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

A California court ruled that the first amendment guaranty of religious freedom prevented a woman from suing her church for the alleged sexual misconduct of its pastor.

Church Law and Tax 2004-01-01

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

Key point 10-13.2. Several courts have refused to hold 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, this result is based on first amendment considerations.

* A California court ruled that the first amendment guaranty of religious freedom prevented a woman from suing her church for the alleged sexual misconduct of its pastor. A female church member (Anna) claimed that her pastor persuaded her to have sexual relations in the church parsonage. Prior to this relationship, Anna “was chaste and had never been involved in a sexual relationship.” The pastor called Anna once or more each day and often left “romantic and sexual messages” on her answering machine. He also falsely represented to her that he had never had sexual relations with others, that his sexual relationship with her was not improper, and that he intended to retire in the area of the church in order to remain near her. Prior to his relationship with Anna, the pastor had been involved in a sexual relationship with another female member of the church, and before that with women in other churches. Anna claimed that the pastor’s “propensity ” for engaging in sexual misconduct was well known and tolerated by his denomination (the “regional church”).

Anna further asserted that the pastor knew she was “deeply religious” and would therefore “be readily subject to manipulation and control by him, and her judgment and ability to resist or reject his advances was substantially compromised by her religious faith and trust.” She insisted that the regional church was well aware of the pastor’s sexual misconduct (with herself and other women) because of the “open and notorious nature of his sexual activities and his frequent use of the parsonage for sexual encounters.” Because of this knowledge, the regional church should have known that the pastor created an unreasonable risk of harm to women. Anna sued her pastor and regional church as a result of the “irrevocable mental, physical and emotional harm; depression; mental and emotional distress; weight loss; public humiliation; and loss of her religious faith.”

A trial court dismissed all of Anna’s claims against the regional church on the ground that the first amendment guaranty of religious freedom prevented any judicial resolution of those claims. Anna appealed.

claims against the pastor

Anna claimed that her pastor was liable for her injuries because his acts violated a “fiduciary duty” that he owed her. The court made a number of important observations in resolving this claim.

(1) Seduction. The court concluded that a breach of fiduciary duty claim must be dismissed if it merely states a claim for “seduction.” The court noted that a state law abolishes any liability for seduction and related claims (including alienation of affections, seducing another’s spouse, etc.). Seduction generally means sexual intercourse “accomplished by the use of arts, persuasions, or wiles to overcome the resistance of a female who is not disposed of her own volition to step aside from the paths of virtue.” With the abolition of seduction as a basis for liability in California, “it is no longer possible for two consenting adults to engage in illicit intercourse” and therefore Anna was barred from suing her pastor unless she could prove that his conduct “breached some duty of care independent of seduction.”

(2) “Special relationship.” Anna claimed that church members and their ministers constitute a “special relationship” that imposes upon ministers a duty to act with the utmost care. She pointed out that the courts have recognized this basis of liability in the contexts of the attorney-client and doctor-patient relationships, and she argued that the same principle should apply to clergy. The court disagreed, noting that the relationship between clergy and church members is protected by constitutional principles that do not apply to other professional relationships. It concluded,

An action for clergy malpractice cannot be reconciled with the first amendment because a standard of care and its breach could not be established without judicial determinations as to the training, skill, and standards applicable to members of the clergy in a wide array of religions holding different beliefs and practices. Even if a reasonable standard could be devised, which is questionable, it could not be uniformly applied without restricting the free exercise rights of religious organizations which could not comply without compromising the doctrines of their faith. The application of such a standard would also result in the establishment of judicially acceptable religions, because it would inevitably differentiate ecclesiastical counseling practices that are judicially acceptable from those that are not.

(3) Fiduciary duty. Anna claimed that her pastor’s conduct violated a fiduciary duty that he owned to her. The court began its analysis of this claim by making an important distinction between the terms “fiduciary” and “confidential.”

Fiduciary and confidential have been used synonymously to describe any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent ….

Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client whereas a confidential relationship may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship. The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party …. Unlike confidential relations, fiduciary relations arise out of certain relationships that are legally defined and regulated …. Because confidential relations do not fall into well-defined categories of law and depend heavily on the circumstances, they are more difficult to identify than fiduciary relations ….

A confidential relationship refers to an unequal relationship between parties in which one surrenders to the other some degree of control because of the trust and confidence which he reposes in the other. When a confidential relationship is found to exist, the one in whom confidence was reposed may be held to a higher standard of disclosure and fairness than in an arm’s-length relationship …. The vulnerability that is the necessary predicate of a confidential relation, and which the law treats as “absolutely essential” usually arises from advanced age, youth, lack of education, weakness of mind, grief, sickness, or some other incapacity.

The court noted that courts in other states are divided on whether it is constitutionally permissible to subject a member of the clergy to liability for the breach of a fiduciary duty to a parishioner. Some have concluded that clergy liability based on a breach of a fiduciary duty is simply another way of saying that they committed malpractice, and so such a theory of liability is barred by the first amendment. Other courts reject this view and allow claims by parishioners that ministers breached a fiduciary duty as a result of sexually inappropriate conduct in the course of pastoral counseling, believing such claims can be decided without reference to religious doctrine or practice where the conduct is not part of the beliefs and practices of the minister’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 concluded that a pastor “may be subject to 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.”

However, the court concluded that a breach of fiduciary duty claim was not available in this case. It noted that there were two aspects of this case that distinguished it from all others in which a pastor-parishioner relationship was found to create a fiduciary duty. The first was Anna’s failure to allege that the pastor’s exploitation of her alleged vulnerability arose in the context of a counseling relationship. The court observed, “It is telling that the cases imposing a fiduciary duty on a pastor for sexual misconduct that breached a confidential relation all involved situations in which the pastor was providing the parishioner marital, family or financial counseling. Unless the alleged misconduct is defended on religious grounds, such a counseling relationship usually obviates the need for a constitutionally impermissible inquiry into religious beliefs or practices, as would be required for some other pastor-parishioner relations, such as a confessional relationship.” Second, instead of alleging any of the reasons normally relied upon to show that a party to an alleged confidential relation is in a vulnerable position (such as advanced age, or youth, or lack of education, or ill health, or mental weakness), Anna relied on her piety. Her lawsuit stated that her piety made her “readily subject to manipulation and control by a pastor, and her judgment and ability to resist his advances [would be] substantially compromised by her religious faith and trust.” The court concluded that Anna’s claim that the depth of her religious faith rendered her vulnerable to her pastor “could not be resolved without reference to the nature of her religious beliefs and the doctrines of her church.” And, without the fiduciary claim, Anna “would be left with no more than a claim for seduction, which is statutorily barred.”

claims against the regional church

The court affirmed the trial court’s dismissal of all claims against the regional church. Anna had claimed that the regional church was responsible for the pastor’s acts on the basis of negligent hiring and supervision, and breach of fiduciary duty. However, to prevail against the regional church, Anna “must show that she suffered an injury the law recognizes. For the reasons we have explained, she cannot make such a showing; accordingly, there is no need to inquire whether the regional church can be subjected to any duty.”

Application. This case is important because it is one of the most extensive discussions of the liability of ministers and churches for acts of sexual misconduct on the basis of a breach of a fiduciary duty. The court refused to find that a pastor who was not involved in a counseling relationship with a church member has a fiduciary duty toward that person, and therefore the pastor cannot be liable on the basis of a breach of such a duty for any inappropriate sexual conduct. There may be other bases of liability, but not this one. Further, since the pastor in this case was not liable, the church could not be since its liability (whether on the basis of negligent hiring or supervision, or breach of a fiduciary duty) required that the pastor’s acts be wrongful. Richelle v. Roman Catholic Archbishop, 130 Cal.Rptr.2d 601 (Cal. App. 2003).

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