Key point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.

Key point 10-10.2. Many courts have ruled that the First Amendment prevents churches from being legally responsible on the basis of negligent supervision for the sexual misconduct of ministers.

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

The Massachusetts Supreme Judicial Court ruled that a denominational agency was not liable on the basis of breach of a fiduciary duty, or negligent hiring or supervision, for a sexual relationship initiated by a pastor in the course of a counseling relationship with an adult member of his congregation. A married woman (the “plaintiff”) went to her pastor for counseling regarding concerns she had about a relative. During their initial counseling session the pastor indicated that he could “easily fall in love” with the plaintiff. The following day, the plaintiff began regular meetings with the pastor concerning her own marital problems. She left her husband a few weeks later and began a sexual relationship with the pastor. A few months later she filed for divorce.

A church member informed the denominational office (the “regional church”) of her concern that the pastor was “getting involved with a woman in the parish.” The member stated that she wished to remain anonymous and that she did not want to identify the woman she suspected as involved with the pastor. She did not disclose that the pastor was counseling the unidentified woman. An officer of the regional church informed the member that he could not “respond to hearsay and rumors of suspicions from anonymous people,” noting that there was no suggestion “that anything illegal was occurring.” He asked the member to have someone with first-hand knowledge of any sexual relationship contact him. A few months later the member again contacted the regional church, and informed an officer that the pastor was inappropriately involved with an unidentified female parishioner, adding that “there were perhaps two or three other people that may be involved” who all insisted on anonymity. The officer again asked whether she could “get somebody to come forward,” emphasizing that she “bend every effort” to encourage an informant to come directly to him. Again, no one did so.

The plaintiff eventually ended her relationship with the pastor, prompting him to appear at her home and threaten to commit suicide. The plaintiff telephoned the police, and the pastor was admitted to a psychiatric facility. The regional church thereafter learned of the pastor’s hospitalization, and the affair, and initiated its process of ecclesiastical discipline. Rather than defend against the charge, the pastor confessed. Consistent with church disciplinary requirements, the congregation was informed that the pastor had been involved in a sexual relationship with an unidentified parishioner and had been hospitalized, and that he had renounced his ministerial status.

The plaintiff sued the regional church for negligent hiring, supervision, and retention of the pastor, and breach of fiduciary duty. A trial court dismissed all the plaintiff’s claims, and she appealed to the state supreme judicial court.

The court began its opinion by noting that:

The First Amendment places beyond our jurisdiction disputes involving church doctrine, canon law, polity, discipline, and ministerial relationships. The First Amendment does not grant religious organizations absolute immunity from tort liability. We nevertheless proceed cautiously lest we become embroiled in disputes involving a religious organization that would require us to interpret or weigh church doctrine.

Breach of fiduciary duty

The plaintiff claimed that the regional church committed a breach of a duty of care that it owed her, as a parishioner, to protect her from sexual exploitation by a minister to whom she turned for counseling. The court disagreed:

The undisputed facts, when viewed in the light most favorable to the plaintiff, do not establish that the diocese stood in the type of relationship to the plaintiff from which a fiduciary duty could possibly arise under civil law …. The only relationship she had with the diocese was that of a parishioner …. Any alleged relationship between the plaintiff and the [regional church] … was based on no more than their shared religious affiliation and her role as a parishioner …. However consequential that may be in a religious context, it provides no basis to support liability in a civil context.

The court acknowledged that a counseling relationship might give rise to a fiduciary duty, but no such relationship existed between the regional church and the plaintiff.

Negligent hiring

At the time of the pastor’s employment the regional church, pursuant to its internal policies, arranged for the Oxford Document Management Company to conduct a background investigation, which was accomplished by sending detailed questionnaires to all employers, schools, and church agencies with which the pastor had any prior contact. This investigation did not result in any responses suggesting that he had engaged in any inappropriate sexual conduct. An officer of the regional church telephoned an officer of another regional church where the pastor was previously employed and was told that the pastor had experienced “some sort of breakdown” in connection with the failure of his marriage, but had recovered fully.

