• 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 4-11.1. 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 10-13.1. A few courts have found 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, the church or agency is found to be vicariously liable for the minister’s breach of a fiduciary duty, but in others the church or agency is found to have breached a fiduciary duty that it had with the victim.
* A California court ruled that a pastor and his employing church could be liable on the basis of his sexual seduction of a female member of his congregation, but only if the member was “vulnerable” on the basis of age, mental capacity, illness, or a counseling relationship. A pastor persuaded a female member (“Sarah”) of his congregation to have sexual relations with him. The pastor called Sarah once or more each day and often left “romantic and sexual messages” on her answering machine. He also represented to her that his sexual relationship with her was not improper. Prior to his relationship with Sarah, the pastor had engaged in a sexual relationship with another female member of his congregation, and before that with women in other churches where he was employed. His behavior was allegedly well known and tolerated by denominational officials. Sarah sued the pastor, her church, and a denominational agency. She claimed that the church defendants knew that a pastor occupies a superior position of power and influence that can be abused to manipulate parishioners and cause them serious emotional and psychological harm and, because of their knowledge of the pastor’s sexual relationships with numerous parishioners, they knew or should have known that employing him created an unreasonable risk of harm to herself and others. As a result of the pastor’s actions, Sarah alleged that she has suffered “irrevocable mental, physical and emotional harm, depression, mental and emotional distress, weight loss, public humiliation, and loss of her religious faith.” She claimed that the church defendants were liable for the pastor’s behavior on the basis of several theories, including breach of a fiduciary duty, negligent supervision, negligent selection, negligent retention, fraud, and emotional distress. A trial court dismissed all claims against the pastor and church defendants, and a state appeals court affirmed this result.
The court devoted considerable attention to the question of whether or not the pastor was personally liable for Sarah’s injuries. Sarah claimed that the pastor was liable on three grounds: (1) seduction; (2) abusing a “special relationship”; and (3) breach of a fiduciary duty. The court rejected all three bases of liability.
The court noted that California, like virtually every other state, has abolished civil liability for “alienation of affections,” and therefore the pastor could not be liable for “seducing” Sarah.
Sarah claimed that the pastor stood in a “special relationship” with her comparable to lawyer-client and doctor-patient relationships, and owed her the highest duty of care and good faith. He breached this special relationship by engaging in sexual relations with her. The court rejected this basis of liability on the ground that it was an attempt to hold a pastor liable for malpractice contrary to the California Supreme Court’s rejection of clergy malpractice in a 1988 ruling. Nally v. Grace Community Church, 253 Cal. Rptr. 97 (1988).
Sarah claimed that her relationship with the pastor was a “fiduciary relationship” that the pastor breached by engaging in sexual relations with her. The court noted that the concept of “fiduciary relationship” was a murky one, and that “a range of the relationships could potentially be characterized as fiduciary.” In general, however, a fiduciary relationship is based on the “vulnerability” of one party based on advanced age, youth, lack of education, mental incapacity, grief, sickness, or some other incapacity. The court noted that
courts in other jurisdictions [citing Colorado, Florida, and New Jersey] are divided on whether it is constitutionally permissible to subject a member of the clergy to tort liability for the breach of a fiduciary duty to a parishioner. Some have adopted [the pastor’s] view that the claim a clergyman violated a fiduciary duty is simply another way of saying that he committed malpractice, and is barred by the first amendment for the same reasons …. Other courts reject this view, however, and allow claims by parishioners that clergymen breached a fiduciary duty as a result of sexually inappropriate conduct in the course of pastoral counseling, believing such claims can be adjudicated without reference to religious doctrine or practice where the conduct at issue is not part of the beliefs and practices of the defendant’s religion. In the view of these courts, an action for breach of fiduciary duty does not require establishing a standard of care and its breach but merely proof that a vulnerable parishioner trusted and sought counseling from the pastor and a violation of that trust, which constitutes a breach of fiduciary duty.
The court decided to side with those courts in other states that allowed clergy to be sued on the basis of a breach of a fiduciary duty for their sexual contacts with members of their congregation. It concluded,
A pastor’s sexual misconduct is not likely to be defended on the basis of any sincerely held religious belief or practice. Subjecting such secular conduct to tort liability therefore would not ordinarily discourage a religious organization from putting its beliefs into practice. Moreover, the sexual exploitation of parishioners by pastors with whom they have a confidential relation poses a threat to public safety, peace or order that is seemingly as substantial as that posed by deceptive religious recruitment practices, and the state possesses at least as compelling an interest in discouraging such exploitation. We are aware of no action imposing a lesser burden on religion than tort liability that would satisfy the government’s interest in discouraging the sexual abuse of parishioners by pastors with whom they stand in a confidential relation. Finally, the imposition of liability for the sexual misconduct of pastors that breaches a fiduciary duty would not discriminate between religions (or between religion and non-religion) any more than the imposition of liability for religious recruitment practices; and there is reason to think that, as between religions, it would have a lesser discriminatory effect …. Accordingly, we conclude that a pastor may be subject to tort liability for sexually inappropriate and injurious conduct that breaches a fiduciary duty arising out of a confidential relation with a parishioner, provided the alleged injurious conduct was not dictated by a sincerely held religious belief or carried out in accordance with established beliefs and practices of the religion to which the pastor belongs, and there is no other reason the issues cannot be framed for the [jury] in secular rather than sectarian terms.
While recognizing that pastors who engage in sexual relations with church members may be liable for their acts on the basis of a breach of a fiduciary duty, it concluded that no breach of a fiduciary duty existed in this case since there was no fiduciary relationship. It observed,
Instead of alleging any of the reasons conventionally relied upon to show that a party to an alleged confidential relation is in a vulnerable position—namely, advanced age, or youth, or lack of education, or ill health, or mental weakness—Sarah instead relies on her piety. The theory of the complaint is that the pastor stood in a fiduciary relationship with her and thus owed her the highest duty of care and good faith merely by virtue of his position as a pastor to a member of his congregation who was deeply religious …. Sarah’s claim that the depth of her religious faith rendered her vulnerable to the pastor could not be adjudicated without reference to the nature of her religious beliefs and the doctrines of her church …. The crucial questions whether Sarah was vulnerable to the pastor and unable to protect herself effectively would focus sharply on the nature and depth of her religious faith, and its basis, if any, in church doctrine. These are, of course, profoundly religious questions, as to which the courts may not constitutionally inquire.
Since the pastor was not liable for his actions, the church defendants were also dismissed from the case since their alleged liability was based on the pastor’s conduct.
Application. Add California to the list of states (Colorado, Florida, and New Jersey) that have recognized pastoral and church liability on the basis of a breach of a fiduciary duty. Note, however, that the other three state courts were the supreme courts of those states, while the California court was an appeals court. Its decision may be reversed or modified by the state supreme court. Also, it should be noted that the California court refused to recognize a “fiduciary relationship” based solely on one’s status as a church member. Something more is required, such as advanced age, youth, mental incapacity, sickness, or a counseling relationship. Keep in mind, however, that courts in many other states have rejected pastoral or church liability on the basis of a fiduciary duty. Richelle v. Roman Catholic Archbishop, 2003 WL 329036 (Cal. App. 2003).
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