides for scoutmasters prohibiting certain dangerous activities and specify certain rules for transporting scouts

(6) local and national BSA insurance policies covering scoutmasters

(7) an application for permission to raise funds that a troop would submit to its local council

(8) portions of the scoutmaster’s deposition indicating that he received some scoutmaster training from the local BSA organization

The court concluded that this evidence failed to demonstrate sufficient “control” over the scoutmaster by either the local or national BSA offices, and so the case had to be dismissed. It observed:

[The materials submitted by the parents] confirm that the day and time of troop meetings are set by the troop committee and that the community sponsor, through the troop committee, “is responsible for leadership, the troop meeting place, and related materials for troop activities.” Even though the materials suggest that “a good troop meeting” usually includes certain general activities, such as opening and closing ceremonies, skills development activities, and games or contests, they also make clear that the scoutmaster is responsible for planning the specific content of individual troop meetings. Accordingly, we conclude that the BSA’s broad suggestions and guidelines are insufficient as a matter of law to demonstrate the BSA’s or the [local] Council’s right to control the day-to-day operation of regular troop meetings.

The court then proceeded to address separately the following issues:

Training of scoutmasters. The court concluded that whatever training activities the scoutmaster received from the local or national offices was “insufficient to establish the BSA’s or the Council’s right to control [his] activities at regular troop meetings …. [W]hile the BSA and the Council influence the result to be achieved by regular troop meetings, these entities do not control the day-to-day operation of troop meetings.”

Uniforms and patches. The court ruled that “wearing of uniforms and patches is insufficient to create a material factual dispute as to the BSA’s and the Council’s right to control scoutmaster activities at regular troop meetings in light of the overall organizational structure adopted by the BSA.”

Group insurance. The fact that the local or national BSA offices provide umbrella insurance coverage for volunteers “has no bearing on whether the BSA or the Council retain the right to control [his] day-to-day activities at regular troop meetings.”

Rules and guidelines on transporting scouts. The court concluded that BSA’s rules and guidelines on transporting scouts failed to demonstrate the necessary right to control a scoutmaster’s transportation of scouts to and from troop meetings.

First, the rules and guidelines are obviously directed to outings and trips apart from regular troop meetings. Second, they do little more than set forth minimum qualifications and rules that are largely coextensive with state law and common sense. For instance, the BSA Health and Safety Guide provides the following “general guidelines”: (i) Drivers must obey state and local speed limit laws; (ii) drivers must possess a valid driver’s license and be at least eighteen years of age; (iii) a driver must have a commercial driver’s license to transport fifteen or more passengers in a single vehicle; (iv) daily trips must not exceed twelve hours and must be interrupted with frequent stops; (v) seat belts must be used; (vi) passengers must ride only in the cab of a truck; (vii) passengers should not ride on the rear deck of station wagons; (viii) all driving, except short trips, should be done in daylight; (ix) adequate property damage and liability insurance must be carried; and (x) vehicles must not travel in convoys. Noticeably absent from [the parents’] evidence is any indication that the BSA or the Council has a policy governing when and how a scoutmaster is to transport scouts home from regular troop meetings. As a result, we conclude that such activity is left entirely to the discretion of the scoutmaster or the community sponsor. We therefore fail to see how these minimum qualifications and rules amount to a right to control the manner and method of [a scoutmaster’s] conduct in connection with troop meetings any more than would a franchisor’s minimum contractual requirements that its franchisee be duly licensed and comply with applicable law.

Annual charter renewals. The court noted that BSA issues an annual renewable charter to the community sponsor (the church in this case) which then owns and operates a troop, organizes a troop committee, and selects the scoutmaster. The court observed: “it is apparent that the BSA and the Council act in a chartering and advisory capacity and do not retain the right to control day-to-day troop operations.”

