Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.
Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.
The Iowa Supreme Court ruled that finding a church liable on the basis of negligent supervision for a pastor’s multiple acts of sexual misconduct with adult women was not necessarily barred by the First Amendment guaranty of religious freedom.
In 2003, a church hired a new pastor. The pastor was respected and considered a “dynamic” and “very talented speaker.” He engaged in sexual relationships with several women in the congregation, as summarized below.
Victim 1
A couple in the church were members of the church at the time the pastor arrived. In 2005, the couple were struggling with infertility, which was taking an emotional toll on the wife. Upon learning of her struggles, the pastor began making unsolicited phone calls to her cellphone, inquiring into her personal life and fertility. In 2006, the couple were in the process of seeking an international adoption, and the wife decided to seek counseling from the pastor to help her cope. The pastor invited her to comes see him “at his study,” which was in the basement of his home. The pastor locked the door to his office during the initial counseling session, and engaged in sexual contact and intercourse. The wife consistently maintained that the sex was against her will. Following the encounter, the pastor continued to call the wife, insisting that her husband was not meeting her needs. He informed her that her emotional struggles stemmed from “sexual frustration” and unhappiness in marriage, and that he was “protecting” her by helping her release her sexual energy. He also persuaded her to loan him $70,000.
Victim 2
In 2009, victim 1’s sister confided in her that the pastor had tried to kiss her during a counseling session. Once victim 1 learned what the pastor had done to her sister, she realized he was using his pastoral position and the trust that people put in him as a pastor to recruit women to be counseling candidates so he could get them into a position of trust and vulnerability for the very purpose of abusing them.
Soon after this conversation, victim 1 called the pastor and told him he was using his position as pastor under the guise of counseling to have sexual relationships with women. She broke off contact with him, although she did not inform the church or the police of his conduct out of fear of retribution or not being believed.
Victim 3
Another couple were members of the church when the pastor was called. In 2008, the wife was going through a difficult time. She felt overwhelmed by a recent death in the family, marital problems, and her special needs child. She had been prescribed antidepressant and anxiety medications, which she was taking. The pastor called the wife and suggested that she counsel with him. As with victim 1, the wife counseled with the pastor behind a locked door in his basement office. The counseling consisted of highly personal questions regarding her personal life, her marital struggles, and whether she had engaged in premarital sex. The wife left the meeting to pick up her son, although she felt uneasy about the line of questioning.
The pastor then began calling the wife frequently, asking to see her again. During a subsequent counseling session, the pastor grabbed her and kissed her. Soon, the “counseling” evolved into regular meetings for the pastor to provide “healing” through sexual activity. Beyond sexual intercourse, the pastor would aggressively call the wife, sometimes 10 to 15 times a day.
Victim 4
Eventually, the pastor informed victim 3 about his prior relationship with victim 1 and a fourth woman. After this conversation, victim 3 “started putting all the pieces together very quickly.” She began to see what had happened to victims 1 through 4, and multiple other women in the church.
Two of the victims’ husbands met with three church elders and informed them of the pastor’s misconduct with their wives. That same evening, the pastor came to a church meeting and one elder questioned him about his conduct with victim 3. The pastor admitted to inappropriate conduct with victim 3 and voluntarily offered his resignation. The entire board of elders met later that evening and voted to accept the pastor’s resignation.
The elders sent a letter to the entire congregation explaining they had accepted the pastor’s resignation. The letter stated that his “sins are of such a nature that they warrant our acceptance of his resignation,” but did not disclose the nature of the misconduct. A few weeks later, victims 1 and 3 were called to appear before the elders. At the meeting, the women were asked to confess their sins with the pastor and ask for forgiveness, which they did. The elders understood the women to have confessed to “adultery.” The elders granted the women forgiveness.
A female church member wrote the elders and urged them to refrain from blaming the pastor’s victims or referring to the misconduct as “affairs.” The member, a social worker, explained that blaming the women for the pastor’s clergy abuse would significantly damage them, as well as the congregation as a whole. The member submitted suggested language for a letter to the elders, who declined to send the letter. In a letter circulated among the elders, the elders expressed their view that
a false dichotomy is established when it asserts that all blame is [the pastor’s]. The victims are certainly sinned against, but they are also sinning. All the parties involved failed to walk in the light (1 John 1) and the women, though not bearing the same degree of responsibility as does [the pastor], were certainly responsible for their behavior and need to be called to repentance for consenting to his advances and for violating their marital covenant. They sinned sexually, even though they can rightly in one sense be denominated as victims of the pastor’s machinations.
Some elders did not view the victims’ experiences as rape or sexual assault, and some even questioned whether the pastor engaged in any misconduct at all. One elder opined that there was “sin on both sides” and that the pastor’s conduct “was not clergy sexual abuse.”
The pastor was prosecuted for three counts of sexual abuse in the third degree, four counts of sexual exploitation by a counselor or therapist, and one count of engaging in a pattern or practice of sexual exploitation by a counselor or therapist. The pastor testified in his defense, maintaining all sexual activity was consensual, and he never provided mental health services. The jury convicted him of the five sexual exploitation charges and the court sentenced him to five years in prison.
