Clergy Malpractice and Breach of Fiduciary Duty; Pastoral and Marital Counseling
Casting Out Demons; Laying on Hands
Failure to Report Child Abuse and Neglect to Authorities
Liability of Association in Business of Developing and Selling Educational Courses on Christian Counseling and Which Had Granted a Certificate/License to Counselor/Pastor Accused of Monetary Fraud and of Pressuring Congregant/Client Into Having a Sexual Relationship. Counselor/Pastor Also Made Use of a Temperament Profile or “TAP” test and Accompaning Software Developed by the Association
Negligent Counseling or Failure to Render Assistance to Congregant; No Sexual Relationship
Pastoral or Marital Counseling Relationship Resulting in Sexual Relationship
Premarital Counseling; Revelation of Negative Information About Fiancee
Revelation of Confidential Information
Sexual Abuse
Televangelists
Miscellaneous Cases

Casting Out Demons; Laying on Hands

Plaintiff Lara Schubert, who was 17 years of age at the time, was physically restrained when she went into convulsions at a youth program/service at defendant Pleasant Glade Assembly of God, an Assemblies of God church, a Pentecostal church which believed in the literal teachings of the Bible with respect to spirits, demons, demon possession, and the “casting out” of demons. The background to the event was as follows. On a Friday evening, plaintiff attended a youth group activity at the church. The atmosphere during this event became spiritually charged after one of the youth announced he had seen a demon near the sanctuary. The youth minister called the group together to hear the story and agreed that demons were indeed present and instructed the youth to anoint everything in the church with holy oil. The youth minister then led an effort throughout the night to cast out the demons. At the Sunday morning worship service the next day, several young people gave testimonials about the spiritual events of the preceding day and prayed at the altar. During these prayers, plaintiff’s brother became “slain in the spirit,” collapsing to the floor where church members continued to pray into the early afternoon. The church believed that when someone is “slain in the spirit” the person often faints into semi-consciousness, and sometimes lies down on the floor. The church believed that “being slain in the spirit” is a positive experience in which the holy spirit comes over a person and influences them. However, the church also believed evil spirits could also influence a person and torment them. At a Sunday evening service that same day, plaintiff collapsed. After her collapse, several church members took plaintiff to a classroom where they “laid hands” on her and prayed. According to plaintiff, church members forcibly held her arms crossed over her chest, despite her demands to be freed. According to those present, plaintiff clenched her fists, gritted her teeth, foamed at the mouth, made guttural noises, cried, yelled, kicked, sweated, and hallucinated. stated during the episode that Satan or demons were trying to get her. After the episode, plaintiff also allegedly began telling other church members about a “vision.” Church members disagreed about whether plaintiff’s actions were a ploy for attention or the result of spiritual activity. Laura was eventually released after she calmed down and complied with requests to say the name “Jesus.” At a youth service three days later, on Wednesday evening, plaintiff began to act in a manner similar to the Sunday evening episode. At some point, plaintiff collapsed and writhed on the floor. Plaintiff testified that she simply curled up into a fetal position because she wanted to be left alone, but that under the direction of the youth minister and his wife she was forcibly, and against her will, held down in a “spread eagle” position with several youth members holding down her arms and legs. The church’s senior pastor was summoned and he played a tape of pacifying music, placed his hand on plaintiff’s forehead, and prayed. During the incident, plaintiff suffered carpet burns, a scrape on her back, and bruises on her wrists and shoulders. Over the next months, several psychologists and psychiatrists examined plaintiff documenting multiple symptoms, such as angry outbursts, weight loss, sleeplessness, nightmares, hallucinations, self-mutilation, fear of abandonment, and agoraphobia. Plaintiff became increasingly depressed and suicidal, eventually dropping out of her senior year of high school and abandoning her former plan to attend Bible College and pursue missionary work. She was eventually diagnosed as suffering from post-traumatic stress disorder, which the doctors associated with her physical restraint at the church. Plaintiff and her parents sued the church, the senior pastor, the youth minister, and other members of the church, alleging negligence, gross negligence, professional negligence, intentional infliction of emotional distress, false imprisonment, assault, battery, loss of consortium, and child abuse. It was alleged that defendants’ conduct had caused plaintiff “mental, emotional and psychological injuries including physical pain, mental anguish, fear, humiliation, embarrassment, physical and emotional distress, post-traumatic stress disorder[,] and loss of employment.” In response, the church and the other defendants sought a protective order and moved to dismiss the lawsuit as an unconstitutional burden on their religious practices, describing the litigation as a dispute regarding how services should be conducted within a church, including the practice of “laying on of hands.” The trial court denied both motions. In a mandamus proceeding that followed, the Texas Court of Appeals agreed that plaintiffs’ “religious” claims were barred by the First Amendment because they “involve[d] a searching inquiry into Assembly of God beliefs and the validity of such beliefs.” The Court of Appeals defined “religious” claims to include the claims for negligence, gross negligence, professional negligence, intentional infliction of emotional distress, child abuse, and loss of Laura’s consortium. Significantly, the church did not ask for mandamus protection from Laura’s claims of false imprisonment and assault, and those claims were not included in the Court of Appeals’ definition of religious claims. Following the mandamus proceeding, the trial court signed a protective order prohibiting plaintiffs from inquiring into or debating the religious teachings, practices, or beliefs of the Pentecostal or Assembly of God churches.   Case # 320 (Tex. App.).  The remaining claims proceeded to trial, where a jury found that Laura had been assaulted and falsely imprisoned by the senior pastor, the youth minister, and several church members. The jury apportioned liability among these defendants and awarded Laura $ 300,000 for her pain and suffering, loss of earning capacity, and medical expenses. Following the verdict, the church moved for judgment notwithstanding the verdict, asserting once again its free exercise rights under the state and federal constitutions. The trial court rendered judgment on the jury’s verdict of false imprisonment, awarding Laura the damages found by the jury and adding the church as a judgment debtor with joint and several liability for the amounts apportioned to its senior pastor and youth minister. The Court of Appeals eliminated the damages awarded for lost earning capacity, concluding that these damages were too remote and speculative, but otherwise affirmed the trial court’s judgment in Laura’s favor. In doing so, the Court of Appeals held that (1) Defendants did not stand in loco parentis to Laura and hence were not immune from liability for plaintiff’s assault and battery and false imprisonment claims on the ground that, acting in loco parentis, they acted with the “reasonable belief” that their actions were necessary to restrain her. (2) Defendants’ were not entitled to a directed verdict based on the Good Samaritan statute. (3) There was evidence that plaintiff’s mental anguish resulted directly from defendants’ intentional acts. (4) There was also evidence that plaintiff’s damages for past and future medical care were the natural and necessary result of defendants’ wrongful conduct. (5) Defendants did not have to act with malice or with intent to cause plaintiff’s injuries for plaintiff to recover mental anguish damages or the resulting expenses for her medical care. (6) The trial court did not improperly admit certain medical records and expert testimony showing that plaintiff suffered from post-traumatic stress disorder as a result of the events of June 1996. (7) Malice is not an element of the intentional torts of assault and battery or false imprisonment under Texas law. (8) The church and pastors were judicially estopped from asserting on appeal that they were entitled to protection under the religion clauses of the First Amendment with regard to plaintiff’s assault and false imprisonment claims, because they had taken a contrary position in the previous mandamus proceeding by allowing Laura’s claims of assault, battery, and false imprisonment “to go forward.” (9) Defendant church members did not establish that their assault and imprisonment of plaintiff was based on their sincerely held religious beliefs. By a vote of 6 to 3, the Texas Supreme Court reversed the Court of Appeals’ judgment and dismissed the case, holding that the church was not judicially estopped from asserting its constitutional rights and that the case, as tried, presented an ecclesiastical dispute over religious conduct (the laying on of hands) that would unconstitutionally entangle the court in matters of church doctrine. Central to the majority’s holding was its opinion that Laura’s case was not about her physical injuries. Although she suffered scrapes and bruises during the events, her proof at trial related solely to her subsequent emotional or psychological injuries. The Court believed that any claim of physical pain was inseparable from that of her emotional injuries. The Court believed that the imposition of tort liability on defendants for engaging in a religious activity would have an unconstitutional “chilling effect” by compelling the church and its members to abandon core principles of religious belief. Plaintiffs alleged that Laura was in serious emotional and physical distress during the Wednesday night youth service and did not want anyone touching her or praying for her; that she was restrained and held to the floor against her will and that an exorcism was performed in which the youth minister led the youth group in prayer, demanding that the Devil leave Laura’s body. Plaintiffs alleged that this restraint caused Laura’s emotional injuries. However, because the religious practice of “laying hands” and church beliefs about demons were so closely intertwined with Laura’s tort claim, the majority held that assessing emotional damages against the defendants for engaging in these religious practices would unconstitutionally burden defendants’ right to free exercise and embroil the Court in an assessment of the propriety of those religious beliefs. Although religious practices that threaten the public’s health, safety, or general welfare cannot be tolerated as protected religious belief, the Court said that religious practices that might offend the rights or sensibilities of a non-believer outside the church are entitled to greater latitude when applied to an adherent within the church and that when the adherent’s claim, as here, involves only intangible, emotional damages allegedly caused by a sincerely held religious belief, courts must carefully scrutinize the circumstances so as not to become entangled in a religious dispute. Here, the “laying of hands” and the presence of demons were part of the church’s belief system and accepted as such by its adherents. These practices were not normally dangerous or unusual and apparently arose in the church with some regularity. They were thus to be expected and were accepted by those in the church. The Court then said: “That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter.” Courts are not arbiters of religious interpretation and the First Amendment does not cease to apply when parishioners disagree over church doctrine or practices. Because determining the circumstances of Laura’s emotional injuries would, by its very nature, draw the Court into forbidden religious terrain, the majority held that Laura failed to state a cognizable, secular claim in this case. The dissenters agreed that, under the facts, the church and pastors were not judicially estopped from asserting on appeal that they were entitled to protection under the religion clauses of the First Amendment with regard to plaintiff’s assault and false imprisonment claims, although there was not complete agreement with the majority’s analysis of the concept of judicial estoppel. The dissenters central point was that the jury had found that plaintiff had been physically restrained on two separate occasions against her will and that defendants were guilty of the intentional torts of assault and false imprisonment. During the first encounter, seven members pinned plaintiff her to the floor for two hours while she cried, screamed, kicked, flailed, and demanded to be released. Three days later, 8 members of the church proceeded to hold the crying, screaming, seventeen year-old plaintiff spread-eagle on the floor as she thrashed, attempting to break free. The dissenters did not understand how submitting plaintiff’s emotional damages claim stemming from the intentional torts of assault and false imprisonment would require an inquiry into the truth or falsity of religious beliefs, or embroil the court in an assessment of the propriety of religious beliefs, or “decide issues of religious doctrine. The case, as it was tried, was not about beliefs or “intangible harms” – it was about violent action – specifically, twice pinning a screaming, crying teenage girl to the floor for extended periods of time. That was how it was presented to the jury, which heard almost nothing about religion during the trial due to the trial court’s diligent attempt to circumvent First Amendment problems and to honor the Court of Appeals’ mandamus ruling that neither side introduce religion as a reason for Laura’s restraint. The dissenters agreed that plaintiff could not recover damages for those emotional injuries caused by religious beliefs or teachings, i.e., stemming from the religious nature of the events, but only for the emotional damages stemming directly from the intentional torts of assault and false imprisonment. Two of the dissenters would treat any First Amendment argument (i.e., that the damages for emotional injuries were caused by religious beliefs or teachings), as an affirmative defense that must be raised at trial. A jury could then be instructed to award damages only for the mental anguish the plaintiff would have suffered had the tort been committed by a secular actor in a secular setting. In this case, while there was expert testimony that plaintiff’s religious and secular damages were inextricably intertwined, another expert specifically stated that plaintiff could separate the two and plaintiff testified that while she was being restrained she was afraid she “was being injured” and that she “might die” – trauma clearly associated with the act of restraint itself. Thus, although segregating the religious from the secular may sometimes be difficult, it can and should be done. One of the dissenters said he would preclude damages for those emotional injuries for which there is any evidence of causation by religious beliefs or teachings and that he would not make that preclusion an affirmative defense as would the other dissenters, because it was hard to see how such an affirmative defense would work in a practical sense. Rather he was of the opinion that whether alleged mental and emotional damages resulted to any degree from religious beliefs and teachings should be determined by the trial court as a matter of law. See dissenting opinions for further details   Case # 3231 (Tex.), reversing, Case # 2026 (Tex. App.)