The court concluded that “the basis for the right [of control] must be evident from the facts as they exist. [The parents] cannot establish the basis for the right by merely speculating that under a different organizational structure the BSA and the Council could have retained the right to control scoutmasters at regular troop meetings. Such speculation is insufficient to create a genuine issue of material fact for purposes of a summary judgment motion.

The court stressed that its decision was “in accord with the vast majority of jurisdictions which have held as a matter of law that … neither the BSA nor a local council has a right to control the conduct of scoutmasters in connection with troop activities that are not directly sponsored or supervised by the BSA or a local council.” The court referred to similar rulings in Illinois, Maryland, Missouri, New York, Rhode Island, and Washington.

Application. This case is relevant to any national or regional church organization that operates a children’s program. It illustrates that a national or regional organization will not necessarily be legally responsible for every injury that occurs during a local activity-unless it has the authority to control that activity. The court rejected the legal significance of the many ways the national BSA is connected to its local troops and scoutmasters. Glover v. Boy Scouts of America, 923 P.2d 1383 (Utah 1996). [Denomina tional Liability]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m40 c0397

Legal Developments

Taxation of Undeveloped Church Property

In some states, vacant church-owned land may not be exempt from property taxes.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Church Property

Church Law and Tax 1997-03-01

Taxation-Church Property

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

• Key point. Vacant, church—owned land that is acquired for future development is not exempt from property taxes in some states.

The Utah Supreme Court ruled that a parcel of vacant land purchased by a church was not exempt from property taxes despite the church’s use of the land for occasional worship services. The land was purchased as a site for a new church building. The church maintained the land but did not begin construction of a new church building. However, the church did use the property for religious purposes. For approximately two hours each year the church held religious services on the property. The church sought to have the land exempted from property taxes, but its application was denied on the ground that the church’s use of the property for religious purposes as insignificant and “insufficient to qualify the property for exemption.” The church appealed to the state supreme court. The supreme court noted that state law exempts from property taxes “property used exclusively for religious purposes.” It concluded that the land in question failed this test. It insisted that in order for land to be “used exclusively” for religious purposes it must be “actually used or committed to a use that is exclusively religious.” The church argued that the land was used exclusively for religious purposes even though it was used for religious services for only a few hours each year, since “for 8,758 hours out of the year the land is committed to no use at all.” The court disagreed, noting that “property held for future development is being used.” The court did concede that the property would be exempt once the church began construction since “construction of a church on church—owned property indicates that the property is irrevocably committed to a religious use, not simply held for future development.” Corporation of the Episcopal Church v. Utah State Tax Commission, 919 P.2d 556 (Utah 1996). [ State Property Taxes]

Legal Developments

What Does the Clergy-Penitent Privilege Cover?

Not all confidential conversations are protected.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Confidential and Privileged Communications

Church Law and Tax 1997-03-01

Confidential and Privileged Communications

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

• Key point. Not all statements to clergy are protected by the clergy—penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in his or spiritual capacity as a spiritual adviser.

A federal court in Utah ruled that statements made by a church member to three church officials were not protected by the clergy—penitent privilege. Two adults drowned during a tragic accident while camping with another adult and five minors in a national park. A lawsuit was brought against the United States government by the families of the victims. The government later asked for a copy of a tape recording that was made in a church shortly after the accident, in which the sole surviving adult gave an account of the accident to three church leaders. The church leaders called for the meeting in order to obtain a first hand account of the trip so they could respond properly to the media and address the needs of family members. The church refused to provide the government with a copy of the tape on the ground that it was protected from disclosure by the clergy—penitent privilege. Utah law provides for a privilege to refuse to disclose a “confidential communication to a cleric in the cleric’s religious capacity and necessary and proper to enable the cleric to discharge the functions of the cleric’s office according to the usual course of practice or discipline.” The court noted that “not all confidential communications to a cleric are protected.” Rather, the communication “must be in the cleric’s religious capacity and must be pertinent to religion and not just church administration or information.” The court concluded that the statements made by the adult survivor to the three church officials did not meet this test. The court acknowledged that the survivor believed that the meeting was in part for “counseling,” and that it occurred on church premises and involved three ministers. While these facts suggested that the statements were privileged, they were outweighed by a number of other facts, including the following: (1) the survivor did not seek out the counseling but was invited to share his account of the accident with church officials; (2) church officials considered the meeting to be an “information exchange” rather than a confession or personal counseling session; and (3) there was evidence that some of the comments shared during the meeting were later disclosed to others. The court concluded:

An examination of the transcript … aided the court in a resolution of the privilege claim. Based on the Utah clergy privilege … the communication of [the survivor] is not privileged. The communication is a narrative of the events of the [camping trip]. It is a clear statement of [his] knowledge and perceptions. Although the communication is at times moving and in some places poignant and stirring, it was not ecclesiastical or religious. It was not a communication for doctrinal, spiritual, or religious purposes. It was a communication to impart and report about an event for purposes of informing and acquainting the listener to what had happened. The church leaders did not receive the communication within the religious role of clerics, but as clerics performing an attendant executive function. The communication is not within the clergy privilege and must be disclosed.

This case illustrates an important pointnot every confidential communication made to a minister is protected by the clergy—penitent privilege. The minister must be acting in a professional capacity as a spiritual advisor. Here is a helpful tipif there is any doubt regarding the purpose of a particular communication, a minister should ask a counselee if he or she is seeking out the minister in a professional capacity as a spiritual advisor. If the answer is yes, then this information will be helpful should a question later arise regarding the privileged nature of the conversation . Ellis v. United States, 922 F. Supp. 539 (D. Utah 1996). [ The Clergy-Penitent Privilege]

Legal Developments

Confidential and Privileged Communications Between Members and Clergy

Court rules clergy-penitent privilege not limited to “confessions.”

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Confidential and Privileged Communications, Counseling

Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: In most states, the clergy-penitent privilege is not limited to “confessions” but includes any conversation in which the penitent is seeking spiritual counsel from a member of the clergy.

• The Utah Supreme Court ruled that a bishop did not have to disclose in a civil trial information shared with him by a father who was guilty of abusing his adopted child. An adult woman sued her adoptive father, alleging that he had sexually abused her throughout her childhood. As a result of his conduct, the father sought advice from a bishop of his church. The church later convened a disciplinary hearing at which the father was excommunicated. The daughter subpoenaed documents from the church pertaining to any communications her father had with the bishop regarding his conduct. The bishop opposed this request on the ground that the information sought by the daughter was protected from disclosure by the clergy-penitent privilege. The daughter insisted that any communications made by her father to the bishop were not privileged since they were not made in the context of a “confession” as required by the Utah clergy-penitent privilege. The Utah clergy-penitent privilege provides: “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of the discipline enjoined by the church to which he belongs.” The Court agreed with the bishop that the statements made by the father were privileged. It refused to narrowly interpret the word “confession” to mean a penitential confession to a member of the clergy, since such an interpretation would limit the privilege to the Catholic Church. The Court observed that such an interpretation would favor one sect over all others, making it unconstitutional. Further, the Court noted that the word “confession” is used in several ways, including to simply “disclose or acknowledge” something, and it insisted that this broader interpretation is more sensible and realistic:

[A] constricted interpretation of the privilege does not take into account the essential role that clergy in most churches perform in providing confidential counsel and advice to their communicants in helping them to abandon wrongful or harmful conduct, adopt higher standards of conduct, and reconcile themselves with others and God …. In counseling parishioners in religious and moral matters, clergy frequently must deal with intensely private concerns, and parishioners may be encouraged, and even feel compelled, to discuss their moral faults. As one commentator has stated, “Because most churches do not set aside formal occasions for special private encounters labeled ‘confession,’ less formal consultation must be privileged if the privilege is not in effect to be limited to Roman Catholics.”

