Sexual Misconduct and Ecclesiastical Immunity

Brigham Young University Law Review, 2004 by Lupu, Ira C, Tuttle, Robert W

I. INTRODUCTION

Leaders frequently disappoint their followers. Religious leaders, who purport to speak in the name of God and who address our deepest longings and fears, are unusually vulnerable to this phenomenon. Humans, deeply aware of their own fallibility, will often project unreasonable expectations of perfection upon those who hold authority in communities of faith. The resulting tendency to disappoint is amplified in our own time and place, in which the ubiquitous mass media endlessly parade the flaws, foibles, and faux pas of the prominent.

Even if the world were more generous and forgiving towards those in leadership, however, recent events and disclosures would still have produced a massive decline in the status of clergy and those who supervise them. Episodes of sexual exploitation and other breaches of trust by members of the clergy are epidemic.1 The scale of betrayal represented by these stories is more massive than most people can absorb. The tales are deeply aggravated by the follow-up accounts of religious supervisors who, having learned of such malfeasance, failed to take the proper steps to prevent recurrence.2 The combination of misbehaving clergy and irresponsible supervision has widely expanded the scope of harms committed, the sheer number of victims, and the public outrage that has ensued.

Much, but by no means all, of this story has involved the sexual exploitation of children, which of course has accentuated the public's anger and sense of betrayal. The nationwide scandal involving the Roman Catholic Church, the wrongful behavior of some of its priests, and the repeat offenses facilitated by the conduct of those in its hierarchy of supervision have been deeply impressed upon the public consciousness.3 It will take several generations, a clean record, and an abundance of good deeds for the Church of Rome in the U.S. to regain the full measure of its institutional reputation.

The legal fallout from the scandal of the Catholic Church may be even more widespread and enduring than the religious consequences.4 Priests have gone to prison for lengthy terms.5 Many courts have upheld tort claims against dioceses and their officers,6 and First Amendment defenses once thought likely to insulate defendants against such claims have been aggressively advanced and explicitly rejected.7 Churches have had to sell substantial properties to pay out many millions of dollars in legal settlements.8 Several Catholic dioceses have filed for reorganization in bankruptcy to protect their assets against potential judgment creditors, whose claims will arise from incidents of sexual misconduct.9 In several jurisdictions, prosecutors have impaneled grand juries to investigate the possibility of criminal wrongdoing by church leaders.10 Although prosecutors have yet to bring charges for criminally neglectful or otherwise culpable supervision, they have filed public reports that suggest criminal behavior of this sort has occurred,11 and settlements between prosecutors and religious entities have included terms that deeply involve the state in the process of clergy supervision.12

The problems of sexual exploitation and supervisory failure, however, are not limited to the Roman Catholic Church,13 nor are the problems limited to sexual assaults on minors. Relationships between clergy-counselors and adult parishioners have spawned a large number of legally actionable sexual abuse claims involving a wide variety of religious denominations.14 Plaintiffs in these cases have asserted a range of theories of tort liability, including professional malpractice and breach of fiduciary duty on the part of the clergy-counselor. The same claims have been pressed up the chain of supervisory responsibility within religious denominations, and plaintiffs have asserted that supervisors in these circumstances have committed tortious acts of negligent training, supervision, retention, and assignment of clergy, as well as breaches of fiduciary duty.15

The cases in which an adult is the victim have received less public attention than those involving children, and they typically do not raise the specter of criminal law violations. Nevertheless, these cases do raise problems concerning the collision between tort law and the First Amendment immunities of clergy, denominational supervisors, and religious entities themselves. Indeed, because the cases brought by adult victims rarely involve violations of criminal law, they present the most difficult constitutional questions. Because the public interest in clergy behavior is weaker in cases involving consenting adults than in cases involving children, state intervention in the affairs of religious organizations is harder to justify in the adult cases. Here too, however, the past several decades have witnessed a quite remarkable trend away from recognition of First Amendment defenses and a judicial willingness to impose liability upon clergy-and their supervisors-at least as broad as the liability imposed upon analogous secular enterprises.16