• 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.
• 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
* A New York court ruled that a church and denominational agency were not liable for the sexual misconduct of its senior pastor. A husband and wife sued their pastor, church, and denomination for compensatory and punitive damages for pain and suffering and mental anguish allegedly suffered as a result of an adulterous relationship between the wife and 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.
The couple claimed that the pastor had committed sexual battery since his contact with the wife was not consensual or voluntary. The court disagreed, noting that the wife’s e-mails and letters “establish as a matter of law that the romantic attachment was mutual and the sexual contact consensual.” The court acknowledged that a “legal disability” (such as youth, mental impairment, or physical helplessness) will preclude a consensual sexual relationship. But it concluded that “no such disability is even arguably present here, and we cannot find one based on the existence of a counseling relationship.”
The court dismissed the couple’s emotional distress claim since the pastor’s conduct was not so “extreme and outrageous” as to “go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
The court noted that “clergy malpractice” was not recognized in New York since “any attempt to define the duty of care owed by a member of the clergy to a congregant or parishioner would result in excessive entanglement on the part of the court in matters of religion.”
breach of fiduciary duty
The court agreed that the “breach of fiduciary duty” claim had properly been dismissed. It observed that “the closest plaintiffs have come to alleging a breach of fiduciary duty is their allegation that, in carrying on a sexual affair with [the wife] the pastor breached the sacred trust between counselor and careseeker in the course of the ministerial relationship.” But, this was simply another way of alleging a clergy malpractice claim, according to the court. It concluded,
There is no meaningful distinction between a cause of action for breach of fiduciary duty by a cleric and one for clergy malpractice. Therefore, for the same reasons that a cause of action for clergy malpractice is not cognizable, a cause of action for breach of fiduciary duty by a cleric may not be predicated on the allegations set forth in this case. An inquiry into whether a cleric violated a fiduciary duty to a congregant would involve the court in the same excessive entanglement in religious affairs as an inquiry into whether the cleric violated a duty of due care owed to the congregant. In either case the court would be required to venture into forbidden ecclesiastical terrain. In terms of the examination necessitated into the moral precepts, theology, and rules of governance of a particular church and religion, we see no distinction between positing a clerical duty of due care (as under the law of negligence) and positing a clerical duty of due care, loyalty, fidelity, honesty and good faith (as under the law governing the conduct of fiduciaries). There is likewise no appreciable difference in the nature of the inquiries into whether a cleric might have been careless, and whether he might have been neither careful nor morally and ethically upright. In either instance, the court’s task would be the impermissible one of determining whether the cleric grossly abused his pastoral role or otherwise breached his duties as a member of the clergy offering religious counseling to the plaintiff. In either instance, the court would have to compare the cleric’s behavior with what it should have been, vocationally and religiously speaking …. The claim cannot be adjudicated without reference to the status, role, and expected behavior of [a pastor].
The court stressed that the pastor in this case was not a “therapeutic counselor with any state license or state-recognized credentials, but rather was merely a religious counselor.” As a result, there was no basis for concluding that “the pastoral counseling relationship and behavior in question may be regarded as essentially secular in nature.”
The court further observed that “the only circumstance that distinguishes the relationship between [the wife and pastor in this case] from the ordinary adulterous relationship is the fact that the defendant is a minister. Because a tort action based strictly upon adulterous conduct is prohibited by the [state law], liability, if any, must arise from defendant’s status as a minister. However, to impose greater liability on an adulterer who happens to be a minister than on any other adulterer would, in our view, violate constitutional principles.”
The couple claimed that the parent with which the church was affiliated, and that had ordained the pastor, was liable for his acts on the basis of “negligent ordination.” The court disagreed, noting that “the ordination of clergy is a quintessentially religious activity, and imposing liability for conferring that status would excessively entangle the court in religious affairs, in violation of the first amendment.
negligent hiring, retention and supervision
Since the pastor was not found liable for any malfeasance, his church and denomination could not be liable for their alleged negligence in hiring, supervising, or retaining him.
Application. This case is important for a couple of reasons. First, the court rejected “breach of fiduciary duty” as a basis for liability in cases involving sexual relationships between a pastor and counselee, so long as the pastor is not a state-licensed counselor providing “secular” counseling. Second, this is one of the few cases to directly address the concept of “negligent ordination.” Can a church or denominational agency be legally responsible for the acts of ministers it ordains on the basis of its “negligence” in ordaining them? The court summarily rejected this idea, noting that “the ordination of clergy is a quintessentially religious activity, and imposing liability for conferring that status would excessively entangle the court in religious affairs, in violation of the first amendment.” Wende C. v. United Methodist Church, 776 N.Y.S.2d 390 (N.Y. App. 2004).
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