Clergy, Counseling, and Criminal Liability

(4) Confidentiality of reports and records. (a) All reports and records made from reports under subdivision (3) and maintained by the department, examining boards, affiliated credentialing boards, district attorneys and other persons, officials and institutions shall be confidential and are exempt from disclosure …. Information regarding the identity of a victim or alleged victim of sexual contact by a therapist shall not be disclosed by a reporter or by persons who have received or have access to a report or record unless disclosure is consented to in writing by the victim or alleged victim ….

(5) Immunity from liability. Any person or institution participating in good faith in the making of a report or record under this section is immune from any civil or criminal liability that results by reason of the action. For the purpose of any civil or criminal action or proceeding, any person reporting under this section is presumed to be acting in good faith. The immunity provided under this subsection does not apply to liability resulting from sexual contact by a therapist with a patient or client.

State laws making sexual contact by psychotherapists with a counselee a crime

Several states have laws that make sexual contact between a “psychotherapist” and a counselee a crime, and, unlike the statutes mentioned in the previous section, do not specifically define “psychotherapist” to include a member of the clergy. However, the definition of “psychotherapist” under some of these laws may be broad enough to include a member of the clergy. Examples of such statutes are reproduced below.

Definition of “psychotherapist” may include clergy

Colorado

Revised Statutes § 18-3-405.5. Sexual assault on a client by a psychotherapist

(1) (a) Any actor who knowingly inflicts sexual penetration or sexual intrusion on a victim commits aggravated sexual assault on a client if:

(b) Aggravated sexual assault on a client is a class 4 felony.

(2) (a) Any actor who knowingly subjects a victim to any sexual contact commits sexual assault on a client if:

(b) Sexual assault on a client is a class 1 misdemeanor.

(3) Consent by the client to the sexual penetration, intrusion, or contact shall not constitute a defense to such offense.

(4) As used in this section, unless the context requires otherwise:

Note: The Colorado statute does not specifically include “clergy” in the definition of a psychotherapist, but the definition is so broad that it is reasonable to assume that the courts of Colorado would conclude that it includes clergy to the extent that they engage in “counseling.”

Georgia

Code § 16-6-5.1. Sexual assault

(a) As used in this Code section, the term …

(3) “Psychotherapy” means the professional treatment or counseling of a mental or emotional illness, symptom, or condition.

(4) “Sexual contact” means any contact between the actor and a person not married to the actor involving the intimate parts of either person for the purpose of sexual gratification of the actor ….

(c) A person who is an actual or purported practitioner of psychotherapy commits sexual assault when he or she engages in sexual contact with another individual who the actor knew or should have known is the subject of the actor’s actual or purported treatment or counseling or the actor uses the treatment or counseling relationship to facilitate sexual contact between the actor and such individual ….

(e) Consent of the victim shall not be a defense to a prosecution under this Code section.

(f) A person convicted of sexual assault shall be punished by imprisonment for not less than one nor more than 25 years or by a fine not to exceed $100,000, or both ….

Idaho

Code § 18-919 Sexual exploitation by a medical care provider

(a) Any person acting or holding himself out as a … psychotherapist … or other medical care provider as defined in this section, who engages in an act of sexual contact with a patient or client, is guilty of sexual exploitation by a medical care provider. For the purposes of this section, consent of the patient or client receiving medical care or treatment shall not be a defense …. Violation of this section is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not to exceed one (1) year, or both.

(b) For the purposes of this section …

(2) “Medical care provider” means a person who gains the trust and confidence of a patient or client for the examination and/or treatment of a medical or psychological condition, and thereby gains the ability to treat, examine and physically touch the patient or client.

Definition of “psychotherapist” may not include clergy

Some states have laws that make sexual contact between a “psychotherapist” and a counselee a crime, but define “psychotherapist” so narrowly that clergy may be excluded. An example of such statutes is reproduced below.

California

Business and Professions Code § 728. Definitions

“Psychotherapist” means a physician and surgeon specializing in the practice of psychiatry or practicing psychotherapy, a psychologist, a clinical social worker, a marriage and family therapist, a psychological assistant, marriage and family therapist, registered intern or trainee, or associate clinical social worker.

