• Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.
• Key point 10-12. Churches face a number of legal risks when they offer counseling services by ministers or laypersons. These include negligent selection, retention, or supervision of a counselor who engages in sexual misconduct or negligent counseling. A church also may be vicariously liable for a counselor's failure to report child abuse, breach of confidentiality, and breach of a fiduciary relationship.
• Key point 10-12.1. Churches can reduce the risk of liability associated with pastoral or lay counseling by adopting risk management policies and procedures.
A Missouri court ruled that a church was not responsible for an associate pastor's sexual relationship with a church secretary while she was hospitalized. In 1995 a woman (Linda) was hired as a secretary by a nondenominational church. Several months later, Linda was admitted to a hospital following a drug overdose. Although she was diagnosed as suffering from depression, she was released from the hospital a short time later. Because the church's pastor believed that Linda was still in need of professional counseling and treatment, he suggested that she consult with a psychologist at a Christian counseling center. Following her visit to the center, Linda was admitted to a psychiatric center. While at the center, Linda was visited by her pastor. During one visit, Linda repeatedly asked him to touch and hold her, and to lay in bed with her. The pastor believed that she was attempting to seduce him and considered this behavior to be out of the ordinary for her. She was released from the center shortly after this visit but was readmitted later that month. During her second admission to the center, the pastor visited her again, this time accompanied by an associate pastor at the church. The pastor brought the associate pastor as a result of Linda's strange behavior during his previous visit. Another associate pastor (Pastor Bob) from the church also visited Linda during her second stay at the center. During this visit, he and Linda went into a public room and talked. After talking for approximately an hour, they had a sexual encounter. Over the next several weeks, after her release from the center, she and Pastor Bob had three other consensual sexual encounters.
Linda later sued Pastor Bob and her church. She claimed that the sexual encounters that had taken place between Linda and Pastor Bob were sexual assaults, and that the church was responsible for them on the basis of an "intentional failure to supervise clergy." She noted that the church failed to follow its own policies in allowing Pastor Bob to meet alone with her and because it failed to warn him of Linda's attempt to seduce the senior pastor when he first visited her at the hospital.
The church asked the court to dismiss it from the lawsuit on the ground that Linda could not show that it knew Pastor Bob presented a risk of harm to Linda or that it disregarded any such risk since he had no history of sexual misconduct or a known propensity for sexual misconduct of which it was aware. A trial court dismissed all claims against the church and Pastor Bob, and Linda appealed.
The appeals court affirmed the trial court's dismissal of the lawsuit. It began its opinion by observing that
to state a claim against the [church] for intentional failure to supervise clergy based on [Pastor Bob's] alleged sexual assault . . . [Linda] was required to allege that: (1) [Pastor Bob] was under the supervision of the [church]; (2) the [church] knew that he was certain or substantially certain to harm Linda; (3) the [church] disregarded this known risk by failing to take any action to protect Linda; (4) the [church's] inaction caused damage to Linda; and (5) the harm occurred on premises owned by the [church] or while [Pastor Bob] was using property owned by the [church].
The court noted that the Pastor Bob had "no history of sexual misconduct or a known propensity for sexual misconduct that was certain or substantially certain to harm Linda of which it could have been aware and disregarded." As a result, the case had to be dismissed unless Linda offered evidence rebutting the church's claim. Linda referred to the statements of the senior pastor that (1) Linda, while a patient at the center, was displaying unusual behavior and was inclined to engage in aberrant sexual contact with a church pastor; and (2) he believed Linda would be harmed if she engaged in extramarital sexual contact. From this, she claimed that the church was aware that she was likely to engage in sexual contact with any pastor who went to visit her alone and that such sexual contact would be harmful to her. She claimed that this evidence was sufficient to rebut the church's claim that it was not aware that Pastor Bob presented a substantial risk of harm to Linda if he visited her at the center without a chaperone. The court disagreed:
Nowhere in her petition did [Linda] allege that the [church] knew that [Pastor Bob] was certain or substantially certain to harm Linda due to his dangerous proclivities or any propensity on his part to engage in sexual misconduct. Instead, she alleged that the church knew that Linda had displayed aberrant sexual behavior during a visit with [the senior pastor] and was likely to engage in illicit sexual behavior if left alone with a pastor. This is insufficient to establish that the [church] knew that [Pastor Bob] presented a substantial risk of harm to Linda, which was disregarded by the church. This establishes simply that the danger of which the church allegedly should have been aware was caused by Linda, not [Pastor Bob]. Hence, [Linda] failed to establish that . . . (1) [the church] was aware that the member of its clergy [Pastor Bob] presented a substantial risk of harm to Linda; and (2) if such risk existed, it disregarded it.
Application. This case illustrates the risks involved in unsupervised opposite sex counseling off of church premises. While the court dismissed the lawsuit against the church, the result might well have been different had the church had any prior indication of inappropriate sexual conduct by Pastor Bob. It also should be noted that Linda claimed the church had a policy prohibiting opposite sex counseling off of church premises, and that this policy had been violated when Pastor Bob counseled with her at the hospital. The court did not address this contention. However, if the church had such a policy, and Pastor Bob violated it when he engaged in counseling with Linda in the hospital, this could have made the church liable for Pastor Bob's acts. The lesson is clear-there are risks of both inappropriate physical contact and false allegations of such contact when pastors engage in opposite sex counseling. These risks increase when the counseling occurs off of church premises, since there is no supervision or accountability. These same risks exist when a pastor simply pays a visit to a person in the hospital even if no "counseling" occurs. Pastors should be aware of these risks and take steps to reduce or eliminate them. The most effective "risk management" technique would be to take another person along when engaging in opposite sex counseling, or when visiting persons in the hospital (especially when they are in private rooms). This is exactly what the senior pastor did on his second visit with Linda.
Rhodelander v. Liberty Christian Fellowship, 1999 WL 587291 (Mo. App. 1999).