Failure to Report Child Abuse and Neglect to Authorities

See Child Abuse and Neglect Reporting Acts

Liability of Association in Business of Developing and Selling Educational Courses on Christian Counseling and Which Had Granted a Certificate/License to Counselor/Pastor Accused of Monetary Fraud and of Pressuring Congregant/Client Into Having a Sexual Relationship. Counselor/Pastor Also Made Use of a Temperament Profile or “TAP” test and Accompaning Software Developed by the Association

Plaintiffs received counseling services from their minister, who had received a counseling certificate/license from defendant National Christian Counselors Association, a nonprofit corporation in the business of developing, printing, and selling educational courses on Christian counseling. During the course of plaintiffs’ counseling use was made of a temperament profile or “TAP” test and software developed by defendant. Plaintiffs alleged that the minister used his position as their counselor and pastor to manipulate them into parting with sizeable portions of their money and pressured two of them into having sexual relationships with him. Plaintiffs contended that defendant was responsible for the minister’s actions because it failed to properly train, supervise, and control him. Plaintiffs asserted against defendant Association claims under North Carolina law for (1) negligent infliction of severe emotional distress, (2) negligent misrepresentation, (3) negligent supervision and retention, and (4) unfair and deceptive trade practices. Defendant was granted summary judgment dismissing all claims. All three negligence claims were subject to dismissal for failure to produce evidence that defendant owed them any duty of protection. In addition, there were alternative bases for dismissal of the negligent retention and negligent misrepresentation claims. As to the unfair and deceptive trade practices, plaintiffs failed to show that defendant engaged in any activity that was immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. Any injuries caused to plaintiffs were caused by the misdeeds of the minister acting alone and in intentional, but secretive, violation of the guidelines that defendant had set for him   Case # 1694 (M.D. N.C.)

Negligent Counseling or Failure to Render Assistance to Congregant; No Sexual Relationship

Plaintiff, a devout Catholic suffering depression over her failed marriage and family situation, received counseling from the pastor of her church. After 19 months of counseling, the priest abruptly terminated the counseling relationship without any prior notice. Plaintiff, claiming that said termination caused her great emotional damage and caused her to terminate her relationship with the Roman Catholic Church, sued the priest for improper counseling and breach of fiduciary duty. Court, noting differences between the expected standards of behavior between different religious groups, held that the priest did not (1) engage in counseling beyond his expertise to the plaintiff's detriment, (2) engage in inappropriate touching and exchange of gifts, (3) breach his fiduciary duty by engaging in too many counseling sessions with plaintiff over too long a period of time. However, the court said that although the priest was justified in terminating the counseling relationship, which from every point of view had probably gone on too long, he should have preserved his parish priest relationship with plaintiff by making it clear that the abrupt termination of counseling relationship would have no effect on her as a parishioner. The priest knew that plaintiff was a devout Catholic and that the Church played an important role in her life, especially during a time of emotional crisis. The court therefore held that the priest breached his fiduciary duty to plaintiff by abruptly terminating his relationship as counselor without making it clear that their priest-parishioner relationship was not being adversely affected. Plaintiff was awarded $10,000 in damages    Case # 1138 (Conn. Super Ct.)

Wife, a member of the Jehovah’s Witnesses, sued Watchtower Society and church elders alleging that the church and the individual defendants failed to render assistance to her when she was consistently and repeatedly beaten by her husband over a period of 20 years; actions for intentional and negligent infliction of emotional distress and for breach of fiduciary duty time barred; limitation periods not tolled by the doctrine of fraudulent concealment; church teaching that members were not to resort to lawsuits did not postpone the running of the limitations periods until plaintiff’s expulsion from the church; however, the claim for breach of implied contract to protect plaintiff so long as she was obedient to the church was timely because the alleged breach could be considered to have occurred on the date of plaintiff’s expulsion from the church; but the claim for breach of implied contract was barred by the First Amendment    Case # 801 (Conn. Super. Ct.) (for collateral proceeding in the same case, see index entry in the next paragraph)

Wife, a member of the Jehovah’s Witnesses, sued Watchtower Society and church elders alleging that the church and the individual defendants failed to render assistance to her when she was consistently and repeatedly abused by her husband for nearly 20 years, but counseled her to continue to endure in the marriage. Plaintiff also alleged that defendant elders voiced derogatory remarks about her until her “disfellowship” in April, 1996. Summary judgment granted to defendants on plaintiff’s actions for intentional and negligent infliction of emotional distress. In action for intentional infliction of emotional distress, limitation period of three years barred consideration of allegations of events occurring prior to March, 1995. Church teaching that members were not to resort to lawsuits did not postpone the running of the limitations periods until plaintiff’s expulsion from the church. As to alleged events that occurred within the three year limitations period, derogatory remarks about and verbal mistreatment of plaintiff in the course of the disfellowship proceedings were not “extreme and outrageous.” Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress. Action for negligent infliction of emotional distress was in effect a claim for clergy malpractice barred by the free exercise and establishment clauses of the First Amendment    Case # 1509 (Conn. App. Ct.) (collateral proceedinging in same indexed in the precding paragraph)

Plaintiff wife – a congregant and employee of the defendant church – alleged that the bishop of the church manipulated her into a long-term adulterous affair by telling her it was her only path to salvation. Held: The trial court erred in finding that the wife did not have a confidential relationship with the bishop and that she “consented” to the relationship. Consequently, the trial court erred in awarding defendants attorney fees under OCGA § 9-15-14(a) on the ground that there was a “complete absence of any justiciable issue of law or fact” allowing the court to reasonably accept plaintiffs’ asserted claims. Under Georgia law, a court or jury may find that a clergyman occupies a confidential relationship toward a member of his church. Further, an actionable breach of fiduciary duty may arise when a confidential relationship is abused for purposes of sexual gratification. Here, there was evidence from which a fact finder could have found that the bishop was “so situated as to exercise a controlling influence over the will, conduct, and interest of another” (see OCGA § 23-2-58) and that the wife stated a cognizable a claim against the bishop and church arising out of a breach of fiduciary duty. Whether the wife consented to the sexual relationship would be irrelevant if the bishop was, by virtue of his confidential relationship, in a position to manipulate her into giving consent. See court’s opinion for details of the facts in evidence allowing a fact-finder to conclude that the bishop was in a confidential relationship with the wife as her spiritual advisor and pastor and that he abused that position of spiritual authority to coerce or seduce her into consenting to a prolonged sexual relationship. Further, the husband’s loss of consortium claim should not have been dismissed as it was not based upon the abolished torts of adultery, alienation of affections, or criminal conversation, but on the bishop’s alleged breach of a fiduciary duty arising out of his abuse of a confidential relationship. Because the wife and husband advanced justiciable issues of law as to their claims for breach of a confidential relationship and loss of consortium and produced evidence to support their position, it was error for the trial court to award attorney fees to the defendants under OCGA § 9-15-14(a) for failure to do so. For more on § 9-15-14, see the court’s opinion   Case # 3426 (Ga. Ct. App.)

Parishioner sued the North Georgia Conference of the Methodist Church and local Methodist Church for negligent hiring, supervision, and retention of a minister. The minister provided marital counseling to the parishioner while simultaneously maintaining a clandestine sexual relationship with the parishioner’s wife. Although defendants contended the First Amendment protected them from civil claims for the negligent hiring, supervision, and retention of a minister, the Court said it need not address this constitutional issue because, even absent said defense, given the facts plaintiff failed to establish his right to recovery on said claims   Case # 1944 (Ga. Ct. App.)

The Minnesota Supreme Court held that the trial court had subject matter jurisdiction over a claim for negligent marital counseling against a member of the clergy who was not a licensed mental health practitioner. The pastor of a local Seventh Day Adventist church met the statutory definition of an unlicensed mental health practitioner, and was not exempt from the statutory regulations simply because he was counseling his congregants and received no remuneration from the congregant. Applying the statute’s definition of an unlicensed mental health practitioner and the statutes’ standard of care to clergy would not impermissibly entangle the court in religion. Neither the First Amendment’s religion clauses or Article 1, § 16 of the Minnesota State Constitution would be violated by allowing an action for negligence by a parishioner to proceed against the pastor. Case # 1376 (Minn.) (en banc), reversingCase # 1253 (Minn. Ct. App.). On remand from the Minn. Supreme Court to consider the questions, the Minnesota Court of Appeals held that the trial court had subject jurisdiction, and was not barred by the First Amendment or the Minnesota State Constitution, for entertaining claims against the Minnesota Conference of Seventh-Day Adventists, which was the employer of  the pastor of the local SDA church, for (1) negligent supervision, training and retention and for (2) vicarious liability under the principle of respondeat superior for the pastor’s negligent marital counseling. The Court also discussed the impermissibility in using the Seventh-Day Adventist Minister's Handbook    See Case # 1386 (Minn. Ct. App.)

