• 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.
• Key point 10-02. The doctrine of respondeat superior imposes vicarious liability on employers for the negligent acts of their employees committed within the scope of their employment.
• Key point 10-07. A church may exercise reasonable care in selecting ministers or other church workers but still be responsible for their misconduct if it “retained” them after receiving information indicating that they posed a risk of harm to others.
• Key point 10-10.1. Some courts have found churches liable on the basis of negligent supervision for a minister’s acts of sexual misconduct involving adult church members on the ground that the church failed to exercise reasonable care in the supervision of the minister.
Negligence as a Basis for Liability
Seduction of Counselees and Church Members
* A Minnesota court ruled that the first amendment “nonestablishment of religion clause” did not prevent it from resolving various claims against a church as a result of a pastor’s sexual relationship with a female church member. A female church member (Lisa) began an ongoing counseling relationship with her pastor. For the next three years the two engaged in a sexual relationship. When church officials became aware of the relationship, a denominational agency (the “regional church”) confronted the pastor, who resigned after voluntarily forfeiting his ministerial credentials. Church officials revealed Lisa’s name and her relationship with the pastor to the congregation when explaining the pastor’s resignation. The pastor was later convicted of criminal sexual conduct in the third degree in violation a state statute that provides, “A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if … the actor is … a member of the clergy, the complainant is not married to the actor, and … the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid or comfort in private. Consent by the complainant is not a defense.”
Lisa and her husband (the “plaintiffs”) sued various defendants including their local church, the regional church, and their denomination’s national headquarters (the “national church”). The plaintiffs settled with the church and national church, but pursued their claims against the regional church. The plaintiffs claimed that the regional church was responsible for the pastor’s misconduct on the basis of respondeat superior, negligent retention, negligent supervision, and emotional distress. The regional church asked the trial court to dismiss all claims on the ground that the court was barred by the first amendment “nonestablishment of religion” clause from resolving them since doing so would lead to “excessive entanglement” between church and state. The trial court refused to dismiss the case, concluding that the plaintiffs’ claims could be resolved by applying “neutral principles of law” without regard to religion and that examination of church documents to determine the relationship between the regional church and the pastor would not pose a risk of excessive state entanglement in religion. The regional church appealed.
A state appeals court began its opinion by noting that the nonestablishment of religion clause of the first amendment “is not an automatic barrier to government action,” and that “government action is not prohibited by the nonestablishment clause if the action (1) has a secular purpose; (2) neither inhibits nor advances religion as its primary effect; and (3) does not create excessive entanglement between church and state. The nonestablishment clause is not implicated where neutral principles of law, developed and applied without particular regard to religious doctrines, establish the applicable standard of care.” The court then analyzed each of the plaintiffs’ claims.
determining the existence of an employment relationship
The court noted that the plaintiffs’ claims against the regional church for respondeat superior, negligent supervision, and negligent retention all were based on the premise that the regional church was the pastor’s employer. The regional church claimed that any attempt by the court to determine whether or not it was the pastor’s “employer” would “excessively entangle” the state with religion. The court disagreed, noting that it was “not constitutionally precluded from applying neutral principles of employment laws to the structure of the church as set out in the church’s governance documents to determine whether an employment relationship exists between a church entity and a pastor.”
The plaintiffs claimed that the regional church was responsible for the pastor’s misconduct on the basis of respondeat superior (a legal doctrine making employers liable for the acts of their employees committed within the scope of their employment). The court concluded that “the factors for determining whether the conduct occurred within the scope of employment are neutral principles of law that can be applied to the facts of a case involving a religious employer without any regard to the particular religious doctrines of the employer.” It further pointed out that the plaintiffs’ claims did not involve “an inquiry into what the cleric’s role is within the church or his duties generally. The court need only determine whether the pastor, when he sexually penetrated Lisa, was providing ongoing, private spiritual advice, aid, or comfort to her in his capacity as a cleric and the court does not need to examine the content of the advice, aid, or comfort given.”
