• Key point. Some courts have allowed pastors to be sued on the basis of “clergy malpractice” for engaging in sexual relations with a counselee in the course of a counseling relationship.

• Key point. Churches may be sued for invasion of privacy or defamation if they disclose to church members that a pastor has engaged in sexual relations with a counselee in the course of a counseling relationship.

A New Jersey court allowed a woman to sue her church for “clergy malpractice” as a result of a sexual relationship that was initiated by her pastor. The woman’s lawsuit alleged that she had sought counseling from a pastor of her church, and that the pastor became aware of her emotional vulnerabilities and exploited those vulnerabilities to induce her to engage in sexual acts with him. The woman filed a complaint with a “standing committee on clergy ethics” of her denomination, and the committee later determined that the minister had “violated his pastoral relationship” with the victim by engaging in inappropriate sexual behavior toward her.” The committee “sanctioned” the minister. The woman then sued her church, claiming that the pastor’s actions amounted to “clergy malpractice.” A trial court dismissed the case on the ground that clergy malpractice is not a recognized theory of liability because it would unduly “entangle” the courts with religion in violation of the first amendment. The woman appealed, and a state appeals court ruled that the woman could sue the church for clergy malpractice.

The court acknowledged that a number of courts have rejected liability based on clergy malpractice. The most notable example was the California Supreme Court’s decision in the Nally case in 1988 (fully addressed in a prior issue of this newsletter). The Nally case involved a lawsuit by parents seeking damages for the suicide of their son. The parents sued their son’s church and four pastors who had counseled him. The parents claimed that the church and four pastors had failed in their duty to recognize that their son was suicidal and to refer him to psychiatric care. The court held that the four pastors, as “nontherapist counselors,” had no duty to refer a counselee to psychiatric care. The court refused to extend the duty to prevent suicide, previously imposed on psychiatrists and hospitals caring for a suicidal patient, to non—licensed nontherapist counselors who provide counseling on “spiritual matters.” The court observed that “it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The New Jersey court concluded that the Nally case was not relevant for three reasons: “First, constitutional considerations played a minimal role in the court’s analysis. Second, the alleged breach of duty was closely connected with the content of the counseling and advice provided by the counselors. Lastly, Nally did not involve exploitation of the counselee for the counselors’ sexual gratification.”

The court observed that “malpractice” is nothing more than the negligent performance of a professional service and “a deviation from the standards of performance applicable to the professional service in question.” The court expressed concern over potential first amendment violations when civil courts apply the concept of malpractice to members of the clergy. However, it was unwilling to conclude (as many other courts have done) that the first amendment bars recognition of civil liability for clergy malpractice in all cases. The court observed:

Regarding the risk of undue entanglement in ecclesiastical affairs arising out of a case of clergy malpractice, we share the concerns of those courts that have addressed the issue. We are, however, persuaded that those concerns are overstated in circumstances, such as the present case, involving a cleric’s sexual misconduct …. We conclude that one test to determine whether a cause of action against a cleric is cognizable in civil courts is whether adjudication of the claim requires an evaluation of dogma or ritual, or other matters of purely ecclesiastical concern. In the present case, it is unlikely that [the church] will assert that sex with a counselee by a pastoral counselor is sanctioned by or somehow involves tenets of the … church, or would otherwise create an entanglement with religious beliefs or rituals of first amendment concern.

Moreover, there is a bright line between counseling culminating in a sexual relationship with a counselee and other types of harms allegedly resulting from a failed counseling relationship. Thus, we do not share the concern … that to recognize a cause of action for the sexual exploitation of a child would place civil courts “on the slippery slope.”

The court concluded that “[w]e perceive no impenetrable barrier … to establishing a standard of care applicable to cleric—counselors in the context of an allegation that the counselor used his position to sexually exploit the counselee.” The court cautioned that it was now up the woman to prove “an applicable standard of care, show that [the pastor] breached this standard, and prove the damages flowing from that breach.”

The court then turned its attention to another claim made by the woman-the legal liability of another pastor at the same church who informed the congregation of the sexual relationship. The woman sued this pastor as well, claiming that by informing the congregation the pastor had breached a fiduciary duty, invaded her privacy, made negligent misrepresentations, committed defamation, and placed the woman in a “false light.” The appeals court ruled that the woman could pursue this claim as well.

This case is important for a number of reasons. First, it demonstrates the liability of clergy and churches on the basis of “clergy malpractice” is not dead. It is still recognized as a viable claim by some courts in the context of inappropriate sexual behavior. Second, it reaffirms the view of nearly all courts that clergy cannot be sued on account of the content of their counseling. It is only their actions that may result in liability. Third, the court announced a new test for determining whether or not a lawsuit against a minister can be resolved by the courts-would resolution of the lawsuit require the court to engage in “an evaluation of dogma or ritual or other matters of purely ecclesiastical concern”? Fourth, the court allowed the woman to sue another pastor who informed the congregation of the affair. This illustrates the risks associated with communicating such information, even to members. The woman asserted that it was inappropriate for her name to have been mentioned, since this suggested that she was equally at fault for a relationship that she insisted was due entirely to the pastor’s exploitation of her emotional vulnerability. F.G. v. MacDonell, 677 A.2d 258 (N.J. Super. 1996). [Invasion of Privacy, Clergy Malpractice, Seduction of Counselees and Church Members, Judicial Resolution of Church Disputes]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m54 m67 c0297