Seduction of Counselees and Church Members
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67
A number of clergy have been sued for engaging in sexual relations with counselees or church members.1 Typically, these cases involve sexual relations between male clergy and unaccompanied female counselees. The woman later sues the minister for intentional infliction of emotional distress, battery, and malpractice, among other theories of liability. Suing clergy for sexual seduction presents certain problems for victims. First, clergy often will assert the “consent” defense—meaning that the “victim” consented to the relationship and accordingly should not be permitted to sue. Victims will allege that a minister's unique position of authority and respect overcame their free will and made their conduct non--consensual. Second, any theory of liability based on intentional behavior by a minister is potentially excluded from coverage under the church's general liability insurance policy. If a minister's conduct is excluded from insurance coverage, and the minister has little if any financial resources, then the victim will be left without a remedy unless she can sue the church or denomination. However, lawsuits against a minister's employing church or denomination will be summarily rejected by the courts in almost every case unless the victim can prove that the church or denomination had actual knowledge of previous incidents of sexual misconduct and did nothing to monitor or restrict the minister's activities. The issue of church or denominational liability for clergy misconduct is addressed fully in chapter 12 Denominational Liability. Third, the first amendment guaranty of religious freedom affords some protection to clergy conduct. Fourth, the abolition by most states of any liability for “seduction” or “alienation of affections” may restrict if not eliminate lawsuits brought against clergy based upon sexual misconduct.
These considerations will be illustrated by a survey of the leading court decisions.
The Colorado Supreme Court ruled that a victim of clergy sexual misconduct could sue the minister directly and also his denomination.2 A married couple who were experiencing marital problems sought marriage counseling from their parish priest. The husband and wife were both Catholics and “had faith and confidence” in their priest. During the course of counseling, the priest developed an intimate relationship with the wife that contributed directly to the dissolution of her marriage. The wife sued her priest and the local Catholic diocese, and sought monetary damages on the basis of the following theories: (1) the priest breached his “fiduciary duty” toward the couple; (2) the priest committed “clergyman malpractice” by negligently performing his duties as a marriage counselor; (3) the priest was guilty of “outrageous conduct”; (4) the diocese knew or should have known of the priest's negligence and outrageous conduct, and failed to adequately supervise him; and (5) the acts of the priest should be “imputed” to his diocese. The trial court dismissed the suit, noting that the issues raised by the wife were “inextricably linked to questions of doctrine, theology, the usage and customs of the Catholic Church, written laws, and the fundamental organization of the Church.” A state appeals court affirmed this result, largely on the basis of a 1987 Colorado law that abolished any civil cause of action for “alienation of affections . . . and seduction,” and the wife appealed the case to the state supreme court.
The Colorado Supreme Court began its opinion by rejecting the state appeals court's conclusion that the statute abolishing alienation of affections and seduction required a dismissal of this case. It noted that seduction is limited (by Colorado law) to unmarried females, and that alienation of affections required proof that the priest intended the wife to separate from her husband. No such intent was either alleged or proven in this case. The court also referred to a number of decisions in other states that likewise concluded that the abolition of seduction and alienation of affections did not prevent clergy and psychotherapists who became sexually involved with a counselee from being sued on the basis of negligent counseling, outrageous conduct, and similar theories of liability.
The court next addressed the question of “whether a member of the clergy, who holds himself out as being trained and capable of conducting marital counseling, is immune from any liability for harm caused by his counseling by virtue of the first amendment” guaranty of religious freedom. Both the priest and the diocese argued that the first amendment required the dismissal of the lawsuit since “the performance of pastoral duties by a Catholic priest, including sacramental counseling of parishioners, is a matter of ecclesiastical cognizance and policy with which a civil court cannot interfere.” The court acknowledged that “marital counseling by a cleric presents difficult questions” and “may implicate first amendment rights.” However, it concluded that the priest could not argue that his conduct was protected by the constitutional guaranty of religious freedom since “when the alleged wrongdoing of a cleric clearly falls outside the beliefs and doctrine of his religion, he cannot avail himself of the protections afforded by the first amendment.” In particular, the court noted that “sexual activity by a priest is fundamentally antithetical to Catholic doctrine,” and “by definition is not an expression of a sincerely held religious belief.”
The court reached the following conclusions with respect to the five theories of liability alleged by the wife:
1. Breach of fiduciary duty. The wife alleged that the priest, as one who held himself out to her as a professional and trained marriage counselor, breached his “fiduciary duty” to her. The court noted that a marriage counselor has a “fiduciary duty” toward a counselee to act “with utmost good faith and solely for the benefit of” the counselee. The court concluded that the priest violated his fiduciary duty toward the wife if the allegations in her complaint were true.
