Article summary. Ministers who engage in sexual contact with adult members of their congregation expose their church to potentially substantial liability. Many of these cases have been reported in this newsletter. But, such behavior has other consequences. One of those consequences is criminal liability. Several states have enacted laws that make sexual misconduct by clergy in a counseling relationship a crime punishable by imprisonment. This article addresses this form of liability. It reviews a recent case in which a minister was prosecuted under such a statute, and then reviews existing laws in all 50 states.

Some ministers have engaged in sexual contact with adults in the course of their ministry. Most of these cases occur in the context of a counseling relationship with a member of the congregation, but they also can occur with staff members. However they occur, such incidents can be devastating to a church. The minister may be suspended or dismissed, the congregation may be divided over the appropriate response, and the church may be sued by the other party who may claim that the sexual contact was nonconsensual. Some of these cases may result in negative publicity in the media, which can be devastating to a church’s reputation.

There is another possible consequence in such cases that often is overlooked. The minister who engaged in the sexual acts may be charged with criminal behavior and prosecuted. If convicted, the minister faces imprisonment. This article will address the potential criminal liability of ministers for nonconsensual sexual contacts with adults. It begins by reviewing a recent case in Minnesota in which this kind of liability was addressed. The article also reviews the relevant criminal statutes of all 50 states so that churches will be able to assess this risk in their state.

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

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 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 Seventh-Day Adventists, 649 N.W.2d 426 (Minn. 2002).

The appeals court noted that none of these factors were present in this case:

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,

Minnesota 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 statue 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.”

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 that:

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.

Several states have laws that specifically make sexual contact between a minister and a counselee a crime. Each of these state laws is reproduced below.

Code § 5-14-126

(a) A person commits sexual assault in the third degree if the person engages in sexual intercourse or deviate sexual activity with another person, not the person’s spouse, and the person … is a member of the clergy, and is in a position of trust or authority over the victim and uses the position to engage in sexual intercourse or deviate sexual activity.

(b) It is no defense to prosecution under this section that the victim consented to the conduct.

(c)(1) A person commits sexual assault in the third degree if the person being under eighteen (18) years of age, engages in sexual intercourse or deviate sexual activity with another person not the person’s spouse who is less than fourteen (14) years of age.

(2) It is an affirmative defense under subsection (c) that the person was not more than three (3) years older than the victim.

(d) Sexual assault in the third degree is a Class C felony.

Statutes § 53a-65. Definitions

As used in this part … the following terms have the following meanings …

(9) “Psychotherapist” means a … clergyman … whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.

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

(11) “Emotionally dependent” means that the nature of the patient’s or former patient’s emotional condition and the nature of the treatment provided by the psychotherapist are such that the psychotherapist knows or has reason to know that the patient or former patient is unable to withhold consent to sexual contact by or sexual intercourse with the psychotherapist.

(12) “Therapeutic deception” means a representation by a psychotherapist that sexual contact by or sexual intercourse with the psychotherapist is consistent with or part of the patient’s treatment.

§ 53a-71. Sexual assault in the second degree: Class C or B felony

(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and … (6) the actor is a psychotherapist and such other person is (A) a patient of the actor and the sexual intercourse occurs during the psychotherapy session, (B) a patient or former patient of the actor and such patient or former patient is emotionally dependent upon the actor, or (C) a patient or former patient of the actor and the sexual intercourse occurs by means of therapeutic deception; or (7) the actor accomplishes the sexual intercourse by means of false representation that the sexual intercourse is for a bona fide medical purpose by a health care professional ….

(b) Sexual assault in the second degree is a class C felony or, if the victim of the offense is under sixteen years of age, a class B felony, and any person found guilty under this section shall be sentenced to a term of imprisonment of which nine months of the sentence imposed may not be suspended or reduced by the court.

§ 53a-73a. Sexual assault in the fourth degree: Class A misdemeanor or class D felony

(a) A person is guilty of sexual assault in the fourth degree when … (4) such person is a psychotherapist and subjects another person to sexual contact who is (A) a patient of the actor and the sexual contact occurs during the psychotherapy session, or (B) a patient or former patient of the actor and such patient or former patient is emotionally dependent upon the actor, or (C) a patient or former patient of the actor and the sexual contact occurs by means of therapeutic deception; or (5) such person subjects another person to sexual contact and accomplishes the sexual contact by means of false representation that the sexual contact is for a bona fide medical purpose by a health care professional ….

(b) Sexual assault in the fourth degree is a class A misdemeanor or, if the victim of the offense is under sixteen years of age, a class D felony.

11 Del. Code § 761. Definitions

(h) “Without consent” means …

(4) Where the defendant is a health professional, as defined herein, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested.