The Court concluded that “the term ‘confession’ need not be construed to apply only to penitential communications and that a broad construction of that term is necessary to take into account the essential religious role clergy play in dealing with the wrongdoing of parishioners.”

While the Court interpreted the word “confession” broadly, it did caution that the clergy-penitent privilege still requires that the communication be confidential and in the course of discipline. In deciding if a conversation with a minister is “confidential” and in the course of “discipline” the Court suggested that the following factors be considered:

[W]hether the [location] of the communication indicates an intent that the communication be confidential, whether the conversation was casual in nature or undertaken by the cleric and the parishioner with a sense that the parishioner’s moral conduct was at issue, and whether persons not concerned with the subject matter were present. A communication that does not take place in private or that is made in the presence of others not intimately and directly concerned with the issue may indicate that the parties involved did not intend the conversation to be confidential …. Likewise, statements made to a cleric in a social context are not privileged because the statements are not made to the cleric in the course of his or her professional responsibilities or in a religious context.

The Court concluded that statements made by the father to the bishop were privileged, even though some of them occurred in the father’s home, since “the bishop communicated with [the father] in the bishop’s clerical role with regard to spiritual or religious matters.” Scott v. Hammock, 870 P.2d 947 (Utah 1994).

© Copyright 1995, 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: m33 m10 c0195

Legal Developments

Mandatory Reporters and the Clergy-Penitent Privilege

What to do when a confession of child abuse is disclosed confidentially.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Child Abuse, Confidential and Privileged Communications

Church Law and Tax 1994-09-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: In some states the clergy-penitent privilege does not protect ministers from the legal duty to report child abuse. However, the privilege still may protect ministers from having to testify in a civil lawsuit arising out of the abuse.

• A federal court in Utah ruled that a church official did not have to disclose in a civil trial information shared with him by a father who was guilty of abusing his adopted child. In many states ministers are mandatory reporters of child abuse. This means that they can be criminally prosecuted for failing to report known or reasonably suspected incidents of abuse. In most of these states the clergy-penitent privilege does not excuse ministers from their duty to report. As a result, ministers who are mandatory reporters under state law have a duty to report incidents of child abuse even if they learn of them in the context of a confidential counseling session. A federal court in Utah recently addressed a related question—does the clergy-penitent privilege protect a minister from testifying in a civil lawsuit brought by an adult survivor of child abuse against her adoptive father? The facts of this case are simple. An adult woman sued her adoptive father, alleging that he had sexually abused her throughout her childhood. As a result of his conduct, the father sought advice from a bishop of his church. The church later convened a disciplinary hearing at which the father was excommunicated. The daughter sought information regarding any communications her father had with the bishop regarding his conduct. The bishop opposed this request on the ground that the information sought by the daughter was protected from disclosure by the clergy-penitent privilege. The daughter insisted that any communications made by her father to the bishop were not privileged since they were not made in the context of a confession. The court agreed with the bishop that the statements made by the father were privileged. It noted that a federal court applies the clergy-penitent privilege available under state law, and that the Utah clergy-penitent privilege provides: “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of the discipline enjoined by the church to which he belongs.” The court concluded that the bishop was a “clergyman,” and that the father’s statements to the bishop had been made in the course of “discipline.” The court rejected the daughter’s claim that the clergy-penitent privilege applies only to confessions. It reviewed several court rulings rejecting this narrow interpretation of the privilege, and then observed: “From these authorities it can be seen that the modern trend of cases construing the scope of the clergy privilege is to read it more broadly than merely being applicable to ‘confessions’ in the penitential sense, but to apply it to communications for religious counseling.” It further noted that “[i]n this case, it seems appropriate to use the term ‘confession’ to mean a confidential communication within the doctrine of the church involved.” Accordingly, the court rejected the daughter’s attempt to force the bishop to disclose in court the content of his conversation with her father. The father’s communications with his bishop were privileged since “they were for the religious purpose of receiving church counseling and ecclesiastical advice.”