Business and Professions Code § 729. Sexual exploitation by physicians, surgeons, psychotherapists, or alcohol and drug abuse counselors

(a) Any … psychotherapist … or any person holding himself or herself out to be a … psychotherapist … who engages in an act of … sexual contact with a patient or client, or with a former patient or client when the relationship was terminated primarily for the purpose of engaging in those acts … is guilty of sexual exploitation by a … psychotherapist …. An act in violation of [this section] shall be punishable by imprisonment in a county jail for a period of not more than six months, or a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.

General sexual assault crimes

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.”

Assault and battery

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.

Insurance coverage

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.

Other consequences

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.

Other cases

Several courts have addressed the criminal liability of clergy for sexual contacts with adults. Consider the following examples.

State v. Dutton, 450 N.W.2d 189 (Minn. App. 1990)

A Minnesota minister was convicted on four felony counts of “psychotherapist-patient criminal sexual conduct” for engaging in sexual relations with a female counselee. The minister served as senior pastor of a church. He was approached by a married female member who desired counseling for low self-esteem, suicidal thoughts, grief, compulsions, an eating disorder, and premenstrual syndrome (PMS). The first several counseling sessions consisted of a discussion of Bible passages. In time, the pastor began discussing sexual issues although the woman insisted that she had not sought counseling for such matters. The pastor persisted in discussing sex, saying that sex was a “gift from God” and that he was “working” with her on her sexuality.

After several sessions, the woman’s husband and a close friend advised her to seek other help since she did not appear to be improving. The pastor insisted that terminating the counseling relationship had to be a mutual decision, and that it was “nobody else’s business.” At the conclusion of one counseling session that explored the subject of grief, the pastor gave the woman a brief hug, which she thought was appropriate but did not want to continue. The following week she asked the pastor if they were engaged in “normal counseling,” and he replied that he loved her. The session ended with the two engaged in hugging and passionate kissing.

Two days later, the woman went back to clarify that their relationship would remain “platonic” and non-sexual. At that meeting, the two engaged in hugging and kissing. The pastor gave the woman a rose as a symbol that their relationship would forever remain “pure and chaste from afar” and that he would “maintain her virginity.”

A couple of weeks later, the woman returned to the pastor’s office one evening and again the following morning. The two engaged in sexual fondling. This conduct was during her menstrual period, and the pastor assured her that their behavior would “help her work through negative issues about her menstrual period.” A month later, the two went to a motel and engaged in sexual intercourse for the first time. The woman testified that the pastor assured her that it was a “good” sexual encounter because he was unselfish. He also informed her that sex between a counselor and counselee was a felony in Minnesota. Shortly after this incident, the woman gave the pastor a signed letter stating “I, the undersigned, have given [my pastor] control of my life—my future—out of my abiding love for him.” The two engaged in sexual intercourse on at least two other occasions over the next few months. The woman testified that the pastor assured her that sexual intercourse was consistent with her “treatment” because it would remove her inhibitions about sex and “set her free” from her sexual “hang-ups.” A short time later, the two left town at the pastor’s request. At his request, the woman issued him checks amounting to $11,000.

The pastor was later prosecuted for four felony counts of criminal sexual contact. Minnesota law imposes a penalty of up to 15 years in prison for either (1) “sexual contact” by a “psychotherapist” with an “emotionally dependent” patient, or (2) sexual contact by a psychotherapist with a patient occurring by means of “therapeutic deception.” A jury convicted the pastor on all 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.” In concluding that the woman was “emotionally dependent” on the pastor, the court relied on the testimony of expert witnesses who stated that “there is a power imbalance in a pastoral counseling setting because the client idealizes the pastor.” The court also referred to (1) 32 notes and cards the woman had sent the pastor, (2) the fact that the woman had “signed over her life” to the pastor, (3) the fact that the woman had violated her strongly held religious beliefs and instincts to engage in what she felt was a very sinful relationship, and (4) the $11,000 she gave the pastor at his request. The court also concluded that the sexual contact and sexual intercourse had occurred “because of therapeutic deception.” In reaching this conclusion, the court referred to the pastor’s frequent assurances that sexual contact and intercourse were part of the woman’s “ongoing treatment” and were necessary to remove her inhibitions and hang-ups. In rejecting the pastor’s claim that he had a constitutional right to engage in consensual sexual relations with whomever he chose, the court ruled that no constitutional right protects a pastor who engages in sexual activity as part of religious counseling. The court observed: “These statutes are meant to protect vulnerable persons and allow them to reposit trust in those who can help them. The legislature has recognized the emotional devastation that can result when a psychotherapist takes advantage of a patient.”

