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.
facts
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.
the court's ruling
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 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:
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.
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:
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 laws making sexual contact by clergy with a counselee a crime ( I stayed specific with only a couple states for this project)
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.
Minnesota
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.
Wisconsin
Statutes § 895.70. Sexual exploitation by a therapist
(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.
General sexual assault crimes
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."
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 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).
I think I mentioned we were in a church plant where a 15-year-old girl was raped by the pastor, who is now in prison. I didn't look up the states for Ohio but I do know that he, the church plant, and the planting church are also defendants in a civil case filed by her family.
I think he was "counseling" her also for some time.
He pled out to two lesser charges and stood up and apologized to almost everyone, except of course the church he devastated.
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 “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).
A lawsuit accusing Rev. Albert Magnuson of sexually abusing a young parishioner more than 25 years ago has been reinstated by the Minnesota Court of Appeals.
The 3-judge panel reversed a lower-court decision and stated it is unclear whether the state's "delayed discovery" statute of limitation had expired.
Magnuson is accused of sexually abusing a boy from ages 12-15. The victim said he did not discuss the events until '91 when his brother said he was also abused by Magnuson. He said the abuse led him to prostitution, a mistaken belief that he was homosexual and to prison for various felonies due to his distress.
Magnuson was the pastor of Redeemer Covenant Church in Brooklyn Park for 25 years before resigning in 1989 when several youths reported that he molested them. He served about 10 months in jail after pleading guilty to a molestation case in '91.
The Minnesota Court of Appeals ordered new trials in May for 2 other former church members who said they were molested by Magnuson. Source: Duluth News Tribune 11/20/95
WISCONSIN
Probation For Sexual Exploitation
Catholic priest Edward Witczak, 61, was sentenced to 1 month in jail and ordered to perform 300 hours of community service forr charges of sexually exploited a parishioner.
Brown County Circuit Court Judge Richard Dietz sentenced Witczak to 3 years in prison then stayed the sentence and placed him on 3 years' probation instead.
Witczak admitted to having a 2-year relationship with the woman, now 29, who sought his help as a therapist for marital problems and guilt over sexual abuse she she suffered at age 5. The woman said she called off the relationship with the priest when she realized it was ruining her marriage, which has since ended.
Witczak pleaded no contest to 4 counts of sexual contact without consent on 4 occasions with the victim in '91 and '93. Probation conditions require Witczak to receive counseling and have no contact with the victim. Witczak also agreed to resign as pastor of St. Elizabeth Seton Parish in Green Bay. Source: Milwaukee Journal Sentinel 1/3/95
No person may avoid liability under sections 611A.80 to 611A.88 by means of any conveyance of any right, title, or interest in real property, or by any indemnification, hold harmless agreement, or similar agreement that purports to show consent of the plaintiff.
609.344 CRIMINAL SEXUAL CONDUCT IN THE THIRD DEGREE.
Subdivision 1.Crime defined.A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:
(a) the complainant is under 13 years of age and the actor is no more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant shall be a defense;
(b) the complainant is at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant. In any such case if the actor is no more than 120 months older than the complainant, it shall be an affirmative defense, which must be proved by a preponderance of the evidence, that the actor reasonably believes the complainant to be 16 years of age or older. In all other cases, mistake as to the complainant's age shall not be a defense. If the actor in such a case is no more than 48 months but more than 24 months older than the complainant, the actor may be sentenced to imprisonment for not more than five years. Consent by the complainant is not a defense;
(d) the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless;
(e) the complainant is at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense;
(f) the actor has a significant relationship to the complainant and the complainant was at least 16 but under 18 years of age at the time of the sexual penetration. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense;
(g) the actor has a significant relationship to the complainant, the complainant was at least 16 but under 18 years of age at the time of the sexual penetration, and:
(i) the actor or an accomplice used force or coercion to accomplish the penetration;
(ii) the complainant suffered personal injury; or
(iii) the sexual abuse involved multiple acts committed over an extended period of time.
Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense;
(h) the actor is a psychotherapist and the complainant is a patient of the psychotherapist and the sexual penetration 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 penetration occurred by means of therapeutic deception. Consent by the complainant is not a defense;
(k) the actor accomplishes the sexual penetration by means of deception or false representation that the penetration is for a bona fide medical purpose. Consent by the complainant is not a defense;
(1) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:
(i) the sexual penetration 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 penetration 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;
(m) the actor is an employee, independent contractor, or volunteer of a state, county, city, or privately operated adult or juvenile correctional system, including, but not limited to, jails, prisons, detention centers, or work release facilities, and the complainant is a resident of a facility or under supervision of the correctional system. Consent by the complainant is not a defense;
(n) the actor provides or is an agent of an entity that provides special transportation service, the complainant used the special transportation service, and the sexual penetration occurred during or immediately before or after the actor transported the complainant. Consent by the complainant is not a defense; or
(o) the actor performs massage or other bodywork for hire, the complainant was a user of one of those services, and nonconsensual sexual penetration occurred during or immediately before or after the actor performed or was hired to perform one of those services for the complainant.
Subd. 2.Penalty.Except as otherwise provided in section 609.3455, a person convicted under subdivision 1 may be sentenced to imprisonment for not more than 15 years or to a payment of a fine of not more than $30,000, or both. A person convicted under this section is also subject to conditional release under section 609.3455.
Subd. 3.Stay.Except when imprisonment is required under section 609.3455; or Minnesota Statutes 2004, section 609.109, if a person is convicted under subdivision 1, clause (f), the court may stay imposition or execution of the sentence if it finds that:
(a) a stay is in the best interest of the complainant or the family unit; and
(b) a professional assessment indicates that the offender has been accepted by and can respond to a treatment program.
If the court stays imposition or execution of sentence, it shall include the following as conditions of probation:
(1) incarceration in a local jail or workhouse;
(2) a requirement that the offender complete a treatment program; and
(3) a requirement that the offender have no unsupervised contact with the complainant until the offender has successfully completed the treatment program unless approved by the treatment program and the supervising correctional agent.
Malpractice is generally defined as a failure to exercise an accepted degree of skill in the performance of professional duties that results in injury to another. In the past, malpractice suits were restricted almost exclusively to doctors and lawyers—a doctor prescribed the wrong medication or made a faulty diagnosis; a lawyer missed a pleading deadline or made an error in a title search. But in recent years, a small number of malpractice suits have been brought against pastors.
In the most significant ruling so far, the California Supreme Court ruled that a church and certain of its ministers were not legally responsible for the death of a suicide victim who had been a member of the church and who had counseled with the ministers.1 In 1973, while attending college, Kenneth Nally became depressed after breaking up with his girlfriend. He often talked about the absurdity of life, the problems he had with his girlfriend and with his family, and he occasionally mentioned suicide. Though raised in a Roman Catholic home, Nally converted to Protestantism and in 1974 began attending Grace Community Church in Sun Valley, California, and became active in various church programs and ministries.
