Sexual Misconduct by Clergy and Church Workers – Part 2

A Florida court ruled that a denominational agency, but not a local church, could be liable on the basis of negligent supervision for the sexual misconduct of a pastor.

Church Law and Tax2001-11-01

Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key point.Seduction of Counselees and Church Members Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

Key point. Churches can be legally responsible on the basis of the respondeat superior doctrine for the actions of their employees only if those actions are committed within the course of employment and further the mission and functions of the church. Intentional and self-serving acts of church employees often will not satisfy this standard.

Key point 10-10.1. Some courts have found churches liable on the basis of negligent supervision for a minister’s acts of sexual misconduct involving adult church members on the ground that the church failed to exercise reasonable care in the supervision of the minister.

Key point.Negligence as a Basis for Liability 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 10-13.2. Several courts have refused to hold churches and denominational agencies liable on the basis of a breach of a fiduciary duty for the sexual misconduct of a minister. In some cases, this result is based on first amendment considerations.

A Florida court ruled that a denominational agency, but not a local church, could be liable on the basis of negligent supervision for the sexual misconduct of a pastor. A woman (“Jeanne”) sought marriage counseling from her pastor (“Pastor Bob”). The woman later claimed that the pastor induced her to enter into a sexual relationship with him in breach of the duty a counselor owes to one who is being counseled. Jeanne sued her church and a denominational agency and one of its officers (the “church defendants”) on the basis of several theories of liability. The trial court dismissed the lawsuit, and Jeanne appealed.

First Amendment

The trial court dismissed the case on the ground that any resolution would “entangle” it in religious doctrine in violation of the first amendment. The appeals court ruled that the first amendment does not prevent the civil courts from resolving negligence claims against church defendants.

Negligent Supervision by a Denominational Agency

Jeanne claimed that a denominational agency, and one of its officers, were negligent in their supervision of Pastor Bob. In particular, she alleged that prior to the time she began counseling with Pastor Bob other church members had for many years made complaints to a denominational official that Pastor Bob was engaging in inappropriate sexual conduct with members of his congregation. Jeanne alleged that this official failed to take appropriate supervisory action to see that Pastor Bob’s inappropriate behavior stopped. The court concluded that Jeanne could pursue her negligent supervision claim against both the denominational agency and the official who had received previous complaints about Pastor Bob’s behavior. It noted that the issue to be determined by the trial court is “whether the defendants had reason to know of [the pastor’s] misconduct and did nothing to prevent reasonably foreseeable harm from being inflicted upon [Jeanne].”

Negligent Supervision by the Local Church

Jeanne also claimed that her local church was negligent. She conceded that the church did not have the power to hire, supervise, or fire Pastor Bob (all of these decisions were made by the denomination). She also conceded that the church’s role was confined to making a recommendation to the denomination each year regarding whether Pastor Bob should be retained in his position. This was a recommendation which would come from the lay members of the congregation, or a church committee appointed for that purpose. Jeanne argued that since the church membership was responsible for making a recommendation each year, the membership should have undertaken a more thorough review of the way in which Pastor Bob was performing his responsibilities. Further, if the church members had been more active in this regard, then they would have turned up information about Pastor Bob’s alleged misconduct during counseling sessions and would have, in turn, rendered a negative recommendation to the denomination. The appeals court rejected this claim, since the power of supervision was vested in the denomination, not in the congregation. Therefore, there was no duty on the part of the church “to exercise supervisory power it did not have.” The court declined “to impose a burden of investigation in these circumstances on lay members of a church congregation.”

Respondeat Superior

Jeanne claimed that the church defendants were all liable for Pastor Bob’s acts on the basis of respondeat superior. Under this legal doctrine, an employer is legally responsible for the acts of employees committed within the scope of their employment. The court concluded that “there is no respondeat superior liability for the alleged sexual misconduct by Pastor Bob. As a matter of common sense, having sexual relations with a counselee is not part of the job responsibilities of a minister. Plainly the sexual conduct alleged by [Jeanne] was for the personal motives of the pastor, and not designed to further the interests of the church.”

Breach of Fiduciary Duty

Jeanne claimed that the church defendants were liable on the basis of a breach of a fiduciary duty they owed her. The court disagreed: “Some jurisdictions hold that when a pastor undertakes a counseling relationship with a church member, the parties have thereby entered into a fiduciary relationship …. There is an opposing view that it is inappropriate to allow a cause of action for breach of fiduciary duty in the context of interpersonal relationships, namely, in the context of pastoral counseling …. [We] decline to recognize a claim for breach of fiduciary duty in this context. Given that [Jeanne] will be able to pursue her claims for breach of duty under the heading of negligence, the claims for breach of fiduciary duty are redundant.

Emotional Distress

The court rejected Jeanne’s claim that the church defendants were guilty of intentional infliction of emotional distress. It noted that this type of liability only exists when conduct is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” With regard to the church defendants, Jeanne’s allegations “boil down to a claim of negligent failure to supervise Pastor Bob. This is legally insufficient to establish a claim for intentional infliction of emotional distress.


The court rejected Jeanne’s claim that the denomination committed fraudulent misrepresentation by representing to the congregation, when it appointed Pastor Bob as pastor of the church, that he was a qualified counselor for church members. The court noted that fraudulent misrepresentation requires proof of (1) a false statement concerning a material fact; (2) knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) injury by the party acting in reliance on the representation. The court concluded that Jeanne’s allegations “were not enough to state a cause of action for fraud.”

Application. This case is important because it illustrates, once again, the risk faced by church leaders who ignore allegations of clergy misconduct. The appeals court brushed aside the church defendants’ first amendment defense and ruled that the denomination, and one of its officials, could be sued on the basis of negligent supervision for failing to adequately supervise Pastor Bob after receiving complaints from church members that he was engaging in inappropriate sexual acts while counseling female members of the congregation. Church leaders who ignore such accusations do so at their own peril. Elders v. The United Methodist Church, 2001 WL 804567 (Fla. App. 2001).

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