State v. Woodard, 404 S.E.2d 6 (N.C. App. 1991)

A minister was sentenced to two consecutive life sentences for three acts of rape and eight first-degree sexual offenses perpetrated on four 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 two 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.

Dausch v. Ryske, 1993 WL 34873 (N.D. Ill. 1993)

A church hired a minister (the “counselor”) to provide counseling to members of the congregation. A female member (the “victim”) of the church had been experiencing emotional problems, including depression related to her father’s death. She claimed that she was encouraged to seek counseling from the church counselor by a church leader.

Shortly thereafter, the counselor allegedly called the victim to offer his services as a counselor. The counselor supposedly told her that she needed secular psychological, and not religious, counseling which he was well qualified to provide. He further explained that such treatment was included in his job description at the church. The victim began psychotherapy sessions with the counselor at his office at the church. According to the victim, the counselor quickly insisted that she increase the frequency and length of her therapy sessions and he told her that “religion does not apply here. Your problems are so deep you need more psychological treatment from me.” The victim contends that she became very involved in her therapy and extremely attached to the counselor. The counselor allegedly represented to her that he was a capable, trained professional who could be relied on to assist her with her serious personal problems and who could be trusted to act in her best interest.

Sometime later, the victim alleged that the counselor gave her the following ultimatum: “I have been giving to you, and I need something back for my services, you must give back to me or I will not work with you anymore.” From that time on, for a period of nearly two years, the victim’s “therapy sessions” consisted, in part, of sexual relations with the counselor.

The victim filed a lawsuit in federal court against the counselor, her church, and denomination. The lawsuit alleged several theories of liability, including professional negligence. A federal district court dismissed the victim’s lawsuit. In rejecting the victim’s claim of professional negligence, the court observed: “In Illinois, while cases such as this one suggest that it may be appropriate, it appears that neither the courts nor the legislature have established a cause of action for clergy malpractice …. Moreover, the Illinois legislature explicitly excluded the clergy from the statute which imposes liability upon psychotherapists for sexual exploitation.”

Doe v. Hartz, 134 F.3d 1339 (8th Cir. 1998)

A federal court in Iowa ruled that a woman who had been seduced by a priest could not sue her church and diocese for violating the federal Violence Against Women Act.

An adult female claimed that when she arrived at church one evening to participate in the choir during evening mass she was sexually assaulted by her priest. As a result, the woman claimed she suffered severe emotional trauma. She later sued the priest, her church, and diocese, on the basis of a number of theories. The first count of her lawsuit asserted that the priest’s actions amounted to a violation of the federal Violence Against Women Act (VAWA). VAWA, which was enacted by Congress in 1994, declares that all persons “have the right to be free from crimes of violence motivated by gender.” It further specifies that a person who commits a “crime of violence” motivated by gender “shall be liable to the party injured” for both compensatory and punitive damages. VAMA defines a “crime of violence” as an act or series of acts that would constitute a felony.

The woman claimed that the priest’s behavior would constitute a felony under a state law making it a crime for a pastoral counselor to engage in sexual contacts with a counselee. The Iowa statute in question prohibits “[s]exual exploitation by a counselor or therapist.” Iowa Code § 709.15.1.f. A “counselor or therapist” is defined to include members of the clergy “or any other person, whether or not licensed or registered by the state, who provides or purports to provide mental health services.” Mental health service is defined as “the treatment, assessment, or counseling of another person for a cognitive, behavioral, emotional, mental, or social dysfunction.” The woman alleged that the priest “served as a counselor to [her].” A federal district court in Iowa ruled in favor of the woman, and also found that the church and diocese were liable for the priest’s behavior on the basis of negligent supervision.