At the time of the events in question, the church employed about 50 pastoral counselors to serve a congregation of over 10,000 persons. Pastoral counseling, according to the church's 1979 annual report, was “a very important part” of the church's ministry. The church offered its counseling services not only to members, but also to large numbers of nonmembers. In 1979, the annual report noted that about half of the persons seeking counseling were nonmembers. A church publication entitled the “Guide for Biblical Counselors” noted that a number of symptoms and disorders fell within the pastoral counselor's domain, including “drug abuse, alcoholism, phobias, deep depression, suicide, mania, nervous breakdown, manic--depressive disorder and schizophrenia.” The Guide devoted separate sections to a number of disorders, including suicide, with hypothetical questions and answers. For example, one question read “You mean I could counsel with an extreme problem like a suicidal tendency or nervous breakdown or something like that?” The answer read “With the proper understanding of God's Word to diagnose and treat the problems, this could not only be done occasionally but could become the rule.” The church taught that the Bible is the fundamental Word of God containing truths that must govern Christians in their relationship with God and the world at large, and in their own lives. As a result, pastoral counseling was essentially religious in nature. The church's senior pastor, John MacArthur, testified that “we just respond as pastors, so what we do is on a spiritual level, and a biblical level or a prayer level.”
Nally was aware of the church's professed ability in treating severe depression and suicidal symptoms. He had been a student in one of the church's courses on biblical counseling (which used the Guide as a text) and sought out formal and informal pastoral counseling from the church during each of his several suicidal crises. Early in 1979, Nally again became depressed after his breakup with another girlfriend. He confided in his mother that he “could not cope.” His mother had him see a general medical practitioner who prescribed a strong anti--depressant drug but who did not refer Nally to a psychiatrist. By late February of 1979, Nally's depression did not appear to be subsiding. He was examined by another physician, and spoke briefly with one of the church's pastoral counselors during a drop--in counseling session.
On March 11, Nally attempted to take his life by consuming an overdose of the antidepressant drug that had previously been prescribed for him. He was rushed to a hospital and his life was saved. His parents, concerned about their friends' reactions to their son's suicide attempt, asked the attending physician to inform others that Nally had been hospitalized for pneumonia. On March 12, two of the church's pastors visited Nally at the hospital. Nally, still drowsy from the drug overdose, informed them that he was sorry he had not succeeded in his suicide attempt. The pastors assumed that the hospital staff was aware of Nally's unstable mental condition, and accordingly they did not discuss Nally's “death wish” with anyone else. A few days later, a staff psychiatrist examined Nally and recommended that he commit himself to a psychiatric hospital. When Nally and his father expressed reluctance at the thought of formal commitment, the psychiatrist agreed to release Nally for outpatient treatment. However, he warned Nally's father that it would “not be unusual” for a suicidal patient to repeat his suicide attempt. Nally was released the next day, and moved in with one of the church's pastors because he “didn't want to return home.” The pastor encouraged Nally to keep his appointments with the hospital psychiatrist, and arranged to have him examined by a physician who attended the church. This physician concluded that Nally was a continuing threat to himself, and recommended commitment to a psychiatric hospital. Nally rejected this advice, and the psychiatrist later called Nally's father to recommend immediate commitment. This plea was rejected by Nally's parents, his mother saying “no, that's a crazy hospital. He's not crazy.” A few days later, Nally met with another of the church's pastors, and asked “whether Christians who commit suicide would nevertheless be saved.” The pastor assured Nally that “a person who is once saved is always saved,” but warned Nally that “it would be wrong to be thinking in such terms.” A few days later, Nally moved back home. He was examined by two physicians, at least one of whom recommended commitment in a psychiatric hospital. Nally then saw another pastor of the church, who recommended that Nally see a particular psychologist. Nally did so, and was referred to a psychological clinic. Nally visited the clinic and met with a registered psychologist's assistant. A few days later, Nally met with a former girlfriend who rejected an apparent marriage proposal by telling Nally “I can't marry you when you are like this. You have got to pull yourself together.” Three days later, on April 1, 1979, Nally committed suicide by shooting himself in the head with a shotgun.
Nally's parents filed a lawsuit naming the church and four of its pastors as defendants. The parents alleged that the pastors were responsible for the death of Nally on the basis of “clergyman malpractice.” Specifically, they alleged that (1) the church was negligent in the training and selection of its spiritual counselors, and in not referring Nally to medical professionals, (2) the pastors failed to make themselves available to Nally following his first suicide attempt, and “actively and affirmatively dissuaded and discouraged him from seeking further professional psychological or psychiatric care”, and (3) the pastors were guilty of “outrageous conduct” for teaching “certain Protestant religious doctrines that conflicted with Nally's Catholic upbringing” and which “exacerbated Nally's pre--existing feelings of guilt, anxiety, and depression.” With regard to the last allegation, the parents alleged that the pastors' counseling was “outrageous” because they “taught or otherwise imbued Nally, whom they knew to be depressed and having entertained suicidal thoughts, with the notion that if he had accepted Jesus Christ as his personal savior, he would still be accepted into heaven if he committed suicide.” As proof of their charge, the parents referred to the counseling session in which Nally had been informed that a Christian who commits suicide would nevertheless be “saved” since “a person who is once saved is always saved.”
The parents also relied on a short passage taken from a 12--part tape recorded series by one of the pastors entitled “Principles of Biblical Counseling” that was recorded several months after Nally's death. The tape--recorded passage stated that “suicide is one of the ways the Lord takes home a disobedient believer. We read that in the Bible. . . . Suicide for a believer is the Lord saying, `Okay, come on home. Can't use you anymore on earth. If you're not going to deal with those things in your life, come on home.'” The parents also cited an occasion when Nally's father opened the office door of one of the pastors and found Nally in the midst of a counseling session and on his knees crying. They also referred to a statement of the church's senior pastor that spiritual counseling (such as he gave Nally) could potentially cause “the deepest depression.” The trial court granted the church and pastors a summary judgment, and the parents appealed to a California state appeals court. The appeals court reversed the summary judgment, concluding that a legitimate question existed on the issue of outrageous conduct. The trial court again ruled in favor of the church and its pastors, concluding that “there is no compelling state interest to climb the wall of separation of church and state and plunge into the pit on the other side that certainly had no bottom.” The state court of appeals again reversed, noting that “nontherapist counselors,” both religious and secular, have a duty to refer suicidal persons to psychiatrists or other physicians qualified to prevent suicide. That ruling was then submitted to the state supreme court for review.
The California Supreme Court rejected the court of appeals conclusion that a pastor has a legal duty to refer suicidal persons to medical professionals. It acknowledged that in a few previous rulings it had found hospitals and staff psychiatrists responsible for the deaths of suicide victims confined in hospital psychiatric wards. However, the court concluded that such cases were limited to “the limited context of hospital--patient relationships where the suicidal person died while under the care and custody of hospital physicians who were aware of the patient's unstable mental condition.” Such cases were of no relevance to churches and clergy “not involved in a supervised medical relationship” with a suicidal person.
