by Richard R. Hammar, J.D., LL.M., CPA

Defenses to Liability

§ 4.11.02
Key point 4-11.02. Clergy who are sued for sexual misconduct may be able to assert one or more defenses.

1. CONSENT

The courts have reached different conclusions regarding the legal effect of a person's "consent" to a sexual relationship with a minister. Some courts have concluded that sexual relations between two consenting adults cannot be the basis for liability. Other courts have reached the opposite conclusion, usually on the ground that the pastor's unique authority and status precludes voluntary consent.

Case studies
  • A Colorado court ruled that consent is not a defense to a pastor's sexual contacts with a minor. It observed that such a defense would be "premised on the assumption that a child is capable of giving the kind of consent the law should recognize to a sexual relationship with an adult religious counselor." The court insisted that "a child is in no position to exercise independent judgment and evaluate on an equal basis the consequences of such a relationship." The court also rejected the argument that the victim became capable of consenting to the relationship as she matured, since this "ignores that dependence, transference, and the resulting vulnerability do not cease merely because a child physically matures while sexual abuse in secrecy by an adult in a position of trust continues unabated."[150] Bohrer v. DeHart, 943 P.2d 1220 (Colo. App. 1996).

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