Recent Developments in Missouri Regarding Sexual Misconduct by Clergy and Church Workers

The Missouri Supreme Court ruled that a diocese could not be liable for the sexual misconduct of a priest.

Church Law and Tax1999-01-01

Sexual Misconduct By Clergy And Church Workers

Key point. A religious denomination is not necessarily legally responsible for the acts of sexual misconduct that occur in affiliated churches.

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. Most courts have rejected “breach of a fiduciary duty” as a basis for holding a church or denominational agency liable for a minister’s sexual misconduct.

Key point. Most courts have rejected “agency” as a basis for holding a church or denominational agency liable for a minister’s sexual misconduct.

The Missouri Supreme Court ruled that a diocese could not be liable for the sexual misconduct of a priest. A Catholic priest served as associate pastor of a church. He invited a young boy and one of the boy’s friends to spend the night and watch movies in the church parsonage. One of the boys later alleged that the priest sexually molested him. When the boy’s parents learned of the allegations, they immediately notified the diocese. Officials of the Diocese allegedly told them that “this happens to young men all the time” and that their son “would get over it.” Diocese employees urged the parents to meet with the priest to resolve the situation. After hearing of similar incidents between the priest and other young boys, the parents “expressed their concerns to the diocese.” They were told that the incident with their son was “an innocent pat on the butt” and that they should “forgive and forget” and get on with their lives. According to the parents, the diocese continued to ignore them until the priest eventually was removed from the diocese. The parents sued the diocese, alleging breach of fiduciary duty, conspiracy, agency, negligent hiring, negligent ordination, negligent retention, negligent failure to supervise, intentional failure to supervise, negligent infliction of emotional distress, intentional infliction of emotional distress, and independent negligence of the diocese. The trial court dismissed all claims against the diocese for “failure to state a claim upon which relief can be granted and because such claims … infringe upon its rights provided by the first amendment to the United States Constitution.” The parents appealed. The Missouri Supreme Court upheld the trial court’s dismissal of all claims against the diocese. Its reasoning is summarized below.

Breach of Fiduciary Duty

The parents alleged that the diocese “stood in a fiduciary relationship” with them and their son because they were the recipients of services that were directed and monitored by the diocese. Further, the diocese “held a fiduciary relationship of trust and confidence” with the family. The court concluded that these “general conclusions” were not sufficient to support the parents’ claim.


The parents alleged that the diocese “conspired” with the priest to commit acts of sexual misconduct and intentional infliction of emotion distress, because it (1) knew or should have known that the priest was committing sexual misconduct and failed to take any action to prevent it or to warn them; (2) failed to remove him from his position; (3) hid the priest’s conduct from the public; (4) refused to acknowledge the problem or educate the public; (5) ignored the problem; and (6) obtained confidentiality agreements from sex abuse victims.

The court noted that a civil conspiracy is an “agreement or understanding between persons to do an unlawful act, or to use unlawful means to do a lawful act.” A plaintiff must establish that “two or more persons with an unlawful objective, after a meeting of the minds, committed at least one act in furtherance of the conspiracy, damaging the plaintiff.” The parents’ lawsuit did not demonstrate such a meeting of the minds.


The parents asserted that the priest was “acting in the course and scope of authority given him by [the diocese] when he committed the acts alleged.” The court noted that “under the doctrine of respondeat superior, a principal is liable for its agent’s acts that are (1) within the scope of employment and (2) done as a means or for the purpose of doing the work assigned by the principal.” Intentional sexual misconduct and intentional infliction of emotional distress “are not within the scope of employment of a priest, and are in fact forbidden.” As a result, the diocese could not be liable for the priest’s actions on the basis of agency.

Negligent Hiring, Ordination, and Retention of clergy

The parents claimed that the diocese was negligent in “hiring or ordaining” and then retaining the priest. Negligence is “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” To establish a claim for negligent hiring or retention, a plaintiff must show: (1) the employer knew or should have known of the employee’s dangerous proclivities, and (2) the employer’s negligence was the proximate cause of the plaintiff’s injuries. The court noted that “religious organizations are not immune from civil liability for the acts of their clergy,” and that “if neutral principles of law can be applied without determining questions of religious doctrine, polity, and practice, then a court may impose liability.” For example, “a church can be vicariously liable for the negligent operation of a vehicle by a pastor in the scope of employment.” However, the court cautioned that

[q]uestions of hiring, ordaining, and retaining clergy, however, necessarily involve interpretation of religious doctrine, policy, and administration. Such excessive entanglement between church and state has the effect of inhibiting religion, in violation of the first amendment. By the same token, judicial inquiry into hiring, ordaining, and retaining clergy would result in an endorsement of religion, by approving one model for church hiring, ordination, and retention of clergy. A church’s freedom to select clergy is protected “as a part of the free exercise of religion against state interference.” Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94 (1952). Ordination of a priest is a “quintessentially religious” matter, “whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals of this hierarchical church.” The trial court did not err in dismissing the claims of negligent hiring/ordination/retention.

Negligent Failure to Supervise Clergy

The parents asserted that after the priest was ordained, the diocese had a duty to supervise his activities, which it failed to do. The parents claimed that the diocese “knew or reasonably should have known of prior sexual misconduct and a propensity to such conduct” by the priest. Once again, the court disagreed:

Adjudicating the reasonableness of a church’s supervision of a cleric-what the church “should know”-requires inquiry into religious doctrine …. [T]his would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of supervision. Not recognizing the cause of negligent failure to supervise clergy is not an establishment of religion because it is a “nondiscriminatory religious-practice exemption.” Employment Division v. Smith, 494 U.S. 872, 879 (1990). It achieves “a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Nonrecognition of this negligence tort preserves “the autonomy and freedom of religious bodies while avoiding any semblance of established religion.” Walz, 397 U.S. at 672.

Intentional Failure to Supervise Clergy

The court ruled that allowing religious organizations to be sued for “intentional failure to supervise clergy” does not offend the first amendment. A cause of action for intentional failure to supervise clergy is stated if a supervisor knows that a minister is likely to harm others but disregards the risk. The court cautioned that this basis of liability requires a supervisor, and that the first amendment does not allow a court “to decide issues of church government-whether or not a cleric should have a supervisor.” The parents in this case alleged that the diocese knew that harm was certain or substantially certain to result from its failure to supervise the priest, and as a result “have stated a cause of action for intentional failure to supervise clergy.”

Negligent Infliction of Emotional Distress

The parents claimed that after they reported the sexual misconduct, the diocese negligently inflicted emotional distress on them by failing to investigate, covering up the incident, and making the statements “this happens to young men all the time,” this was “an innocent pat on the butt” and they should “forgive and forget” and get on with their lives. The court pointed out that “to prevail under negligent infliction of emotional distress, a plaintiff must show: (1) the defendant should have realized that its conduct involved an unreasonable risk of causing the distress, and (2) the emotional distress or mental injury must be medically diagnosable and sufficiently severe to be medically significant.” The court concluded that allowing the parents to sue the diocese on this basis would violate the first amendment:

The [parents’] claim is related not to the relationship between the diocese and its clergy, but rather to the relationship between the diocese and its parishioners. To determine whether the diocese’s responses to its members’ claims were “reasonable,” a court would inevitably judge the reasonableness of religious beliefs, discipline, and government. Applying a negligence standard to the actions of the diocese in dealing with its parishioners offends the first amendment. “In short, the [first amendment permits] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastic tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decision as binding upon them.” Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

Intentional Infliction of Emotional Distress

The parents claimed that the diocese’s conduct was extreme and outrageous in “allowing the assault to happen, and in covering up the incident and other such incidents by [the priest involved and by other priests], by failing to properly investigate, and in their treatment of the [family] after the assault.” They further allege that the Diocese “acted intentionally.” The court noted that “to state a claim for intentional infliction of emotional distress, a plaintiff must plead extreme and outrageous conduct by a defendant who intentionally or recklessly causes severe emotional distress that results in bodily harm. The conduct must have been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” This standard was not met, the court concluded. “Intentional infliction of emotional distress requires not only intentional conduct, but conduct that is intended only to cause severe emotional harm. The [parents’] allegations do not support the inference that the diocese’s sole purpose in its conduct was to invade the [parents’] interest in freedom from emotional distress.”

Independent Negligence by the Diocese

The parents pointed to several acts of negligence by the diocese: (1) failing to have a policy to prevent sexual abuse of minors; (2) concealing unlawful sexual acts and abuse by failing to educate and accurately inform the public; (3) ignoring and failing to investigate complaints; (4) trying to silence claims and prevent members and the public from discovering priests accused of sexual misconduct; and (5) failing to evaluate the propensity of priests to engage in improper sexual conduct. The court noted that whether or not negligence exists in a particular situation “depends on whether or not a reasonably prudent person would have anticipated danger and provided against it.” Yet, in order to determine how a “reasonably prudent diocese” would act, a court would have to “excessively entangle itself in religious doctrine, policy, and administration.” Church members give their “implied consent” to be “subject only to such appeals as the organism itself provides for.” Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

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