Does this mean that the clergy-penitent privilege also excuses ministers from a duty to report child abuse to civil authorities? The court refused to address this related question, noting simply that “this court has no reason to develop this issue.” The court also noted that the father’s wife was present during his conversation with the bishop. However, this did not affect the court’s conclusion that the communications between the father and the bishop were privileged. It simply noted that “the parties have not raised any issue as to the defendant’s wife being present during one communication and the court will not [on its own initiative] consider the circumstances as affecting this case.” Finally, the court noted that the bishop had discussed the father’s statements regarding his conduct with another church official. The court concluded that this did not affect the privileged nature of the original conversation. Quite to the contrary, the court concluded that “[t]he intra-faith communications from one ecclesiastical officer to another for the purpose of carrying out church discipline are also protected.” The court continued:

It is appreciated that the communication in this case is different than one that involves a declaration by the church member to an assemblage of church officials. In this case, the communication was passed vertically from one religious authority up to another within the church hierarchy. Such communication was necessary as a part of the church sanction process and in carrying out church discipline. The need for the privilege to follow the communication in such circumstances is obvious and appropriate. Otherwise, the privilege would be destroyed and the confidence abridged. Therefore, the repeating of the defendant’s statement and its communication to superior religious authorities must be deemed cloaked with confidentiality and privileged from forced disclosure.

This last observation is an important one. Associate and youth pastors sometimes feel compelled to disclose privileged communications with a senior minister. Or, a senior minister feels compelled to disclose a privileged communication with a denominational official. According to this court, such disclosures do not affect the privileged status of the original communication. Scott v. Hammock, 133 F.R.D. 610 (D. Utah 1990). [PCL4H, PCL3G6h]

© 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: m33 m10 c5094

Legal Developments

Bankruptcy and Tithing

Can bankrupt church members continue to give?

Richard R. Hammar, Attorney, CPA

Bio

State: Utah

Church Law and Tax 1992-07-01 Recent Developments

Bankruptcy

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

• A federal court in Utah ruled that a church member’s bankruptcy plan could not be approved since he proposed to “tithe” or give 10% of his income to his church. The church member had debts of $50,000 and an annual household income of $25,000. He filed a “Chapter 13” wage-earners bankruptcy plan, under which he agreed to pay his creditors 20% of their debts. A creditor objected to the proposed plan on the ground that it listed the church member’s tithe to his church as a reasonably necessary living expense not available for distribution to creditors. Chapter 13 of the bankruptcy law requires that all of a debtor’s “disposable income” be made available for distribution to creditors, except an amount that is reasonably necessary for living expenses. The church member claimed that he believed tithing to be mandatory rather than optional. He testified that tithing “is a commandment from the Lord to pay as a debt to him for what he has done for us, for what God has done for us …. I believe that the tithing should be paid before the creditors. I believe that our greatest creditor is the Lord. He is the one that has given us the most.” A federal court rejected this argument, and ruled that the bankruptcy plan could not be approved unless the tithe was canceled and the funds made available to the creditors. The court emphasized that failure to tithe would not prevent the debtor from full participation in the activities of his church, and therefore the practice of his religion would not be adversely affected. It noted that even if failure to tithe did adversely affect the exercise of the debtor’s religion, it “would probably follow the majority line of cases that hold that while church donations may be a source of inner strength and comfort to those who feel compelled to make them, they are not necessary for the maintenance or support of the debtor or dependent of the debtor.” The court emphasized that neither the debtor nor his church was “in a position to make the Lord a priority creditor in bankruptcy.” It added: “In addition to the majority line of case law, the court notes that in interpreting [the bankruptcy law] it is important to keep in mind that the purpose of Chapter 13 is to provide the maximum recovery to creditors. Chapter 13 contemplates a substantial effort by the debtor to pay his debts which may require some sacrifice by the debtor. The integrity and credibility of Chapter 13 reorganizations would be substantially diminished if a debtor could budget charitable donations to an organization of its choice thereby forcing its creditors to make de facto contributions to that organization. Debtors wishing to continue to tithe after the filing of a bankruptcy petition are better suited for relief under Chapter 7 of the Code.” In other words, to permit debtors to make charitable contributions with a portion of their income rather than make the same amount available to their creditors in effect forces the creditors to make contributions to the debtor’s church. The court concluded that this would be inappropriate. In re Packham, 126 B.R. 603 (D. Utah 1991).