In rejecting the main contention of Nally's parents—that the church and its pastors were negligent in failing to refer Nally to medical professionals—the court observed:
Nally was examined by five physicians and a psychiatrist during the weeks following his [first] suicide attempt. [The church and its pastors] correctly assert that they arranged or encouraged many of these visits and encouraged Nally to continue to cooperate with all doctors. In addition, following Nally's overdose attempt, [a physician] warned [Nally's parents] that Nally remained suicidal and that they should encourage him to see a psychiatrist on his release from the hospital. [Nally's parents] also rejected [two other physicians'] suggestions that Nally be institutionalized because, according to [the parents], their son was “not crazy.” Nevertheless, we are urged that mere knowledge on the part of the [church and its pastors] that Nally may have been suicidal at various stages in his life should give rise to a duty to refer. Imposition of a duty to refer Nally necessarily would imply a general duty on all nontherapists to refer all potentially suicidal persons to licensed medical practitioners. . . . While under some circumstances counselors may conclude that referring a client to a psychiatrist is prudent and necessary, our past decisions teach that it is inappropriate to impose a duty to refer—which may stifle all gratuitous or religious counseling—based on foreseeability alone. Mere foreseeability of the harm or knowledge of the danger is insufficient to create a legally cognizable special relationship giving rise to a legal duty to prevent harm.2
The court emphasized that “neither the legislature nor the courts have ever imposed a legal obligation on persons to take affirmative steps to prevent the suicide of one who is not under the care of a physician in a hospital.” On the contrary, “the [California] legislature has exempted clergy from the licensing requirements applicable to marriage, family, child and domestic counselors and from the operation of statutes regulating psychologists. In so doing, the legislature has recognized that access to the clergy for counseling should be free from state imposed counseling standards, and that `the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations” (emphasis added). In further support of its conclusion that clergy have no duty to “refer” suicidal persons to medical professionals, the court observed that “because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.”
The court also rejected the contention of Nally's parents that the “outrageous conduct” of the church and its pastors was responsible for Nally's death. Nally's parents based their charge of outrageous conduct largely on a segment of a tape recording produced by one of the pastors (quoted above). In rejecting the relevance of this recording, the court observed:
In 1981, 18 months after Nally's suicide, [one of the church's pastors] taught a series of classes on biblical counseling. The class sessions included question and answer periods that were tape recorded. During one session, a student questioned [the pastor] on whether a person who committed suicide could be “saved.” [The pastor] replied, in a manner consistent with Reformation Protestant theology views regarding sin, grace and faith, that a person neither acquires salvation by his own works nor forfeits salvation by the commission of subsequent sins. [Nally's parents] sought to introduce the tape recording at trial on the basis that it provided inferential proof of [the pastor's] advice to Nally during three counseling sessions in 1979. . . . [T]he tape does not tend to prove that [the church or its pastors] in any way encouraged Nally to commit suicide or acted recklessly in disregard of Nally's emotional state prior to his suicide. . . . [W]hat was said in an extemporaneous answer, which did not precisely reflect the thoughts of [the pastor], given almost two years after [Nally's suicide] is at best marginally relevant to prove what was said at the time in question.3
Two of the court's seven justices concluded that the church and its pastors did have a limited duty “to recognize the limits of their own competence to treat an individual, such as Nally, who exhibited suicidal tendencies, and once having recognized such symptoms, to advise that individual to seek competent professional medical care.” However, these two justices also concluded that the church and its pastors did not breach this duty of care, and their actions did not “contribute in any legally significant respect to his suicide.”
What is the impact of the Nally case on churches and clergy? Consider the following points:
1. The Nally case is binding only in the state of California. Courts in other states are free to disregard it. However, decisions of the California Supreme Court generally are treated with great respect by other state courts, and often are followed. The fact that the California Supreme Court unanimously ruled in favor of the church and its pastors should make the Nally decision especially compelling elsewhere. In summary, while it is likely that the Nally decision will be followed by other state courts, such a result is not certain.
2. In California, and other states that follow the Nally decision, nontherapist clergy will not have a “duty to refer” suicidal or emotionally disturbed persons to medical professionals. Of course, clergy in such states may voluntarily choose to recommend to a suicidal counselee that he or she contact a medical professional for assistance.
3. Some churches employ pastoral counselors who are licensed counselors or psychologists. In some cases, clergy who are licensed counselors or psychologists have opened their own private counseling practices independent of any church. While the court did not specifically address the liability of such counselors, it did cite with approval an earlier California state appeals court decision that suggested that a psychiatrist might be legally responsible for failing to take appropriate measures to prevent the death of an imminently suicidal patient.4 It is possible that this ruling might extend to clergy in California who are licensed counselors, psychologists, or psychiatrists.
4. Clergy in California and elsewhere may be liable for “clergy malpractice” on the basis of theories of liability other than a failure to refer suicidal persons to medical professionals. For example, a number of persons have attempted to sue clergy for sexual molestation of minors, or seduction of a church member during the course of counseling. In some cases, the plaintiffs allege that such conduct constitutes “clergy malpractice.” As a result, the Nally case does not necessarily eliminate lawsuits alleging clergy malpractice, even in the state of California.
5. Should churches still purchase “clergy malpractice” or counseling liability insurance for their pastoral staff? My recommendation is that churches continue to purchase counseling liability insurance. I base this position on the following two factors. First, this type of insurance is inexpensive, and in light of the Nally decision should become even less costly. Second, while it is very unlikely that a minister will be successfully sued for malpractice in counseling, it is entirely possible that a minister may be sued. Counseling liability insurance will cover the costs of defending the lawsuit, and will pay any settlement or judgement up to the policy limits. In other words, while clergy who are sued for counseling malpractice will almost certainly prevail in court, the cost of a successful legal defense can easily amount to several tens of thousands of dollars. A counseling liability insurance policy ordinarily will pay these costs on your behalf. If you do not presently carry counseling liability insurance, check with your church liability insurer. It generally is cheaper to obtain this coverage under your existing policy than to purchase it separately.
A few other courts have rejected claims of “clergy malpractice,” on different grounds. To illustrate, the Ohio Supreme Court refused to recognize the alleged tort of “clergy malpractice” in a case involving the sexual seduction of a wife during marital counseling. 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.5
Similarly, the Colorado Supreme Court refused to recognize the theory of “clergy malpractice” in a case involving the seduction of a female church member by a Catholic priest.6 The woman had claimed 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.
A Utah court refused to recognize “clergy malpractice” as a basis for legal liability.7 A minister who used church funds to send a 17--year--old boy to visit his brother was sued by the boy's mother. The mother alleged a variety of wrongs, including clergy malpractice and intentional infliction of emotional distress. A trial court granted the minister and church a summary judgment, and the mother appealed. A state appeals court agreed with the trial court, and summarily rejected the mother's claims. In rejecting the mother's charge of clergy malpractice, the court observed:
blockquote> [The mother] admits that no court has recognized clerical malpractice as a cause of action, but argues that such malpractice exists here, not because [the minister] who had not been trained as a counselor, improperly counseled [the boy], but because he failed to refer [the boy] to trained professionals or others who could assist in resolving the family conflicts. In other words, [the mother] wishes to impose a duty upon [the minister] to make further inquiry into the alleged family conflicts, and then, if beyond his expertise, refer [the boy] to others who are qualified to treat such problems. Under the present circumstances, charging lay clergy with this duty of care goes too far because it approaches the same level of care imposed upon trained professionals in medicine and psychology.8
The court quoted with approval from the Nally case (discussed above): “Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The Utah appeals court agreed with the California Supreme Court's refusal to recognize clergy malpractice as a basis for legal liability, and refused to impose upon clergy a duty to refer parishioners experiencing emotional trauma to medical professionals. The court also rejected all of the other theories of legal liability alleged by the mother.