Plaintiff children were allegedly sexually abused by their father. They brought an action for damages against the Watchtower Bible & Tract Society of New York and their parents’ local Jehovah’s Witnesses congregation alleging that their mother, during spiritual counseling by the elders of the local congregation, informed the elders on 10 to 12 separate occasions about the purported sexual abuse, and that the elders failed to report it to law enforcement authorities and improperly counseled the mother, in the presence of the father, to keep the matter within the organization of Jehovah’s Witnesses. Held, inter alia, (1) N.H. Rev. Stat. Ann. (RSA) § 169-C:29, requiring a priest, minister, rabbi or any other person having reason to suspect that a child has been abused to report the same, does not give rise to a civil remedy for its violation. (2) Watchtower and the local congregation did not have a common law duty to take remedial action to protect the plaintiff children due to a fiduciary relationship and/or special circumstances in the case. The majority rejected the dissent’s argument that, under the special circumstances of this case, the elders had a common law duty to counsel the mother to report the abuse to secular authorities   Case # 1981 (N.H.)

Clergyperson rendering marital counseling to plaintiff husband revealed to plaintiff’s wife and others plaintiff’s confidential confession that he was having a marital affair; clergyperson told wife that plaintiff was an untrustworthy liar planning to abduct the children and advised wife to change the locks, file for divorce and obtain a restraining notice; trial court issues directed verdict in favor of defendants (the clergyperson and the church) after plaintiff’s opening statement; on appeal held: (1) plaintiff did not state a claim for statutory negligence based on the statute prohibiting clergy from testifying concerning information confidentially communicated during religious counseling; (2) plaintiff stated a claim for common law negligence and punitive damages; (3) plaintiff’s claim was not to be classified as one for clergy malpractice and therefore the appellate court did not have to directly address the issue of whether such an action was to be recognized in Ohio, although court did state in dicta that public policy favored recognizing an action for breach of confidentiality by a minister; (4) plaintiff’s common law negligence action was not to be classified as an action for alienation of affection, an action that had been abolished; (5) plaintiff did not state a cause of action for intentional infliction of emotional distress or invasion of privacy    Case # 394 (Ohio Ct. App.)

Parishioner counseled by pastor after death of her brother suffered psychological harm after being induced to believe she was possessed by demons, suffered from multiple personality disorder, and had participated in satanic rituals; causes of action against pastor and church dismissed as untimely; plaintiff’s continuing psychological problems did not prevent her from being aware of and discovering the harm she suffered more than two years before her action was commenced    Case # 203 (Or. Ct. App.)

Sexually abused minor who was a member of the Mormon Church went to bishop and ward president for ecclesiastical counseling; plaintiff requested a referral to a licensed mental health professional; however, the person the church defendants referred plaintiff to was not a licensed mental health professional, instead he worked at a mental health center under a licensed clinical social worker; plaintiff’s claim for clergy malpractice against the Church defendants was dismissed as allowance of such a claim would violate the First Amendment; claims for gross negligence, negligent infliction of emotional distress, and breach of fiduciary duty were essentially no different than claims for clergy malpractice; in addition, the First Amendment aside, plaintiff did not state a claim for intentional infliction of emotional distress or for fraud    Case # 969 (Utah)

Claim that defendant, in his role as a cleric, breached a fiduciary duty to plaintiff in connection with an ecclesiastical counseling session was dismissed as a matter of law as the claim was, was, in essence, a claim for clergy malpractice. A claim for clergy malpractice requires an unconstitutional evaluation of religious philosophy and teachings, contrary to the Establishment Clause   Case # 2779 (Utah Ct. App.)

Plaintiff sued a Seventh-day Adventist (SDA) pastor and various SDA bodies (the Church) for the harm he suffered when he learned his wife conspired to murder him. Plaintiff alleged that the pastor’s negligent counseling of the wife resulted in her conspiring to murder plaintiff and that the pastor breached a fiduciary duty to plaintiff to warn plaintiff that his wife planned to kill him. Plaintiff alleged the Church was liable for damages on two theories: (1) vicarious liability (respondeat superior) for the pastor’s negligent counseling and breach of fiduciary duty and (2) negligent supervision and retention of the pastor. The vicarious liability claim against the Church based on negligent counseling was dismissed because the essential nature of the claim was a cause of action for the abolished tort of alienation of affections. The breach of fiduciary duty claim was premised on the pastor’s counseling relationship with the wife and the special relationship that arose between the two, allegedly giving rise to a duty on the part of the pastor to warn plaintiff of the foreseeable risk that the wife would try to kill him. Critical to plaintiff’s argument was his contention that the pastor was a therapist who was providing mental health counseling to the wife. However, the pastor was providing spiritual counseling, not mental health counseling and the pastor had no duty to warn plaintiff of a foreseeable risk of harm based on the standard of care that applied to a professional mental health counselor. Because the counseling of the wife was spiritual, the act of counseling could not be judged based on secular tenets and it would violate the First Amendment if the court had to examine the religious doctrine of the Church to determine whether the pastor’s counseling of the wife gave rise to a duty to warn plaintiff. The negligent supervision and retention claims against the Church were likewise barred by the First Amendment; otherwise the court would be compelled to interpret the counseling and disciplinary tenets of the Church in order to determine liability   Case # 1935 (Wash. Ct. App.)


Pastoral or Marital Counseling Relationship Resulting in Sexual Relationship

Action against minister who engaged in unauthorized marital counseling and in sexual relations with plaintiffs who were parishioners and employees of the church and were under his direct supervision; minister subject to independent actions for malpractice and breach of fiduciary duty and was liable for punitive damages in each action; the church, which discharged plaintiffs from their employment, was not subject to liability for discriminatory discharge or hostile work environment; plaintiffs did not state a quid pro quo claim; nor was the church liable on grounds of respondeat superior, ratification, or negligent retention of the minister   Case # 62 (5th Cir.)

Pastor was not liable in tort for engaging in consensual sexual conduct with the wife of a parishioner who came to him for marriage counseling. Under the facts of the case, pastor was not to be held to the same standard of care applicable to a “licensed” marriage counselor. The pastor did not explicitly hold himself out as having the education and training of licensed marriage counselors. Statute expressly exempting pastoral counselors from state licensing requirements does not violate the First Amendment. Case of first impression in California    Case # 1185 (Cal. Ct. App.)

Plaintiff, an adult female, and defendant Roman Catholic priest entered into a sexual relation. Plaintiff alleged that the priest knew plaintiff's piety made her readily subject to manipulation and control by the clergy and her judgment and ability to resist his advances were substantially compromised by her religious faith and trust. The mere fact of the sexual relationship did not give rise to a cause of action, because the common law tort of seduction had been abolished. Nor was there cause of action for clergy malpractice. Plaintiff failed to establish a “special relationship” giving rise to a duty of care and cases involving physician-patient and attorney-client malpractice were not analogous. There were, however, circumstances in which tort liability for breach of a fiduciary duty could be imposed on a pastor for injuries resulting from the pastor's sexual misconduct with a parishioner without offense to the religion clauses of the federal and California constitutions, but those circumstances were not present in this case. For example, the California Court of Appeal was of the opinion that a counseling relationship between priest and parishioner may give rise to a confidential or fiduciary relationship the breach of which could give rise to tort liability, for such a relationship usually does not require a constitutionally impermissible inquiry into religious beliefs or practices. However, here no counseling relationship existed and plaintiff's claim that the depth of her religious faith rendered her vulnerable to the priest’s advances could not be adjudicated without reference to the nature of her religious beliefs and the doctrines of her church. Nor was the Archdiocese liable for breach of a fiduciary duty or for negligence in hiring and supervision, because plaintiff failed to show that she suffered any injury the law recognized as entitling her to recovery    Case # 1364 (Cal. Ct. App.)

Plaintiff was a member of a Baptist church employed by the church as the Youth and Young Adult Minister reporting directly to the church pastor. When plaintiff went to the pastor’s private study for private and personal counseling, she was allegedly physically grabbed by the pastor and pulled toward him in a very personal and sexually provocative manner. Plaintiff alleged that she was “extremely disturbed” by this incident and took a leave of absence and applied for and received Workers’ Compensation. Plaintiff also claimed that as a result of her complaints about the pastor’s sexual advances toward her and other female parishioners, both the pastor and the Church slandered her reputation, filed and served a request for a Temporary Restraining Order prohibiting her from entering the Church, and subjected her to undue criticism and ridicule from other Church members. Plaintiff sued, inter alia, the pastor for (a) negligent infliction of emotional distress; (b) sex discrimination and harassment in violation of California’s Fair Employment and Housing Act (FEHA) and (c) retaliation in violation of California’s FEHA. Held: The Workers’ Compensation scheme did not provide plaintiff an exclusive remedy in her claim against the pastor for if it could be shown that the pastor was not acting “within the scope of his . . . employment” when he committed the acts giving rise to the claim for negligent infliction of emotional distress. And acts of sexual misconduct fall outside the scope of a pastor’s employment. Hence, the claim for negligent infliction of emotional distress against the pastor was not barred by the Workers Compensation Code. However as the claims for discrimination, harassment and retaliation in violation of the FEHA, the pastor was not subject to suit. Under California’s FEHA, Cal. Gov. Code § 12940, supervisors may not be held individually liable for discriminatory acts. The pastor could not be sued individually for any acts of discrimination alleged by plaintiff. The pastor was not “an employer” for the purposes of § 12940(a). Nor could he be held individually liable under § 12940(i) for “aiding and abetting” the Church in any alleged discriminatory acts. The pastor was also exempt from a claim of harassment under the FEHA, because his employer, the Church, was exempt as a religious entity under the FEHA. This appeared to be the first case addressing in any meaningful way the question of whether the religious entity exemption for employers extended to employees of such an entity. Finally, the FEHA did not allow for the imposition of personal liability for retaliation on a supervisor, where the supervisor is employed by an employer that falls under the religious entity exemption    Case # 1549 (N.D. Cal.)

Florida Supreme Court holds that First Amendment does not provide a shield behind which a church may avoid liability for harm caused to a third party arising from the alleged sexual misconduct by one of its clergy members during the course of an established marital counseling relationship. Claims against church, diocese, and bishop for negligent hiring and supervision were not barred. Tort claims against church defendants are not restricted to cases where the underlying sexual misconduct involves criminal activity. Church defendants may also be subject to a claim for breach of fiduciary relationship arising from the counseling relationship between the pastor and parishioner. Plaintiff does not challenge dismissal of claims against church defendants for outrageous conduct, or intentional infliction of emotional distress    Case # 1184 (Fla.), reversing, Case # 289 (Fla. Dist. Ct. App.)

Parishioner sued the North Georgia Conference of the Methodist Church and local Methodist Church for negligent hiring, supervision, and retention of a minister. The minister provided marital counseling to the parishioner while simultaneously maintaining a clandestine sexual relationship with the parishioner’s wife. plaintiff’s wife. Although defendants contended the First Amendment protected them from civil claims for the negligent hiring, supervision, and retention of a minister, the Court said it need not address this constitutional issue because, even absent said defense, given the facts plaintiff failed to establish his right to recovery on said claims   Case # 1944 (Ga. Ct. App.)