2. Negligent counseling (“clergy malpractice”). The wife's second theory of liability was that the priest “negligently performed his duty as a marital counselor.” The court viewed this theory as a claim of malpractice, which it defined as “any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.” Since a priest was involved, the court characterized the malpractice claim as a claim of “clergy malpractice.” However, the court ruled that the lower courts had properly dismissed this claim since “to date no court has acknowledged the existence of such a tort” and it raises “serious first amendment issues.” The court acknowledged that psychologists and psychiatrists may be sued for malpractice if they engage in sexual relations with counselees. However, a Colorado statute specifically excluded clergy from the list of counselors who can be sued for malpractice on the basis of such conduct, and accordingly the court ruled that the priest could not be sued for malpractice.
3. Outrageous conduct. The court concluded that the wife could sue the priest for outrageous conduct if she could establish that the priest was guilty of “extreme and outrageous conduct” that intentionally caused the wife “severe emotional distress.”
4. Diocese breached its duty to supervise the priest (“negligent supervision”). The wife's fourth allegation was that the local diocese was liable for the actions of the priest since it breached its duty to adequately supervise him. Specifically, the wife alleged that the diocese had knowledge of previous indiscretions by the same priest, which had the effect of imposing upon the diocese a duty to supervise him. The court observed that a diocese or denomination may be liable for negligent supervision if it has reason to know that a particular minister is likely to harm others. Liability results “because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment.” The court concluded that “a person who knows or should have known that an employee's conduct would subject third parties to an unreasonable risk of harm may be directly liable to third parties for harm proximately caused by his conduct.”
This aspect of the court's ruling is of great significance to church denominations. Most denominations have a system of disciplining or dismissing clergy who engage in immoral conduct. Denominational agencies should be aware that according to this decision they can be sued if they: (1) are aware of sexual improprieties on the part of a minister (e.g., seduction, child molestation), (2) permit the minister to retain ministerial credentials or status, and (3) fail to supervise the minister in his or her new pastoral assignment. The court emphasized that for the wife to recover against the diocese on the basis of this theory, she would have to establish that “the diocese antecedently [i.e., previously] had reason to believe that an undue risk of harm would exist because of the employment” of the priest by the local parish.
5. The acts of the priest were imputable to the diocese. Finally, the wife argued that the diocese was legally responsible for the conduct of the priest since his actions were imputable to the diocese. The court rejected this argument. It did acknowledge that an employer may be held responsible for the misconduct of an employee if the misconduct “is committed within the course and scope of employment.” On the other hand, an employer “ordinarily is not liable for the independent acts of the employee done in his own name outside the scope of his employment.” Here, the court concluded that “a priest's violation of his vow of celibacy is contrary to the instructions and doctrines of the Catholic Church. When a priest has sexual intercourse with a parishioner it is not part of the business of the church. Such conduct is contrary to the principles of Catholicism and is not incidental to the tasks assigned a priest by the diocese. Under the facts of this case there is no basis for imputing vicarious liability to the diocese for the alleged conduct of [the priest].”
In another significant ruling, the Minnesota Supreme Court ruled that a minister could be criminally liable for sexually seducing a female counselee.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. In 1985, 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 contact and 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.”
An Oregon state appeals court ruled that a victim of clergy sexual misconduct could sue her minister, and possibly her church and denomination.2 The woman sued the minister for “intentional infliction of emotional distress” and “breach of confidential relationship”. She sued her church on the grounds that it was legally responsible for the acts of its minister and for “negligent supervision” of its minister. She also sued the regional office (North Pacific District) of the American Lutheran Church, arguing that it was also liable for alleged negligent supervision of its churches and clergy, and also that its procedure for removing the minister from office involved her in a confrontational process that caused her emotional harm.
The woman alleged that her minister abused his pastoral and counseling relationships with her by “manipulating” her into having sexual relations with him. She claimed to have suffered sexual abuse, extreme emotional distress, physical illness, loss of sleep and memory, clinical depression, and loss of her “ability to trust other adults, to trust authority, and to deal with religion and faith in God.”
A trial court dismissed the entire lawsuit, and the woman appealed to a state appeals court. The appeals court began its opinion by emphasizing that dismissing a lawsuit is an extraordinary act of a trial court and requires that the plaintiff's petition state no facts that could give rise to legal liability. The court concluded that the woman's lawsuit did state facts, which if proven true, could possibly result in legal liability. As a result, it reversed the trial court's dismissal of the case, and ordered the case to proceed to trial. The court concluded that the facts alleged in the lawsuit stated a claim for breach of confidential relationship and intentional infliction of emotional distress by the minister. It rejected the minister's argument that the claims against him were really an attempt to sue him for “seduction”—a legal theory that had been eliminated by the Oregon legislature in 1973. The fact that the minister allegedly used seduction as a means of breaching his confidential relationship with the woman, and to intentionally cause her emotional distress, did “not convert her claim into one for seduction.”