Finally, a Missouri appellate court left unanswered the question of whether a cause of action for clergy malpractice should be recognized in that state. The court observed that to “avoid a redundant remedy” the concept of clergy malpractice must address conduct that is not already the basis for legal action. For example, clergy malpractice should not be expanded to cover such areas as defamation, infliction of emotional distress, interference with contract, or invasion of privacy, since all of these are already well--recognized legal theories. Clergy malpractice, concluded the court, must be limited to negligent counseling. However, the court acknowledged that recognizing a cause of action against a minister for improper counseling may well violate the constitutional guaranty of religious freedom.9
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].”
Experts from many denominations report on the dramatic extent and harmful impact of sexual boundary violation of adults by ministers, pastors, priests, rabbis and other clergy. In contrast, news accounts of allegations of sexual violations of women and men by clergy often show confusion among the general public about the nature of sexual exploitation of adults by clergy.
Largest national study of clergy sexual misconduct with adults will be published in the Journal for the Scientific Study of Religion in late 2009. The Baylor University School of Social Work research was funded by the Ford Foundation.
Dean of Baylor University School of Social Work Professor Diana Garland said she was surprised by the magnitude of the problem and "had never imagined the extent."
"We knew anecdotally that clergy sexual misconduct with adults is a huge problem, but we were surprised it is so prevalent across all denominations, all religions, all faith groups, all across the country," she said.
According to the Rev. Dr. Marie Fortune, Executive Director of the Faith Trust Institute in Seattle, adult victims of sexual exploitation by clergy "will be the next wave of the tsunami to hit the church" relative to the child victims of clergy sexual abuse.
Rev. Pamela Cooper-White, former director of the Center for Women and Religion at the Graduate Theological Union in Berkeley, California, and currently Professor of Pastoral Theology at The Lutheran Theological Seminary at Philadelphia estimates that the vast majority of victims of sexual exploitation by clergy, more than 95 percent, are women.
In her 1995 book The Cry of Tamar, the Rev. Pamela Cooper-White suggests that "somewhere from one out of eight to one out of three clergy have crossed sexual boundaries with their parishioners."
Angela Bonavoglia in her 2005 book Good Catholic Girls: How Women are Leading the Fight to Change the Church states:
"While the current crisis has spotlighted the abuse of minors by Catholic priests, the reality is that the abuse of children is just the tip of the iceberg . . . children are not, nor have they ever been, Catholic clergy's only victims. In fact, the sexual involvement of Catholic priests with adults far exceeds their involvement with minors, and women caught in those relationships are arguably in the greater danger of exploitation." (Bonavoglia, Chapter 5, "Women, Priests, and the Myth of Celibacy," p. 85)
A 1993 study published in the Journal of Pastoral Care found that 14% of Southern Baptist pastors responding to a survey admitted to inappropriate sexual contact with a congregant; in the same survey 70% of respondents said they had knowledge of another minister who had sexual contact with a congregant.
Stephanie Hixon, member of the United Methodist General Secretariat of the Commission on the Status and Role of Women, remarked at a 2001 UM-sponsored workshop that "the largest population of victim/survivors of clergy sexual misconduct [in the Methodist church] is women."
Julie Sevig, section editor of The Lutheran, stated in a 2002 special issue of this denominational newsmagazine that "the typical pattern of clergy sexual abuse in the Evangelical Lutheran Church of America involves a male pastor and adult female."
Alexa Smith, in a 2000 cover article for Presbyterians Today, reported that the Office of the General Assembly of the Presbyterian Church USA estimates there are about 50 clergy sexual misconduct cases every year. Cases in the PCUSA, according to Smith, "tend to involve adult women and male pastors."
Dr. Gary Schoener, Executive Director of the Walk-In Counseling Center in Minneapolis which serves both offenders and victims of clergy sexual abuse, has consulted on over 2,000 cases of clergy sexual abuse and is one of the most outspoken experts on this issue. In a 2006 interview aired on the PBS newsweekly Religion and Ethics he stated that "far more clergy have sexual contact with adult women or late adolescent girls than they do with kids of either gender" adding that "it's a widespread problem."
Schoener told the St. Petersburg Times in a 2002 article that "17 states see even adult relationships with priests as a type of statutory rape. The victim can't possibly consent because the power relationship so clouds the issue."
Similar estimates are put forth by A. W. Richard Sipe, therapist and former Benedictine monk, in his 1995 book Sex, Priests, and Power. Based on his research, Sipe concludes that "at any one time 20% of priests are involved in a sexual relationship with a woman."
Sipe told the St. Petersburg Times in a 2002 article that "about four times as many priests get involved with adult women as with minors."
Several reports cited by Kathryn Flynn in her comprehensive study of The Sexual Abuse of Women by Members of the Clergy published in 2003 substantiate the claim that "clergy are exploiting their parishioners at twice the rate of secular therapists."
A United Church of Canada sexual abuse panel reported that "women are more likely to experience sexual harassment in the church than in the workplace."
Dr. Rene Drumm, chair of the Department of Social Work and Family Studies at Southern Adventist University, in Collegedale, Tennessee states in her article "Why Pastoral Affair Is An Oxymoron: Thoughts On Clergy Sexual Misconduct" published in Adventist Today (May 1, 2005):
Because of their moral and spiritual authority, pastors are not allowed the luxury of having "affairs." Affairs can happen only between equally powerful, consenting adults. When a pastor becomes romantically involved with a parishioner, it is not properly considered an affair. Instead it is a blatant breach of ethical standards. This violation of ethical standards then becomes a legal liability.
Anglican Church in Australia Sex Offender Registry and Church of England Archbishop's List.
Bernard Lagan. "Names of cheating clergy will be put on register of sex offenders." Times Online (October 24, 2007).
Andrew Norfolk. "Church of England lists sinner priests." Times Online (October 24, 2007).
Emma Humphreys Prize 2004 awarded to Margaret Kennedy "primarily for the way she has taken on Christian, and especially the Catholic, church in the UK, not just in relation to the sexual abuse of children but sexual exploitation of adult women by Christian clergy." In a December 2004 article in the Journal of Adult Protection Kennedy discusses her work:
The 250 women I have supported over the last eight years who were sexually molested, coerced, exploited and manipulated into having sex with the clergymen from whom they sought help and refuge were vulnerable and looking for help. They were not looking for their pastor to engage them in sex. This must be seen within the continuum of sexual violation against women
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Criminal Liability of Clergy for Sexual Misconduct with Adults
By
Richard R. Hammar, J.D., LL.M., CPA© Copyright 2004 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 m29 m37 c0504
Doe v. F.P., 667 N.W.2d 493 (Minn. App. 2003)
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.
facts
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.
the court's ruling
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 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:
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.
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:
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 laws making sexual contact by clergy with a counselee a crime ( I stayed specific with only a couple states for this project)
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.
Minnesota
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.
Wisconsin
Statutes § 895.70. Sexual exploitation by a therapist
(1) Definitions. In this section . . .
© "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.
General sexual assault crimes
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."