A federal appeals court reversed the lower court decision for two reasons. First, the woman failed to prove that the priest was her “counselor or therapist” within the meaning of the Iowa statute. Second, for the priest’s actions to violate VAWA, they would have to be a “crime of violence” amounting to a felony under state law. The court concluded that this requirement was not met. Under the Iowa statute, a “pattern or practice or scheme of conduct” to engage in any sexual conduct with a patient or client is a felony. Sexual conduct with a patient or client that is not part of a pattern, practice, or scheme is an aggravated misdemeanor. The court concluded that the one instance of sexual conduct alleged in the lawsuit did not constitute a pattern, practice, or scheme of conduct within the meaning of the statute. Therefore, the most serious violation the priest committed under state law was an aggravated misdemeanor.

This case illustrates a new basis of liability for churches. In those states in which sexual misconduct by a minister with a counselee is a felony, a church may be liable (for both compensatory and punitive damages) for its minister’s acts of sexual misconduct with a counselee on the basis of the federal Violence Against Women Act. Ministers who engage in counseling activities are subject to criminal liability in many states for engaging in sexual contact with a counselee, and so the importance of this case to church leaders is clear. However, as this court noted, this basis of liability is subject to important limitations. Most importantly, the acts of the minister must constitute a felony under state law. As a result, the requirements of applicable state statutes must be reviewed to determine a church’s potential liability under the Violence Against Women Act. In many states, this will be a new basis of liability.

J.M. v. Minnesota District Council, 658 N.W.2d 589 (Minn. App. 2003)

A Minnesota court ruled that a church and denominational agency could not be liable on the basis of negligent hiring for the sexual misconduct of a pastor, but could be liable on the basis of a state law imposing liability on the “employer” of a “psychotherapist.”

Based on his degree from a seminary, references, and a test to determine his doctrinal positions, a young man (Pastor Ted) was licensed as a pastor by a denominational agency (the “regional church”). Pastor Ted’s first employment was as an associate pastor. During this assignment, a young woman complained to the senior pastor that Pastor Ted had inappropriately touched her. The senior pastor advised Pastor Ted to have no further contact with the woman. No other church officials were involved and no further action was taken. Pastor Ted later began looking for a position as a senior pastor. The regional church recommended him as a candidate for senior pastor in an affiliated church. Pastor Ted went through the church’s selection process and was hired by the church as its senior pastor. The church did not make any inquiries of his former employer. A few years later, a woman (“Vicky”) and her family joined the church. When Vicky’s husband was diagnosed with a life-threatening illness, she became more actively involved in the church and sought counseling from Pastor Ted. In time, the two began spending large amounts of time together and became involved in a clandestine sexual relationship. A member of the church’s board of deacons spoke with Pastor Ted about the poor impression created by his attention to Vicky.

About one month later, Vicky revealed the relationship to a visiting pastor who informed the church’s board members. A board member contacted the regional church. Pastor Ted was confronted and admitted the relationship. The church requested and received his resignation, and the regional church revoked his ministerial credentials.

Vicky later sued Pastor Ted, her church, and the regional church. She settled her claims against Pastor Ted, but pursued legal claims against the church defendants for negligent hiring and employer liability under chapter 148A of the Minnesota Statutes (defined below). The church defendants asked the trial court to dismiss the claims against them on the ground that the First Amendment bars the civil courts from finding churches liable for their hiring decisions. The trial court denied the church defendants’ request, and the case was appealed.

Negligent hiring

The court agreed with the church defendants that a resolution of Vicky’s negligent hiring claim against the church defendants would “entangle” church and state in violation of the First Amendment’s nonestablishment of religion clause. It observed,

The establishment clause is not implicated where neutral principles of law, developed and applied without particular regard to religious doctrines, establish the applicable standard of care. In this case, even though neutral principles of law can be applied to determine whether a member of the clergy is performing psychotherapy and neutral principles of law can be applied to determine what the church and the council knew or should have known about a pastor’s employment history at the time of hiring, the church defendants argue that Vicky’s hiring-related claims implicate core, fundamental church doctrines governing identification of individuals “called” to the ministry. We agree. A determination of whether the statutorily required inquiries were made of a pastor-candidate’s former employers does not involve church doctrine, but a determination of how that information should be used in a hiring decision would force the court into an examination of church doctrine governing who is qualified to be a pastor. When claims involve “core” questions of church discipline and internal governance, the Supreme Court has acknowledged that the inevitable danger of governmental entanglement precludes judicial review.

