• 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 10-05. A church may be liable on the basis of negligent selection for a worker’s molestation of an adult if the church was negligent in the selection of the worker. Negligence means a failure to exercise reasonable care, and so negligent selection refers to a failure to exercise reasonable care in the selection of the worker. Liability based on negligent selection may be imposed upon a church for the acts of employees and volunteers.
• Key point 10-18.2. Most courts have refused to hold denominational agencies liable for the acts of affiliated ministers and churches, either because of first amendment considerations or because the relationship between the denominational agency and affiliated church or minister is too remote to support liability.
• Key point 10-18.3. There are several legal defenses available to a denominational agency that is sued as a result of the acts or obligations of affiliated clergy and churches. These include a lack of temporal control over clergy and churches; a lack of official notice of a minister’s prior wrongdoing in accordance with the denomination’s governing documents; lack of an agency relationship; the prohibition by the first amendment of any attempt by the civil courts to impose liability on religious organizations in a way that would threaten or alter their polity; and elimination or modification of the principle of joint and several liability.
A Maryland court ruled that a church and denominational agency were not liable for the injuries sustained by a woman who was seduced by a pastor while working at a church camp. A woman (the “victim”) and her husband were lifetime members of a Seventh-Day Adventist church. In 1994, the victim worked at a summer day camp operated by a denominational agency (the “Conference”) with which her church was affiliated. She had worked at the camp for several summers before that. During the summer of 1994, a pastor was employed as the director of the summer camp and was the victim’s supervisor. The pastor was employed as a pastor of a local church, but he was officially an employee of the Conference during the summer camp, and his pay check came from the Conference which had supervisory powers over his activities.
The victim and her husband were experiencing marital difficulties during the summer of 1994. While at the camp, the victim approached the pastor for counseling in regard to her marital situation. Rather than ministering to the victim’s emotional and spiritual needs or providing proper marital counseling, the victim alleged that the pastor undertook a campaign of seduction and took advantage of her vulnerability and her trust in him and the church that he represented. Rather than advising her on how she might improve her marriage, the pastor allegedly introduced her to a novel, “Bridges of Madison County,” in which a married woman enters into a sexual relationship with another man to the “benefit” of all parties concerned and persuaded her that they should emulate such conduct. Being emotionally distraught an depressed, the victim alleged that she “succumbed” to the pastor’s campaign, and the two had sexual relations on at least two occasions. The woman later sued her church and the Conference for counseling malpractice, clergy malpractice, gross negligence, intentional infliction of emotional distress, and breach of contract. In addition, she sued the Conference for negligent hiring. A trial court dismissed the lawsuit, and the victim appealed.
The victim claimed that the pastor, church, and Conference were all guilty of causing her emotional distress. The court disagreed. It noted that to sustain a claim for intentional infliction of emotional distress, a plaintiff must establish that (1) the defendant’s conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there was a direct connection between the defendant’s wrongful conduct and the plaintiff’s emotional distress; and (4) the emotional distress was severe. The court concluded that all of these requirements were met except for “extreme and outrageous conduct.” The court noted that “extreme and outrageous conduct” has been defined by the courts to mean conduct that goes “beyond all possible bounds of decency, and is regarded as atrocious, and utterly intolerable in a civilized community.” The court concluded that this standard is not met in the counseling context unless there is an actual “counselor-counselee” relationship, which was not present in this case.
Marital Counseling Malpractice
In support of her “marital counseling malpractice” claim, the victim made the following allegations: (1) As part of the formal education of Seventh-Day Adventist pastors, aspiring pastors receive training in counseling at Seventh-Day Adventist colleges and seminaries. Further, Seventh-Day Adventist pastors receive “in-service training” in counseling. The pastor in this case received such training in counseling as part of his formal education and in-service training. (2) The Seventh-Day Adventist Church, including the Conference, encourages its members who are experiencing marital difficulties to seek counseling from its pastors. (3) All pastors in the Seventh-Day Adventist Church are expected to respond to requests for counseling by providing appropriate counseling. (4) The pastor held himself out to the victim as being an appropriate person to provide her with marital and emotional counseling. (5) The pastor was negligent in that he did not use that degree of care and skill which a reasonably competent professional person acting as a counselor in similar circumstances would use.
The court noted that “the question here is whether these allegations were sufficient to establish a professional counselor-patient relationship” between the pastor and victim. It concluded that the problem with the victim’s claim was that while she alleged that Seventh-Day Adventist pastors receive training in “counseling,” and that the pastor in this case received such training and held himself out to the victim as a suitable person to provide marital counseling, she “did not state the type of counseling training received, whether it is extensive or cursory, or whether there is an official recognition or certification of the program for such pastors by the church hierarchy. Certainly, there is no allegation of government acknowledgment or licensing. Thus, we hold that the allegations in the amended complaint were not sufficient to establish a professional counselor-patient relationship ….”
The victim claimed that the pastor “was negligent in that he did not use that degree of care and skill which a reasonably competent clergyman acting in similar circumstances would use.” The court refused to recognize clergy malpractice as a basis of liability. It observed:
[T]here are good reasons for declining to recognize the tort of clergy malpractice …. [S]uch a claim requires definition of the relevant standard of care, and defining that standard could embroil courts in establishing the training, skill, and standards applicable for members of the clergy in a variety of religions with widely varying beliefs …. In addition, defining such a standard would require courts to identify the beliefs and practices of the relevant religion and then to determine whether the clergyman had acted in accordance with them. These requirements, quite obviously, have a large potential to restrain the free exercise of religion; and largely for this reason, no other courts in the United States have recognized the tort of clergy malpractice.
Since the court refused to find the pastor legally responsible for the victim’s injuries on the basis of emotional distress or malpractice, the church and Conference could not be liable on the basis of negligent hiring.
Application. This case illustrates the importance of a “counseling relationship” in assessing a church’s liability for the misconduct of ministers during counseling. Because the victim and pastor in this case had not entered into a formal counseling relationship, the court concluded that the pastor was not guilty of causing emotional distress or counselor malpractice, and the church and Conference were not guilty of negligent hiring. The fact that the pastor had received extensive training in counseling at church-affiliated schools and conferences did not automatically transform him into a professional counselor. This conclusion is important. Most ministers receive at least some training in counseling as a part of their education or during training sessions sponsored by a denominational agency. This kind of education, according to this court, does not automatically make a pastor a “counselor” for purposes of determining liability for emotional distress or malpractice, and does not make his or her church or denomination automatically liable for counseling-related misconduct. The court suggested that more is required, including a consideration of the following criteria: (1) the type of counseling training received, and whether it is extensive or cursory; (2) whether there was some official recognition or certification of the counseling training program for such pastors “by the church hierarchy”; (3) whether the pastor was licensed by the state as a counselor. Borchers v. Hrychuk, 727 A.2d 388 (Md. App. 1999). Clergy Malpractice , Negligence as a Basis for Liability and Denominational Liability
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