The plaintiffs alleged that the regional church was responsible for the pastor’s acts on the basis of negligent retention. The court acknowledged that “an employer has the duty to refrain from retaining employees with known dangerous proclivities,” and that an employer may be liable for negligent retention when “during the course of employment, it becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge or reassignment.” The court concluded that the first amendment did not bar resolution of this claim:
The trial court need evaluate only what the regional church knew or should have known about the pastor’s propensity to engage in sexual penetration with persons who sought spiritual or religious advice from him, and, if there was such knowledge, whether it acted reasonably to prevent such conduct toward Lisa. The issue is not negligent retention as it relates to the pastor’s provision of spiritual advice. The issue for the trial court is whether the regional church acted reasonably after it became aware or should have become aware of any problems with the pastor sexually penetrating persons being privately given spiritual advice, aid, or comfort. This inquiry does not pose any risk of entanglement with religious doctrine or procedure and no burdening of religious practice.
The plaintiffs alleged that the regional church was responsible for the pastor’s acts on the basis of negligent supervision. The court rejected the regional church’s claim that resolution of this issue by the court would violate the first amendment. It observed,
Negligent supervision is the failure of an employer to exercise ordinary care in supervising the employment relationship so as to prevent foreseeable misconduct of an employee from causing harm to others. As with the claim of vicarious liability, the claim of negligent supervision in this case does not involve an examination by the court of the religious duties of a cleric or the content of spiritual advice, aid, or comfort given that would require an impermissible inquiry into church doctrine. The inquiry is only into the reasonableness of the employer’s supervision to prevent a cleric’s sexual penetration of persons who are receiving ongoing, private spiritual advice, aid, or comfort from a cleric …. Sexual relations are a well-known hazard of a secular counseling relationship. Whether sexual penetration of a person by a cleric while providing ongoing, private spiritual advice, aid, or comfort to that person is foreseeable has not been determined. But the regional church has not established that there is any need to inquire into or interpret church doctrine to make such a determination. As discussed above, it is only the existence of the relationship, not the content of advice, aid, or comfort given, that can be constitutionally examined, but with this limitation, there is no risk of entanglement of the court with religious doctrine or burden on the exercise of religion.
The plaintiffs claimed that the regional church intentionally caused them emotional distress by announcing Lisa’s name to the congregation when the congregation was informed of the reason for the pastor’s resignation. The court agreed with the regional church that any resolution of this claim was barred by the first amendment: “We conclude that inquiry into a religious entity’s determination of what information about church members its congregation is entitled to know and how that information is provided to the congregation risks excessive entanglement of the court with church doctrine and procedure. The plaintiffs’ claims of intentional infliction of emotional distress are therefore barred by the establishment clause of the first amendment.”
Application. Church leaders should pay special attention to the following points:
1. Churches, and denominational agencies, face possible legal liability for the sexual misconduct of pastors.
2. Pastors face possible criminal liability in many states for engaging in sexual relations with church members.
3. A civil court is not necessarily barred by the first amendment from determining whether a church is liable on the basis of respondeat superior for a pastor’s sexual misconduct.
4. A civil court is not necessarily barred by the first amendment from determining whether a church is liable on the basis of negligent retention or negligent supervision for a pastor’s sexual misconduct.
5. A civil court may be barred by the first amendment from addressing a church’s liability for “intentional infliction of emotional distress” because of its announcement to a church congregation that its pastor resigned due to a sexual relationship with a named church member. Lisa and her husband claimed that the regional church intentionally caused them emotional distress by disclosing Lisa’s name to the congregation when it was informed of the reason for the pastor’s resignation. The court agreed with the regional church that any resolution of this claim was barred by the first amendment. It noted that “inquiry into a religious entity’s determination of what information about church members its congregation is entitled to know and how that information is provided to the congregation risks excessive entanglement of the court with church doctrine and procedure.” This is a significant observation, since it suggests that the constitution provides churches with some protection when communicating information with members. The court did not indicate whether or not members were the only persons in attendance at the congregational meeting, but church leaders should assume that this was the case. Many other courts have ruled that the first amendment provides churches with significant (though not unlimited) protection when communicating directly with members. But, this protection is lost when information is shared with nonmembers. Olson v. First Church of Nazarene, 661 N.W.2d 254 (Minn. App. 2003).
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