Chapter 148A of the Minnesota Statutes

Chapter 148A of the Minnesota Statutes imposes liability on the employer of a member of the clergy who performs or purports to perform psychotherapy and who sexually exploits a patient if:

1. the employer fails or refuses to take reasonable action when the employer knows or has reason to know that the psychotherapist engaged in sexual contact with the plaintiff or any other patient or former patient of the psychotherapist; or
2. the employer fails or refuses to make inquiries of an employer or former employer, whose name and address have been disclosed to the employer and who employed the psychotherapist as a psychotherapist within the last five years, concerning the occurrence of sexual contacts by the psychotherapist with patients or former patients of the psychotherapist.

The regional church insisted that it was not Pastor Ted’s “employer,” and that the First Amendment prohibited the civil courts from rejecting this conclusion. The court disagreed, noting that deciding if the regional church was an employer for purposes of chapter 148A “is not a doctrinal matter, so there is no First Amendment barrier to resolution by civil courts.” The court remanded the case back to the trial court to determine whether or not the regional church was Pastor Ted’s employer.

The church conceded that it was Pastor Ted’s employer, but asserted that the First Amendment prohibited chapter 148A from being applied to it. The church claimed that a determination of whether Pastor Ted was acting as a psychotherapist would involve excessive entanglement between church and state. The court disagreed, noting that “the statute provides neutral standards to guide the determination. A psychotherapist is defined as a ‘member of the clergy … whether or not licensed by the state, who performs or purports to perform psychotherapy.’ Psychotherapy is defined as ‘the professional treatment, assessment or counseling of a mental or emotional illness, symptom, or condition.’ A determination whether a minister was providing services equivalent to psychotherapy, such that he was an unlicensed mental health practitioner for purposes of chapter 148B of the Minnesota Statutes does not excessively entangle the court in religion.”

The church also argued that the application of the statute “involves the state telling the church how its ministers shall conduct their counseling sessions with parishioners.” Once again, the court disagreed, “But the application of the statute to the church does not create such a danger. Chapter 148A neither prescribes any particular behavior on the part of those providing psychotherapy, nor does the statute require the courts to examine the merits or methods of the psychotherapy provided. The statute imposes liability on an employer for the employer’s acts or failure to act, to the extent it was a proximate and actual cause of any injuries sustained. The argument that application of the statute involves the state dictating to the church how ministers conduct counseling sessions with parishioners is without merit.”

Doe v. F.P., 667 N.W.2d 493 (Minn. App. 2003)


Mary and her husband and three young children were members of a church. Mary worked part-time as a musician for the church. The church employed a new pastor who became acquainted with Mary in her capacity as a musician and became a friend of family. Mary met weekly with the pastor to plan the music for worship services. They developed what both regarded as a close friendship. In the pastor’s words, they “fell in love” and mutually disclosed intimate details of their lives. The pastor disclosed sexual relationships with other women, and Mary revealed her fear of alcoholism and her dissatisfaction with her marriage. The pastor advised Mary to see a counselor for her family problems and a substance abuse expert for her alcoholism; he also recommended a spiritual advisor for her. Mary saw all three of these professionals on an ongoing basis. The sexual component of the relationship between Mary and her pastor began with hugs and progressed to sexual intimacy.

A few years later the pastor accepted a position in a church 100 miles away. Mary traveled to be with him on several occasions, and many of these visits involved sexual relations. The relationship ended five years later, after Mary discovered that the pastor was sexually involved with another woman. Mary and her husband later sued the pastor and their church on several grounds, including violation of a state law prohibiting “sexual exploitation” of counselees by ministers. The court also ruled that a state law making it a crime for ministers to engage in sexual contact with counselees violated the First Amendment’s “nonestablishment of religion” clause. The case was appealed.