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.
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Other cases
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).
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Watered Garden
Very good research!
I think I mentioned we were in a church plant where a 15-year-old girl was raped by the pastor, who is now in prison. I didn't look up the states for Ohio but I do know that he, the church plant, and the planting church are also defendants in a civil case filed by her family.
I think he was "counseling" her also for some time.
He pled out to two lesser charges and stood up and apologized to almost everyone, except of course the church he devastated.
WG
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Shellon
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 “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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Shellon
MINNESOTA
Appeals Court Reinstates Lawsuit
A lawsuit accusing Rev. Albert Magnuson of sexually abusing a young parishioner more than 25 years ago has been reinstated by the Minnesota Court of Appeals.
The 3-judge panel reversed a lower-court decision and stated it is unclear whether the state's "delayed discovery" statute of limitation had expired.
Magnuson is accused of sexually abusing a boy from ages 12-15. The victim said he did not discuss the events until '91 when his brother said he was also abused by Magnuson. He said the abuse led him to prostitution, a mistaken belief that he was homosexual and to prison for various felonies due to his distress.
Magnuson was the pastor of Redeemer Covenant Church in Brooklyn Park for 25 years before resigning in 1989 when several youths reported that he molested them. He served about 10 months in jail after pleading guilty to a molestation case in '91.
The Minnesota Court of Appeals ordered new trials in May for 2 other former church members who said they were molested by Magnuson. Source: Duluth News Tribune 11/20/95
WISCONSIN
Probation For Sexual Exploitation
Catholic priest Edward Witczak, 61, was sentenced to 1 month in jail and ordered to perform 300 hours of community service forr charges of sexually exploited a parishioner.
Brown County Circuit Court Judge Richard Dietz sentenced Witczak to 3 years in prison then stayed the sentence and placed him on 3 years' probation instead.
Witczak admitted to having a 2-year relationship with the woman, now 29, who sought his help as a therapist for marital problems and guilt over sexual abuse she she suffered at age 5. The woman said she called off the relationship with the priest when she realized it was ruining her marriage, which has since ended.
Witczak pleaded no contest to 4 counts of sexual contact without consent on 4 occasions with the victim in '91 and '93. Probation conditions require Witczak to receive counseling and have no contact with the victim. Witczak also agreed to resign as pastor of St. Elizabeth Seton Parish in Green Bay. Source: Milwaukee Journal Sentinel 1/3/95
2009 Minnesota Statutes
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Shellon
611A.88 NO AVOIDANCE OF LIABILITY.
No person may avoid liability under sections 611A.80 to 611A.88 by means of any conveyance of any right, title, or interest in real property, or by any indemnification, hold harmless agreement, or similar agreement that purports to show consent of the plaintiff.
609.344 CRIMINAL SEXUAL CONDUCT IN THE THIRD DEGREE.
Subdivision 1.Crime defined.A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:
(a) the complainant is under 13 years of age and the actor is no more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant shall be a defense;
(b) the complainant is at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant. In any such case if the actor is no more than 120 months older than the complainant, it shall be an affirmative defense, which must be proved by a preponderance of the evidence, that the actor reasonably believes the complainant to be 16 years of age or older. In all other cases, mistake as to the complainant's age shall not be a defense. If the actor in such a case is no more than 48 months but more than 24 months older than the complainant, the actor may be sentenced to imprisonment for not more than five years. Consent by the complainant is not a defense;
© the actor uses force or coercion to accomplish the penetration;
(d) the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless;
(e) the complainant is at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense;
(f) the actor has a significant relationship to the complainant and the complainant was at least 16 but under 18 years of age at the time of the sexual penetration. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense;
(g) the actor has a significant relationship to the complainant, the complainant was at least 16 but under 18 years of age at the time of the sexual penetration, and:
(i) the actor or an accomplice used force or coercion to accomplish the penetration;
(ii) the complainant suffered personal injury; or
(iii) the sexual abuse involved multiple acts committed over an extended period of time.
Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense;
(h) the actor is a psychotherapist and the complainant is a patient of the psychotherapist and the sexual penetration 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 penetration occurred by means of therapeutic deception. Consent by the complainant is not a defense;
(k) the actor accomplishes the sexual penetration by means of deception or false representation that the penetration is for a bona fide medical purpose. Consent by the complainant is not a defense;
(1) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:
(i) the sexual penetration 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 penetration 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;
(m) the actor is an employee, independent contractor, or volunteer of a state, county, city, or privately operated adult or juvenile correctional system, including, but not limited to, jails, prisons, detention centers, or work release facilities, and the complainant is a resident of a facility or under supervision of the correctional system. Consent by the complainant is not a defense;
(n) the actor provides or is an agent of an entity that provides special transportation service, the complainant used the special transportation service, and the sexual penetration occurred during or immediately before or after the actor transported the complainant. Consent by the complainant is not a defense; or
(o) the actor performs massage or other bodywork for hire, the complainant was a user of one of those services, and nonconsensual sexual penetration occurred during or immediately before or after the actor performed or was hired to perform one of those services for the complainant.
Subd. 2.Penalty.Except as otherwise provided in section 609.3455, a person convicted under subdivision 1 may be sentenced to imprisonment for not more than 15 years or to a payment of a fine of not more than $30,000, or both. A person convicted under this section is also subject to conditional release under section 609.3455.
Subd. 3.Stay.Except when imprisonment is required under section 609.3455; or Minnesota Statutes 2004, section 609.109, if a person is convicted under subdivision 1, clause (f), the court may stay imposition or execution of the sentence if it finds that:
(a) a stay is in the best interest of the complainant or the family unit; and
(b) a professional assessment indicates that the offender has been accepted by and can respond to a treatment program.
If the court stays imposition or execution of sentence, it shall include the following as conditions of probation:
(1) incarceration in a local jail or workhouse;
(2) a requirement that the offender complete a treatment program; and
(3) a requirement that the offender have no unsupervised contact with the complainant until the offender has successfully completed the treatment program unless approved by the treatment program and the supervising correctional agent.
https://www.revisor.leg.state.mn.us/statutes/?topic=633785
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Shellon
Clergy Malpractice
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: m30
Malpractice is generally defined as a failure to exercise an accepted degree of skill in the performance of professional duties that results in injury to another. In the past, malpractice suits were restricted almost exclusively to doctors and lawyers—a doctor prescribed the wrong medication or made a faulty diagnosis; a lawyer missed a pleading deadline or made an error in a title search. But in recent years, a small number of malpractice suits have been brought against pastors.
In the most significant ruling so far, the California Supreme Court ruled that a church and certain of its ministers were not legally responsible for the death of a suicide victim who had been a member of the church and who had counseled with the ministers.1 In 1973, while attending college, Kenneth Nally became depressed after breaking up with his girlfriend. He often talked about the absurdity of life, the problems he had with his girlfriend and with his family, and he occasionally mentioned suicide. Though raised in a Roman Catholic home, Nally converted to Protestantism and in 1974 began attending Grace Community Church in Sun Valley, California, and became active in various church programs and ministries.
