Summary. The Texas legislature has enacted a statute that imposes criminal liability on some ministers who engage in sexual contact with counselees. The statute also imposes potential liability on a minister's employing church.
The Texas legislature has enacted a statute that provides for the criminal liability of some ministers who engage in sexual misconduct with counselees. The statute also provides for employer liability under certain conditions. Here is a summary of the statute's key points:
Application to ministers
The law provides that a mental health services provider is liable to a patient or former patient of the mental health services provider for damages for sexual exploitation if the patient or former patient suffers, directly or indirectly, a physical, mental, or emotional injury caused by, resulting from, or arising out of:
(1) sexual contact between the patient or former patient and the mental health services provider;
(2) sexual exploitation of the patient or former patient by the mental health services provider; or
(3) therapeutic deception of the patient or former patient by the mental health services provider."
Many of these terms are defined by the statute as follows:
Mental health service provider. This term is defined to include a "member of the clergy" who engages in "assessment, diagnosis, treatment, or counseling in a professional relationship to assist an individual."
Key point. The statute adds that "mental health services, as defined by this section, provided by a member of the clergy does not include religious, moral, and spiritual counseling, teaching, and instruction." This presumably means that a minister is subject to liability under the statute, but only if he or she is engaged in non—religious or purely secular counseling, teaching, and instruction.
Sexual contact. The statute defines sexual contact to include requests for sexual contact.
Sexual exploitation. The statute defines sexual exploitation as a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purposes of sexual arousal or gratification or sexual abuse of any person. The statute defines therapeutic deception as a representation by a mental health services provider that sexual contact with, or sexual exploitation by, the mental health services provider is consistent with, or a part of, a patient's or former patient's treatment.
Employer liability
The statute specifies that the employer of a mental health services provider "is liable to a patient or former patient of the mental health services provider for damages if the patient or former patient is injured" by sexual contact, sexual exploitation, or therapeutic deception, but only if the employer falls within one of the following categories:
The employer fails to make inquiries of an employer or former employer, whose name and address have been disclosed to the employer and who employed the mental health services provider as a mental health services provider within the five years before the date of disclosure, concerning the possible occurrence of sexual exploitation by the mental health services provider of patients or former patients of the mental health services provider.
The employer knows or has reason to know that the mental health services provider engaged in the sexual exploitation of the patient or former patient and the employer failed to: (A) report the suspected sexual exploitation [as noted later]; or (B) take necessary action to prevent or stop the sexual exploitation by the mental health services provider."
An employer or former employer of a mental health services provider is liable to a patient or former patient of the mental health services provider for damages if the patient or former patient is injured by sexual contact, sexual exploitation, or therapeutic deception, but only if the employer (1) knows of the occurrence of the sexual exploitation by the mental health services provider of the patient or former patient; (2) receives a specific request by an employer or prospective employer of the mental health services provider, engaged in the business of providing mental health services, concerning the possible existence or nature of sexual exploitation by the mental health services provider; and (3) fails to disclose the occurrence of the sexual exploitation.
Application of employer liability provision to churches
The statute specifies:
If a mental health professional who sexually exploits a patient or former patient is a member of the clergy and the sexual exploitation occurs when the professional is acting as a member of the clergy, liability if any under this section is limited to the church, congregation, or parish in which the member of the clergy carried out the clergy member's pastoral duties: (1) at the time the sexual exploitation occurs, if the liability is based on a violation of Subsection (a); or (2) at the time of the previous occurrence of sexual exploitation, if the liability is based on a violation of Subsection (b).
Nothing in [the previous paragraph] shall prevent the extension of liability under this section beyond the local church, congregation, or parish where the current or previous sexual exploitation occurred … if the patient proves that officers or employees of the religious denomination in question at the regional, state, or national level: (1) knew or should have known of the occurrences of sexual exploitation by the mental health services provider; (2) received reports of such occurrences and failed to take necessary action to prevent or stop such sexual exploitation by the mental health services provider and that such failure was a proximate and actual cause of the damages; or (3) knew or should have known of the mental health professional's propensity to engage in sexual exploitation.
Damages
The statute authorizes victims who prevail in a lawsuit to "recover actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown." Victims also may recover "exemplary damages and reasonable attorney fees."
Defenses
The statute has the following provisions on defenses available to mental health services providers and their employers:
(a) It is not a defense … that the sexual exploitation of the patient or former patient occurred: (1) with the consent of the patient or former patient; (2) outside the therapy or treatment sessions of the patient or former patient; or (3) off the premises regularly used by the mental health services provider for the therapy or treatment sessions of the patient or former patient.
(b) It is a defense to [a lawsuit brought by a former patient] that the person was not emotionally dependent on the mental health services provider when the sexual exploitation began and the mental health services provider terminated mental health services with the patient more than two years before the date the sexual exploitation began.
(c) A person is considered not emotionally dependent for purposes of this chapter if the nature of the patient's or former patient's emotional condition and the nature of the treatment provided by the mental health services provider are not such that the mental health services provider knows or has reason to believe that the patient or former patient is unable to withhold consent to the sexual exploitation.