Civil liability of “psychotherapists”

Mary and her husband claimed that the pastor was liable for monetary damages on the basis of a state law making “psychotherapists” liable for engaging in sexual contact with counselees. The statute permits counselees to sue a psychotherapist for sexual contact that occurred

1. during the period the patient was receiving psychotherapy from the psychotherapist; or
2. after the period the patient received psychotherapy from the psychotherapist if (a) the former patient was emotionally dependent on the psychotherapist; or (b) the sexual contact occurred by means of therapeutic deception. Minn. Stat. 148A.02.

The term “psychotherapist” is defined by the statute to include a “member of the clergy … whether or not licensed by the state, who performs or purports to perform psychotherapy.” “Psychotherapy” is defined as “the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.” The statute provides that “it is not a defense to the action that sexual contact with a patient occurred outside a therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions.”

Mary and her husband insisted that the pastor met the definition of a psychotherapist, and that the counseling he was providing to Mary amounted to psychotherapy. Mary claimed that the pastor had counseled her, and she defined counseling as, “You just simply go talk to someone about your personal problems.” In her deposition, she referred to the pastor as a friend of her family and to their relationship as mutual and between equals. She testified that, when their friendship began, the pastor shared with her information about his sexual activities with other women in other churches. She also testified that when, near the end of their relationship, she discovered that he was sexually involved with another woman, she was hurt; the pastor testified that she was jealous.


The appeals court noted that none of these factors were present in this case:The appeals court concluded that the pastor had not been engaged in psychotherapy. It referred to a case in which the state supreme court found that a minister was a psychotherapist based on the following factors: (1) he referred to his sessions with a couple as “marital counseling”; (2) the meetings with the couple varied from weekly to monthly over two years; (3) he brought third parties to the counseling sessions to assist the couple with their marriage problems; (4) he discussed his psychological coursework and used psychological terminology; (5) he conducted psychological and personality examinations of the couple and assessed their personalities; (6) he attempted to modify one party’s behavior; and (7) he challenged the opinions of professional counselors, saying that they did not understand the situation as well as he did and that his advice and approach were superior to theirs. Odenthal v. Minnesota Conference of SeventhDay Adventists, 649 N.W.2d 426 (Minn. 2002).

The pastor referred to himself and Mary as friends; she spoke of him as her friend and of their relationship as between equals. During the period that the pastor and Mary had regular weekly meetings, the meetings were for the purposes of liturgy planning or choir practice. The pastor repeatedly advised Mary to seek counseling from professionals—not from himself—regarding her depression and her alcohol use, and she often discussed with him what her professional counselors had told her. The pastor had no training in counseling or psychology. When asked if he counseled parishioners going through a death in the family, he said he would “visit with them and be with them in their pain”; when asked if he counseled parishioners about substance abuse, he said, “If they came to me, I would talk with them and refer them.” He also testified about his own counseling, using the term to mean scheduled, compensated appointments with a professional psychologist or psychiatrist. He conducted no psychological or personality testing of Mary or of anyone else. He did not provide “professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition” within the meaning of [the statute]. Their communications did not come within the statutory meaning of psychotherapy.


Criminal liability of “psychotherapists”

Mary and her husband also claimed that they could sue the pastor on the basis of a state law making it a crime for ministers to engage in sexual contact with counselees. The law provides,

Sexual penetration is third degree criminal sexual conduct and sexual contact is fourth degree criminal sexual conduct when committed by a member of the clergy either (i) … during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or (ii) … during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Minn. Stat. 609.344.


