• Key point. A church ordinarily will not be legally responsible for a pastor’s sexual contact with an adult counselee unless it was negligent in hiring or supervising the pastor.
• Key point. Religious organizations may not be liable for the sexual misconduct of an employee if they exercise reasonable care in selecting and supervising that employee.
• 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 its ministers would violate the first amendment guaranty of religious freedom.
• Key point. Pastors can be sued for malpractice if they engage in sexual contact with a counselee during secular counseling.
• Key point. Pastors can be sued under some state laws prohibiting sexual contact with a counselee by a psychotherapist if they engage in sexual contact with a counselee.
• Key point. A religious denomination is not necessarily legally responsible for the acts of sexual misconduct that occur in affiliated churches.
A federal appeals court ruled that a church and denominational agency were not legally responsible for a pastoral counselor’s sexual contacts with a female counselee. However, it concluded that the pastor could be sued for professional negligence with regard to purely secular counseling, and could be liable with respect to such counseling under a state law imposing liability on “psychotherapists” for engaging in sexual contact with counselees. A woman sued a pastoral counselor along with her church and a denominational agency, alleging that the counselor had engaged in sexual relations with her. According to the lawsuit, a church worker contacted the woman to inquire why she was not attending church, and recommended that she seek counseling from one of the pastors at the church. The pastor allegedly contacted her soon thereafter and offered his services as a “psychological counselor.” The woman alleged that the pastor told her that she needed “secular psychological” and not religious counseling, and that he was qualified to provide it. According to the lawsuit the pastor informed the woman that such treatment was included in his job description at the church. The woman attended counseling sessions with the pastor at his office in the church from January 1988 until May 1990. Over time the pastor increased the frequency and length of the sessions. The woman claimed that he told her that “religion does not apply here. Your problems are so deep you need more psychological treatment from me.” She stated that she became very involved in the therapy and attached to the pastor. He allegedly represented to her that he was a capable, trained professional on whom she could rely to assist her with her personal problems. However, in 1988 the pastor allegedly gave the woman an ultimatum: “I have been giving to you, and I need something back for my services. You must give back to me or I will not work with you anymore.” From that date through May 1990 the woman claimed that her therapy sessions began with sexual relations with the pastor. The woman sued her pastor, church, and a denominational agency. She asserted that the pastor was responsible for her injuries on the basis of professional negligence, breach of fiduciary duty, negligent infliction of emotional distress, and violation of the Sexual Exploitation of Psychotherapy Act. She alleged that the church and denominational agency were responsible for her injuries on the basis of professional negligence, breach of fiduciary duty, and negligent infliction of emotional distress. A trial court dismissed the entire lawsuit against all defendants, and the woman appealed.
A federal appeals court agreed with the trial court that the woman could not sue the pastor on the basis of negligent infliction of emotional distress or breach of a fiduciary duty. However, it concluded that the woman could sue the pastor for professional negligence. It acknowledged that no court has permitted clergy to be sued for malpractice, but it limited such cases to the context of religious counseling. The court observed: “Therefore, if a complaint alleges that the psychological services that were provided were `secular’ in nature, or that the provider held himself out to be providing the services of a psychological counselor, the negligence claim cannot be characterized as one for clergy malpractice. Tort claims for behavior by a cleric that does not require the examination of religious doctrine are cognizable. Under these circumstances, the claim is for professional malpractice by a psychological counselor, not clergy malpractice.”
The court also permitted the woman to sue the pastor for violating the Illinois Sexual Exploitation in Psychotherapy Act. This Act permits counselees to sue a psychotherapist for sexual contact. While the Act excludes “counseling of a spiritual or religious nature” from liability, the court noted that this exclusion would not apply to purely secular counseling by a pastor.
the church and denominational agency
The court upheld the trial court’s dismissal of all claims against the church and denominational agency. The court stressed that the woman’s lawsuit failed “to adequately allege that the church defendants knew or should have known of the improper counselling conduct of [the pastor].” The court also noted that the lawsuit failed to allege any basis for a claim under the doctrine of respondeat superior because her complaint failed “to state that the church defendants ever hired or authorized [the pastor] to engage in secular psychological counselling. [His] sexual contact with [the woman] was obviously a deviation from the terms of the contract of his employment with the church and was certainly not in furtherance of the church defendants’ business.” Finally, the court ruled that the lawsuit failed to allege that the church defendants incurred “any supervisory liability for it is devoid of any allegation that the church defendants were aware or had any knowledge that [the pastor] made improper sexual advances either before or during the time in question.”
In rejecting the woman’s claim that the church and denominational agency were legally responsible for her injuries on the basis of a breach of a fiduciary duty they owed her, the court observed:
At the outset [we] note that [the woman] cited no Illinois authority establishing that Illinois recognizes such a fiduciary duty …. Moreover, given the constitutional difficulties that would be encountered if a cause of action for breach of fiduciary duty were permitted under these circumstances, we ought to be particularly cautious in assuming that Illinois has taken such a step. If the court were to recognize such a breach of fiduciary duty, it would be required to define a reasonable duty standard and to evaluate [the pastor’s] conduct against that standard, an inquiry identical to that which Illinois has declined to undertake in the context of a clergy malpractice claim and one that is of doubtful validity under the free exercise [of religion] clause [of the first amendment]. It is clear that Illinois would not entertain a claim for breach of fiduciary obligation under the circumstances alleged here. Dausch v. Rykse, 52 F.3d 1425 (7th Cir. 1994). [ Termination, Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]
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