At the time of the events in question, the church employed about 50 pastoral counselors to serve a congregation of over 10,000 persons. Pastoral counseling, according to the church's 1979 annual report, was “a very important part” of the church's ministry. The church offered its counseling services not only to members, but also to large numbers of nonmembers. In 1979, the annual report noted that about half of the persons seeking counseling were nonmembers. A church publication entitled the “Guide for Biblical Counselors” noted that a number of symptoms and disorders fell within the pastoral counselor's domain, including “drug abuse, alcoholism, phobias, deep depression, suicide, mania, nervous breakdown, manic--depressive disorder and schizophrenia.” The Guide devoted separate sections to a number of disorders, including suicide, with hypothetical questions and answers. For example, one question read “You mean I could counsel with an extreme problem like a suicidal tendency or nervous breakdown or something like that?” The answer read “With the proper understanding of God's Word to diagnose and treat the problems, this could not only be done occasionally but could become the rule.” The church taught that the Bible is the fundamental Word of God containing truths that must govern Christians in their relationship with God and the world at large, and in their own lives. As a result, pastoral counseling was essentially religious in nature. The church's senior pastor, John MacArthur, testified that “we just respond as pastors, so what we do is on a spiritual level, and a biblical level or a prayer level.”
Nally was aware of the church's professed ability in treating severe depression and suicidal symptoms. He had been a student in one of the church's courses on biblical counseling (which used the Guide as a text) and sought out formal and informal pastoral counseling from the church during each of his several suicidal crises. Early in 1979, Nally again became depressed after his breakup with another girlfriend. He confided in his mother that he “could not cope.” His mother had him see a general medical practitioner who prescribed a strong anti--depressant drug but who did not refer Nally to a psychiatrist. By late February of 1979, Nally's depression did not appear to be subsiding. He was examined by another physician, and spoke briefly with one of the church's pastoral counselors during a drop--in counseling session.
On March 11, Nally attempted to take his life by consuming an overdose of the antidepressant drug that had previously been prescribed for him. He was rushed to a hospital and his life was saved. His parents, concerned about their friends' reactions to their son's suicide attempt, asked the attending physician to inform others that Nally had been hospitalized for pneumonia. On March 12, two of the church's pastors visited Nally at the hospital. Nally, still drowsy from the drug overdose, informed them that he was sorry he had not succeeded in his suicide attempt. The pastors assumed that the hospital staff was aware of Nally's unstable mental condition, and accordingly they did not discuss Nally's “death wish” with anyone else. A few days later, a staff psychiatrist examined Nally and recommended that he commit himself to a psychiatric hospital. When Nally and his father expressed reluctance at the thought of formal commitment, the psychiatrist agreed to release Nally for outpatient treatment. However, he warned Nally's father that it would “not be unusual” for a suicidal patient to repeat his suicide attempt. Nally was released the next day, and moved in with one of the church's pastors because he “didn't want to return home.” The pastor encouraged Nally to keep his appointments with the hospital psychiatrist, and arranged to have him examined by a physician who attended the church. This physician concluded that Nally was a continuing threat to himself, and recommended commitment to a psychiatric hospital. Nally rejected this advice, and the psychiatrist later called Nally's father to recommend immediate commitment. This plea was rejected by Nally's parents, his mother saying “no, that's a crazy hospital. He's not crazy.” A few days later, Nally met with another of the church's pastors, and asked “whether Christians who commit suicide would nevertheless be saved.” The pastor assured Nally that “a person who is once saved is always saved,” but warned Nally that “it would be wrong to be thinking in such terms.” A few days later, Nally moved back home. He was examined by two physicians, at least one of whom recommended commitment in a psychiatric hospital. Nally then saw another pastor of the church, who recommended that Nally see a particular psychologist. Nally did so, and was referred to a psychological clinic. Nally visited the clinic and met with a registered psychologist's assistant. A few days later, Nally met with a former girlfriend who rejected an apparent marriage proposal by telling Nally “I can't marry you when you are like this. You have got to pull yourself together.” Three days later, on April 1, 1979, Nally committed suicide by shooting himself in the head with a shotgun.
Nally's parents filed a lawsuit naming the church and four of its pastors as defendants. The parents alleged that the pastors were responsible for the death of Nally on the basis of “clergyman malpractice.” Specifically, they alleged that (1) the church was negligent in the training and selection of its spiritual counselors, and in not referring Nally to medical professionals, (2) the pastors failed to make themselves available to Nally following his first suicide attempt, and “actively and affirmatively dissuaded and discouraged him from seeking further professional psychological or psychiatric care”, and (3) the pastors were guilty of “outrageous conduct” for teaching “certain Protestant religious doctrines that conflicted with Nally's Catholic upbringing” and which “exacerbated Nally's pre--existing feelings of guilt, anxiety, and depression.” With regard to the last allegation, the parents alleged that the pastors' counseling was “outrageous” because they “taught or otherwise imbued Nally, whom they knew to be depressed and having entertained suicidal thoughts, with the notion that if he had accepted Jesus Christ as his personal savior, he would still be accepted into heaven if he committed suicide.” As proof of their charge, the parents referred to the counseling session in which Nally had been informed that a Christian who commits suicide would nevertheless be “saved” since “a person who is once saved is always saved.”
The parents also relied on a short passage taken from a 12--part tape recorded series by one of the pastors entitled “Principles of Biblical Counseling” that was recorded several months after Nally's death. The tape--recorded passage stated that “suicide is one of the ways the Lord takes home a disobedient believer. We read that in the Bible. . . . Suicide for a believer is the Lord saying, `Okay, come on home. Can't use you anymore on earth. If you're not going to deal with those things in your life, come on home.'” The parents also cited an occasion when Nally's father opened the office door of one of the pastors and found Nally in the midst of a counseling session and on his knees crying. They also referred to a statement of the church's senior pastor that spiritual counseling (such as he gave Nally) could potentially cause “the deepest depression.” The trial court granted the church and pastors a summary judgment, and the parents appealed to a California state appeals court. The appeals court reversed the summary judgment, concluding that a legitimate question existed on the issue of outrageous conduct. The trial court again ruled in favor of the church and its pastors, concluding that “there is no compelling state interest to climb the wall of separation of church and state and plunge into the pit on the other side that certainly had no bottom.” The state court of appeals again reversed, noting that “nontherapist counselors,” both religious and secular, have a duty to refer suicidal persons to psychiatrists or other physicians qualified to prevent suicide. That ruling was then submitted to the state supreme court for review.
The California Supreme Court rejected the court of appeals conclusion that a pastor has a legal duty to refer suicidal persons to medical professionals. It acknowledged that in a few previous rulings it had found hospitals and staff psychiatrists responsible for the deaths of suicide victims confined in hospital psychiatric wards. However, the court concluded that such cases were limited to “the limited context of hospital--patient relationships where the suicidal person died while under the care and custody of hospital physicians who were aware of the patient's unstable mental condition.” Such cases were of no relevance to churches and clergy “not involved in a supervised medical relationship” with a suicidal person.