Catholic parish priest providing marital counseling to parishioners commenced affair with the wife; even though Kentucky does not recognize a cause of action for clergy malpractice or alienation of affection, the husband stated a cause of action against the priest for intentional infliction of emotional distress given the special relationship of trust and confidence assumed by the priest in his role as marriage counselor; however, under the facts of the case, the diocese could not be held for negligent hiring and/or supervision, nor was it liable under the doctrine of respondeat superior    Case # 1111 (Ky.), affirming, Case # 495 (Ky. Ct. App.)

Plaintiff sued a Catholic priest and Roman Catholic Diocese seeking damages for the emotional trauma he claimed to have suffered as a result of the priest’s affair with plaintiff’s wife. Held, plaintiff’s injury was not one for which the law provided a remedy. Adulterous damage to a marriage is not rendered legally actionable by the fact that a clergyman and the spouse of a parishioner are the participants. The relationship between parishioner and clergyman is essentially religious and does not by itself create a special relationship giving rise to the tort of outrage, i.e., the tort of intentional or reckless infliction of severe emotional distress outrage   Case # 1481 (Ky. Ct. App.)

Plaintiff wife, who worked in a camp operated by a conference of the Seventh-Day Adventist Church and who, because she was experiencing marital difficulties, consulted her supervisor, a pastor of the church, did not state a claim for intentional infliction of emotional distress as a result of a sexual relationship that arose between herself and the pastor who allegedly took advantage of her emotional vulnerability as there did not exist that special relationship that arises in a treatment relationship, e.g. between a patient and psychologist; nor did plaintiff state sufficient facts to allege a cause of action for marital counseling malpractice; court refuses to recognize the tort of clergy malpractice    Case # 471 (Md. Ct. Spec. App.)

Former disciples of self-proclaimed yoga guru sued their former leader when he was revealed to be a charlatan; plaintiffs’ claims for intentional infliction of emotional distress stemming from guru’s sexual liaisons with devotees, and claims for breach of fiduciary duty, and breach of contract on a third party beneficiary theory of recovery dismissed; claims for fraud and misrepresentation and for unfair and deceptive trade practices in violation of Mass. Gen. Laws ch. 93A allowed to go forward   Case # 340 (D. Mass.)

This case arose from the “suppression” of a Roman Catholic parish by the Roman Catholic Archbishop of Boston (RCAB) in 2004. The parish and its church had been sited on an 8 acre parcel of land acquired by the RCAB in 1946 from X and his five siblings. X and his sister gifted their respective interests in the property to the RCAB; the four remaining siblings each received $ 3,000 for their respective shares. In connection with the property transaction, X’s wife released her rights of “dower and homestead.” The church was named in honor of the six siblings’ deceased father, allegedly in fulfillment of an oral agreement between the RCAB and the siblings that the property would “forever” be used as the site of a church named after the father. After the parish/church was closed, X’s wife and her daughter sued the RCAB in their capacities as trustees and sole beneficiaries of the “X Revocable Trust.” X’s wife also brought suit in her individual capacity. They sought declaratory and injunctive relief in the form of a resulting or constructive trust on the property in their favor, and for breach of contract and negligent misrepresentation. Their claims centered on the alleged oral agreement between the RCAB and X and his siblings that the property would be maintained in perpetuity as a church in honor of the siblings’ father, as well as on the RCAB’s failure to draft a deed reflecting that, if the property were not so used, ownership would revert to the siblings. It was also alleged that at the time of the transfer, the RCAB and its agents failed in its duty to make known to the siblings that under canon law the parish/church to be named after their father could, in the future, be suppressed. X’s wife and her daughter were joined by Y, a parishioner of the suppressed parish/church. Y sought recovery from the RCAB for alleged negligent misrepresentation in connection with a donation of $ 35,000 she made to the parish/church two years prior to its suppression. The claims of the plaintiffs rested, in whole or in part, on the presumption that the RCAB owed them a legal duty, grounded in the “trust and confidence” allegedly inherent in the priest-parishioner relationship, to inform them that, under canon law the parish could be suppressed at a future time. In Y’s case, she alleged that at the very moment that she was being solicited for a donation to help support the parish/church, the RCAB was already considering its possible suppression. A judge in the Superior Court allowed the RCAB’s motion for summary judgment against all plaintiffs on all counts and dismissed the case. The Massachusetts’ Supreme Judicial Court affirmed, holding: (1) Insofar as plaintiffs’ causes of action were predicated on the alleged fiduciary or confidential relationship between a member of the Roman Catholic clergy and his congregants, the claims raised matters of internal church governance and the First Amendment barred the court from inquiring into any alleged pastoral duties owed by the Roman Catholic priesthood to its laity. (2) To the extent that the plaintiffs’ claims pertained to matters legally cognizable in the civil courts by application of “neutral principles of law,” the claims for (a) imposition of a constructive trust based on (i) confidential relationship, (ii) fraud, (iii) mutual mistake, or (iv) unconscionability and unjust enrichment, (b) imposition of a resulting trust, (c) breach of contract, or (d) negligent misrepresentation, all failed in one or more of their essential elements. (3) The parties had standing to bring their suit. See Court’s opinion for details, including a discussion of when a parishioner has standing to challenge a church’s disposal of its funds/property   Case # 2893 (Mass.).  See also Case # 3806 (Miss.)

Plaintiff parishioner claimed that a parish priest took advantage of her during counseling by engaging in a personal/sexual relationship with her in violation of of ecclesiastical rules and that, as a result, she suffered a divorce from her husband, loss of custody of her children, and emotional distress. Trial court did not err in granting summary judgment for the defendants, the Episcopal Diocese of Massachusetts and three of its bishops, where the plaintiff, filed an action making various claims against them in connection with her consensual involvement in a sexual relationship with the rector of her parish. Plaintiff had asserted claims for, inter alia, negligent hiring, supervision, and retention, breach of fiduciary duty, vicarious liability, and a claim alleging that she had been portrayed in a false light. The facts were insufficient to establish that the diocese and the bishops breached any legal duty they may have owed to the plaintiff. Any alleged relationship between the plaintiff and the diocese and its bishops was based on no more than their shared religious affiliation and plaintiff’s role as a parishioner in a parish within the diocese. There was no evidence that the diocese or any of the bishops assumed any counselling role with respect to, agreed to act on behalf of, or to give advice to the plaintiff. And there was no evidence to support any allegation that the parish rector was acting within the scope of his employment duties when he engaged in a sexual relationship with the plaintiff. Nor was there any indication that defendants ratified the rector’s conduct. Concerning hiring, it was the parish vestry, and not the diocese, that “called” the priest to become its rector, and entered into an employment contract with him. Even assuming that the diocese’s role in commissioning or conducting a background check on the rector was sufficient to show that the diocese “hired” him, no rational jury could conclude that the diocese and the bishops overlooked or ignored any evidence suggesting that the rector would engage in a sexual relationship with an adult parishioner. The background check, conducted as required by church policy, revealed no such facts. Also in accordance with church policy, the diocese confirmed that the priest had attended training designed to prevent sexual misconduct. And, under the facts, no rational jury could find that the diocese and bishops were negligent in supervising or retaining the priest, even though they had been in receipt of unverified reports that the priest was having an affair with an unnamed woman. See court’s opinion for details   Case # 3450 (Mass.), affirming, Case # 1986 (Mass. Super. Ct.)

Defendant Roman Catholic priest was convicted of violating Minn. Stat. § 609.344, subd. 1(l)(ii) (2006), Minnesota’s “clergy sexual conduct statute,” which provides, in relevant part, that: “A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if . . . (i) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and: . . . (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.” The Minnesota Supreme Court (1) unanimously held that the statute was not unconstitutionally vague. The Court held that the terms “ongoing” and “religious or spiritual advice, aid, or comfort,” as used in the statute had acquired a reasonably definite meaning so as to provide a sufficiently fixed legal standard to determine what is prohibited. (2) The Court divided equally (3 to 3) over whether the statute facially violated the Establishment Clause. Because the Court was equally divided on the question, it affirmed the decision of the intermediate appellate court that the statute was not facially unconstitutional. (3) However, the Minnesota Supreme Court, by a vote of 5 to 1, concluded that defendant’s conviction, based on the admission of extensive testimony by officials of the Archdiocese concerning religious doctrine and church policies and practices, violated the Establishment Clause. Thus, the Court reversed defendant’s conviction and remanded for a new trial. The majority was of the opinion that virtually all of the testimony lacked foundation to connect it to any secular standard, was irrelevant to any secular standard, was inadmissible hearsay evidence, and was highly prejudicial. The testimony bolstered the state’s claims by informing the jury that the Church condemned defendant’s behavior and that the Church believed that it was important that defendant be held accountable. The testimony thus provided religious standards by which the jury was to judge defendant’s conduct and suggested to the jury that a conviction would be important in assisting the Catholic Church in solving the problem of offending priests.   Case # 3028 (Minn.).  On remand, defendant was convicted of third-degree criminal sexual conduct and the Court of Appeals, in an unpublished opinion, affirmed, holding that: (1) On remand, the religion-related testimony by an official of the Roman Catholic Church did not excessively entangle church doctrine with civil law. Unlike the first trial, on retrial there was no testimony regarding Catholic Church doctrine, the power that priests have traditionally had over parishioners, or internal church procedures regarding allegations of abuse. But because the charging statute required proof of certain elements that directly touched and concerned religious practices, it was impossible to prove the charged offense without some religion-related testimony. (2) The trial court did not err by excluding love letters written by the victim to defendant. Although the letters may have shown that the victim’s sexual relationship with defendant was consensual, consent was not a defense to the charge. (3) The trial court’s instruction to the jury on the elements of the offense based strictly on the Pattern Jury Instruction was not an abuse of discretion. (4) There was sufficient evidence to establish criminal liability. A reasonable jury could conclude that the victim and defendant had an ongoing clergy-counselee relationship. In order to violate the statute, sexual penetration did not have to occur during or immediately following a private meeting in which the primary purpose was religious or spiritual aid, advice or comfort. The statute proscribed a sexual relationship between a member of the clergy and a parishioner if “the sexual penetration occurred during a period of time” in which the parishioner and the member of the clergy were meeting on an ongoing basis and the parishioner was seeking or receiving religious or spiritual advice, aid or comfort. In addition, the “in private” element of the statute was satisfied. (5) The prosecutor, in her closing statement did not misstate the law or impermissibly shift the burden of proof   Case # 3752 (Minn. Ct. App.)