Two of the victims sued the church and several elders on the following grounds: (1) negligently declined to invite mental health counselors and clergy sexual abuse experts to work with the congregation; (2) negligently blamed the women for their sexual exploitation, causing them severe emotional harm; (3) negligently investigated the pastor’s misconduct following the victims’ complaints; (4) negligently supervised and retained the pastor; and (5) made a number of defamatory statements against the victims.
The trial court dismissed all of the claims against the church and elders, and the victims appealed.
Negligent response to sexual abuse allegations
The plaintiffs allege the church (1) willfully disregarded the advice of professional counselors and denounced established and accepted mental health treatment concepts after it learned of the abuse; and (2) ignored any duty of care it had to the plaintiffs and instead blamed them for their actions, causing them emotional harm.
In rejecting this theory of liability the court observed:
Following the pastor’s resignation, the elders sought to help the congregation move forward and heal. The means by which they chose to counsel and advise the congregation is outside the purview of the government. The plaintiffs argue “a reasonable church would seek assistance for parishioners and not label victims ‘adulteresses.’” Yet, that is precisely the type of determination that the [First Amendment] Religion Clauses prohibit. The elders determined that certain speakers and mental health resources were outside of their faith. A court cannot dictate what teachings and services a church offers its parishioners. Nor can we disapprove of the elders deciding, pursuant to their duty as religious authorities, that the women would be best healed by simply confessing their “sins.” Because the plaintiffs’ first two negligence claims go to the very heart of religious decision-making, they are barred by the First Amendment.
Negligent investigation
The plaintiffs next claimed that the church was negligent in failing to conduct an investigation into the pastor’s conduct after the plaintiffs disclosed his abuse. The court upheld the trial court’s dismissal of this claim: “The elders were informed of the pastor’s criminal conduct on December 13, 2010. A few hours later, they accepted his resignation. While the church indeed owed a duty of care to the plaintiffs, it acted immediately and affirmed the pastor’s removal from his office, preventing him from further using his office to abuse [the victims].”
Negligent supervision
The court then addressed the victims’ negligent supervision claim: “The crux of a negligent-supervision claim is an employer’s failure to exercise ordinary care in supervising the employment relationship so as to prevent the foreseeable misconduct of an employee from causing harm to others. . . . Conduct that results in harm to a third person is not negligent or reckless unless there is a foreseeable likelihood that harm will result from the conduct.”
The church argued that negligent-supervision claims are barred by the First Amendment, as a court would be called upon to “adjudicate the reasonableness of a church’s supervision of a cleric,” which is an adjudication that necessarily requires inquiry into religious doctrine. The court disagreed: “The First Amendment does not categorically insulate religious relationships from judicial scrutiny, for to do so would necessarily extend constitutional protection to the secular components of these relationships . . . and impermissibly places a religious leader in a preferred position in our society.”
Defamation claims
The victims claimed that many of the statements made by the elders were defamatory. The church insisted that statements made by the elders were protected by a “qualified privilege.” The court acknowledged that “communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged.” The qualified privilege may be lost, however, “if the speaker abuses the privilege by speaking with actual malice or excessively publishing the statement beyond the group interest.” A statement is made with actual malice if the speaker “acted with knowing or reckless disregard of the truth of the statement.” In the clergy context, “a statement loses its privilege if made to individuals outside the congregation.”
The court concluded that none of the allegedly defamatory statements constituted defamation. For example, the victims alleged that the elders prepared and read the following statement to the congregation: “God calls it sin when someone who is married willingly has intimate relations with a person who is not their spouse and we have learned that other members rejected the manipulations of a man who never should have lead them astray.” The court concluded that this statement was not defamatory since it was qualifiedly privileged: “The elders were speaking to members of the church about the conduct of other members in their capacity as such. . . . We find that plaintiffs have not proven that the elders spoke with a knowing or reckless disregard of the truth.”
Similarly, during a home visitation with members of the church, an elder stated, “Our only wish is that the women would admit what they did was wrong and ask for forgiveness like [the pastor] did.” The court conceded that some may have found the statement offensive, but “since he was speaking as an elder to members of the church about whether other members should ask for forgiveness for their alleged sins,” the statement was qualifiedly privileged “as it is a “communication between members of a religious organization concerning the conduct of other members or officers in their capacity as such.”
What this means for churches
This case contains a number of important lessons for church leaders, including the following.
First, this case graphically illustrates the importance of establishing boundaries in the counseling activities of ministers. Amazingly, much of the illicit activities of the pastor in this case occurred in the basement of his private residence, behind a locked door with no one else present or even nearby. Church leaders should be alert to any counseling activities by clergy and other staff that are conducted in isolation.
Second, the court rejected many of the victims’ claims on the ground that they would impermissibly entangle the court in matters of church doctrine and governance, but it did allow the victims to pursue their negligent supervision claim against the church so long as the court would not be required to apply or interpret religious doctrine.
Third, the court recognized the so-called qualified privilege to defamation claims. Many courts have recognized this privilege, which shields some intra-church communications from defamation claims. The privilege applies to statements made to members concerning a matter of “common interest” among members. Such statements ordinarily cannot be defamatory unless made maliciously (meaning with a knowledge that a statement is false, or with a reckless disregard as to its truthfulness). This is why it is important for potentially damaging statements regarding matters of common interest to members (e.g., member discipline, employee terminations) be communicated only to members. The privilege does not apply if nonmembers are present. Bandstra v. Covenant Reformed Church, 913 N.W.2d 19 (Iowa 2018).
