• 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.
* A Delaware court refused to dismiss a female church member’s lawsuit against a pastor seeking damages for emotional distress based on his allegedly sexually harassing telephone calls to her over a period of several months. A woman (the ‘plaintiff’) claimed that her pastor made sexually harassing phone calls to her for nearly a year. She initially went to lay leaders of the church for assistance, to no avail. She then attempted to contact the bishop of her denomination (the ‘regional church’) who refused to listen to tape recordings the woman had made of harassing phone calls from the pastor, and refused certified letters from her in which she described the pastor’s conduct. The plaintiff eventually filed a complaint with the local police department, which led to the pastor’s arrest. After the pastor’s arrest, the regional church convened a disciplinary committee that found the pastor guilty of sexual harassment in violation of the church’s Book of Discipline. The plaintiff sued the pastor for emotional distress, and her church, bishop, and regional church (the ‘church defendants’) for a failure to respond to her complaints. She claimed to have suffered a stroke, slurred speech, headaches, and mental and emotional anguish as the result of the pastor’s actions and the church’s failure to intervene.
Claims against the pastor
The pastor asked the court to dismiss the plaintiff’s emotional distress claims against him. He claimed that his relationship with the plaintiff was that of ‘one layperson to another’ and did not rise to the level of extreme and outrageous conduct. The court defined the tort of intentional infliction of emotional distress as follows: ‘One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.’ The court concluded that the plaintiff ‘has provided examples of different incidents involving the allegedly outrageous language the pastor used during his telephone conversations. This evidence raises a genuine issue of material fact concerning her allegation of outrageous conduct.’ Collins v. African Methodist Episcopal Zion Church, (Dela. App. 2006).
Claims against the church defendants
The plaintiff asserted that the church defendants owed her a duty as set forth in the ‘Policies & Procedures Concerning Sexual Misconduct’ contained in the denomination’s Book of Discipline. Specifically, she claimed that the church had a duty as set forth in the Book of Discipline to refer all complaints of sexual misconduct to the regional church. The church allegedly breached this duty by failing to notify the regional church of her complaint in direct violation of the Book of Discipline. In addition, the plaintiff claimed that the bishop had a duty as set forth in the Book of Discipline to promptly and thoroughly investigate her complaint of sexual misconduct, and that he allegedly breached that duty by failing to take any action or by avoiding her concerns. She also asserted that the regional church did not appoint an investigative committee until after the pastor was arrested. Moreover, she alleged that the bishop did not initially take any action against the pastor after the investigative committee determined that he was guilty of violating the Book of Discipline. The plaintiff claimed that these actions were allegedly in direct violation of the ‘Policies & Procedures Concerning Sexual Misconduct’ contained in the Book of Discipline, and that they amounted to an intentional infliction of emotional distress upon her.
The court quoted from a 1976 decision of the United States Supreme Court:
The fallacy fatal to the judgment of the Illinois Supreme Court is that it rests upon an impermissible rejection of the decisions of the highest ecclesiastical tribunals of this hierarchical church upon the issues in dispute, and impermissibly substitutes its own inquiry into church polity and resolutions based thereon of those disputes …. To permit civil courts to probe deeply enough into the allocation of power within a [hierarchical] church so as to decide … religious law [governing church polity] … would violate the First Amendment in much the same manner as civil determination of religious doctrine. For where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First Amendment mandates that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).
The court noted that the plaintiff ‘complains about both the manner and the outcome of the investigatory and disciplinary procedures that were started because of her complaint about the pastor. Therefore … an adjudication of these claims would necessarily involve an inquiry into the propriety of the decisions of church authorities on matters of discipline, internal organization, ecclesiastical rule, custom, and law. It would inherently entail inquiry into these areas; and, as stated by the U.S. Supreme Court in Serbian Eastern Orthodox Diocese, ‘this is exactly the inquiry that the First Amendment prohibits.’ Such intrusion into the internal affairs of the church would amount to excessive government entanglement of religion by the state and, therefore, such a claim is barred by the First Amendment.’
The court concluded:
The Book of Discipline contains more than simply internal procedures concerning sexual misconduct. It is subjective and at times inextricably intertwined with the church’s religious tenets. Inquiry into the plaintiff’s claims would therefore require our interpretation and application of what is fundamentally an ecclesiastical document and would require an inquiry into the internal policies and practices of the church, a determination beyond the court’s scope of review. The church defendants would be compelled to defend as reasonable its formal internal processing and handling of the plaintiff’s claims. Every step the church took to respond and react to the claims would be reviewed to determine whether it was reasonable. Such an inquiry into whether the church exercised reasonable care would involve, by necessity, discovery and examination by litigation of the church’s disciplinary procedures and subsequent responses.
In addition, the consideration of the claim that the bishop did not take any action against the pastor after the investigative committee had determined that he violated the Book of Discipline is barred by the First Amendment for the above stated reasons. It is not within this court’s power to decide what procedures the church should have used or what the church should have done after the pastor was found guilty of violating the Book of Discipline. If the court were to inquire into this, it would in effect be limiting the church’s ability to supervise and decide what to do when an individual had violated the Book of Discipline. Any award of damages would have a chilling effect, leading indirectly to state control over the future conduct of affairs of a religious denomination, a result violative of the First Amendment. Moreover, when the issue of one’s fitness to serve a church organization as minister is brought before the courts, the First Amendment is implicated and the courts must then make a careful determination of whether the issues brought before it are ecclesiastical or secular in nature. After examining case law presenting both sides of the question the court concludes that the reasoning of those courts holding that the First Amendment bars a claim for negligent hiring, retention, and supervision is more compelling in the present case. Courts have found that the “assessment of an individual’s qualifications to be a minister, and the appointment and retention of ministers, are ecclesiastical matters entitled to constitutional protection against judicial or other state interference” and that the selection and deployment of clergy is about as central to the life and purpose of a group of affiliated churches as anything we can imagine. Courts have held that the First Amendment is implicated because mainstream denominations differ greatly in their rules and policies for “calling” and removing clergy and often their decision is guided by religious doctrine and/or practice. Thus, some courts have established that any inquiry into the decision of who should be permitted to become or remain a priest necessarily would involve prohibited excessive entanglement with religion. Based upon these decisions, the court finds that it would be inappropriate and unconstitutional for this court to determine after the fact that the ecclesiastical authorities negligently retained the pastor. Collins v. African Methodist Episcopal Zion Church, 2006 WL 1579828 (Del. Super. 2006); Collins v. African Methodist Episcopal Zion Church, 2006 WL 1579718 (Del. Super. 2006).
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