Church Law and Tax 1993-05-01 Recent Developments

Legislation

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

• Key point: Courts and legislatures continue to take very seriously sexual contact between clergy and counselees, even if the contact is “consensual”. One manifestation of this tendency is the number of bills that have been introduced this year in state legislatures that would make it a crime for clergy to engage in sexual contact with counselees.

• Bills have been introduced in a number of states that would make sexual contact between clergy and counselees a crime. In at least five states (Iowa, Minnesota, North Dakota, South Dakota, Wisconsin) such bills already have been enacted. Here is a summary of the most recent wave of proposed legislation:

Connecticut: House bill 6437 would make sexual contact between clergy and counselees a felony. On January 21, 1993, Representative Tulisano introduced house bill 6437, which provides that a member of the clergy is guilty of sexual assault in the second degree if he or she “engages in sexual intercourse with a client during the time period of the professional relationship.” Sexual “contact” by a member of the clergy and a client would be sexual assault in the fourth degree. A victim’s consent would not be a defense. This bill has been referred to the house judiciary committee.

Seduction of Counselees and Church Members

Massachusetts: House bill 2768 would make sexual exploitation of counselees by clergy a felony. The bill also would permit victims to sue clergy (and in some cases a church) for money damages. The bill defines sexual exploitation to include (1) several forms of “sexual contact” ranging from touching to intercourse, whether or not the victim consented to the contact; (2) “therapeutic deception,” which is defined as any representation that sexual contact with the minister is consistent with or part of the victim’s “treatment”; and (3) any request made by a minister to a counselee for any type of physical contact (whether or not the contact ever occurs). Such conduct would constitute a criminal felony under the bill, subjecting an offending minister to “imprisonment in the state prison for a term of not less than two and one-half years nor more than five years or by a fine of not less than five thousand dollars nor more than ten thousand dollars or by both such fine and imprisonment.” In addition to criminal penalties, the bill would authorize victims to sue clergy for money damages if the sexual contact occurs (1) while the victim was receiving counseling, or (2) after the counseling relationship has ended if (a) the victim was “emotionally dependent” on the minister or (b) the sexual contact occurred by means of “therapeutic deception”. The bill clarifies that it is not a defense that sexual contact occurs outside of a scheduled counseling session or off the premises regularly used for counseling. Significantly, the bill specifies that a minister’s employer can be sued by the victim if (1) it “fails or refuses to take reasonable action” when it knows or has reason to know that the minister engaged in sexual contact with the victim or any other counselee; or (2) it fails or refuses to make inquiries of an employer or former employer that employed the minister within the last five years concerning the occurrence of sexual contacts by the minister with counselees. The bill further specifies that a current of former employer can be sued if it receives a request for information concerning incidents of sexual contact by a minister but refuses to disclose the existence of such contacts. This bill applies generally to any psychotherapist. However, the term psychotherapist is defined to include any “member of the clergy” who “performs or purports to perform psychotherapy.” The term psychotherapy is defined as “the professional treatment, assessment, or counseling of a mental or emotional illness, symptoms, or condition.”

Seduction of Counselees and Church Members

Pennsylvania: Senate bill 752 would make sexual offenses by clergy a crime. The bill would make some types of sexual contact with counselees a felony, and others a misdemeanor. The “consent” of the victim would not be a defense. The bill would permit a court to order an offending minister to pay the cost of “rehabilitative psychotherapy” for the victim. This bill applies generally to any psychotherapist. However, the term psychotherapist is defined to include any “member of the clergy” who “provides psychotherapy”. The term psychotherapy is defined as “the professional treatment of a mental or emotional distress, illness or disability through the creation of an ongoing therapeutic relationship between the therapist and the patient or client in which principles of clinical psychiatric or psychological treatment methodology are employed, regardless of whether or not the psychotherapist receives remuneration for the services from the patient or client.” It is interesting to note that a state-licensed psychotherapist who is convicted of a felony offense under the bill would automatically lose his license to practice psychotherapy and would be prohibited from applying for re-licensure for a period of five years from the date of conviction. If this bill becomes law, denominational and church leaders in Pennsylvania should pay special attention to the provision mandating the automatic revocation of a psychotherapist’s license following conviction of a felony offense. It is possible that a court would conclude that a religious organization acted negligently in not administering a similar penalty, if an offending minister engaged in repeat misbehavior during the five year period following a conviction for sexual misconduct with a counselee.

Seduction of Counselees and Church Members

South Carolina: House bill 3194 would make sexual offenses by clergy a crime. The bill would make sexual contact by clergy with counselees a crime. The “consent” of the victim would not be a defense.

Seduction of Counselees and Church Members

Texas: House bill 1774 would make sexual offenses by clergy a crime. The bill would make “sexual exploitation” by a psychotherapist a crime. The term psychotherapist is specifically defined to include a “member of the clergy” who engages in psychotherapy. The term psychotherapy is defined broadly to include “treatment of a patient by verbal means for a problem of an emotional nature in which a person engages in a therapeutic relationship with the patient, either individually or as part of a group, for the purpose of eliminating the patient’s suffering by changing the patient’s emotional state, attitude, or behavior.” The bill specifies that a psychotherapist commits an offense “if before the first anniversary of the date on which the professional relationship between the psychotherapist and a patient is terminated, intentionally: (1) engages in sexual contact with the patient; or (2) engages in sexually exploitive behavior with the patient.” The bill specifies that it is not a defense that the sexual contact occurred: “(1) with the consent of the patient; (2) outside the therapy or treatment sessions of the patient; or (3) off the premises regularly used by the psychotherapist for the therapy or treatment sessions of the patient.”

Seduction of Counselees and Church Members

• A bill (senate bill 1012) introduced in the Florida legislature would amend the current prohibition of the unauthorized practice of psychology. In general, the term “practice of psychology” would be expanded, and some current exemptions would be eliminated. The bill does retain the exemption of any person who “is a rabbi, priest, minister, or clergyman of any religious denomination or sect when engaging in activities which are within the scope of the performance of his regular or specialized ministerial duties and for which no separate charge is made, or when such activities are performed, with or without charge, for or under the auspices or sponsorship, individually or in conjunction with others, of an established and legally cognizable church, denomination, or sect, and when the person rendering service remains accountable to the established authority thereof.”

State Regulation of Psychologists and Counselors

• Have you ever wondered why Congress does not simply eliminate all exemptions and deductions and impose a flat 10 percent income tax on all Americans? Believe it or not, such a bill was introduced recently in Congress. House bill 1190 (called the “Crane Tithe Tax Act of 1993”), introduced by Representative Crane on March 3, 1993, would repeal the current income tax rate structure and replace it with a flat 10 percent income tax on all earned income in excess of $10,000. Unearned income (such as dividends, interest, annuities, and pension income) would not be taxed. The bill would also repeal the income taxation of corporations, repeal the estate and gift taxes, and provide amnesty for all tax liability for prior taxable years. In exchange for the flat 10 percent tax, the bill eliminates all exclusions, deductions, and credits. Sound appealing? If so, you may want to contact your representative to discuss this bill.