• 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.
• Key point. Churches and denominational agencies may be legally responsible for injuries resulting from the sexual misconduct of ministers (or lay employees or volunteers) if they knew of prior acts of sexual misconduct and failed to adequately restrict or monitor the individual’s actions. Seduction of Counselees and Church Members
A Connecticut court ruled that a national church could be liable for the sexual misconduct of an ordained minister on the basis of intentional infliction of emotional distress and recklessness. A woman (“Anne”) was employed by a local church affiliated with the United Church of Christ (UCC or “national church”). The church’s senior minister (“Pastor Tim”) provided counseling services to Anne in his capacity as her minister, and engaged in an improper sexual relationship with her in violation of the church’s sexual harassment policy. This relationship took place during working hours while Anne was under Pastor Tim’s supervision, and included a variety of sexual activities. Pastor Tim also employed various means of controlling the Anne, causing and coercing her to comply with his sexual demands and to continue engaging in improper sexual activities. These events caused Anne to obtain psychological counseling and treatment and to resign her employment. Anne later sued Pastor Tim, her church, and regional and national denominational agencies as a result of injuries she allegedly suffered. Anne’s lawsuit alleged that the UCC supervised Pastor Tim’s appointment, training, qualifications and moral fitness to serve as a minister, and provided counseling and psychiatric care for persons serving in such positions. She also alleged that the UCC knew that Pastor Tim had an improper sexual relationship with a female member of another church in a previous pastoral assignment, and knew that he had been terminated from that prior position and was required to undergo training and psychological treatment before he could accept his current position. Anne alleged that the church defendants were responsible for her injuries on the basis of several theories, including emotional distress and recklessness.
Intentional Infliction of Emotional Distress
Anne alleged that the national church was responsible for her injuries on the basis of intentional infliction of emotional distress. She alleged that its conduct was “intentional and was extreme and outrageous, transcending the bounds of decency tolerated by society,” and that the UCC “knew, or reasonably should have known, that severe emotional distress was a likely result of its conduct.” The national church insisted that its role in ordaining ministers, and assigning them to church positions, was insufficient to find it liable for intentionally inflicting emotional distress. The court disagreed. It noted that liability for intentional infliction of emotional distress
requires conduct that exceeds all bounds usually tolerated by decent society. Liability has been found only where the conduct has 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress ….
Here the plaintiff has asserted multiple references to UCC’s knowledge of Pastor Tim’s history of exposing female employees and church members to predatory conduct, and its knowledge that this agent/employee had left a previous clerical position due to such behavior. The plaintiff has further specified the scope of UCC’s obligation to “revoke, remove, withdraw or restrict” Pastor Tim’s ministerial duties in order to prevent the recurrence of such predatory acts with other female employees and church members, and UCC’s failure to do so in the face of such danger. Such facts implicitly state UCC’s knowledge that such harm as here occurred was indeed likely to occur, and establish an adequate factual basis for a finding that UCC’s acts intentionally placed Pastor Tim, without close monitoring or supervision, in a place where he presented a danger-without- warning to prey who crossed his path. Giving credit to Pastor Tim’s history, reasonable persons in contemporary times may, indeed, respond to his intentional placement at the [church] by exclaiming, “Outrageous!” [The facts alleged by Anne] clearly permit the conclusion that UCC acted intentionally, and not merely negligently, in placing Pastor Tim at the [church]. If the allegations of the complaint are fully established and believed by the [jury], the rational conclusion would be that in this situation the defendant UCC intended, in the sense discussed, to bring about a result, namely, the exposure of Pastor Tim’s congregants and church employees to his sexual proclivities, with the anticipated emotional distress caused to his victim or victims thereby ….
Thus, construing the facts as alleged in the complaint most favorably to the pleader, it is apparent that [Anne is claiming] that UCC, acting in its governing capacity, intentionally placed Pastor Tim in his position at the [church] when it knew, or reasonably should have known, that severe emotional distress was the likely result of this conduct; that the placement of Pastor Tim in this position, where he was likely to encounter admiring, vulnerable individuals such as the plaintiff, was extreme and outrageous; that UCC’s conduct in so placing Pastor Tim was the cause of the plaintiff’s distress; and that the plaintiff sustained severe emotional distress as the result of her exposure to Pastor Tim and his predilections. The court accordingly finds that … Anne has alleged facts sufficient to state a cause of action sounding in intentional infliction of emotional distress.
Anne’s lawsuit alleged that the national church was liable for her injuries on the basis of “recklessness.” Specifically, she claimed that the UCC “acted with wanton and reckless disregard as to the plaintiff and other female employees and church members who would form a target class for Pastor Tim’s’ known predatory sexual practices of which it was fully aware, his being required to undergo mandatory psychological counseling.” The national church argued that Anne had failed to allege reckless misconduct on its part in a way that would differentiate this claim from her claim based on negligent conduct. The court disagreed. It defined recklessness as follows,
Recklessness is a state of consciousness with reference to the consequence of one’s acts …. It is more than negligence, more than gross negligence …. The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them …. Wanton misconduct is reckless misconduct …. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.
The court again rejected the national church’s request to dismiss this claim. It observed,
This [claim] does not set forth conclusory allegations, without supporting factual references. Rather, evidence in support of [the allegation of recklessness], if believed, would provide a sufficient basis upon which a [jury] reasonably could find that UCC acted recklessly in its placement of Pastor Tim as the minister of the [church], where he was expected to supervise and counsel female staff members and congregants. To have made this placement, while it knew the predatory practice that Pastor Tim had exhibited in a similar situation, would satisfy the necessary aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. Such conduct reasonably implies that UCC held a reckless disregard of the consequences of this placement. As such, these allegations, if credited by the [jury], would support a claim that UCC acted recklessly in assigning Pastor Tim to his service in [the church].
Application. This case illustrates the significant risk that churches and denominational agencies assume when they allow ministers (or lay employees and volunteers) who are known sex offenders to assume positions within a church. According to this court, churches and denominational agencies that use a known sex offender can be guilty of “outrageous” and “reckless” conduct. The court suggested that liability can be reduced in such cases by not using known sex offenders, or, if such persons are employed, to (1) “restrict” their activities within the church, or (2) “closely monitor” or supervise them. The court did not explain what it meant by “restricting” and “monitoring” a sex offender’s activities. Burns v. First Congregational Church, 2000 WL 1337671 (Conn. Super. 2000).
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