Pursuant to Minn. Stat. § 609.344, subdivision 1(l), a person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if 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. In the instant case, the defendant, a Roman Catholic priest, was convicted of sexual penetration “during the course of a meeting” where religious advice or assistance was sought or received in private in violation of § 609.344, subd. 1(l)(i). On appeal, the Minn. Court of Appeals held that § 609.344, subd. 1(l)(i) does not violate the Establishment Clause of the U.S. Constitution on its face. However, despite its facial validity, application of § 609.344, subd. 1(l)(i) in the instant case violated the Establishment Clause. because defendant’s conviction was based on excessive evidence regarding religious doctrine which pervaded the entire trial. The conviction was vacated and the case remanded for retrial. During the trial, evidence was presented and received regarding the power imbalance between priests and parishioners, stemming from priests’ religious authority, the prosecutor having presented extensive evidence on Roman Catholic doctrine regarding the religious authority of priests over parishioners. The prosecutor also presented evidence regarding the church’s policies on pastoral care, on Roman Catholic doctrine regarding sexual conduct involving priests, and the church’s concerns about priest misconduct. The cumulative effect of this evidence was to establish the Roman Catholic Church’s strong moral condemnation of priests who engage in sexual conduct and the church’s internal policies on maintaining boundaries in pastoral-care relationships. This evidence concerned religious standards for pastoral care, a topic presenting a serious risk of excessive government entanglement and the evidence “bolstered the state’s claims by informing the jury” that the Roman Catholic Church condemned defendant’s behavior. There was also extensive evidence on the church’s response to the victim’s complaints about defendant’s conduct. Said evidence informed the jury that defendant’s conduct violated church standards. The church also vouched for the victim’s credibility through the testimony of church officials who reiterated the victim’s report of defendant’s sexual misconduct. The testimony suggested to the jury that a conviction would be important not only “to assist the Catholic Church in solving the problem of offending priests,” but, in light of what the state portrayed as a bungled response to the victim’s complaints about defendant to church officials, also to hold the church to its own standards. Finally, the prosecutor elicited extensive testimony about defendant’s religious and moral training, providing the jury with religious standards for judging defendant’s conduct. It invited the jury to determine defendant’s guilt on the basis of his violation of Roman Catholic doctrine, his breaking of the priestly vows of celibacy, and his abuse of the spiritual authority bestowed on Roman Catholic priests. For details of (i) the testimony elicited from the victim, the defendant and church officials by the prosecutor and (ii) the prosecutor’s closing arguments, see the court’s opinion. Although some of the religious evidence could be characterized as part of the state’s effort to prove an element of the crime – that the victim sought and expected to receive religious counsel when she met with defendant – this could have been established without detailed reference to the victim’s understandings regarding the spiritual authority of priests, the degree of defendant’s religious impropriety, and the role of the Roman Catholic Church in connection with his misconduct. The elements of the offense could have been proven on a secular basis. For example, apart from any reference to religious doctrine, it was significant that the sexual conduct occurred at the church rectory and occurred immediately after the victim and defendant established a priest-parishioner relationship. Here the religious evidence was excessive., leading to an act of the state – the conviction – that was excessively entangled with religion. Throughout the trial, the parties did not strictly focus on the secular question of whether the victim had sought religious aid or counsel from defendant. Rather, they strayed into subsidiary issues regarding defendant’s violation of Catholic doctrine and his moral culpability under religious standards. Although the trial court provided standard secular jury instructions, it did not provide any instructions limiting the jury’s use of the doctrinal evidence. To the contrary, based on the state’s pretrial assurances that it would not present evidence of religious doctrine, the trial court denied defendant’s request for an instruction directing the jury not to apply Roman Catholic doctrine. Further, in closing argument, the prosecutor referenced religious standards to bolster defendant’s culpability   Case # 4593 (Minn. Ct. App.)

The Minnesota Supreme Court held that the trial court had subject matter jurisdiction over a claim for negligent marital counseling against a member of the clergy who was not a licensed mental health practitioner. There was no evidence that the minister and the wife were sexually intimate while the minister was providing pastoral counseling . The pastor of a local Seventh Day Adventist church met the statutory definition of an unlicensed mental health practitioner, and was not exempt from the statutory regulations simply because he was counseling his congregants and received no remuneration from the congrgant. Applying the statute’s definition of an unlicensed mental health practitioner and the statutes’ standard of care to clergy would not impermissibly entangle the court in religion. Neither the First Amendment’s religion clauses or Article 1, § 16 of the Minnesota State Constitution would be violated by allowing an action for negligence by a parishioner to proceed against the pastor. Case # 1376 (Minn.) (en banc), reversingCase # 1253 (Minn. Ct. App.). On remand from the Minn. Supreme Court to consider the questions, the Minnesota Court of Appeals held that the trial court had subject jurisdiction, and was not barred by the First Amendment or the Minnesota State Constitution, for entertaining claims against the Minnesota Conference of Seventh-Day Adventists, which was the employer of  the pastor of the local SDA church, for (1) negligent supervision, training and retention and for (2) vicarious liability under the principle of respondeat superior for the pastor’s negligent marital counseling. The Court also discussed the impermissibility in using the Seventh-Day Adventist Minister's Handbook    See Case # 1386 (Minn. Ct. App.)

Plaintiff wife entered into sexual relationship with a parish priest. Under the facts, the priest did not provide psychotherapy to plaintiff wife within the meaning of Minnesota statutory law and therefore the cause of action against the priest for the sexual contact that occurred during or after the period plaintiff wife was alleging receiving psychotherapy was properly dismissed. However, the lower court erred when it granted summary judgment to the defendant priest on the plaintiff wife’s civil claim for personal injury. Said claim was based on the alleged criminal sexual contact between the priest and plaintiff wife. The district court had held unconstitutional, on the basis of the Establishment Clause, those statutes criminalizing the sexual contact made by a member of the clergy with another person during a period of time during which the other person was seeking or receiving religious or spiritual advice, aid, or comfort. The statutes were not facially unconstitutional. Consequently, the personal injury action, along with the dependent claims – the husband’s claim for loss of consortium and the actions against the diocese for negligent hiring and retention, negligent supervision, and strict liability – were all remanded to the district court for consideration    Case # 1473 (Minn. Ct. App.)

When plaintiff’s husband was diagnosed with a life-threatening illness, plaintiff sought counseling from the senior pastor of the Assemblies of God Church to which she belonged. The pastor and parishioner became involved in a sexual relationship. Plaintiff sued both the local church and the Minnesota District Council of the Assemblies of God which had been instrumental in placing the pastor with local church. There had been a complaint against the pastor for inappropriate touching while the pastor had been in his previous position in another church in a different state. Held, (1) the court did not have subject-matter jurisdiction over the common law negligent hiring claims against the local church and council or the negligent hiring claims against defendants based on Minn. Stat. ch. 148A governing liability of an employer of a psychotherapist; (2) as to plaintiff’s claims under Minn. Stat. § 148A.03 for actions unrelated to the hiring process, (a) the court had jurisdiction to make a determination whether the council was an “employer” as defined in § 148A.03 and (b) the statute could constitutionally be applied to defendants, if they were employers within the meaning of the statute, because (i) a determination of whether the pastor was acting as a psychotherapist would not involve excessive entanglement, (ii) application of the statute did not involve the state dictating to the church how ministers should conduct counseling sessions with parishioners, and (iii) application of the statute would not amount to a substitution of the state’s view of reasonable conduct for the church’s view of reasonable conduct; and (3) the court had subject-matter jurisdiction over claims against the church for negligent retention of a pastor who had a sexual relationship with a parishioner to whom he was providing counseling    Case # 1533 (Minn. Ct. App.)

In case of first impression, Michigan court refuses to recognize a cause of action for breach of fiduciary duty against a member of the clergy who engages in a sexual relationship with a parishioner; there is no cause of action for clergy malpractice; plaintiff failed to state cause of action for intentional infliction of emotional distress; complaint did not allege statutorily barred claim for seduction     Case # 622 (Mich. Ct. App.)

A church employee was subject to sexual abuse by a priest offering plaintiff and his wife marriage counseling; action against church and archdiocese for sexual abuse by priest barred by statute of limitations; plaintiff’s marital problems and chemical dependency were not a “mental disability” sufficient to toll the running of the limitations period; nor were defendants equitably estopped from asserting the statute of limitations; plaintiff’s actions against the church for breach contract (plaintiff having been suspended from his job after he revealed to his supervisor the facts of the abuse) and for negligent hiring, retention, and supervision of both the priest and plaintiff’s supervisor dismissed    Case # 374 (Minn. Ct. App.)

Associate pastor had four sexual encounters with a married parishioner, the first one occurring while the parishioner was a patient at a psychiatric center being treated for depression and substance abuse; the parishioner’s action against the church was dismissed, because while the church knew that plaintiff was likely to attempt to engage in illicit sexual behavior if left alone with a pastor, it had no knowledge that the assistant pastor presented a substantial risk of harm to the plaintiff and disregarded it    Case # 576 (Mo. Ct. App.)

A congregant voluntarily engaged in a sexual relationship with her Rabbi. Plaintiff asserted that she consulted the Rabbi regarding, inter alia, her marital concerns and that the Rabbi explained that plaintiff was “closed to the possibility of finding a husband” and her “only hope” was to engage in a sexual relationship with him, which would “open her up to the world” in order to become more attractive to men. The complaint characterized this as a “course of sexual therapy” suggested by the Rabbi to assist plaintiff in her quest to attain marriage and a family. Plaintiff’s cause of action for fraud against the Rabbi was dismissed by the trial court as a veiled attempt to plead a seduction cause of action prohibited by N.Y. statutory law. Plaintiff did not appeal the trial court’s rejection of the fraud claim. Plaintiff’s claims against the Rabbi for negligent and intentional infliction of emotional distress also fell away, as did her claim against the synagogue for negligent retention of the Rabbi. See Court’s opinion for details. New York’s highest Court also held that allegations in the complaint did not establish a viable cause of action for breach of fiduciary duty against the Rabbi. Even putting aside First Amendment concerns whether such a claim would sound in clergy malpractice and involve the examination of ecclesiastical doctrine to establish the standard of due care owed to parishioners undergoing ministerial counseling, the facts asserted in the complaint insufficiently demonstrated that plaintiff developed a fiduciary relationship with the Rabbi. Essential elements of a fiduciary relation are de facto control and dominance. Plaintiff claimed that the Rabbi held himself out as a counselor and advisor and that he provided those services to her, but these general assertions alone were inadequate. Allegations that give rise to only a general clergy-congregant relationship that includes aspects of counseling do not generally impose a fiduciary obligation upon a cleric. To establish that a course of formal counseling resulted in a cleric assuming “de facto control and dominance” over the congregant a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue. Plaintiff had shown only that she was deceived by the Rabbi, not that she was so vulnerable as to surrender her will and capacity to determine her own best interests. This was not to suggest that a cleric who is also a licensed professional, such as a psychiatrist, psychologist or attorney, could not assume fiduciary obligations under existing laws and the secular standards that govern the practice of those professions. In addition, there is a critical difference in the viability of a civil action premised on sexual contact between a cleric and a person who is incapable of voluntary consent, such as a minor   Case # 3226 (N.Y.)

