Clergy Malpractice, Seduction of Counselees and Church Members

• 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.

The Colorado Supreme Court ruled that a church insurance policy provided coverage for a minister’s “harmful counseling” occurring prior to acts of sexual misconduct. 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.

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. Since the youth pastor was unable to pay this judgment, the victim sought payment from the church’s insurer. The church’s insurance policy contained the following paragraph:

The [insurer] will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of any acts, errors, or omissions of the insured, arising out of counseling activities of the insured or counseling activities of others for which the insured is liable… . This insurance does not apply … to liability resulting from any actual conduct of a sexual nature.

The insurer insisted that this clause barred any coverage for the youth pastor’s sexual misconduct. The victim asserted that the youth pastor’s misconduct arose in the context of a counseling relationship, and therefore the church’s insurer was obligated to pay the $187,000 judgment against the youth pastor. A state appeals court agreed with the insurer. It conceded that the policy provided coverage to the church in the event of a pastor’s sexual misconduct, but it concluded that the policy did not offer coverage for damages awarded against pastors on account of “conduct of a sexual nature” occurring in the context of counseling.

The victim appealed, and the state supreme court ruled that the policy did cover the youth pastor’s acts. The supreme court observed, “Because the counseling relationship predated and continued for a period of time prior to the sexual conduct, the causes are separable. Hence, we also hold that the compensatory damages awarded against [the youth pastor] in the tort case must be allocated between the coverage and the exclusion.” In other words, acts of sexual misconduct occurring in the course of the counseling relationship would be covered under the policy, while acts of sexual misconduct occurring after the counseling relationship had ended would not be covered. The court noted that the youth pastor’s acts of sexual misconduct “occurred after a prolonged period of counseling.” However, once the youth pastor began engaging in sexual contacts with the victim, the insurance policy’s exclusion was triggered.

Application. Victims of sexual misconduct ordinarily sue both the perpetrator and the church. While most church insurance policies provide coverage for the church in such cases, they exclude coverage for the perpetrator. As a result, the perpetrator is responsible for retaining an attorney and paying any judgment rendered against him or her by a jury. This case suggests that damages caused by “harmful counseling” occurring prior to acts of sexual misconduct may be covered under a church’s liability policy. This is an unfortunate and highly questionable conclusion, since it amounts to the first recognition by a court that a pastor may be liable on the basis of malpractice or “negligent counseling” for the content of his counseling. Bohrer v. Church Mutual Insurance Company, 965 P.2d 1258 (Colo. 1998).

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