In rejecting the main contention of Nally's parents—that the church and its pastors were negligent in failing to refer Nally to medical professionals—the court observed:
Nally was examined by five physicians and a psychiatrist during the weeks following his [first] suicide attempt. [The church and its pastors] correctly assert that they arranged or encouraged many of these visits and encouraged Nally to continue to cooperate with all doctors. In addition, following Nally's overdose attempt, [a physician] warned [Nally's parents] that Nally remained suicidal and that they should encourage him to see a psychiatrist on his release from the hospital. [Nally's parents] also rejected [two other physicians'] suggestions that Nally be institutionalized because, according to [the parents], their son was “not crazy.” Nevertheless, we are urged that mere knowledge on the part of the [church and its pastors] that Nally may have been suicidal at various stages in his life should give rise to a duty to refer. Imposition of a duty to refer Nally necessarily would imply a general duty on all nontherapists to refer all potentially suicidal persons to licensed medical practitioners. . . . While under some circumstances counselors may conclude that referring a client to a psychiatrist is prudent and necessary, our past decisions teach that it is inappropriate to impose a duty to refer—which may stifle all gratuitous or religious counseling—based on foreseeability alone. Mere foreseeability of the harm or knowledge of the danger is insufficient to create a legally cognizable special relationship giving rise to a legal duty to prevent harm.2
The court emphasized that “neither the legislature nor the courts have ever imposed a legal obligation on persons to take affirmative steps to prevent the suicide of one who is not under the care of a physician in a hospital.” On the contrary, “the [California] legislature has exempted clergy from the licensing requirements applicable to marriage, family, child and domestic counselors and from the operation of statutes regulating psychologists. In so doing, the legislature has recognized that access to the clergy for counseling should be free from state imposed counseling standards, and that `the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations” (emphasis added). In further support of its conclusion that clergy have no duty to “refer” suicidal persons to medical professionals, the court observed that “because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.”
The court also rejected the contention of Nally's parents that the “outrageous conduct” of the church and its pastors was responsible for Nally's death. Nally's parents based their charge of outrageous conduct largely on a segment of a tape recording produced by one of the pastors (quoted above). In rejecting the relevance of this recording, the court observed:
In 1981, 18 months after Nally's suicide, [one of the church's pastors] taught a series of classes on biblical counseling. The class sessions included question and answer periods that were tape recorded. During one session, a student questioned [the pastor] on whether a person who committed suicide could be “saved.” [The pastor] replied, in a manner consistent with Reformation Protestant theology views regarding sin, grace and faith, that a person neither acquires salvation by his own works nor forfeits salvation by the commission of subsequent sins. [Nally's parents] sought to introduce the tape recording at trial on the basis that it provided inferential proof of [the pastor's] advice to Nally during three counseling sessions in 1979. . . . [T]he tape does not tend to prove that [the church or its pastors] in any way encouraged Nally to commit suicide or acted recklessly in disregard of Nally's emotional state prior to his suicide. . . . [W]hat was said in an extemporaneous answer, which did not precisely reflect the thoughts of [the pastor], given almost two years after [Nally's suicide] is at best marginally relevant to prove what was said at the time in question.3
Two of the court's seven justices concluded that the church and its pastors did have a limited duty “to recognize the limits of their own competence to treat an individual, such as Nally, who exhibited suicidal tendencies, and once having recognized such symptoms, to advise that individual to seek competent professional medical care.” However, these two justices also concluded that the church and its pastors did not breach this duty of care, and their actions did not “contribute in any legally significant respect to his suicide.”
What is the impact of the Nally case on churches and clergy? Consider the following points:
1. The Nally case is binding only in the state of California. Courts in other states are free to disregard it. However, decisions of the California Supreme Court generally are treated with great respect by other state courts, and often are followed. The fact that the California Supreme Court unanimously ruled in favor of the church and its pastors should make the Nally decision especially compelling elsewhere. In summary, while it is likely that the Nally decision will be followed by other state courts, such a result is not certain.
2. In California, and other states that follow the Nally decision, nontherapist clergy will not have a “duty to refer” suicidal or emotionally disturbed persons to medical professionals. Of course, clergy in such states may voluntarily choose to recommend to a suicidal counselee that he or she contact a medical professional for assistance.
3. Some churches employ pastoral counselors who are licensed counselors or psychologists. In some cases, clergy who are licensed counselors or psychologists have opened their own private counseling practices independent of any church. While the court did not specifically address the liability of such counselors, it did cite with approval an earlier California state appeals court decision that suggested that a psychiatrist might be legally responsible for failing to take appropriate measures to prevent the death of an imminently suicidal patient.4 It is possible that this ruling might extend to clergy in California who are licensed counselors, psychologists, or psychiatrists.
4. Clergy in California and elsewhere may be liable for “clergy malpractice” on the basis of theories of liability other than a failure to refer suicidal persons to medical professionals. For example, a number of persons have attempted to sue clergy for sexual molestation of minors, or seduction of a church member during the course of counseling. In some cases, the plaintiffs allege that such conduct constitutes “clergy malpractice.” As a result, the Nally case does not necessarily eliminate lawsuits alleging clergy malpractice, even in the state of California.
5. Should churches still purchase “clergy malpractice” or counseling liability insurance for their pastoral staff? My recommendation is that churches continue to purchase counseling liability insurance. I base this position on the following two factors. First, this type of insurance is inexpensive, and in light of the Nally decision should become even less costly. Second, while it is very unlikely that a minister will be successfully sued for malpractice in counseling, it is entirely possible that a minister may be sued. Counseling liability insurance will cover the costs of defending the lawsuit, and will pay any settlement or judgement up to the policy limits. In other words, while clergy who are sued for counseling malpractice will almost certainly prevail in court, the cost of a successful legal defense can easily amount to several tens of thousands of dollars. A counseling liability insurance policy ordinarily will pay these costs on your behalf. If you do not presently carry counseling liability insurance, check with your church liability insurer. It generally is cheaper to obtain this coverage under your existing policy than to purchase it separately.
A few other courts have rejected claims of “clergy malpractice,” on different grounds. To illustrate, the Ohio Supreme Court refused to recognize the alleged tort of “clergy malpractice” in a case involving the sexual seduction of a wife during marital counseling. 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.5
Similarly, the Colorado Supreme Court refused to recognize the theory of “clergy malpractice” in a case involving the seduction of a female church member by a Catholic priest.6 The woman had claimed 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.
A Utah court refused to recognize “clergy malpractice” as a basis for legal liability.7 A minister who used church funds to send a 17--year--old boy to visit his brother was sued by the boy's mother. The mother alleged a variety of wrongs, including clergy malpractice and intentional infliction of emotional distress. A trial court granted the minister and church a summary judgment, and the mother appealed. A state appeals court agreed with the trial court, and summarily rejected the mother's claims. In rejecting the mother's charge of clergy malpractice, the court observed:
blockquote> [The mother] admits that no court has recognized clerical malpractice as a cause of action, but argues that such malpractice exists here, not because [the minister] who had not been trained as a counselor, improperly counseled [the boy], but because he failed to refer [the boy] to trained professionals or others who could assist in resolving the family conflicts. In other words, [the mother] wishes to impose a duty upon [the minister] to make further inquiry into the alleged family conflicts, and then, if beyond his expertise, refer [the boy] to others who are qualified to treat such problems. Under the present circumstances, charging lay clergy with this duty of care goes too far because it approaches the same level of care imposed upon trained professionals in medicine and psychology.8
The court quoted with approval from the Nally case (discussed above): “Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The Utah appeals court agreed with the California Supreme Court's refusal to recognize clergy malpractice as a basis for legal liability, and refused to impose upon clergy a duty to refer parishioners experiencing emotional trauma to medical professionals. The court also rejected all of the other theories of legal liability alleged by the mother.
