• 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.

• 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.
Clergy Malpractice

• 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.
Seduction of Counselees and Church Members

* New York’s highest court ruled that a church and denominational agency were not liable for the sexual misconduct of a pastor. A husband and wife sued their pastor, church, and denomination for compensatory and punitive damages for pain and suffering and mental anguish they suffered as a result of an adulterous relationship between the wife and her pastor. The husband and wife had been seeking marital counseling from the pastor at the time of the affair. A trial court dismissed all the couple’s claims, and they appealed.

Sexual battery

The couple claimed that the pastor had committed sexual battery since his contact with the wife was not consensual or voluntary. The New York Court of Appeals (the highest state court) concluded that the sexual relationship between the parties was consensual. It pointed out that the wife ‘initiated discussions with the pastor concerning her attraction to him. While she informed him that she preferred to terminate the ministerial counseling at that time, the record includes a sample of subsequent emails exchanged between the two expressing a shared affection and professing a growing love for one another.’ After the affair was discovered the wife ‘took the initiative of forwarding these same emails to members of the congregation with the stated intention of demonstrating that the relationship was very mutual.’ Further, there was no evidence that the wife ‘suffered from mental impairment or physical helplessness so as to render her consent impossible.’ Since the affair was consensual, the pastor could not be liable on the basis of sexual battery.

Breach of fiduciary duty

The court agreed that the ‘breach of fiduciary duty’ claim had properly been dismissed. The couple had argued that the pastor had breached ‘the sacred trust between counselor and care-seeker in the course of the ministerial relationship.’ The court noted that the couple’s reference to a ‘sacred trust’ could refer to a fiduciary duty, but their other allegations amounted to a claim of clergy malpractice ‘which would improperly require courts to examine ecclesiastical doctrine in an effort to determine the standard of due care owed to parishioners undergoing ministerial counseling.’ Wende C. v. United Methodist Church, 794 N.Y.S.2d 282 (N.Y. 2005).

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