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Theories of Liability

§ 4.11.01
Key point 4-11.01. 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.

Ministers, and their employing church, are exposed to civil liability in such cases on several grounds, including the following. These grounds are addressed more fully in chapter 10 of this text.

1. MALPRACTICE

Some courts have found clergy liable on the basis of malpractice for sexual misconduct with an adult or minor. These cases are addressed in section 4-05 of this chapter.

2. FIDUCIARY DUTY

A few courts have concluded that clergy, in some situations, owe a "fiduciary duty" toward members of their congregation, and that they can be liable for breaching this duty when they engage in sexual misconduct with a member of their congregation. For example, a few courts have concluded a fiduciary duty arises when clergy "hold themselves out" to their church and community as a skilled marriage counselor. Most of these cases have occurred in one state—Colorado.

3. EMOTIONAL DISTRESS ("OUTRAGEOUS CONDUCT")

Some clergy who have engaged in sexual misconduct have been sued by their victims on the basis of intentional infliction of emotional distress (sometimes referred to as "outrageous conduct"). This is a very difficult wrong to prove. The elements of an intentional infliction of emotional distress claim are (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the victim emotional distress; and (4) the emotional distress suffered by the victim was extreme and severe. Generally, liability is proven "only when the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."[142] Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85 (Tex. App. 1997). See also Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo. 1996); Doe v. Hartford Roman Catholic Diocesan Corporation, 716 A.2d 960 (Conn. Super. 1998); Singleton v. Christ the Servant Evangelical Lutheran Church, 541 N.W.2d 606 (Minn. App. 1996); Brown v. Pearson, 483 S.E.2d 477 (S.C. App. 1997). Most courts refer to section 46 of the Restatement (Second) of Torts, a respected legal treatise. One court has further explained that

[t]here must be substantial evidence of extreme conduct: It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that [he or she] has intended to inflict emotional distress, or even that [his or her] conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.[143] John v. Estate of Hartgerink, 528 N.W.2d 539 (Iowa 1995).

4. ASSAULT AND BATTERY

Clergy who engage in inappropriate sexual contacts with others may be subject to civil and criminal liability for their actions. Assault and battery not only are crimes, but they also are intentional torts (meaning that they can be the basis for civil lawsuits seeking money damages).

5. SEXUAL HARASSMENT

Sexual harassment is a form of "sex discrimination" prohibited by Title VII of the Civil Rights Act of 1964. Equal Employment Opportunity Commission (EEOC) regulations define sexual harassment as follows:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

This definition confirms the conclusion reached by numerous state and federal courts that sexual harassment includes at least two separate types of conduct:

  • "quid pro quo" harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, and
  • "hostile environment" harassment, which refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature.

Many states have enacted similar statutes. Clergy may be personally liable for sexual harassment under some of these laws. The liability of a church for a minister's acts of sexual harassment is addressed in chapter 9 of this text.

6. CRIMINAL AND STATUTORY LIABILITY

Sexual contact between clergy and a counselee may constitute a crime under state law. Many states have enacted legislation making it a crime for "psychotherapists" to engage in sexual contact with a counselee, and some of these laws define the term psychotherapist to include clergy.[144] See, e.g., IOWA CODE § 709.15 (makes "sexual abuse by a counselor or therapist" a crime, and defines "counselor or therapist" to include a "member of the clergy" who "provides or purports to provide mental health services"); MINN. STAT. § 609.345 (makes it a felony for a "psychotherapist" to engage in "sexual contact" with a counselee during a counseling session, or at any time if the counselee is "emotionally dependent upon the psychotherapist" or the sexual contact occurred by means of "therapeutic deception," and defines "psychotherapist" to include clergy who engage in counseling activities); N.D. CENT. CODE § 12.1-20-06.1 (makes it a felony for a therapist to have sexual contact with a counselee and defines the term "therapist" to include a "member of the clergy" who engages in counseling or any other effort to treat a mental or emotional condition); TEX. CIV. PRACT. & REM. CODE, title 4, § 81.001 et seq. (makes "sexual exploitation" of a patient by a "mental health services provider" a felony, and defines a mental health services provider to include a "member of the clergy" not engaged in "religious, moral, or spiritual counseling, teaching, and instruction"); WIS. STAT. § 940.22 (makes "sexual contact" between a "therapist" and a counselee a felony offense, and defines "therapist" to include a "member of the clergy" who engages in counseling or any other effort to treat a mental or emotional condition). Other states have enacted legislation giving counselees a statutory right to sue counselors for sexual misconduct.

Every state has enacted laws making it a crime to engage in nonconsensual sexual contact with another person. These laws constitute another potential basis of criminal liability for ministers who engage in sexual contact with a counselee or member of their congregation. A typical statute makes it a felony for anyone to "engage in sexual contact with another person without consent of that person."