11 Del. Code § 767. Unlawful sexual contact in the third degree; class A misdemeanor

A person is guilty of unlawful sexual contact in the third degree when the person has sexual contact with another person or causes the victim to have sexual contact with the person or a third person and the person knows that the contact is either offensive to the victim or occurs without the victim’s consent. Unlawful sexual contact in the third degree is a class A misdemeanor.

Code section 709.15. Sexual exploitation by a counselor, therapist, or school employee

1. As used in this section:

a. “Counselor or therapist” means a … member 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.

b. “Emotionally dependent” means that the nature of the patient’s or client’s or former patient’s or client’s emotional condition or the nature of the treatment provided by the counselor or therapist is such that the counselor or therapist knows or has reason to know that the patient or client or former patient or client is significantly impaired in the ability to withhold consent to sexual conduct … by the counselor or therapist.

2. Sexual exploitation by a counselor or therapist occurs when any of the following are found …

b. Any sexual conduct, with an emotionally dependent patient or client or emotionally dependent former patient or client for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the emotionally dependent patient or client or emotionally dependent former patient or client ….

c. Any sexual conduct with a patient or client or former patient or client within one year of the termination of the provision of mental health services 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 ….

4. b. A counselor or therapist who commits sexual exploitation in violation of subsection 2, paragraph “b”, commits an aggravated misdemeanor.

c. A counselor or therapist who commits sexual exploitation in violation of subsection 2, paragraph “c”, commits a serious misdemeanor.

Statutes § 148A.01. Definitions

2. “Emotionally dependent” means that the nature of the patient’s or former patient’s emotional condition and the nature of the treatment provided by the psychotherapist are such that the psychotherapist knows or has reason to believe that the patient or former patient is unable to withhold consent to sexual contact by the psychotherapist ….

5. “Psychotherapist” means a … member of the clergy … or other person, whether or not licensed by the state, who performs or purports to perform psychotherapy.

6. “Psychotherapy” means the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition ….

8. “Therapeutic deception” means a representation by a psychotherapist that sexual contact with the psychotherapist is consistent with or part of the patient’s or former patient’s treatment.

Statutes § 609.345. Criminal sexual conduct in the fourth degree

1. A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the fourth degree if any of the following circumstances exists …

(h) the actor is a psychotherapist and the complainant is a patient of the psychotherapist and the sexual contact occurred:

(i) during the psychotherapy session; or

(ii) outside the psychotherapy session if an ongoing psychotherapist-patient relationship exists. Consent by the complainant is not a defense;

(i) the actor is a psychotherapist and the complainant is a former patient of the psychotherapist and the former patient is emotionally dependent upon the psychotherapist;

(j) the actor is a psychotherapist and the complainant is a patient or former patient and the sexual contact occurred by means of therapeutic deception. Consent by the complainant is not a defense;

(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:

(i) the sexual contact occurred 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) the sexual contact occurred 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. Consent by the complainant is not a defense;

2. A person convicted under subdivision 1 may be sentenced to imprisonment for not more than ten years or to a payment of a fine of not more than $20,000, or both.

Code § 97-5-23. Fondling child; punishment

(2) Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person’s spouse, with or without the child’s consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court. A person in a position of trust or authority over a child includes without limitation a child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

§ 30-9-10. Definitions

A. “force or coercion” means …

(5) the perpetration of criminal sexual penetration or criminal sexual contact by a psychotherapist on his patient, with or without the patient’s consent, during the course of psychotherapy or within a period of one year following the termination of psychotherapy ….

F. “psychotherapist” means a person who is or purports to be a … (11) minister, priest, rabbi or other similar functionary of a religious organization acting in his role as a pastoral counselor;

G. “psychotherapy” means professional treatment or assessment of a mental or an emotional illness, symptom or condition;

§ 30-9-12. Criminal sexual contact

C. Criminal sexual contact in the fourth degree consists of all criminal sexual contact perpetrated:

(1) by the use of force or coercion that results in personal injury to the victim ….

Whoever commits criminal sexual contact in the fourth degree is guilty of a fourth degree felony.

Century Code § 12.1-20-06.1 Sexual exploitation by therapist—Definitions—Penalty

Any person who is or who holds oneself out to be a therapist and who intentionally has sexual contact with a patient or client during any treatment, consultation, interview, or examination is guilty of a class C felony. Consent by the complainant is not a defense under this section …. Local law enforcement agencies and the bureau of criminal investigation shall cooperate in investigations of violations of this section. As used in this section, unless the context or subject matter otherwise requires:

1. “Psychotherapy” means the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction.

2. “Therapist” means a physician, psychologist, psychiatrist, social worker, nurse, chemical dependency counselor, member of the clergy, or other person, whether licensed or not by the state, who performs or purports to perform psychotherapy.

