Sexual misconduct by clergy and church workers

• Key point. A minor’s “consent” to a sexual relationship with a youth pastor is no defense to liability.

• Key point. Churches may be liable for a pastor’s sexual misconduct on the basis of a breach of a fiduciary duty, but only if a fiduciary relationship exists between the victim and church.

• Key point. Churches and denominational agencies cannot be sued by victims of sexual misconduct as a result their alleged failure to abide by their internal rules and policies with respect to the discipline of ministers.

A Colorado court addressed the liability of a church and denominational agency for a sexual relationship between a youth pastor and a girl in his youth group. A 12—year—old girl (the “victim”) was encouraged by her youth pastor to discuss with him any problems she had. Though reluctant at first, she eventually began counseling with him and confided in him about her abusive father, her distant mother, and her thoughts of suicide. The youth pastor, then 28 years old and married, told the victim about his own personal problems, including his marital difficulties. Over the next two years, hugs during counseling sessions led to other increasingly intimate physical touching. Shortly after the victim turned 14, the youth pastor convinced her to submit to a sexual relationship with him. According to the victim, the youth pastor told her that she was as bad as she believed when she came to him for counseling but that he loved her despite her faults; that their sexual relationship was God’s will; and that the relationship was proper in the eyes of God because they were “spiritually husband and wife.” The sexual relationship lasted 4 years. Sexual encounters occurred on church youth trips, in the youth pastor’s car, in the church building, and in the victim’s home when her parents were out of town. The youth pastor warned the victim that if she ever revealed their relationship, she would “go to hell,” that she would be punished for having seduced a minister, and that he would divulge everything she had ever told him about her personal life. Most of the sexual conduct, which was frequent and increasingly degrading for the victim, occurred before she turned 18. The victim finally managed to end the relationship the summer before she left for college. The emotional and physical repercussions she had been experiencing nevertheless continued. After 2 years of therapy, she confronted the youth pastor, hoping he would acknowledge the harm he had caused her. He instead told her he saw nothing wrong with what they had done. She then called and wrote to denominational officials about the relationship, stating she felt she had a moral obligation to see that the same thing did not happen to others. She asked that the denomination keep the information as confidential as possible because she had not yet revealed the relationship to her parents or other members of the congregation.

The following month, denominational officials confronted the youth pastor with the allegations. While he denied any sexual relationship, he agreed to surrender his credentials “under complaint.” The denomination accepted the surrender of his credentials and determined that no further investigation or hearings were needed.

The victim also contacted local authorities, which led to criminal charges being filed against the youth pastor. The charges resulted in a conviction and sentence pursuant to a plea bargain that involved work release on one charge and probation on another. Dissatisfied with the actions taken, the victim sued the youth pastor, her church, and a denominational agency. The jury awarded her $187,500 compensatory damages against the youth pastor on claims of breach of fiduciary duty and outrageous conduct and another $187,500 in punitive damages. It awarded her $37,500 compensatory damages against the church on claims of negligent hiring and supervision and breach of fiduciary duty. Finally, the jury awarded $150,000 compensatory damages against the denominational agency on claims of negligent hiring and supervision and breach of fiduciary duty, and an additional $150,000 in punitive damages.

Consent

The church and denominational agency insisted that the trial court erred when it refused to submit the defense of “consent” to the jury. The court disagreed, noting that this argument was “premised on the assumption that a child is capable of giving the kind of consent the law should recognize to a sexual relationship with an adult religious counselor.” The court insisted that “a child is in no position to exercise independent judgment and evaluate on an equal basis the consequences of such a relationship.” The court also rejected the argument that the victim became capable of consenting to the relationship as she matured, since this “ignores that dependence, transference, and the resulting vulnerability do not cease merely because a child physically matures while sexual abuse in secrecy by an adult in a position of trust continues unabated.”

Breach of a fiduciary duty

The church and denominational agency claimed that they could not be responsible for the victim’s injuries on the basis of a breach of a fiduciary duty. The court agreed. It observed:

Critical here is the distinction between a claim for clergy malpractice, which because of the constraints of the first amendment the courts may not entertain, and a claim for breach of fiduciary duty, which may properly be brought to the extent that the alleged wrongdoing falls outside the beliefs and doctrine of the religion. An unequal relationship does not automatically create a fiduciary duty. In order to be liable the superior party must assume a duty to act with utmost good faith and solely or primarily for the benefit of the dependent party.

In this case [the victim] has directed us to no evidence, and we can find none, suggesting that the [denominational agency] ever assumed a duty to act solely or primarily in the best interests of [the victim] in its investigation and resolution of her complaint. Unlike the church officials in [a prior case], no bishop or other representative of the [agency] ever asked [the victim] to refrain from discussing the matter with anyone or asked [her] to let [it] alone supervise whatever needed to happen on her behalf.

failure to respond adequately to the victim’s complaint

The victim insisted that a representative of the denominational agency lied in telling her that once the youth pastor surrendered his credentials under protest nothing further remained to be done to terminate his ministry and the agency had no authority to conduct any further investigation. She claimed that she suffered substantial harm because the denominational agency, in violation of its own Book of Discipline, failed to take further action to investigate her complaint and fulfill its responsibilities to her. The court disagreed, noting that “the alleged wrongdoing results from expectations created by the beliefs and doctrine of the religion. Resolution of the claim would require that the courts become embroiled in a religious dispute requiring the interpretation and weighing of that doctrine. The first amendment requires that we abstain from doing so and thus precludes an award of damages on such a basis.”

duplicate verdicts

The church and denominational agency argued that the jury’s various awards of damages were inconsistent. In particular, they argued that it was illogical to award damages against both the youth pastor and church defendants on the basis of the same theories of liability. The court agreed, noting that the jury’s award of damages against the youth pastor and church defendants for the same alleged wrongs resulted in “duplication of damages” since the actions of the church defendants did not result in any additional harm to the victim beyond what had been caused by the youth pastor.

Application. This case illustrates a point that has been made repeatedly in this newsletter-whether or not victims of sexual misconduct will sue their church often depends on their perception of how the church responded to their allegations. In this case, the victim was ultimately prompted to sue because of her perception that the church and denominational agency had not responded adequately to her charges. Bohrer v. DeHart, 943 P.2d 1220 (Colo. App. 1996).
[Seduction of Counselees and Church Members, Denominational Liability]

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