© 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: m05 m08 c0492

Legal Developments

Background Checks Required for Private Schools in Utah

The Utah legislature recently enacted a law requiring screening for school workers.

Richard R. Hammar, Attorney, CPA

Bio

State: Utah
Categories: Schools

Church Law and Tax 1991-05-01 Recent Developments

Schools

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

• The Utah legislature has enacted a law requiring private schools to conduct criminal records checks of prospective employees and volunteers. Criminal records checks of current workers is allowed if “reasonable cause” exists. Fingerprints are required if necessary to confirm a person’s identity. The state bureau of criminal investigation is required to release all records of criminal convictions, but school personnel can only consider “job-related” convictions in making employment decisions. Persons who are denied employment or dismissed because of such information must receive written notice of the reasons and be given an opportunity to respond. S.B. 17, Laws 1991 (effective April 29, 1991)

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65 m43 c0391

Legal Developments

Clergy – Part 2

Personal Liability

Richard R. Hammar, Attorney, CPA

Bio

State: North Carolina
Categories: Clergy Malpractice

Church Law and Tax 1990-07-01 Recent Developments

Clergy – Personal Liability

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

• A Utah court refused to recognize “clergy malpractice” as a basis for legal liability. A minister was approached by a 17-year-old parishioner who informed him that his mother wanted him to fly from Utah to North Carolina to locate and bring back his 19-year-old brother, and to get away from his abusive step-father. The boy indicated that his mother did not have adequate funds to pay for an airline ticket, and he asked if the church could help out. The minister responded that he could not help without the mother’s permission, and accordingly he attempted on several occasions to reach her at work. Unable to reach her by telephone, the minister informed the boy that written permission would suffice. The boy later produced a note purportedly signed by his mother, giving permission for him to travel to North Carolina if the church would pay for a ticket. The minister purchased a ticket with church funds, and the boy was flown to North Carolina. In fact, the boy had forged the note, and the mother was unaware that her son had flown to North Carolina. When she became aware of the circumstances, she sued the minister and his church on a variety of grounds, including clergy malpractice and intentional infliction of emotional distress. A trial court granted the minister and church a summary judgment, and the mother appealed. A state appeals court agreed with the trial court, and summarily rejected the mother’s claims. In rejecting the mother’s charge of clergy malpractice, the court observed: “[The mother] admits that no court has recognized clerical malpractice as a cause of action, but argues that such malpractice exists here, not because [the minister] who had not been trained as a counselor, improperly counseled [the boy], but because he failed to refer [the boy] to trained professionals or others who could assist in resolving the family conflicts. In other words, [the mother] wishes to impose a duty upon [the minister] to make further inquiry into the alleged family conflicts, and then, if beyond his expertise, refer [the boy] to others who are qualified to treat such problems. Under the present circumstances, charging lay clergy with this duty of care goes too far because it approaches the same level of care imposed upon trained professionals in medicine and psychology.” The court quoted with approval from the California Supreme Court’s landmark clergy malpractice ruling in Nally v. Grace Community Church (discussed in depth in the March-April 1989 issue of this newsletter): “Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The Utah appeals court agreed with the California Supreme Court’s refusal to recognize clergy malpractice as a basis for legal liability, and refused to impose upon clergy a duty to refer parishioners experiencing emotional trauma to medical professionals. The court also rejected all of the other theories of legal liability alleged by the mother. White v. Blackburn, 787 P.2d 1315 (Utah App. 1990).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m29 m30 c0590

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.