During marital counseling sessions, pastor and parishioner wife developed a sexual relationship lasting several months. The parishioner and her husband commenced an action against the pastor, church and various other ecclesiastical entities and officials, for sexual battery, intentional infliction of emotional distress, clergy malpractice and negligent retention and supervision. All claims dismissed. As to battery, all claims of unwanted touching arising from contact between the parties more than a year prior to commencement of the action were barred by the applicable one-year statute of limitations and all other contact between the wife and pastor was consensual. There was no evidence that the wife’s physical or emotional condition or prescribed medication impaired her ability to engage in a romantic relationship with the pastor or to consent to his physical contact, and there was no proof that the wife suffered from infancy, mental impairment or physical helplessness so as to render her consent impossible. The complaint did not plead an action for breach of fiduciary duty, but sounded in clergy malpractice, which would improperly require courts to examine ecclesiastical doctrine in an effort to determine the standard of due care owed to parishioners undergoing ministerial counseling. Given that no fiduciary cause of action was properly before it, the Court of Appeals left open for another day the question whether such a claim may arise between a cleric and a parishioner under very different circumstances, not present here   Case # 1842N (N.Y.)

Congregant began counseling with her priest and thereafter entered into a consensual sexual relationship. Claim for breach of fiduciary duty against the priest and claims for negligent supervision and retention against the Diocese dismissed. In order to demonstrate the existence of a fiduciary duty between a cleric and a congregant involved in a formal counseling relationship, a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection. The bare allegation that plaintiff was “a vulnerable congregant” was insufficient to establish that plaintiff was particularly susceptible to the priest’s influence, nor that the parties had a relationship characterized by control and dominance Case # 3462 (N.Y.), reversing, Case # 3183 (N.Y. App. Div.)

Plaintiff husband alleged that in the course of defendant minister’s employment, the minister had an affair with plaintiff’s wife while simultaneously acting as the couple’s marriage counselor. Plaintiff sued the minister, the Fifth Avenue Presbyterian Church and the Presbytery of New York City. On defendants’ pre-answer motion to dismiss for failure to state a claim, the court held: (1) The complaint stated a claim for breach of fiduciary duty against the minister. However, if the minister was having a sexual relationship with plaintiff’s wife, he was acting outside the scope of his duties, negating vicarious liability on the part of the Church defendants for breach of fiduciary duty. Accordingly, said cause of action was dismissed as against the Church defendants. This was apparently the first New York court to hold that a claim of breach of fiduciary duty may be brought against a clergyman who provides secular marital counseling. (2) Plaintiff’s complaint stated a valid claim for negligent retention and supervision against the Church defendants. (3) The claim for intentional infliction of emotional distress was dismissed as to all defendants   Case # 2351 (N.Y. Sup. Ct.)

Pastor providing marital counseling to wife and husband (1) engaged in sexual affair with wife and (2) revealed to the wife a confidential disclosure of the husband that he had had an adulterous relationship; claims against pastor under Texas’s Sexual Exploitation by Mental Health Services Provider Act should not have been dismissed, either on statutory or constitutional grounds; however, claim against the church under the Act was properly dismissed; action against pastor and church for breach of fiduciary relationship properly dismissed; church not liable on ground pastor was acting within the scope of his employment    Case # 938 (Tex. Ct. App.)

Pastor, paid only for teaching and preaching, volunteered time for spiritual counseling; plaintiff, who consulted the pastor as a spiritual counselor alleged that a sexual relationship developed as a result of the pastor’s failure to control the “transference phenomenon” which arose during counseling sessions; claims against church for vicarious liability; respondeat superior, breach of fiduciary duty, and negligent hiring, retention and supervision dismissed    Case # 835 (Tex. App.)

The Texas Penal Code provided that sexual intercourse is without consent if “the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual advisor.” The statute required only that the actor be a clergyman who causes the other person to submit or participate in the sexual activity while the clergyman is acting as a spiritual advisor. Defendant pastor argued that the statute in no way forbids a man who happens to be a preacher and a spiritual advisor from having an affair with a woman who happens to be a member of his church. He argued that the law requires both the exploration of the complainant’s emotional dependency on the actor while in his professional role as a spiritual advisor and also the actor’s purposeful exploitation of that emotional dependency. The court rejected defendant’s argument   Case # 3204 (Tex. Ct. App.)

Sexually abused minor who was a member of the Mormon Church went to bishop and ward president for ecclesiastical counseling; plaintiff requested a referral to a licensed mental health professional; however, the person the church defendants referred plaintiff to was not a licensed mental health professional, instead he worked at a mental health center under a licensed clinical social worker; plaintiff’s claim for clergy malpractice against the Church defendants was dismissed as allowance of such a claim would violate the First Amendment; claims for gross negligence, negligent infliction of emotional distress, and breach of fiduciary duty were essentially no different than claims for clergy malpractice; in addition, the First Amendment aside, plaintiff did not state a claim for intentional infliction of emotional distress or for fraud    Case # 969 (Utah)

Discovery rule did not toll statute of limitations in actions against pastor for negligent pastoral counseling and breach of fiduciary duty because plaintiffs, all adults at the time of the complained of conduct, knew in some sense that the sexual contact between themselves and the pastor was wrong and with reasonable diligence could have discovered the causal connection between the misconduct and their psychological injuries; appellate court does not address question whether there is cause of action for negligent pastoral counseling; under the facts, court could not decide claim against the church for negligent supervision of the pastor without violating First Amendment; admissibility of affidavit of psychologist    Case # 597 (Wash. Ct. App.)

Plaintiff claimed that a Buddhist Temple was vicariously liable under various theories for alleged sexual acts committed by its spiritual leader and founder. Plaintiff, , a competent adult, had begun going to the Temple to receive blessings because she was not feeling well. The Grandmaster allegedly told her that she was going to die, but that he could cure her illness by the “Twin Body Blessing.” The “blessing” was, in fact, sexual intercourse, which plaintiff engaged with the Grandmaster multiple times from 1996 to 1999. When she did not die, and after she saw the Grandmaster approach other women in similar ways, plaintiff claimed she realized that she had been tricked. Plaintiff sued, inter alia, the Temple for breach of fiduciary duty, negligent pastoral counseling, and negligent retention and supervision of the Grandmaster. Held: (1) Despite the existence of genuine issues of fact regarding whether the Temple and its personnel had notice of and control over the actions of the Grandmaster, the First Amendment barred consideration of the negligent supervision claim against the Temple, because the court would have to examine the religious doctrine of the Temple’s Buddhist faith to determine whether the Temple was negligent in its “supervision and retention” of its founder and Grandmaster. (2) There was no basis for imposing a fiduciary duty on the Temple, and hence the breach of fiduciary duty claim was subject to dismissal. An adult victim of sexual abuse does not have a special relationship with a religious organization associated with the alleged abuser. (3) Claim that the Temple owed plaintiff a duty to protect her from harm because she was its business invitee was barred by the First Amendment. (4) Claim that Temple was liable because the Grandmaster was its ostensible agent was properly dismissed, because the claim of ostensible agency was really a claim of respondeat superior for sexual misconduct, a claim not recognized by the courts. (5) There was no evidence that the Temple was the Grandmaster’s “alter ego” and hence subject to liability for the Grandmaster’s acts. (6) Temple was not liable for the Grandmaster’s negligent pastoral counseling under agency principles, even assuming the Grandmaster was subject to liabity for negligent counseling   Case # 1999 (Wash. Ct. App.)

A pastor who had provided marital counseling to members of his church and who, inter alia, enered into a sexual relationship with the wife, was convicted for sexual exploitation by a therapist, contrary to Wis. Stat. § 940.22(2). The conviction was overturned and the case remanded for a new trial. The State, by charging the pastor with sexual exploitation by a therapist, was required to prove that the pastor was or held himself out to be a “therapist.” See Wis. Stat. § 940.22(2). A therapist was defined as a “physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.” Sec. 940.22(1)(i). "Psychotherapy" was defined Wis. Stat. § 455.01(6) to mean “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.” The Court of Appeals held that the jury instruction improperly concluded that as a member of the clergy, the defendant was ipso facto a therapist and that by not requiring that the state prove that he actually performed or purported to perform “psychotherapy” it relieved the state of its burden to prove that he was a “therapist,” an element of the offense charged   Case # 1961 (Wis. Ct. App.)

See also:

Catholic priest from Sri Lanka who was allegedly granted “faculties” and dual employment with the New York Archdiocese allegedly sexually abused plaintiff, an adult female, while ostensibly treating plaintiff for problems arising from past sexual abuse. Plaintiff sued, inter alia, the Archdiocese and its Cardinal, for negligence; harassment, battery and sexual assault, negligent and intentional infliction of emotional distress; breach of fiduciary duty, and negligent hiring and supervision. Plaintiff’s allegations made out a claim for more than mere “seduction”; it made out a claim for battery and sexual assault against the priest based on allegations of nonconsensual sexual contact. However, the Archdiocese and Cardinal could not be held vicariously liable on respondeat superior grounds for the sexual misconduct of the priest, because the priest’s conduct was outside the scope of employment as a priest, and was unrelated to the furtherance of the Church Defendants’ business, especially in light of the fact that plaintiff conceded that the priest’s conduct “was not a part of any religious or faith-based action that he was giving, or that [plaintiff] sought.” To the extent plaintiff was attempting to assert a claim for common-law harassment, no such claim could be maintained. Plaintiff failed to state a claim for negligent infliction of emotional distress. Plaintiff failed to state a claim for intentional infliction of emotional distress against the Church Defendants based on vicarious liability for the priest’s actions. However, plaintiff stated an intentional infliction claim directly against the Church Defendants based on their alleged scheme of concealment or failure to warn. Plaintiff failed to state a breach of fiduciary duty claim against the Church Defendants. Plaintiff stated a claim for negligent hiring and supervision, and the court denied the motion by the Archdiocese and Cardinal – who denied the existence of an employment relationship with the priest – for summary judgment on the claims for negligent hiring and supervision, without prejudice to renewal of the motion following completion of discovery. The Church Defendants’ request to strike alleged scandalous material from the complaint was denied   Case # 2319 (S.D.N.Y.).   Faced with a new set of motions, the district court now to dismiss the negligent hiring/ supervision/ retention claims against the Archdiocese and Cardinal on statute of limitations grounds, without prejudice to renew if further discovery revealed that all the misconduct plaintiff alleged occurred prior to August 31, 2001. However, the court held that the intentional infliction of emotional distress claim against the Church defendants was time-barred. Although the negligent hiring, supervision, and retention claims against the Cardinal were not time-barred, on the Cardinal’s motion for reconsideration or reargument, the district court, on consideration of new evidentiary submissions, held that the Cardinal was entitled to summary judgment dismissing said claims against him. The new evidence demonstrated that the Cardinal neither knew, nor should have known at any time prior to the relevant incident, of the Sri Lankan priest’s propensity to engage in inappropriate sexual conduct. In 2002 – after the sexual abuse allegedly suffered by plaintiff – in response to the growing sexual abuse scandal within the Church, the practice of viewing all ordained priests as having “universal faculties,” so that a visiting priest did not have to go “through the Chancery” and generate all the paperwork inherent in a vetting by the Archdiocese, was changed to require all visiting assisting priests to receive Archdiocesan faculties. Consequently, it could be argued that the more stringent procedures with regard to hiring visiting priests that the Archdiocese, presumably at the Cardinal’s direction, had adopted in 2002, supported a finding that the less careful procedures in effect beforehand, when the Sri Lankan priest was hired to assist at the parish church where plaintiff was a parishioner, constituted negligent hiring ascribable to the Cardinal. However, the district court said that “such a theory of negligent hiring was not legally viable in the case at bar.” While there was no evidence that the priest presented a letter of reference from his bishop when he was hired at the parish church, that was not sufficient to impose liability for negligent hiring. The priest was an ordained Roman Catholic priest upon which the parish church was entitled to rely. As for the Cardinal, his Archdiocese was not responsible for the priest’s ordained status, and in the absence of any evidence that the Cardinal knew or could have known of the priest’s propensities, he could not be held liable in law for a failure to screen or determine the priest’s fitness for the priesthood, or for his hiring as a parish assistant. The court also noted that the fact that plaintiff did not yet have an opportunity to depose the Cardinal did not preclude the grant of summary judgment dismissing the negligence claims against the Cardinal   Case # 2606 (S.D.N.Y.).  As a result of the district court’s prior orders, the only claims remaining in this case were for negligence and negligent hiring, supervision, and retention against the Archdiocese and the local parish church. But because plaintiff offered no evidence that defendants knew or should have known of the priest’s alleged propensity to commit sexual abuse, plaintiff’s negligence claims failed as a matter of law, and the district court now granted defendants’ motion for summary judgment. Although the Church defendants may not have investigated the priest prior to hiring him and may not have instructed him not to touch females, the Church defendants had no duty to investigate the Sri Lankan priest, or to warn him not to sexually abuse parishioners, when they had no reason to believe that he would engage in such misconduct. Under New York law, there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee   Case # 3959 (S.D.N.Y.)