Every state has enacted a law making assault and battery a crime. These laws constitute another potential basis of criminal liability for ministers who engage in nonconsensual sexual contact with a counselee or member of their congregation.

Church insurance policies exclude any claims based on intentional or criminal misconduct. As a result, ministers who are prosecuted for a sexual offense involving a counselee or member of their congregation ordinarily cannot expect the church insurance company to pay for a legal defense.

There are many other consequences of clergy sexual misconduct. To illustrate, clergy who engage in such behavior may have to register as a sex offender under state law; and, churches and denominations increasingly are revoking the ministerial credentials of ministers who engage in such behavior. Removal of ministerial credentials generally is motivated by several considerations, including the protection of others, the scriptural standards for ministry, accountability, and an avoidance of legal liability for a minister's future misconduct.

Case studies
  • A federal appeals court ruled that a pastor could be liable under a state law imposing liability on "psychotherapists" for engaging in sexual contact with counselees.[145] Dausch v. Rykse, 52 F.3d 1425 (7th Cir. 1994). A woman sued a pastoral counselor alleging that the counselor had engaged in sexual relations with her. The court permitted the woman to sue the pastor for violating the Illinois Sexual Exploitation in Psychotherapy Act. This Act permits counselees to sue a psychotherapist for sexual contact. While the Act excludes "counseling of a spiritual or religious nature" from liability, the court noted that this exclusion would not apply to purely "secular" counseling by a pastor.
  • The Iowa Supreme Court affirmed the criminal conviction and prison sentence of a pastor who engaged in sexual relations with four emotionally vulnerable women in his congregation. The pastor was charged four counts of sexual exploitation by a counselor or therapist in violation of a state law that provides "sexual exploitation by a counselor or therapist occurs when any of the following are found … any sexual conduct with a patient or client or former patient or client … by the counselor or therapist for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the patient or client or former patient or client." Sexual exploitation by a counselor or therapist is a class "D" felony for a counselor or therapist to engage in a "pattern or practice or scheme of conduct" of sexual exploitation. The statute defines "counselor or therapist" to include a … member of the clergy." A jury found the pastor guilty on four sexual exploitation charges. He was sentenced to ten years imprisonment. The state supreme court upheld the conviction.[146] State v. Edouard, 854 N.W.2d 421 (Iowa 2014).
  • A Minnesota appeals court ruled that a minister could be criminally liable for sexually seducing a female counselee. The pastor was prosecuted for criminal sexual contact under a state law prohibiting sexual contact by a "psychotherapist" with an "emotionally dependent" patient, or sexual contact by a psychotherapist with a patient occurring by means of "therapeutic deception." A jury convicted the pastor on four felony counts, and he appealed. In upholding the conviction, a state appeals court concluded that the pastor was a psychotherapist since he had assumed the role of a counselor, and that he had in fact committed both sexual contact and sexual intercourse with an "emotionally dependent" patient, and that the sexual contact and intercourse occurred because of "therapeutic deception."
  • A minister was sentenced to two consecutive life sentences for 3 acts of rape and 8 first-degree sexual offenses perpetrated on 4 women. The minister professed his innocence during his trial, but the prosecutor introduced into evidence several "love letters" the minister had written to at least one of the victims, along with several pornographic magazines and videos found in the minister's apartment. The magazines and videos were introduced by the prosecutor to rebut the minister's attempt to portray himself as an exemplary "family man" and minister. A North Carolina appeals court rejected the minister's claim that the 2 consecutive life sentences constituted "cruel and unusual punishment" in violation of the Constitution. This case illustrates the significant criminal liability that clergy face for acts of sexual misconduct. Of course, this is in addition to civil liability.[147] State v. Woodard, 404 S.E.2d 6 (N.C. App. 1991).
  • The Iowa Supreme Court affirmed the criminal conviction and prison sentence of a pastor who engaged in sexual relations with four emotionally vulnerable women in his congregation. A Washington state court affirmed the conviction and 15-year prison sentence of a youth pastor who engaged in a sexual relationship with a member of the church youth group.[148] 2009 WL 473657 (Wash. App. 2009).

7. "LOSS OF CONSORTIUM" OR ALIENATION OF AFFECTIONS

This basis of liability has been consistently rejected by the courts. It is discussed below under "defenses to liability."

Case study. A New York court ruled that a state law abolishing any remedy for alienation of affections and seduction barred a woman from suing a spiritual leader and counselor for damages she allegedly suffered as a result of a five-year sexual relationship.[149] Marmelstein v. Kehillat New Hempstead, 841 N.Y.S.2d 493 (N.Y.A.D. 2007).
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