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

The Wisconsin Supreme Court ruled that a Catholic Diocese could not be sued as a result of an alleged sexual relationship that began when a woman began a counseling relationship with a priest who served as a hospital chaplain and counselor.

Church Law and Tax1998-11-01

Sexual misconduct by clergy and church workers

Key point. Churches and denominational agencies will not be legally responsible on the basis of negligent supervision for a minister’s sexual misconduct if they were not aware of previous similar incidents. It is knowledge of such incidents that imposes a duty of supervision. Further, the fact that church members or even employees are aware of a previous incident does not put the church on notice-unless a member or employee was acting as an agent of the church at the time he or she became aware of the previous misconduct.

The Wisconsin Supreme Court ruled that a Catholic Diocese could not be sued as a result of an alleged sexual relationship that began when a woman began a counseling relationship with a priest who served as a hospital chaplain and counselor. The chaplain met with and counseled with a woman (the “victim”) with respect to medical and emotional problems she was experiencing after the death of her baby. After her release from the hospital, the victim continued to meet with the chaplain. The dined together, visited art museums, attended pro—life rallies, exchanged gifts, and discussed politics, personal problems, and life in general. The victim viewed the priest as her pastoral counselor during these meetings, because he gave her advice to help her cope with stress and depression. On one occasion the priest invited the victim to his family’s cabin, where they engaged sexual intercourse. Sexual relations continued for another year, until the victim informed a bishop of the affair. The victim later sued the chaplain and diocese. She claimed that the diocese was legally responsible for the chaplain’s misconduct on the basis of negligent supervision as well as a state law imposing civil liability on therapists who engage in sexual contact with counselees. The victim conceded that the diocese was not aware of her affair with the chaplain until she disclosed it to the bishop. However, she claimed that the diocese “should have known” that the chaplain posed a risk to female counselees because of an incident that happened a few years before. A parish priest heard the chaplain scream from his apartment in a rectory late one evening. The priest rushed to the apartment where he found the chaplain restraining a woman by straddling her body and pinning her arms to the floor with his hands. The chaplain was bleeding from a bite wound to his wrist. The priest separated the two, and escorted the woman out of the rectory. He did not report this incident to the bishop or any other representative of the diocese because he assumed that the chaplain had been defending himself against an attack by the woman, rather than engaging in any inappropriate sexual or intimate conduct. A trial court threw out the lawsuit, but a state appeals court reinstated the case. The diocese appealed to the state supreme court, asserting that any resolution of the woman’s claim of negligent supervision of the chaplain would violate the first amendment’s “nonestablishment of religion” clause.

The supreme court noted that the nonestablishment of religion clause bars “excessive governmental entanglement with religion,” and that entanglement occurs “if a court is required to interpret church law, policies, or practices.” On the other hand, a civil court may resolve internal church disputes if it can do so on the basis of “neutral principles of law”. The court concluded that the first amendment prohibited it from resolving the victim’s negligent supervision claim:

The reconciliation and counseling of the errant clergy person involves more than a civil employer’s reprimand of three day suspension without pay for misconduct. Mercy and forgiveness of sin may be concepts familiar to bankers, but they have no place in the discipline of bank tellers. For clergy, they are interwoven in the institution’s norms and practices.

Therefore, due to the strong belief in redemption, a bishop may determine that a wayward priest can be sufficiently reprimanded through counseling and prayer. If a court was asked to review such conduct to determine whether the bishop should have taken some other action, the court would directly entangle itself in the religious doctrines of faith, responsibility, and obedience. Likewise … negligent supervision claims would require a court to formulate a “reasonable cleric” standard, which would vary depending on the cleric involved, i.e., reasonable Presbyterian pastor standard, reasonable Catholic archbishop standard, and so on. Such individualized standards would be required because … church doctrines and practices are intertwined with the supervision and discipline of clergy …. This further explains why this court has held that negligent supervision claims are prohibited by the first amendment under most if not all circumstances.

What about the woman’s claim that the diocese should have known of the incident with the other woman in the chaplain’s apartment? The court concluded that this incident did not put the diocese on notice of any dangerous propensity of the chaplain that would have called for closer supervision, because the diocese was never apprised of the incident. Further, the priest who observed the incident was not acting in any official capacity at the time and so his awareness of it could not be “imputed” to the diocese. The priest may have been under an ecclesiastical duty to inform the diocese, but basing liability on this ground would require an analysis of church law, policies, and practices in violation of the first amendment.

The court made one additional observation. It acknowledged that the chaplain engaged in consensual sexual relationship with an adult, single female. But it pointed out that “sexual acts committed by single consenting adults are not legally wrong,” but are wrong “only under church doctrine”. Therefore, finding the diocese liable for such a relationship would be subjecting it to a higher legal duty than applies to secular employers – solely on the basis of its religious doctrine. This the court refused to do.

Application. This case illustrates the view of most if not all courts that churches and denominational agencies cannot be legally responsible on the basis of negligent supervision for a minister’s sexual misconduct if it was unaware of any previous misconduct. It is knowledge of previous misconduct (of a similar nature) that imposes a duty of supervision. Further, this case demonstrates that a religious organization will not necessarily be “put on notice” of a minister’s previous misconduct because a staff member was aware of it. The staff member must have become aware of the misconduct while acting as an agent of the religious organization. L.L.N. v. Clauder, 563 N.W.2d 434 (Wis. 1997). Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability

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