• Key point. Some courts have allowed pastors to be sued on the basis of a “breach of a fiduciary duty” for engaging in sexual relations with a counselee in the course of a counseling relationship.
• Key point. The courts have refused to recognize “clergy malpractice” as a basis of legal liability, even in cases involving sexual misconduct.
• Key point. Church officials may be liable if they disclose to church members that a pastor has engaged in sexual relations with a counselee in the course of a counseling relationship.
The New Jersey Supreme Court allowed a woman to sue her pastor and church as a result of a sexual relationship that was initiated by the pastor. The woman’s lawsuit alleged that she had sought counseling from a pastor of her church, and that the pastor became aware of her emotional vulnerabilities and exploited those vulnerabilities to induce her to engage in sexual acts with him. The woman filed a complaint with a “standing committee on clergy ethics” of her denomination, and the committee later determined that the minister had “violated his pastoral relationship” with the victim by engaging in inappropriate sexual behavior toward her.” The committee “sanctioned” the minister. The woman then sued her pastor and church, claiming that the pastor’s actions amounted to “clergy malpractice,” a breach of a fiduciary duty that he owed her, and emotional distress. She also sued the successor pastor of her church (to whom she had disclosed the sexual relationship) because of his unauthorized disclosure of the affair and her identity to congregational members in sermons and personal correspondence. A state appeals court dismissed all of the woman’s claims, and she appealed to the state supreme court.
The court rejected the woman’s claim that the pastor was guilty of clergy malpractice. It noted that “no other court in the United States” has recognized this basis for liability, and for good reason:
Several problems inhere in a claim for clergy malpractice. First, such a claim requires definition of the relevant standard of care. Defining that standard could embroil courts in establishing the training, skill, and standards applicable for members of the clergy in a diversity of religions with widely varying beliefs. Furthermore, defining such a standard would require courts to identify the beliefs and practices of the relevant religion and then to determine whether the clergyman had acted in accordance with them. The entanglement could restrain the free exercise of religion.
Breach of a fiduciary duty
The court noted that if a “fiduciary relationship” exists between a pastor and counselee, then the pastor may be legally responsible for “breaching” that duty by taking advantage of the counselee’s emotional vulnerability by initiating a sexual relationship. It concluded that a fiduciary relationship does exist between pastors and counselees:
The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position. A fiduciary relationship arises between two persons when one person is under a duty to act for or give advice for the benefit of another on matters within the scope of their relationship. The fiduciary’s obligations to the dependent party include a duty of loyalty and a duty to exercise reasonable skill and care. Accordingly, the fiduciary is liable for harm resulting from a breach of the duties imposed by the existence of such a relationship. Trust and confidence are vital to the counseling relationship between parishioner and pastor. By accepting a parishioner for counseling, a pastor also accepts the responsibility of a fiduciary. Often, parishioners who seek pastoral counseling are troubled and vulnerable. Sometimes, they turn to their pastor in the belief that their religion is the most likely source to sustain them in their time of trouble. The pastor knows, or should know of the parishioner’s trust and the pastor’s dominant position.
The court stressed that the first amendment does not prevent clergy liability based on a breach of fiduciary duty: “Unlike an action for clergy malpractice, an action for breach of fiduciary duty does not require establishing a standard of care and its breach. Establishing a fiduciary duty essentially requires proof that a parishioner trusted and sought counseling from the pastor. A violation of that trust constitutes a breach of the duty.” Further, it pointed out that “[t]he free exercise of religion does not permit members of the clergy to engage in inappropriate sexual conduct with parishioners who seek pastoral counseling,” and, that the pastor’s actions were “not an expression of a sincerely held religious belief [but rather were] an egregious violation of the trust and confidence [the woman] reposed in him.”
The court concluded: “Ordinarily, consenting adults must bear the consequences of their conduct, including sexual conduct. In the sanctuary of the church, however, troubled parishioners should be able to seek pastoral counseling free from the fear that the counselors will sexually abuse them.”
The court concluded, without comment, that the woman could sue the pastor for “negligent infliction of emotional distress.”
The successor pastor’s liability for public disclosures
The woman claimed that she met with the successor pastor to discuss the previous pastor’s “inappropriate physical conduct” with her. The successor pastor knew that she had been receiving in—patient care at a psychiatric hospital and that she had tried to commit suicide five days before the meeting. The woman claimed that the successor pastor owed her a duty of care “not to publish any identifying information, including her identity and the nature and extent of [the previous pastor’s] inappropriate sexual behavior with her, to the members of [her church].” A few weeks after their meeting the successor pastor published an open letter to the congregation in which he identified the woman and described some details of the previous pastor’s inappropriate sexual behavior. He did the same in a sermon. The woman insisted that she was opposed to these disclosures, but that the successor pastor had induced her to “consent” to them through his “negligent misrepresentation” that his disclosures were for her benefit and were part of his pastoral care of her. She claimed that his actions amounted to a breach of a fiduciary duty and an invasion of privacy. Further, the woman claimed that the successor pastor falsely suggested to the congregation that she and the previous pastor “were engaged in a voluntary romantic relationship between two consenting, mature adults rather than an abusive relationship between a pastoral care provider and pastoral counselor and a client.” As a result, she claimed that he was liable on the basis of negligent infliction of emotional distress, negligent misrepresentation, defamation, and “depiction in a false light.”
The court noted that all of the successor pastor’s alleged wrongs occurred in sermons and in letters to church members. It conceded any evaluation of these sermons and letters by a court “might entangle a court in religious doctrine.” As a result, it referred the case back to the trial court to determine whether or not the woman’s claims against the successor pastor could be resolved without reference to doctrine.
Application. This case is important for the following reasons: (1) It demonstrates that liability of clergy and churches on the basis of “clergy malpractice” is dead. (2) It suggests that any counseling relationship between a pastor and parishioner is fiduciary in nature, that as a result a pastor owes certain fiduciary duties to the counselee, and that those duties are breached when the pastor initiates a sexual relationship with the counselee. (3) Recognition of pastoral (and church) liability based on a breach of fiduciary duty does not violate the first amendment guaranty of religious freedom. (4) Pastors and denominational leaders who publicly disclose (without consent) the identity of a counselee who engaged in sexual relations with another pastor may be liable on the basis of a number of legal theories, even if the disclosures are made solely to church members. F.G. v. MacDonell, 696 A.2d 697 (N.J. 1997).
[Invasion of Privacy, Clergy Malpractice, Seduction of Counselees and Church Members, Judicial Resolution of Church Disputes]
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