A state appeals court reversed the trial court’s conclusion that the statute was unconstitutional. It quoted from the Odenthal case (mentioned above), in which the state supreme court rejected the argument thatMinnesota courts have ruled that a civil cause of action can be implied against ministers who violate this criminal statute. The pastor claimed that the statute violated the First Amendment’s “nonestablishment of religion” clause because it singled out ministers for criminal liability. And, since the statute was invalid, he could not be sued in a civil lawsuit for violating it. The trial court agreed that the statute was unconstitutional. It noted that “whether a government action violates the establishment clause is controlled by three factors …. The state action must have a secular purpose, must neither inhibit nor advance religion in its primary effect, and must not foster excessive governmental entanglement with religion.” The trial court concluded that the statute making it a crime for ministers to engage in sexual contact with counselees fostered excessive entanglement because, to enforce these provisions, courts had to determine whether the “advice, aid, or comfort” provided by a member of the clergy in private was “religious or spiritual.”

because we will have to determine what aspects of the counseling relationship are religious and what aspects are secular, the court will become entangled in religion. However, [defendant] fails to identify how determining whether a person is providing … counseling for the conditions described in the statute requires any inquiry into the religious aspect of the relationship. Therefore, we see no need to parse out secular and religious counseling to apply this definition, and its application does not alter or impinge upon the religious character of the relationship. Therefore, applying the statutory definition of mental health services does not excessively entangle the courts in religion.

The appeals court agreed, noting that “for us to determine whether the advice, aid, or comfort sought or received by a victim from a member of the clergy was religious or spiritual within the meaning of [the statute] would appear not to excessively entangle a court in religion.” The court pointed out that whether a communication is of a religious or spiritual nature “is a question of fact frequently addressed by the courts in the context of the application of the clergy privilege.”

The court rejected the pastor’s argument that the criminal statute was unconstitutional because it singled out clergy as targets for criminal liability. It simply noted that the criminal statute also applied to sexual misconduct by secular psychotherapists, government and private correctional employees, and transportation agents. Like sexual abuse committed by members of these other groups, “sexual abuse committed by clerics during the course of their ministry is treated according to neutral principles of law.”

The court concluded that “whether the advice, aid, or comfort provided by a member of the clergy in private was religious or spiritual does not violate the establishment clause by fostering excessive governmental entanglement with religion.” It therefore reversed the trial court’s decision that the statute was unconstitutional.

State of Wisconsin v. Draughon, 702 N.W.2d 412 (Wis. App. 2005)


Pastor Tim moved to Wisconsin and became the pastor of a church. He soon befriended and began socializing with two church members who were engaged to be married. Pastor Tim provided premarital counseling to the couple, and later performed their marriage ceremony. Shortly after the wedding, concerns arose about the husband’s use of church computers to access pornography. The couple agreed to talk to Pastor Tim about the problem, and they began counseling sessions which lasted approximately eight to ten weeks. During this time, Pastor Tim gave the husband a book to read with worksheets to be completed after each chapter. Pastor Tim and the husband also became “accountability partners” in a program called Promise Keepers, a movement where men meet to help each other deal with temptations and to hold each other accountable for their actions.

The couple also sought Pastor Tim’s help because of financial difficulties. Pastor Tim suggested that the wife work one day per week in the church office to help ease the financial burden. She began working Wednesday afternoons, attending counseling sessions later in the afternoon and then staying for the Wednesday evening Bible study. The husband’s attendance at counseling became sporadic and eventually stopped.

The wife later claimed that a change occurred over time in the nature of her relationship with Pastor Tim. He repeatedly said he loved her, asked to hug her, and sent her flowers. Soon after he said he loved her, the wife discovered email messages that suggested her husband was having affairs with other women. On Pastor Tim’s advice, the wife confronted her husband about the email messages. The husband denied that they were true.

Pastor Tim’s relationship with the wife progressed. Eventually, the two engaged in sexual activity in a room in the church basement. The wife disclosed this incident to the police, and Pastor Tim was charged with violating a Wisconsin law making sexual contact between a counselor and a counselee a felony. The law provides:

Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class F felony. Consent is not an issue in an action under this subsection. Wisconsin Statutes § 940.22.

This statute defines “therapist” to include “a member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.” It defines “psychotherapy” as “the use of learning, conditioning methods and emotional reactions in a professional relationship to assist persons to modify feelings, attitudes and behaviors which are intellectually, socially or emotionally maladjustive or ineffectual.”

A jury found Pastor Tim guilty of engaging in sexual contact in violation of this statute, and the court sentenced him to a term of twelve years, with five years of confinement in prison followed by seven years of extended supervision. Pastor Tim appealed.