Finally, a Missouri appellate court left unanswered the question of whether a cause of action for clergy malpractice should be recognized in that state. The court observed that to “avoid a redundant remedy” the concept of clergy malpractice must address conduct that is not already the basis for legal action. For example, clergy malpractice should not be expanded to cover such areas as defamation, infliction of emotional distress, interference with contract, or invasion of privacy, since all of these are already well--recognized legal theories. Clergy malpractice, concluded the court, must be limited to negligent counseling. However, the court acknowledged that recognizing a cause of action against a minister for improper counseling may well violate the constitutional guaranty of religious freedom.9
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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.”
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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].”
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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].”
http://www.baylor.edu/clergysexualmisconduct/index.php?id=64402
http://ffrf.org/books/betrayal/
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Unsafe In Any Denomination
What the Experts Say
Experts from many denominations report on the dramatic extent and harmful impact of sexual boundary violation of adults by ministers, pastors, priests, rabbis and other clergy. In contrast, news accounts of allegations of sexual violations of women and men by clergy often show confusion among the general public about the nature of sexual exploitation of adults by clergy.
Largest national study of clergy sexual misconduct with adults will be published in the Journal for the Scientific Study of Religion in late 2009. The Baylor University School of Social Work research was funded by the Ford Foundation.
Dean of Baylor University School of Social Work Professor Diana Garland said she was surprised by the magnitude of the problem and "had never imagined the extent."
"We knew anecdotally that clergy sexual misconduct with adults is a huge problem, but we were surprised it is so prevalent across all denominations, all religions, all faith groups, all across the country," she said.
According to the Rev. Dr. Marie Fortune, Executive Director of the Faith Trust Institute in Seattle, adult victims of sexual exploitation by clergy "will be the next wave of the tsunami to hit the church" relative to the child victims of clergy sexual abuse.
Rev. Pamela Cooper-White, former director of the Center for Women and Religion at the Graduate Theological Union in Berkeley, California, and currently Professor of Pastoral Theology at The Lutheran Theological Seminary at Philadelphia estimates that the vast majority of victims of sexual exploitation by clergy, more than 95 percent, are women.
In her 1995 book The Cry of Tamar, the Rev. Pamela Cooper-White suggests that "somewhere from one out of eight to one out of three clergy have crossed sexual boundaries with their parishioners."
Angela Bonavoglia in her 2005 book Good Catholic Girls: How Women are Leading the Fight to Change the Church states:
"While the current crisis has spotlighted the abuse of minors by Catholic priests, the reality is that the abuse of children is just the tip of the iceberg . . . children are not, nor have they ever been, Catholic clergy's only victims. In fact, the sexual involvement of Catholic priests with adults far exceeds their involvement with minors, and women caught in those relationships are arguably in the greater danger of exploitation." (Bonavoglia, Chapter 5, "Women, Priests, and the Myth of Celibacy," p. 85)
A 1993 study published in the Journal of Pastoral Care found that 14% of Southern Baptist pastors responding to a survey admitted to inappropriate sexual contact with a congregant; in the same survey 70% of respondents said they had knowledge of another minister who had sexual contact with a congregant.
Stephanie Hixon, member of the United Methodist General Secretariat of the Commission on the Status and Role of Women, remarked at a 2001 UM-sponsored workshop that "the largest population of victim/survivors of clergy sexual misconduct [in the Methodist church] is women."
Julie Sevig, section editor of The Lutheran, stated in a 2002 special issue of this denominational newsmagazine that "the typical pattern of clergy sexual abuse in the Evangelical Lutheran Church of America involves a male pastor and adult female."
Alexa Smith, in a 2000 cover article for Presbyterians Today, reported that the Office of the General Assembly of the Presbyterian Church USA estimates there are about 50 clergy sexual misconduct cases every year. Cases in the PCUSA, according to Smith, "tend to involve adult women and male pastors."
Dr. Gary Schoener, Executive Director of the Walk-In Counseling Center in Minneapolis which serves both offenders and victims of clergy sexual abuse, has consulted on over 2,000 cases of clergy sexual abuse and is one of the most outspoken experts on this issue. In a 2006 interview aired on the PBS newsweekly Religion and Ethics he stated that "far more clergy have sexual contact with adult women or late adolescent girls than they do with kids of either gender" adding that "it's a widespread problem."
Schoener told the St. Petersburg Times in a 2002 article that "17 states see even adult relationships with priests as a type of statutory rape. The victim can't possibly consent because the power relationship so clouds the issue."
Similar estimates are put forth by A. W. Richard Sipe, therapist and former Benedictine monk, in his 1995 book Sex, Priests, and Power. Based on his research, Sipe concludes that "at any one time 20% of priests are involved in a sexual relationship with a woman."
Sipe told the St. Petersburg Times in a 2002 article that "about four times as many priests get involved with adult women as with minors."
Several reports cited by Kathryn Flynn in her comprehensive study of The Sexual Abuse of Women by Members of the Clergy published in 2003 substantiate the claim that "clergy are exploiting their parishioners at twice the rate of secular therapists."
A United Church of Canada sexual abuse panel reported that "women are more likely to experience sexual harassment in the church than in the workplace."
Dr. Rene Drumm, chair of the Department of Social Work and Family Studies at Southern Adventist University, in Collegedale, Tennessee states in her article "Why Pastoral Affair Is An Oxymoron: Thoughts On Clergy Sexual Misconduct" published in Adventist Today (May 1, 2005):
Because of their moral and spiritual authority, pastors are not allowed the luxury of having "affairs." Affairs can happen only between equally powerful, consenting adults. When a pastor becomes romantically involved with a parishioner, it is not properly considered an affair. Instead it is a blatant breach of ethical standards. This violation of ethical standards then becomes a legal liability.
Anglican Church in Australia Sex Offender Registry and Church of England Archbishop's List.
Bernard Lagan. "Names of cheating clergy will be put on register of sex offenders." Times Online (October 24, 2007).
Andrew Norfolk. "Church of England lists sinner priests." Times Online (October 24, 2007).
Emma Humphreys Prize 2004 awarded to Margaret Kennedy "primarily for the way she has taken on Christian, and especially the Catholic, church in the UK, not just in relation to the sexual abuse of children but sexual exploitation of adult women by Christian clergy." In a December 2004 article in the Journal of Adult Protection Kennedy discusses her work:
The 250 women I have supported over the last eight years who were sexually molested, coerced, exploited and manipulated into having sex with the clergymen from whom they sought help and refuge were vulnerable and looking for help. They were not looking for their pastor to engage them in sex. This must be seen within the continuum of sexual violation against women
http://www.adultsabu....org/index.html
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This is as far as I've gotten thus far in my own digging around.
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bowtwi
This is a great collection of information. How wonderful that you've compiled it into one place!
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Shellon
Yeah, Box, thank you, this is only the beginning of what I was looking at; I hope others who need it will go even more into it for their own lives.
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