Sexual Misconduct by Clergy, Lay Employees, and Volunteers

An Ohio court ruled that a denominational agency was not liable on the basis of negligence for a pastor’s sexual misconduct involving a member of his congregation.

Church Law and Tax2004-05-01

Sexual misconduct by clergy, lay employees, and volunteers

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 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.
Clergy Malpractice
Seduction of Counselees and Church Members

* An Ohio court ruled that a denominational agency was not liable on the basis of negligence for a pastor’s sexual misconduct involving a member of his congregation since it had no prior notice that he presented a risk of such behavior. A woman (Debbie) and her minor son attended a church picnic. A week later, Debbie attended a worship service at the church. During this service, she filled out a visitor’s card requesting a home visit. Pastor Steve telephoned Debbie, and later came to her home for a visit. He informed her that she needed counseling twice a week. Debbie went to the church for a one-on-one counseling session with Pastor Steve. She needed counseling to help cope with the responsibilities of caring for her six-year-old son who suffered from congenital physical medical problems, her alcoholism, her recent divorce in which she lost custody of her son, alienation from her family, and issues of rape that occurred years before. During the first counseling session, Pastor Steve put his arms around her and kissed her on the lips. Debbie left the session confused. A few days later she received a note from Pastor Steve stating that he had overstepped his “boundaries.”

A few weeks later, Pastor Steve moved Debbie into the parsonage as a means of providing her with a stable environment to receive spiritual counseling, to cope with her alcoholism, and a work environment conducive for her to complete her education. Debbie later alleged that on the night she moved into the parsonage she told Pastor Steve that she was experiencing hallucinations. At that point, Pastor Steve climbed into bed with her, held her, caressed her, and said, “every time I say the number seven you will have sex with me.” She also claimed that Pastor Steve told her that as part of her “spiritual growth” and relationship with him, they had to have sexual intercourse every morning. Debbie did not complain to anyone or refuse Pastor Steve’s sexual advances. She alleged that she had sex with Pastor Steve approximately 50 to 52 times.

Debbie’s former husband became suspicious when she told him she was experiencing hallucinations and was prohibited from receiving medical assistance. He contacted denominational officials to communicate his suspicions of inappropriate conduct by Pastor Steve. In particular, he stated that he believed Debbie was being held against her will and that Pastor Steve was using mind control over her and the congregation. Pastor Steve, his wife, and Debbie later met with denominational officials to respond to these suspicions. At the meeting Debbie stated that “everything was fine” (she later would claim that Pastor Steve had coerced her into making this statement). Finding no evidence of misconduct, the denominational officials did not pursue the case any further. Debbie claimed that shortly after this meeting, the sexual relations began again, and that Pastor Steve used drugs, hypnosis, and psychological manipulation to gain control over her “in an extended regular regimen of sexual activity for his own gratification.”

A few months later. Debbie confronted Pastor Steve and his wife about his behavior. She left the parsonage and reported her allegations of sexual abuse to denominational officials. Pastor Steve at first denied any wrongdoing, but later admitted to one instance of sexual intercourse with Debbie, which she initiated.

Debbie sued Pastor Steve for emotional distress, and her church and denominational agency for negligence and malpractice for failing to intervene in the abusive counseling relationship. Pastor Steve later filed for bankruptcy, and Debbie settled with the church out of court. The trial court later dismissed the denominational agency. A short time later, Debbie died, and the administrator of her estate refilled the lawsuit against Pastor Steve and the denominational agency claiming that Debbie died as a result of Pastor Steve’s willful and malicious acts and the denomination’s negligence. A trial court later dismissed the claims against the denomination, and the case against Pastor Steve went to trial. A jury found Pastor Steve innocent of Debbie’s death, but guilty of inflicting emotional distress. It awarded compensatory damages of $375,000 and punitive damages of $10 million, plus attorney fees of $130,656.92. Pastor Steve appealed, and the estate appealed the dismissal of the case against the denomination.

negligent supervision

The estate sued the denominational agency for negligence based on the fact that it allowed the relationship between Debbie and Pastor Steve to continue, and failed to supervise, investigate and monitor the situation. The appeals court ruled that the trial court correctly dismissed this claim. It observed,

Based on the record before us, we cannot find [the denomination] liable on the theory of negligence for Debbie’s injuries. The estate has failed to set forth any evidence that the denomination had actual or constructive knowledge of Pastor Steve’s conduct. At the time [Debbie’s former husband] approached [a denominational officer] about his suspicions, the officer scheduled a meeting in order to investigate the matter. Debbie assured the officer that she was fine. The officer further noted that neither Debbie, nor members of the congregation, appeared to be in a hypnotic or mind controlled state. It was not until later, when Debbie moved out of the parsonage, that the denomination became aware of allegations of sexual abuse. At that point, the officer immediately contacted [his superior] …. Furthermore, the denomination was not negligent in failing to supervise, monitor, direct, or control Pastor Steve in his counseling relationship with Debbie. It presented evidence that there existed no employment relationship with Pastor Steve. Pastor Steve is a local church pastor. He was compensated for his services through [his church], not through the denomination. The estate failed to present any evidence of an employment relationship.

negligent retention

The estate also contended that the denomination was negligent in retaining Pastor Steve after learning that he was receiving psychological counseling and taking psychiatric drugs for clinical depression. The court noted that to prove negligent retention the estate must show “(1) the existence of an employment relationship; (2) the employee’s incompetence; (3) the employer’s actual or constructive knowledge of such incompetence; (4) the employee’s act or omission causing the plaintiff’s injuries; and (5) the employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries.” The court concluded that the estate failed to satisfy most of these requirements; “[The estate] has failed to present evidence of the existence of any employment relationship between Pastor Steve and the denomination. It has further failed to present evidence that Pastor Steve’s admission of depression interfered with or affected his ministry duties at [his church]. [A denominational officer] stated that depression does not call for action by the [denomination] unless it was perceived by the congregation or the pastor to be a major interference with the ministry of the congregation. Furthermore, the estate failed to set forth any evidence that the denomination had knowledge of Pastor Steve’s incompetence. As such, [the negligent retention claim] lacks merit.”

clergy malpractice

The court ruled that Pastor Steve could not be liable for clergy malpractice. To hold otherwise would result in liability for conduct for which he already was liable (including infliction of emotional distress, fraud, assault, and battery). It concluded, “If a cleric’s behavior fits within an established category of liability, such as fraud, duress, assault, or battery, it would be redundant to simultaneously hold the cleric liable for clergy malpractice. In order to avoid a redundant remedy any theory of clergy malpractice needs to address incidents of the clergy-communicant relationship not already actionable.” Since Pastor Steve could not be liable for malpractice, the denomination could not be vicariously liable on this ground.

Application. The denominational agency in this case was not liable for Pastor Steve’s misconduct because it had no reason to believe that the misconduct was occurring. When it was finally informed by Debbie of what had happened, the agency intervened immediately. In other words, the agency’s actions are a textbook case of how to handle such problems. So long as there is no reason to believe that a pastor is engaging in inappropriate sexual acts in the course of counseling or other pastoral ministry, there can be no denominational liability based on negligent supervision. However, as soon as information is presented suggesting that inappropriate conduct is occurring, the denomination must respond appropriately and immediately to that information. Depending on the nature and strength of the evidence, this response might require suspension or even termination of the minister. Stewart v. West Ohio Conference of the United Methodist Church, (Ohio App. 2003).

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