See also Sexual Abuse

Premarital Counseling; Revelation of Negative Information About Fiancee

A pastor or any other person providing premarital counseling, or a fiancee's parent, does not have a duty to share negative information about the intended that the intended has not shared with her or his intended partner, in this case violent behavior and dependence on behavior-modifying medication   Case# 4531 (7th Cir.)

Revelation of Confidential Information

Where a pastor reveals confidential information about a wife’s family acquired during a counseling session, the spouse of the wife may recover for loss of consortium stemming from psychological harm, even in the absence physical injury to the wife    Case # 288 (Ariz.)

Plaintiff’s confession to frequenting prostitutes was disclosed by pastor to congregation as part of process of church discipline; plaintiff commenced actions against pastor and church for violation of the statutory priest-penitent privilege, breach of contract, invasion of privacy, and intentional infliction of emotional distress; trial court granted summary disposition for the defendants on all counts, holding (1) that the priest-penitent privilege was a rule of evidence and did not create a cause of action for the disclosure of private or privileged communications, (2) that plaintiff could not prove the elements of a breach of contract because there was no agreement that plaintiff's disclosure would be kept confidential, and (3) that plaintiff had not adequately pleaded his tort claims, but even if he had, the question whether clergy must keep confidential a personal disclosure is a matter of religious doctrine that a civil court cannot decide; the Court of Appeals affirmed dismissal of the statutory and contract claims, but remanded the tort claims for a determination of whether plaintiff was a member of the church when he was disciplined, reasoning that if plaintiff was a member at the time of the church discipline then judicial examination of the process would be barred by the free exercise clause, but that if he was not a member, the church would have had no power to discipline plaintiff, and his tort claims may have been viable; the Michigan Supreme Court reversed the judgment of the Court of Appeals and reinstated the summary dismissal of the tort claims on the ground that the crucial issue was not whether plaintiff was or was not a member of the church at the time of discipline, but whether he consented, implicitly or explicitly, to the discipline; under the facts of the case it was clear that plaintiff had consented to subjecting himself to church discipline    Case # 858 (Mich.), reversing, Case # 372 (Mich. Ct. App.)

In Case # 1114 (N.Y.), New York’s highest court, the Court of Appeals, held that N.Y. CPLR 4505, governing the priest-penitent privilege, does not subject clergy to civil liability for the disclosure of confidential communications because (1) it is strictly a rule of evidence and (2) to permit a party to introduce evidence or offer experts to dispute a clergyperson’s interpretation or application of religious requirements would, in violation of the First Amendment, place fact-finders in the inappropriate role of deciding whether religious law has been violated. The case involved, within the context of the application for temporary child custody pending final resolution of a marital action, the unauthorized disclosure of a wife’s confidential communications to Rabbis concerning her relationships with other men and her cessation of the observation of religious laws of ritual purity following menses so she would not have to engage in sexual relations with her husband. The lower court, in Case # 470 (N.Y. Sup. Ct.), held that the unauthorized disclosures of the wife’s communications to the Rabbis violated the clergy-penitent privilege unless made in the presence of third persons. The lower court held that such disclosure subjected the Rabbis to an action in damages, both for violation of the privilege and for intentional infliction of emotional distress; however, the wife’s action for defamation was dismissed. The intermediate appellate court, in Case # 850 (N.Y. App. Div.), dismissed the wife’s claim for breach of fiduciary duty, holding that the wife failed to show that the clergy-penitent privilege was not waived by the presence of a third person during her conversations with each of the defendants. The appellate division also dismissed the wife’s claim for intentional infliction of emotional distress, as defendant Rabbis' conduct was not "extreme and outrageous." The dissent in the appellate division, although concurring in dismissal of the wife’s claims for intentional infliction of emotional distress, dissented from dismissal of the claim for breach of the fiduciary duty of confidentiality. The Court of Appeals, in Case # 1114  (N.Y.), affirmed the appellate divisions dismissal of the actions for breach of fiduciary duty and intentional infliction of damages, but on the ground that CPLR 405 was solely a rule of evidence barring the introduction of the evidence but that if a clergyperson violated the evidentiary rule, the clergy person was not subject to civil liability because CPLR 4505 afforded no such remedy and the First Amendment most likely barred the court’s from judging the scope of the clergy’s religious obligation vis a vis the communication.

Plaintiff claimed that defendant minister, while acting as plaintiff’s pastor, learned of plaintiff’s criminal record, which was a public record, and then, along with a church employee, intentionally distributed that information to the church congregation in a deliberate attempt to humiliate her and intimidate her so that she would cease criticizing defendant pastor’s financial management of the church. The trial court held: (1) Plaintiff failed to state a claim against the pastor for breach of fiduciary duty, because the complaint and summary judgment record failed to assert facts establishing a fiduciary relationship. What was missing were the kinds of facts and other evidentiary support establishing that plaintiff, as a congregant, became uniquely vulnerable and incapable of self-protection as a result of her relationship with defendant pastor. The trial court noted that in New York the clergy-penitent privilege does not give rise to a fiduciary duty subjecting members of the clergy to civil liability for disclosure of confidential communications. (2) Plaintiff failed to establish a claim for intentional infliction of emotional distress. First, plaintiff’s criminal record was a public document and while its distribution may have been embarrassing, it carried no constitutional right to privacy. Second, plaintiff remained unable to form the requisite causal link between defendants and the actual distribution of the document. Plaintiff’s own deposition testimony indicated that she did not know who had obtained her criminal record, who had distributed the copies, or how the information retrieval and dispersion had been accomplished   Case # 3311 (N.Y. Sup. Ct.)

Clergyperson rendering marital counseling to plaintiff husband revealed to plaintiff’s wife and others plaintiff’s confidential confession that he was having a marital affair; clergyperson told wife that plaintiff was an untrustworthy liar planning to abduct the children and advised wife to change the locks, file for divorce and obtain a restraining notice; trial court issues directed verdict in favor of defendants (the clergyperson and the church) after plaintiff’s opening statement; on appeal held: (1) plaintiff did not state a claim for statutory negligence based on the statute prohibiting clergy from testifying concerning information confidentially communicated during religious counseling; (2) plaintiff stated a claim for common law negligence and punitive damages; (3) plaintiff’s claim was not to be classified as one for clergy malpractice and therefore the appellate court did not have to directly address the issue of whether such an action was to be recognized in Ohio, although court did state in dicta that public policy favored recognizing an action for breach of confidentiality by a minister; (4) plaintiff’s common law negligence action was not to be classified as an action for alienation of affection, an action that had been abolished; (5) plaintiff did not state a cause of action for intentional infliction of emotional distress or invasion of privacy    Case # 394 (Ohio Ct. App.)