Codified Laws § 22-22-27. Definition of terms—Sex offenses by psychotherapists

(1) “Emotionally dependent,” a condition of the patient brought about by the nature of the patient’s own emotional condition or the nature of the treatment provided by the psychotherapist which is characterized by significant impairment of the patient’s ability to withhold consent to sexual acts or contact with the psychotherapist and which the psychotherapist knows or has reason to know exists …

(3) “Psychotherapist,” a physician, psychologist, nurse, chemical dependency counselor, social worker, member of the clergy, marriage and family therapist, mental health service provider, or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy; and

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

Codified Laws § 22-22-28. Sexual contact by psychotherapist—Felony

A psychotherapist who knowingly engages in sexual contact with a person who is not his spouse and who is his emotionally dependent patient at the time of contact, commits a Class 5 felony. Consent by the patient is not a defense.

Codified Laws § 22-22-29. Sexual penetration by psychotherapist—Felony

A psychotherapist who knowingly engages in an act of sexual penetration, as defined in § 22-22-2, with a person who is not his spouse and who is his emotionally dependent patient at the time that the act of sexual penetration is committed, commits a Class 4 felony. Consent by the patient is not a defense.

Penal Code, § 22.011. Sexual Assault

(a) A person commits an offense if the person [engages in sexual contact with another person] and (10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser ….

(f) An offense under this section is a felony of the second degree.

Code § 76-5-406. Sexual offenses against the victim without consent of victim—Circumstances

An act of [sexual contact] is without consent of the victim under any of the following circumstances …

(12) the actor is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested. For purposes of this subsection (12) …

(b) “religious counselor” means a minister, priest, rabbi, bishop, or other recognized member of the clergy.

Statutes § 895.70. Sexual exploitation by a therapist

(1) Definitions. In this section …

(c) “Psychotherapy” means 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 ….

(e) “Therapist” means a … member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.

(2) (a) Any person who suffers, directly or indirectly, a physical, mental or emotional injury caused by, resulting from or arising out of sexual contact with a therapist who is rendering or has rendered to that person psychotherapy, counseling or other assessment or treatment of or involving any mental or emotional illness, symptom or condition has a civil cause of action against the psychotherapist for all damages resulting from, arising out of or caused by that sexual contact. Consent is not an issue in an action under this section, unless the sexual contact that is the subject of the action occurred more than 6 months after the psychotherapy, counseling, assessment or treatment ended.

Statutes § 940.22. Sexual exploitation by therapist; duty to report

(1) Definitions. In this section …

(d) “Psychotherapy” means 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 ….

(i) “Therapist” means a … member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.

(2) 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.

Several states have laws that make sexual contact between a “psychotherapist” and a counselee a crime. The definition of “psychotherapist” under some of these laws may be broad enough to include a minister. Examples of such statutes are reproduced below.

definition of “psychotherapist” may include clergy

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:

(I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or

(II) The actor is a psychotherapist and the victim is a client and the sexual penetration or intrusion occurred by means of therapeutic deception.

(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:

(I) The actor is a psychotherapist and the victim is a client of the psychotherapist; or

(II) The actor is a psychotherapist and the victim is a client and the sexual contact occurred by means of therapeutic deception.

(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:

(a) “Client” means a person who seeks or receives psychotherapy from a psychotherapist.

(b) “Psychotherapist” means any person who performs or purports to perform psychotherapy, whether or not such person is licensed by the state pursuant to title 12, C.R.S., or certified by the state ….

(c) “Psychotherapy” means the treatment, diagnosis, or counseling in a professional relationship to assist individuals or groups to alleviate mental disorders, understand unconscious or conscious motivation, resolve emotional, relationship, or attitudinal conflicts, or modify behaviors which interfere with effective emotional, social, or intellectual functioning.

(d) “Therapeutic deception” means a representation by a psychotherapist that sexual contact, penetration, or intrusion by the psychotherapist is consistent with or part of the client’s treatment.

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.”

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 for the purpose of sexual gratification of the actor with the intimate parts of a person not married to the actor ….

(c) (2) A person commits sexual assault when, as an actual or purported practitioner of psychotherapy, he or she engages in sexual contact with another person who the actor knew or should have known is the subject of the actor’s actual or purported treatment or counseling, or, if the treatment or counseling relationship was used to facilitate sexual contact between the actor and said person.

(3) Consent of the victim shall not be a defense to a prosecution under this subsection.

(4) A person convicted of sexual assault under this subsection shall be punished by imprisonment for not less than one nor more than three years.

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 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.

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.

Every state has enacted a law 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.

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

Case 1. 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 Christian Missionary Alliance 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”. Minnesota law imposes a penalty of up to 20 years for either (1) sexual intercourse by a “psychotherapist” with an “emotionally dependent” patient, or (2) sexual intercourse 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. Dutton, 450 N.W.2d 189 (Minn. App. 1990).

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

Case 3. 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. Some time 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.” Dausch v. Ryske, 1993 WL 34873 (N.D. Ill. 1993).

Case 4. 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. Doe v. Hartz, 134 F.3d 1339 (8th Cir. 1998).

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