Sexual Misconduct by Clergy and Church Workers – Part 4

A Texas court ruled that a pastor, but not his employing church, was liable under a state “mental health provider” law for injuries he caused to a female counselee.

Church Law and Tax2001-07-01

Sexual Misconduct by Clergy, Lay Workers, and Volunteers

Key pointSeduction 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.

A Texas court ruled that a pastor, but not his employing church, was liable under a state “mental health provider” law for injuries he caused to a female counselee as a result of engaging in a sexual relationship with her. A church hired a new pastor who had previously served in two other churches. A few years later the church hired one of its long-time female members (Laura) as the church secretary. Laura began visiting with the pastor about marital problems she was having with her husband. These informal sessions concerning her marital problems grew into regular sessions that took place on Monday, Tuesday and Thursday mornings each week. As these sessions continued, the pastor also began counseling Laura’s husband separately regarding the couple’s problems. Eventually, the church’s youth pastor and music pastor confronted their senior pastor about his continuing closed-door meetings with Laura. They told him that they did not feel that it presented a good testimony for him to be spending so much time alone with her and that it was unprofessional, and at worst, immature conduct. The pastor assured them that there was nothing wrong with his conduct toward Laura.

At about the same time, the youth pastor’s wife visited with Laura and told her that the amount of time that she was spending alone with the pastor was not a good testimony. Laura insisted that there was “nothing wrong” going on between her and the pastor and she claimed to be offended by the suggestion of improper behavior. Shortly after this meeting the pastor invited Laura to come to his private residence while his wife was out of town. The two engaged in sexual relations during this encounter. The pastor also informed Laura that her husband had disclosed to him during counseling that he had been involved in an affair with another woman some five years earlier. Laura later confronted her husband about this disclosure, and informed him of her affair with the pastor. The couple confronted the pastor later that day, who informed the husband that he wanted him to divorce his wife because he loved her and wanted to marry her. A few weeks later, at a youth camp, Laura’s husband informed the youth pastor that Laura had been involved in an inappropriate sexual relationship with the pastor. This revelation led to the pastor’s resignation.

Laura and her husband later sued the pastor and church for violation of the Texas Sexual Exploitation by Mental Health Services Provider Act. They also claimed that the pastor had breached a fiduciary duty toward both of them, and that the church had been negligent in hiring and supervising the pastor.

Sexual Exploitation by Mental Health Services Provider Act

The Texas Sexual Exploitation by Mental Health Services Provider Act provides that a “mental health services provider” is liable to a patient or former patient for sexual exploitation if the patient or former patient suffers a physical, mental, or emotional injury arising out of: (1) sexual contact between the patient or former patient and the mental health services provider; (2) sexual exploitation of the patient or former patient by the mental health services provider; or (3) therapeutic deception of the patient or former patient by the mental health services provider. The Act defines the term “mental health services provider” to include a member of the clergy so long as the counseling provided by the member of the clergy “does not include religious, moral, and spiritual counseling, teaching, and instruction.”

The court concluded that the pastor failed to prove that his counseling with Laura constituted “religious, moral and spiritual counseling, teaching and instruction,” and therefore he was not exempted from liability under the Act. The court refused to find the church liable for the pastor’s conduct on the basis of the Act since there was no evidence that the church had hired the pastor “for any purpose other than to provide religious, moral and spiritual counseling, teaching and instruction to its members.”

The Act also imposes liability on employers of mental health services providers who engage in sexual contact with counselees if they failed to obtain references from former employers, or knew of prior acts of sexual misconduct and failed to report them or “take necessary action to prevent or stop the sexual exploitation by the mental health services provider.” The court concluded that the church was not liable for the pastor’s actions since it employed him for the purpose of “religious, moral and spiritual counseling, teaching and instruction” and not to provide mental health services. Therefore, the church was not an “employer” of a mental health service provider. The court referred to the church’s policy of referring couples needing marital counseling to a licensed professional counselor in the community, and the testimony of a church board member who stated that the church only authorized its pastor and staff members to provide counseling, teaching and instruction that was “religious, moral and spiritual.” The board member also stated that the church had never advertised that it provided mental health counseling services, and no one had informed the board that anything other than religious, moral or spiritual training was being provided. The court concluded, “A member of the clergy providing religious, moral and spiritual counseling, teaching and instruction is not part of the definition of mental health services as provided in the Act. There is no evidence in the record to show [the church hired the pastor] for any purpose other than to provide religious, moral and spiritual counseling, teaching and instruction to its members. Thus, no duty to inquire of [the pastor’s] past sexual exploitation arose under the Act.”

Laura insisted that the church should be liable under the Act because it was aware that its pastor was providing secular marriage counseling to them. The court disagreed, “[The church] was governed by congregational rule. We find no evidence in the record to suggest that the congregation … knew or had reason to know that [the pastor] was giving [Laura and her husband] any counseling, teaching or instruction other than religious, moral and spiritual. In fact, there is no evidence that anyone other than [the pastor] knew that [Laura and her husband] were having marital difficulties …. No evidence shows that [the church] knew or should have known that [the pastor] was engaging in sexual misconduct with [Laura].”

Fiduciary Duty

The court rejected Laura’s claim that the pastor’s behavior was in violation of a fiduciary duty he owed to her as a counselee. The court noted that a fiduciary duty arises out of relationships such as attorney-client, partnership, or trustee-beneficiary, and “may also arise informally for moral, social, domestic or purely personal relationships if confidentiality, trust and reliance are present.” However, the court noted that Texas courts have never recognized a fiduciary relationship between a pastor and church member or counselee. It declined “to determine that the pastor-member relationship in this case established a fiduciary duty.”

Application. This case provides an important interpretation of the Texas Sexual Exploitation by Mental Health Services Provider Act. This Act was addressed fully in the March-April 1996 issue of this newsletter. Hawkins v. Trinity Baptist Church, 30 S.W.3d 446 (Tex. App. 2000).

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