In rejecting the plaintiff’s negligent hiring claim against the regional church, the court noted that it was the local church, and not the regional church, that hired the pastor and entered into an employment contract with him. The court concluded:

Even assuming that the regional church’s role in commissioning or conducting a background check on the pastor was sufficient to show that it ‘hired’ him, no rational jury could conclude that it overlooked or ignored any evidence suggesting that he would engage in a sexual relationship with an adult parishioner. The background check, conducted as required by church policy, revealed no such facts. Also in accordance with church policy, the regional church confirmed that the pastor had attended training designed to prevent sexual misconduct, provided by his previous employer. In short, the plaintiff presented no facts even suggesting that, at the time he was hired by the parish, the pastor had a history of sexual misconduct that the regional church could have discovered through reasonable investigation.

Negligent supervision and retention

The plaintiff claimed that the regional church was liable for the pastor’s conduct on the basis of negligent supervision and retention based on its “inadequate” response to the reports of an improper counseling relationship that had been submitted to him by an unnamed informant. The court disagreed:

Assuming, without deciding, that the [regional church] had any duty of supervision, no rational jury could find that [it] was negligent in supervising or retaining the pastor. While the pastor and the plaintiff were involved in a sexual relationship, a relationship they sought to keep secret, a [church member] twice informed [a regional church officer] of an anonymous report that the pastor was involved in a sexual relationship with an unidentified parishioner. The member did not report that the unidentified parishioner was being counseled by the pastor. On each occasion, the officer urged her to encourage any person (including the source of the anonymous report) to come forward. His actions were in accordance with the regional church’s sexual misconduct policy manual, which provides:

“Anyone who believes that he or she has been subject to sexual misconduct by a minister or church employee may make a complaint to [the regional church]. If the complainant is willing to make a charge of sexual misconduct, that charge must be in writing [and the regional church] will then begin the process of investigating and adjudicating the charge. Charges will not be processed unless they are in writing.”

The court concluded:

The delicate balance between the freedom to exercise religion and the demands placed on all persons (clerical and others) by civil law requires us to proceed cautiously in a controversy where we are asked to hold that a religious institution’s reliance on its own written policy governing the response to reports of a clergy’s sexual misconduct with an adult parishioner gives rise to liability under civil law. On the facts presented here, where the regional church adhered to its articulated policy; where there is no claim that its policy was unreasonable; where the plaintiff was an adult; and where she argues only that the sexual conduct in which she and her pastor engaged was proscribed by ecclesiastical law, we conclude that the plaintiff has not met her burden to show a genuine issue of material fact that the regional church negligently supervised or retained the pastor.

Application. This case is significant for several reasons, including the following:

1. The court concluded that a fiduciary relationship does not automatically arise between a church, or denominational agency, and its parishioners. There must be something more, such as a formal counseling relationship, for a fiduciary relationship to occur. As a result, the court rejected the plaintiff’s breach of fiduciary duty claim.

2. The court ruled that the regional church could not be liable on the basis of negligent hiring or the pastor’s conduct since it was not his employer and it conducted a thorough background investigation of the pastor at the time he was hired which revealed no information suggesting that he had ever engaged in an inappropriate physical relationship with a church member.

3. The court rejected the plaintiff’s negligent supervision and retention claims on the ground that the regional church had an established and reasonable procedure for investigating charges of pastoral misconduct that was triggered by the filing of a written complaint by a victim or other interested person. In this case, the regional church’s procedure had not been implemented since written charges had not been submitted by an identifiable person. The court suggested that the First Amendment guaranty of religious freedom would bar it from evaluating the adequacy of the regional church’s disciplinary and investigatory procedures. The court concluded: “The delicate balance between the freedom to exercise religion and the demands placed on all persons (clerical and others) by civil law requires us to proceed cautiously in a controversy where we are asked to hold that a religious institution’s reliance on its own written policy governing the response to reports of a clergy’s sexual misconduct with an adult parishioner gives rise to liability under civil law.” Petrell v. Shaw, 902 N.E.2d 401 (Mass. 2009).

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