Sexual Misconduct by Clergy and Church Workers

A Minnesota court ruled that it was barred from resolving a man’s claim that his church and a denominational agency were responsible for the negligent counseling of his pastor.

Church Law and Tax2002-09-01

Sexual misconduct by clergy, lay employees, and volunteers

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “non-religious” counseling.

Key point 10-12. Churches face a number of legal risks when they offer counseling services by ministers or laypersons. These include negligent selection, retention, or supervision of a counselor who engages in sexual misconduct or negligent counseling. A church also may be vicariously liable for a counselor’s failure to report child abuse, breach of confidentiality, and breach of a fiduciary relationship.

Clergy Malpractice

Seduction of Counselees and Church Members

* A Minnesota court ruled that it was barred by the first amendment from resolving a man’s claim that his church and a denominational agency were responsible for the negligent counseling of his pastor that led to the breakdown of his marriage. A husband and wife (“Jon” and “Jan”) sought marital counseling from the pastor of their Seventh-Day Adventist church, who met with them as a couple and individually over the course of two years. Jon claimed that the pastor acted inappropriately in several ways, including the following: (1) During one of the first counseling sessions, the pastor told Jon that he felt very attracted to Jan and “needed to pray about it.” (2) The pastor administered a personality test to the couple and advised them that their personality types were “very different” which would make it very difficult for them to have a harmonious marriage. In contrast, the pastor said that his own personality type was “very similar” to that of Jan. (3) On one occasion, the pastor and several church members, including Jan, stayed at a motel during a 4-day out-of-state seminar, during which time the pastor provided counseling to Jan in her motel room. (4) The pastor asked Jan to make a list of the qualities she would like to see in a “fantasy man” and then told her “I am your fantasy man.” (5) The pastor told Jon that if he made himself available, Jan would run off with him. (6) The pastor told Jon that he and Jan were “not right for each other” and that he did not have any hope for a good solution.

The pastor eventually was forced to resign his ministry, largely because of his relationship with Jan. Jon acknowledged that there was no evidence that his wife and the pastor were sexually intimate while the pastor was providing them with pastoral counseling. Jon and Jan were separated and later divorced. Following the divorce, Jan married the pastor. Jon sued the pastor, his church, and a denominational agency, alleging that while acting as a trained counselor the pastor breached confidentiality and violated “counseling relationship boundaries” by repeatedly disclosing personal information. He also asserted that the pastor repeatedly violated church doctrine and policy regarding limits on the counseling a minister may provide, as set out in the “Seventh-Day Adventist Ministers Handbook.” Jon sued the pastor for clergy malpractice, breach of fiduciary duty or confidential relationship, and negligent counseling. The trial court dismissed all counts except negligent counseling and ruled that the claim was neither prohibited by the first amendment nor barred by a state law abolishing civil claims for “alienation of affection.” The husband also claimed that the Minnesota Conference of Seventh-Day Adventists (the “regional church”) was liable for the pastor’s actions.

The trial court ruled that the claim for negligent counseling could proceed because the pastor had exceeded the limits of pastoral counseling and thereby engaged in “secular” counseling for which he could be held liable without offending the first amendment. It based this conclusion on a number of considerations, including the following: (1) The pastor used a psychological test, which is a secular counseling tool, to evaluate the couple’s marriage. (2) The guidelines noted in the Seventh-Day Adventist Ministers Handbook envision only short-term pastoral counseling (four or five sessions at most) and strongly advise against counseling women alone. In this case, the pastor counseled the couple for two years, including a number of individual sessions with Jan. (3) Several Seventh-Day Adventist officials testified that the pastor’s actions in counseling the couple went far beyond the conduct they expected from their ministers. (4) An expert witness testified that the pastor was providing secular “therapy” and acting as a marriage counselor.

On appeal, the regional church argued that the first amendment’s nonestablishment of religion clause prohibited the civil courts from resolving Jon’s claim that it was responsible for the pastor’s counseling since this would create an excessive governmental entanglement with religion. The court noted that

in assessing whether there is excessive entanglement, a number of factors will be considered, including the character and purpose of the institution involved, the nature of the regulations, intrusion into religious administration, and the resulting relationship between the government and the religious authority. When the claims against religious institutions concern core questions of church discipline and internal governance, the inevitable danger of governmental entanglement precludes judicial review. But when the claims can be resolved by neutral principles of law, such claims may go forward.

The court referred to a 1976 decision of the United States Supreme Court in which it ruled that the Constitution “permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government.” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The Minnesota appeals court concluded,

The trial court in this case, however, determined that certain provisions in the Ministers Handbook set out standards applicable to [the pastor] and determined he did not meet these standards. In effect, the court concluded that a minister who did not follow these ethical codes and counseling guidelines stepped outside of the role of a minister. By interpreting and analyzing the language and intent of the Ministers Handbook, the court did precisely what the first amendment forbids, resulting in the excessive entanglement of the court in religious doctrine, practice, or church polity. Resolution of the negligent counseling claim would therefore violate the first amendment.

Application. This case illustrates the view of some courts that any judicial review of the “competency” of pastoral counseling is barred by the first amendment’s prohibition of excessive entanglement between church and state. Not all courts would agree with this conclusion. Indeed, one of the judges on the Minnesota appeals court dissented from the court’s conclusion. Odenthal v. Minnesota Conference of Seventh-Day Adventists, 632 N.W.2d 783 (Minn. App. 2001).

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