A number of clergy have been sued for engaging in sexual relations with adult counselees or minors. To illustrate, many cases have involved sexual relations between male clergy and female counselees. The woman later sues the minister for intentional infliction of emotional distress, battery, and malpractice, among other theories of liability. Suing clergy for sexual misconduct presents certain problems for adult victims.
First, clergy often will assert the “consent” defense—meaning that the “victim” consented to the relationship and accordingly should not be permitted to sue. Victims will allege that a minister’s unique position of authority and respect overcame their free will and made their conduct non-consensual.
Second, any theory of liability based on intentional behavior by a minister is potentially excluded from coverage under the church’s general liability insurance policy. If a minister’s conduct is excluded from insurance coverage, and the minister has little if any financial resources, then the victim will be left without a remedy unless she can sue the minister’s church or denomination. However, lawsuits brought by victims of clergy sexual misconduct against a minister’s employing church or denomination have been rejected by the courts in most cases unless the victim can prove that the church or denomination had actual knowledge of previous incidents of sexual misconduct by the same minister and did nothing to monitor or restrict the minister’s activities. The issue of church or denominational liability for clergy sexual misconduct is addressed fully in chapter 10.
Third, the First Amendment guaranty of religious freedom affords some protection for clergy conduct.
Fourth, the abolition by most states of any liability for “seduction” or “alienation of affections” may restrict if not eliminate lawsuits brought against clergy based upon sexual misconduct.