The court also rejected the minister's claim that the lawsuit violated his constitutional guaranty of religious freedom. The court also found that the lawsuit stated facts that, if proven true, would create legal liability for the church on the basis of both “negligent supervision” and “respondeat superior.” Under the respondeat superior doctrine, an employer is legally responsible for the acts of an employee committed within the scope of employment.
The court conceded that the church may well be able to prove at trial that the minister's acts were not committed within the scope of his employment. But it could not agree with the trial court that the lawsuit failed to state facts that might establish legal liability. Similarly, it concluded that the lawsuit stated facts that could give rise to church liability for “negligent supervision.” Specifically, the lawsuit alleged that the church “knew or should have known that [the minister] was not adequately trained as a counselor and that it knew or should have known that he had misused his position in the past to take advantage or parishioners and counseled persons . . . [and] failed to investigate claims of his sexual misconduct [or] warn parishioners of his misuse of his position . . . .” The court stressed that it was not finding the church responsible. Rather, it simply was rejecting the trial court's conclusion that the lawsuit failed to state facts for which the law provides a remedy.
Finally, the court found that the trial court improperly dismissed the claims against the North Pacific District of the American Lutheran Church, since the lawsuit stated facts which (if true) could result in legal liability. The court again emphasized that it was not finding the District liable. On the contrary, it acknowledged that the constitutional guaranty of religious freedom “may provide the [District] with an affirmative defense at some later stage of the proceeding.”
The Ohio Supreme Court rejected a woman's attempt to sue her church and pastor for injuries she allegedly suffered because of a sexual relationship with her pastor.3 A husband and wife who had been experiencing marital problems went to a Lutheran minister for counseling. They selected him because “he held himself out to the public . . . as a minister and counselor trained and able to provide counseling for marital difficulties.” During the final three or four weeks of counseling, the minister allegedly engaged in consensual sexual relations with the wife. These relations, and the counseling, ended when the husband learned of the affair. The husband, who was later divorced from his wife, sued both the minister and his church. The suit against the minister alleged “clergy malpractice,” breach of fiduciary duty, fraud, misrepresentation, nondisclosure, and intentional infliction of emotional distress. The suit against the church alleged liability based on negligent supervision and negligent training of the minister. The husband alleged that the minister's actions resulted in his divorce and caused him to suffer “mental and emotional anguish, shock, nervousness, and depression.”
A trial court dismissed both suits, and a state appeals court ruled that the husband could sue the minister for intentional infliction of emotional distress (it dismissed all of the other allegations). The case was then appealed to the state supreme court, which dismissed all of the husband's charges against both the minister and church. The supreme court began its decision by acknowledging that clergy are not immune from legal liability for their actions. It observed that “religious leaders have been held liable for obtaining gifts and donations of money by fraud; for undue influence in the transfer of property; for the kidnapping of a minor; for unlawful imprisonment; and for homosexual assault.” The first amendment guaranty of religious freedom did not prevent liability in these cases, and did not protect the minister in the present case, since “we find it difficult to conceive of pastoral fornication with a parishioner or communicant as a legitimate religious belief or practice in any faith.”
The court then proceeded to reach the following conclusions: (1) the minister was not guilty of clergy malpractice since malpractice implies negligent conduct and the minister's actions were intentional in nature; (2) the allegation of intentional infliction of emotional distress failed since this allegation “in truth and effect asserts an action for . . . alienation of affections” (i.e., enticing a spouse to lose his or her affections for the other spouse)—and such a tort was abolished by the Ohio legislature in 1978; and (3) the allegations of breach of fiduciary duty, fraud, misrepresentation, and nondisclosure were similarly rejected, since they all sought damages based on the minister's seduction of the wife, and as such were barred by the state law prohibiting lawsuits based on “alienation of affections.”
The court also concluded that the church was not liable: “[A]n underlying requirement in actions for negligent supervision and negligent training is that the employee is individually . . . guilty of a claimed wrong against the employer. Because no action can be maintained against [the minister] in the instant case, it is obvious that any imputed actions against the church are also untenable.” The court emphasized that it found the alleged conduct on the part of the minister to be “reprehensible,” but concluded that there was no basis for relief available to the husband.
A dissenting judge expressed outrage at the result reached by the court, and observed: “[The husband] and his wife sought counseling from [the minister] in order to overcome their marital problems. Not only was [the minister] aware that such problems existed, but he was consulted for those very problems. Armed with this knowledge and cognizant of the great emotional strain and vulnerability experienced by his clients at that time, it is alleged that [the minister] sought not to remedy the situation but rather to exploit his position in order to obtain sexual gratification. Given [his] knowledge and experience, there exists a jury question as to whether he intentionally sought to inflict emotional harm upon [the husband].”
For related information on this topic see the following articles: