Sexual Misconduct by Clergy, Lay Employees, and Volunteers – Part 1

Church Law and Tax 2006-11-01 Sexual misconduct by clergy, lay employees, and volunteers – Part

Church Law and Tax 2006-11-01

Sexual misconduct by clergy, lay employees, and volunteers – Part 1

Key point 4-11.02. Clergy who are sued for sexual misconduct may be able to assert one or more defenses.

* The Alabama Supreme Court dismissed a husband’s lawsuit against his pastor for seducing his wife during marital counseling on the ground that it was barred by a state law that abolished any civil liability for alienation of affections or similar offenses. A church’s senior pastor learned that his secretary and her husband were engaged in marriage counseling with a licensed counselor. The pastor began providing marriage counseling to the couple, and they discontinued their counseling sessions with the licensed counselor. According to the husband, the pastor assured them that he could spend a lot more time with them than the counselor and “guaranteed” them that “he could fix their marriage.” At about the same time, the pastor and his secretary secretly began a consensual, sexual relationship. A few months later the husband learned of the affair and confronted the pastor. Though he initially denied the affair, the pastor eventually admitted it and resigned as pastor of the church. The wife unsuccessfully sought reconciliation with her husband, who initiated divorce proceedings. The husband later testified in his divorce case that ‘there is no way I could get over the manipulation of the very fact of opening up to our marriage counselor and preacher and friend who at the same time was having an affair with my wife. And just as bad for me to know that she knew what he was trying to do, to snake himself into our family and restructure our family to suit his own pleasure. With that kind of knowledge, no sir. There is no hope.’

The husband sued the pastor, claiming that he acted negligently in providing marital counseling to the couple while at the same time engaging in a sexual relationship with the wife. The husband claimed that the pastor’s acts destroyed his marriage and caused him extreme mental anguish. A jury awarded $67,000 compensatory damages and $2,000,000 punitive damages against the pastor.

On appeal, the pastor asserted that the husband’s lawsuit amounted to a claim of “alienation of affections,” which was not a legitimate theory of liability under Alabama law. He also claimed that the lawsuit was in essence alleging clergy malpractice, another theory of liability rejected under Alabama law. The husband insisted that his lawsuit was based on negligent marital counseling which is a permissible claim in Alabama.

The state supreme court noted that the Alabama legislature enacted a law in 1975 eliminating any liability for alienation of affections. The statute reads: ‘There shall be no civil claims for alienation of affections, criminal conversation, or seduction of any female person of the age of 19 years or over.” The court noted that ‘the gist of an alienation of affections action is the intentional or purposeful interference with the marriage relationship.’ It stressed that ‘since the abolition in Alabama of [alienation of affections], this court has refused to recognize any claim for damages against a third party, no matter how denominated, that is based on allegations of interference with the marriage relationship.” It concluded that ‘despite the allegation in the lawsuit that the pastor negligently or wantonly counseled him and his wife concerning their marriage, his actual theory is that the pastor’s illicit relationship with his wife destroyed his marriage. All the damages the husband seeks flow, not from alleged negligence or wantonness, but from the pastor’s intentional conduct.’ It quoted the husband’s own testimony: “Can you imagine more mental anguish than in this case? This is the ultimate breach of trust, when you have not only your preacher, a fellow who is supposed to be your friend, who has come to you and said he is a marital counselor, he is going to provide you marital counseling and going to save your marriage, when he is using it against you.”

The court concluded that this case was not about negligent counseling, but rather was an attempt to seek damages for the alienation of his wife’s affections despite the fact that this theory of liability had been repudiated by state law. It stressed that ‘one cannot sue to recover for injuries arising from an interference with the marriage by simply casting the defendant’s conduct as a breach of contract, or negligence, or some other intentional tort.’ Bailey v. Faulkner, 2006 WL 147507 (Ala. 2006).

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