Malpractice revisited: legal claims against clergy

Christian Century, Sept 24, 1997 by Oliver Thomas

The new Jersey Supreme Court this past summer reversed a lower court decision that had permitted a claim of clergy malpractice to proceed against an Episcopal priest. The priest is accused of improper sexual relations with one of his counselees.

The court of appeals had broken ranks with all other state and federal courts by holding that judges were competent to determine 1) the proper standard of care that clergy owe to their parishioners, and 2) when that standard of care has been breached. By reversing the lower court, the New jersey Supreme Court recognized the inherent difficulty of allowing judges to establish standards of conduct for what is essentially a spiritual enterprise.

The Supreme Court went on to hold that although clergy could not be sued for malpractice, they could be held to the same standards of conduct applicable to ordinary citizens. Specifically, the court held that a member of the clergy can be sued for breach of fiduciary duty as well as for infliction of emotional distress. As the court put it: "The free exercise of religion does not permit members of the clergy to engage in inappropriate sexual conduct with parishioners who seek pastoral counseling." Claims about breach of duty and emotional distress can both be decided without entangling judges and juries in spiritual matters.

The essence of a fiduciary relationship is that one person places confidence and trust in another who is in a dominant or superior position. The dominant party assumes a duty to act or give advice for the benefit of the person seeking help. Such fiduciary relationships are common in our society, and include the relationships of doctors and their patients as well as those of lawyers and their clients. Some states go so far as to impose criminal penalties on therapists who violate their fiduciary duty by engaging in sexual misconduct with their patients.

It is no surprise that the New jersey Supreme Court declared that a pastor, by accepting a parishioner for counseling, accepts the responsibility of a fiduciary. But the court acknowledged that if the underlying dispute turns on a question of church doctrine, the claim may be barred by the First Amendment. The court noted that it could identify no doctrine that would justify sexual misconduct on the part of clergy. To the contrary, the teachings of the church roundly condemn such acts. Because no theological or ecclesiastical questions need be decided, the court will allow the case to proceed to trial.

In a similar fashion, the plaintiff may sue for infliction of emotional distress. As long as the court is not required to decide questions of doctrine, the alleged victim may proceed under the general rule that a person who suffers emotional trauma may recover damages from the one who caused it.

The New Jersey decision represents a growing trend in the courts to find ways to compensate the victims of clergy sexual misconduct. Although courts in Ohio and Nebraska have rejected such claims, Texas, Colorado and Oregon are among those that provide victims with access to the courts.

The New Jersey decision has implications for churches as well as for clergy. A church that fails to conduct background checks on prospective staff or that fails to supervise current staff properly can be held liable in such cases.

In addition, a church that fails to investigate complaints adequately and to intervene promptly in the case of misconduct can leave Itself open to astronomical damage awards. A recent jury verdict against a Roman Catholic diocese in Texas was in excess of $100 million.

Churches may find themselves between the devil and the deep blue sea in many of these cases. Although responding to the victims should be their first priority, they must also protect the good name, reputation and privacy interests of the alleged perpetrator. Even when the allegations are proved, churches are limited in what they can reveal to the public. The church also may have some obligation to provide treatment, particularly if the perpetrator wishes to remain in the ministry.

In short, there are myriad pitfalls to avoid, and the services of a qualified attorney should be sought the moment an accusation is made. Many denominational offices have lawyers on staff to advise and assist churches in crisis.

The New Jersey decision is likely to draw fire from both sides of the current debate. Some will argue that the court should have interpreted the First Amendment as a complete bar against lawsuits arising out of a church's counseling ministry. Others won't be satisfied until pastoral counselors are subject to the same rules as their secular counterparts.

The New Jersey Supreme Court is to be credited for not falling prey to either extreme. The court has rejected the constitutionally suspect theory of clergy malpractice, yet it has provided access to justice for the victims of clergy sexual misconduct through the use of traditional legal theories. Such a balanced approach is likely to prevail in a majority of states.