Key point 4-11.02. Clergy who are sued for sexual misconduct may be able to assert one or more defenses.
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.
- 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).
- The Nebraska Supreme Court ruled that a priest could not be sued by a woman with whom he engaged in sexual relations since her consent to the relationship was a complete bar to any recovery. The court observed, “What is involved in this case is conduct between consenting adults. There is no allegation that the [priest] used force or fraud to accomplish his sexual relations with the [woman].” The court continued, “In tort law, consent ordinarily bars recovery for intentional interferences with person or property. … [I]t is a fundamental principle of common law that ‘to one who is willing, no wrong is done.'” The court concluded that “[a] sexual relationship between two consenting adults is not outrageous conduct such as to give rise to a claim for intentional infliction of emotional distress. This seems especially true given the fact that the [woman and the priest] engaged in an approximate 7-year sexual relationship.” The court referred to section 892A of the Restatement of Torts (a respected legal treatise), which provides, “One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.” An official comment in the Restatement of Torts further explains this language: “Except in the case of persons whom the law protects for reasons of policy, such as those who are mentally immature or otherwise incompetent, no one suffers a legal wrong as the result of an act to which, unaffected by fraud, mistake or duress, he freely consents or to which he manifests apparent consent.”151 Nebraska Supreme Court issues an important ruling; Schieffer v. Catholic Archdiocese, 508 N.W.2d 907 (Neb. 1993).
- A Louisiana appeals court ruled that a husband whose wife had allegedly been seduced by his pastor could not sue the pastor or his church. The court noted that the state of Louisiana abolished the tort of “alienation of a wife’s affections” in 1927, and that this prevented the husband from suing his priest for clergy malpractice. However, the court stressed that it was not addressing the issue of whether or not a wife who is seduced by a priest can maintain a lawsuit for clergy malpractice. Second, the court rejected the husband’s claim that the priest was guilty of intentional infliction of emotional distress, since such a claim may only be brought by the intended victim (in this case, the wife). The court also concluded that the four minor children could not sue the priest for alienation of their mother’s affections.154 Greene v. Roy, 604 So.2d 1359 (La. App. 3 Cir. 1992).
- The Nebraska Supreme Court ruled that a husband could not sue a priest for “loss of consortium” as a result of the priest’s sexual relationship with the man’s wife. The husband claimed that as a result of the priest’s actions he had lost the care and comfort of his wife and had been deprived of her comfort and companionship and incurred pain, suffering, and mental anguish. The court rejected this theory of liability, noting that it was essentially a claim for “alienation of affection” and that such claims are specifically prohibited by a Nebraska statute.155 Schieffer v. Catholic Archdiocese, 508 N.W.2d 907 (Neb. 1993).
- The Oklahoma Supreme Court ruled that a pastor was not liable on the basis of “seduction” for sexual contacts he had with a woman during counseling. In rejecting this basis of liability, the court noted that the state legislature had abolished any liability for seduction. A state statute provides that the “seduction of any person of sound mind and legal age is hereby abolished as a civil cause of action in this state.” It concluded that “[w]e are not at liberty to recognize a cause of action by the wife against her minister for engaging in a consensual sexual affair.”156 Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993).
2. STATUTE OF LIMITATIONS
Every state has enacted various “statutes of limitation” that prescribe the deadlines for filing legal claims. Clergy who are sued for sexual misconduct often assert that the lawsuit must be dismissed because it was filed after the deadline prescribed by the applicable statute of limitations expired. Some courts have recognized this defense.152 See, e.g., Doe v. Maskell, 679 A.2d 1087 (Md. 1996).Other courts (and some legislatures) have extended the statute of limitations deadline in cases of sexual misconduct, recognizing that in some cases victims are not fully capable of associating the misconduct with their emotional injuries until many years after the statute of limitations deadline has expired.
3. FIRST AMENDMENT
Does the First Amendment guaranty of religious freedom protect clergy from being sued as a result of their sexual misconduct? Most courts have said that it does not.
Clergy who are sued as a result of sexual misconduct often assume that the church’s insurance policy will provide a legal defense and pay for any judgment or settlement up to the insurance limits. Such an assumption may be incorrect, since most insurance policies exclude coverage for any “intentional” or criminal acts, and some exclude coverage for sexual misconduct. As a result, a number of clergy have had to retain and pay for their own attorney, and pay any judgment or settlement attributable to their misconduct.
Key point. Ministers who engage in sexual misconduct may be guilty of a number of “intentional wrongs” including battery, breach of a fiduciary duty, and intentional infliction of emotional distress. Generally, intentional wrongs are not covered under a church’s liability insurance policy, and so ministers who commit such acts may find that they must pay for their own attorney and any portion of a judgment or settlement attributable to their conduct.
5. ELIMINATION OF “LOSS OF CONSORTIUM” AND “ALIENATION OF AFFECTION” CLAIMS
A number of courts have concluded that a husband whose wife is seduced by a pastor cannot sue the pastor since any basis for liability was effectively abolished when “alienation of affections” was eliminated as a basis for liability by the state legislature.153 See, e.g., Cherepski v. Walters, 913 S.W.2d 761 (Ark. 1996); R.E.R. v. J.G., 552 N.W.2d 27 (Minn. App. 1996).
6. DUPLICATE VERDICTS
Victims of clergy sexual misconduct usually sue not only the offending pastor, but also the church that employed the pastor. In some cases the jury awards a victim money damages against the pastor and church separately. To illustrate, a jury determines that both a pastor and church are legally responsible for injuries suffered by a victim of the pastor’s sexual misconduct. The jury awards the victim $200,000 in damages, to be split evenly between the pastor and church. In such a case the argument can be made that the verdicts are “duplicative,” meaning that the jury’s award of damages against the pastor and church for the same alleged wrongs results in “duplication of damages” since the actions of the church did not result in any additional harm to the victim beyond what had been caused by the pastor.157 See, e.g., Bohrer v. DeHart, 943 P.2d 1220 (Colo. App. 1996).