Duty to report
The statute contains a section that imposes a new reporting obligation. Here is what it says:
(a) If a mental health services provider or the employer of a mental health services provider has reasonable cause to suspect that a patient has been the victim of sexual exploitation by a mental health services provider during the course of treatment, or if a patient alleges sexual exploitation by a mental health services provider during the course of treatment, the mental health services provider or the employer shall report the alleged conduct not later than the 30th day after the date the person became aware of the conduct or the allegations to: (1) the prosecuting attorney in the county in which the alleged sexual exploitation occurred; and (2) any state licensing board that has responsibility for the mental health services provider's licensing.
(b) Before making a report under this section, the reporter shall inform the alleged victim of the reporter's duty to report and shall determine if the alleged victim wants to remain anonymous.
(c) A report under this section need contain only the information needed to: (1) identify the reporter; (2) identify the alleged victim, unless the alleged victim has requested anonymity; and (3) express suspicion that sexual exploitation has occurred.
(d) Information in a report is privileged information and is for the exclusive use of the prosecuting attorney or state licensing board that receives the information. A person who receives privileged information may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the person first obtained the information. The identity of an alleged victim of sexual exploitation by a mental health services provider may not be disclosed by the reporter, or by a person who has received or has access to a report or record, unless the alleged victim has consented to the disclosure in writing.
(e) A person who intentionally violates Subsection (a) or (d) is subject to disciplinary action by that person's appropriate licensing board and also commits an offense. An offense under this subsection is a Class C misdemeanor.
The statute does provide reporters with immunity from civil or criminal liability for filing a report in good faith.
Application to ministers and churches
What is the relevance of this new statute to ministers and churches? Unfortunately, it is too early to say. It will take time for this statute to be interpreted and applied by the courts. For now, consider the following:
A Texas statute. The statute was enacted by the Texas legislature, and has no effect in any other state. However, it is possible that other states will enact similar legislation.
Application to ministers. The statute defines the term "mental health services provider" to include a member of the clergy. However, the statute goes on to clarify that the term "mental health service," when provided by a member of the clergy, does not include "religious, moral, or spiritual counseling, teaching, and instruction." This apparently means that clergy who engage in pastoral counseling of a religious nature are not engaged in "mental health services" and accordingly are not a "mental health services provider" with respect to such counseling. This means that such a minister cannot be liable under the statute as a result of sexual misconduct. Of course, the minister may be liable on the basis of other theories of liability, including assault and battery, emotional distress, breach of fiduciary duty, and negligence. Presumably, the statute will apply only to those ministers who engage in counseling that is both secular and amoral.
Key point. The courts will need to address the difficult distinction between "religious" and "secular" counseling. Perhaps even more difficult will be the distinction between "moral" and "amoral" counseling. The statute does not apply to ministers who engage in counseling that is either religious or moral.
Key point. It is possible that ministers who are licensed by the State of Texas as counselors or psychologists will more easily be exposed to liability under the statute, since it is more likely that they will be viewed by a civil court as having engaged in counseling that is not religious, moral, or spiritual. The risk of such a conclusion can be reduced through appropriately worded brochures and other literature provided to counselees, affirming the religious, moral, and spiritual nature of the counseling services.
Key point. The Texas statute has not been interpreted by the courts. Ministers and churches in Texas should consult with a local attorney for advice concerning the specific meaning of the statute and its application to particular situations.
Application to churches. Local churches that employ either ministers who engage in counseling of a purely secular and amoral nature, or non—minister counselors, are subject to possible legal liability for injuries resulting from the counselor's acts of sexual contact, sexual exploitation, or therapeutic deception—if one or more of the conditions summarized above is met.
Application to religious denominations. Liability for the sexual misconduct of a minister engaged in secular and amoral counseling, or non—minister counselors, cannot be imputed to a regional, state, or national religious denomination unless a victim can prove that the denomination:
(1) knew or should have known of the occurrences of sexual exploitation by the mental health services provider;
(2) received reports of such occurrences and failed to take necessary action to prevent or stop such sexual exploitation by the mental health services provider and that such failure was a proximate and actual cause of the damages; or
(3) knew or should have known of the mental health professional's propensity to engage in sexual exploitation.
Churches that use non—minister counselors. Some churches employ counselors who are not ministers. The Texas statute is much more likely to apply to such persons, and to churches that employ them, since they will not benefit from the exception that applies to ministers engaged in "religious, moral, and spiritual" counseling and instruction. Such churches should recognize that employing such a counselor will elevate their legal risk.
Reporting. The statute imposes a legal duty upon employers who are informed by a counselee of sexual misconduct by a "mental health service" provider to report such misconduct to the local prosecuting attorney and any state licensing board with which the mental health service provider is licensed. The contents of a report are summarized above.
Key point. The reporting requirement only applies to employers that are informed of sexual misconduct by a an employee who is a mental health service provider. As noted above, ministers who engage in counseling are not mental health service providers with respect to their religious, moral, and spiritual counseling.
Consent. The statute stipulates that the consent of a counselee is not a defense to the liability of a mental health service provider or his or her employer.