Pastor Tim argued that the state, in charging him with the crime of sexual exploitation by a therapist, was required to prove that he held himself out to be a therapist. The statute making sexual exploitation by a therapist a crime defines a therapist to include a member of the clergy, whether or not licensed or certified by the state, “who performs or purports to perform psychotherapy.” Pastor Tim did not dispute that he was a member of the clergy but claimed that the jury instruction given to the jury by the trial judge improperly concluded that as a member of the clergy he was automatically a therapist—without proof that he was engaging in psychotherapy.

The court concluded:

Pastor Tim conceded two key factors in the state’s case: (1) that the sexual contact occurred, and (2) that he was a member of the clergy. His defense rested on whether he practiced psychotherapy and therefore met the statutory definition of a therapist and, if so, whether the sexual contact occurred during a therapist-patient relationship. The jury instruction, in syllogistic fashion, presents two propositions: (1) therapists perform psychotherapy, and (2) therapists include members of the clergy. These propositions lead to the faulty conclusion that by definition, clergy members perform psychotherapy …. Here, the instruction given never directed the jury to make an independent, “beyond-a-reasonable-doubt decision” as to whether Pastor Tim performed or purported to perform psychotherapy …. Jury instructions that have the effect of relieving the state of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional [under the constitutional guarantees of due process and trial by jury].

In summary, the court reversed Pastor Tim’s conviction on a technicality pertaining to the trial judge’s instructions to the jury.

Sexual harassment

Clergy who engage in inappropriate sexual behavior with other church employees may be liable for sexual harassment. Sexual harassment is a form of “sex discrimination” prohibited by Title VII of the Civil Rights Act of 1964. Title VII only applies to employers that (1) have 15 or more employees, and (2) are engaged in interstate commerce. Accordingly, it does not apply to most churches (it does apply to many denominational agencies engaged in interstate sales). Nevertheless, many state and federal courts have permitted women to file sexual harassment lawsuits even though their employer is not subject to Title VII, and such courts often follow cases decided under Title VII. Therefore, Title VII and the Equal Employment Opportunity Commission (EEOC) regulations interpreting it are relevant to churches and other religious organizations. A current EEOC regulation entitled “EEOC Guidelines on Discrimination Because of Sex” specifies, in part:

(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. 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 regulation confirms the conclusion reached by numerous state and federal courts that sexual harassment includes at least two separate types of conduct: (1) “Quid pro quo” harassment, which refers to conditioning employment opportunities on submission to a sexual or social relationship, or (2) “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. Clergy who engage in such behavior with church employees may be subject to liability for sexual harassment under Title VII (if applicable), a similar state statute, or other theories of liability (such as assault or infliction of emotional distress). Note, however, that this theory of liability applies only to inappropriate conduct with employees.

A woman’s “consent” is not a defense to an allegation of sexual harassment. The United States Supreme Court has observed:

[T]he fact that sex-related conduct was voluntary in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit …. The gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome …. The correct inquiry is whether [the victim] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

In other words, a female employee may engage in voluntary sexual contact with a supervisor because of her belief that her job (or advancement) depends on it. While such contact would be voluntary, it is not necessarily welcome. Sexual harassment addresses unwelcome sexual contact, whether or not that contact is voluntary.

To illustrate, in one case a woman was hired as an associate pastor of a church in Minnesota. A year later, she filed a discrimination charge with the state department of human rights against her supervising pastor. She claimed that her supervising pastor repeatedly made unwelcome sexual advances toward her. He allegedly referred to themselves as “lovers,” physically contacted her in a sexual manner, and insisted on her companionship outside the work place despite her objections. The woman informed her local church leaders as well as her synod before filing the complaint with the state. Although the church and synod investigated the woman’s allegations, no action was taken to stop the alleged harassment. Less than three months after the complaint was filed with the state, the church held a congregational meeting at which it voted to dismiss the woman as pastor. The reason stated for the discharge was the woman’s “inability to conduct the pastoral office efficiently in this congregation in view of local conditions.” A state appeals court ruled that the woman could sue her former supervising pastor for sexual harassment. The court also rejected the supervising pastor’s claim that the woman was prevented from suing because she had “consented” to the supervising pastor’s conduct.