In 1998, plaintiff obtained marital counseling from defendant, a licensed professional marriage counselor and plaintiff’s fellow parishioner. The counseling took place at defendant’s office and plaintiff paid for a number of the sessions. In 1999, defendant and others, including plaintiff and her husband, broke from their church and formed CrossLand Community Bible Church. Defendant was elected as CrossLand’s pastor and also served as a church elder. In 2000, plaintiff separated from her husband. Thereafter, the couple participated in a series of weekly counseling sessions at defendant’s home where couples from the church discussed how to improve their marriages. According to plaintiff, the Bible was not discussed in these sessions and she considered them to be an extension of her prior professional counseling relationship with defendant. Defendant did not charge for these sessions, and all of the couples who participated were CrossLand members. In October 2000, plaintiff and her husband went to defendant’s home for what they thought would be another group session, but defendant and his wife were the only ones there. During a break, plaintiff spoke separately with defendant and informed him that she had decided to divorce her husband. She also confided that she had engaged in an extramarital sexual relationship. When defendant broached the topic of church discipline that her extramarital relationship would require, plaintiff informed him that she was resigning from the church. Despite plaintiff’s resignation, defendant and the church elders composed a letter concerning plaintiff’s actions, which they published to the church membership. The letter explained that plaintiff intended to divorce her husband, that there was no biblical basis for the divorce, that plaintiff had engaged in a “biblically inappropriate” relationship with another man, and had rejected efforts to bring her to repentance and reconciliation. The letter encouraged the congregation to “break fellowship” with plaintiff in order to obtain her repentance and restoration to the church body. Plaintiff sued defendant for defamation, negligence, breach of fiduciary duty, and intentional infliction of emotional distress. The court of appeals affirmed the trial court’s dismissal of all claims against defendant for lack of subject matter jurisdiction except the claim for professional negligence, which it held concerned defendant’s role as plaintiff’s secular professional counselor and did not invoke First Amendment concerns. The Texas Supreme Court held that the civil courts also lacked jurisdiction over the professional-negligence claim. The interest that plaintiff asserted concerned the confidentiality that protects communications between a licensed professional counselor and a client. See 22 Tex. Admin. Code § 681.41(x). While it might be theoretically true that a court could decide whether defendant breached a secular duty of confidentiality without having to resolve a theological question, doing so would unconstitutionally impede the church’s authority to manage its own affairs and matters of church membership and discipline. A church’s decision to discipline members for conduct considered outside of the church’s moral code is an inherently religious function with which civil courts should not generally interfere. Defendant’s disclosure of plaintiff’s confidence concerning her extra-marital affair, could not be isolated from the church-disciplinary process in which it occurred. Subjecting a the church’s pastor to tort liability for engaging in the disciplinary process that the church required would clearly have had a “chilling effect” on churches’ ability to discipline members. Thus, while the elements of plaintiff’s professional-negligence claim could be defined by neutral principles without regard to religion, the application of those principles to impose civil tort liability on defendant would impinge upon the church’s ability to manage its internal affairs. Even if defendant’s dual roles as plaintiff’s secular counselor and her pastor could be distinguished, which was doubtful, defendant could not adhere to the standards of one without violating the requirements of the other. Any civil liability that might attach for defendant’s violation of a secular duty of confidentiality would in effect impose a fine for his decision to follow the religious disciplinary procedures that his role as pastor required and would have a chilling effect on the church’s autonomy to manage its own affairs. This was not a case where defendant, in violation of church norms, engaged in a sexual relationship with plaintiff. In the present case, defendant’s decision to reveal what plaintiff considered confidential information was mandated by church doctrine and motivated by defendant’s religious beliefs. However, the Court seemed to leave open the possibility of entertaining a tort action where a pastor’s revelation constitutes an intentional tort that endangers the plaintiff’s or the public’s health or safety. Perhaps the most controversial aspect of the Court’s decision was its holding that defendant could proceed with his revelations to the church elders and the congregation without tort liability even though plaintiff had already resigned her membership in the church. In effect the pastor was telling plaintiff “You can’t quit, You’re fired.” In defense of its position, the Court wrote that plaintiff’s voluntary forfeiture of her membership did not, in the church’s or defendant’s view forestall the church’s duty under its constitution to “tell it to the church” and admonish church members to “break fellowship” with plaintiff. Defendant’s decision to so proceed was an inherently ecclesiastical matter and court interference with that decision through imposition of tort liability would impinge upon matters of church governance in violation of the First Amendment   Case # 2925 (Tex.)

Sexual Abuse

For cases arising from the sexual misconduct of a clergyperson, the liability of the clergyperson, and his or her church and superiors, see cases under Sexual Abuse and Misconduct

Televangelists

Defendants' religious television broadcasts and mail marketing promised cures and solicited contributions; defendants allegedly made representations that "miracle cures" had occurred; further, a brochure mailed to plaintiff in January 1991 contained representations that January 23, 1991 was a miracle day for plaintiff’s husband, the miracle launch date into his decade of miracles; plaintiff’s husband had died in October 1990; all of the above statements and claims were representations of defendants' religious faith or beliefs and the truthfulness or reasonableness of the statements was protected from judicial scrutiny by the First Amendment and the Texas Constitution and could not be the basis of plaintiff’s claims for, inter alia, intentional infliction of emotional distress; intentional and negligent misrepresentation; fraud; and breach of fiduciary duty; however, dun letters sent to plaintiff representing that plaintiff’s husband had made a $100 pledge to defendants on December 21, 1990, two months after his death, were representations of the husband’s alleged actions, not representations of defendants' religious faith or beliefs, and were not constitutionally protected; they could serve as a basis for actions in fraud, breach of fiduciary duty, and negligent misrepresentation     Case # 624 (Tex. App.)

Miscellaneous Cases

Plaintiff – claiming that to her financial detriment she was fraudulently induced by her pastor to invest in several real estate-related investment opportunities with the pastor’s children, it being alleged that the pastor had undertaken the role of financial advisor to his congregation – sued the pastor and the church for breach of fiduciary duty, constructive fraud, misrepresentation and concealment of a material fact. Summary judgment was granted dismissing all four claims. Plaintiff’s claims for breach of fiduciary duty and constructive fraud both required a showing that defendants owed and breached a fiduciary duty to plaintiff arising out of a fiduciary or confidential relationship wherein defendants were in duty bound to act with the utmost good faith for the benefit of plaintiff. Fiduciary relationships can arise out of certain canonical relationships that are legally defined and regulated, including guardian and ward, trustee and beneficiary, principal and agent, attorney and client, and conservator and conservatee. A fiduciary duty may also arise from confidential relationships that do not fall into well-defined categories of law and depend heavily on the circumstances and are founded on a moral, social, domestic, or merely personal relationship. The “essential elements” of such a confidential relationship are (1) the vulnerability of one party to the other which (2) results in the empowerment of the stronger party by the weaker which (3) empowerment has been solicited or accepted by the stronger party and (4) prevents the weaker party from effectively protecting itself. The vulnerability of one party to the other is a necessary predicate of a confidential relation, which the law treats as “absolutely essential.” It usually arises from advanced age, youth, lack of education, weakness of mind, grief, sickness, or some other incapacity. Here, although acknowledging that a pastor-parishioner relationship alone is insufficient to establish a fiduciary duty, plaintiff unsuccessfully argued that a fiduciary duty is established by a pastor-parishioner relationship plus vulnerability “or something else,” namely the pastor taking on another role outside of the ecclesiastical relationship, in this case that of financial advisor to his congregants. Plaintiff’s claim for breach of fiduciary duty and constructive fraud failed because she did not assert any basis for finding that she was vulnerable to her pastor’s financial advice. See court’s opinion for details. See also the court’s opinion as to why plaintiff’s claims for misrepresentation and concealment of a material fact failed   Case # 4657 (N.D. Cal.)

Plaintiff filed suit against church and its pastor seeking repayment of the tithes on gross income that he had paid the church, as well as damages to plaintiff’s business, a limited liability company. It was alleged that the pastor obtained plaintiff’s tithe by exerting a powerful influence over members of his church, demanding total submission to his authority, and gaining complete control of the members’ minds and money; that the pastor involved himself in the day-to-day affairs of plaintiff’s business, exerting complete control over the minds of plaintiff, his partner, and other executives; that the pastor threatened plaintiff with “judgment and hell” if he did not pay up. Plaintiff alleged he gave money to defendants under duress, that he felt he did not have free will; that the pastor’s “misrepresentation of the Bible” was fraud, the pastor knowing that his teaching that tithing was to be based on gross income was false. Finally, plaintiff asserted that when the pastor had “sucked [plaintiff ] dry,” he turned on plaintiff and attempted to drive a wedge between plaintiff and his wife who remained a member of the church. Held: (1) Plaintiff, in his individual capacity, had no right of action to assert claims on behalf of the limited liability company, which as a separate legal entity, would need to join the litigation as a plaintiff in order to litigate any claims that it may have. (2) As to plaintiff’s personal suit for return of tithed monies, the court lacked subject matter jurisdiction. Although plaintiff masked his claims with legal terms such as “consent,” “error,” “fraud,” and “duress,” this controversy was purely religious, requiring the court to examine the interpretation of the Bible on the subject of tithing and a determination of whether defendants’ interpretation and other teachings were or were not fraudulent. Likewise, to the extent that plaintiff had marital difficulties springing from conflicting opinions between himself and his wife concerning defendants’ biblical teachings, such difficulties and conflicts were beyond the jurisdiction of the civil courts   Case # 2032 (La. Ct. App.)

Plaintiff siblings (one born sometime in the 1940s, the other in 1952) were allegedly offspring of a priest (since deceased) and a church organist who had a consensual sexual relationship in the late 1940s and early 1950s. In 2009 plaintiffs sued the religious Society to which the priest had belonged. Alleging that the Society had known about the priest’s breach of a vow of celibacy and the birth of plaintiffs and asserting that the Society worked to cover up the affair and conceal the fact that the priest was their father, plaintiffs asserted that the Society had had a legal duty to disclose the identity of their father, that the failure to disclose this information led to great emotional distress, and that the Society should be held liable for failing to put an end to the affair. It was also asserted that the Society had forced plaintiffs’ mother to give plaintiff sister up for adoption, forced the mother to conceal the identity of plaintiffs’ biological father, and that the Society, which was “the sole keeper” of the priest’s finances and income had failed in its obligation to be financially responsible for its priest’s children while they were minors. For the reasons stated in its opinion, the Maryland Court of Special Appeals affirmed dismissal plaintiffs’ claims against the Society for (1) breach of fiduciary duty; (2) fraudulent concealment; (3) intentional infliction of emotional distress; and (4) negligent hiring, supervision and retention. Noting that the First Amendment precluded it from deciding whether or not the priest had breached an alleged vow of celibacy (or any other vow), and adhering to the “established policy to decide constitutional issues only when necessary,” the Court, for the most part, treated the Society as though it were a secular employer in determining the legal merits of plaintiffs’ claims   Case # 4283 (Md. Ct. Spec. App.)

Former disciples of self-proclaimed yoga guru sued their former leader when he was revealed to be a charlatan; plaintiffs’ claims for intentional infliction of emotional distress, for breach of fiduciary duty, and breach of contract on a third party beneficiary theory of recovery were dismissed; motions to dismiss the claims for fraud and misrepresentation and for unfair and deceptive trade practices in violation of Mass. Gen. Laws Ch. 93A denied   Case # 340 (D. Mass.)

Husband and wife were engaged in a bitter divorce proceeding in which the husband alleged the wife engaged in an adulterous affair. The husband was awarded legal custody of the minor children, with both parties gaining joint physical custody. The husband’s expert witness had used the transcript of a tape recorded meeting in reaching his determination that the husband was the more stable parent and should have custody of the children. Present at the taped meeting were (1) the wife, (2) the husband, and (3) the priest of the Episcopal church that the husband and wife attended. The husband had invited the priest, who was also a close family friend, to be present when the husband confronted his wife with her purported infidelity. The husband told the priest in advance that he intended to record the conversation on the advice of his attorney. The trial court found that the purpose of the meeting, which took place in the marital home, was for the express purpose of obtaining evidence for the husband to use as leverage in attempting to get his wife to agree to a no-fault divorce and that the priest was not present for purposes of offering spiritual/ marital counseling to the couple and was not acting as the wife’s priest during the tape-recorded meeting. Based on the priest’s advanced knowledge that the meeting was being recorded by the husband and the priest’s failure to reveal such fact to the wife, the wife filed suit against the local church, the diocese, and the priest alleging claims for (i) breach of fiduciary duty, (ii) fraudulent concealment of the fact that the meeting was being recorded, and (iii) negligent misrepresentation, negligent infliction of emotional distress, clergy malpractice, and negligent supervision and retention. The Mississippi Supreme Court held: (1) This case did not present an ecclesiastical matter which the court was barred from considering. (2) The trial court properly granted summary judgment to all three defendants on the wife’s claims for negligent misrepresentation, negligent infliction of emotional distress, clergy malpractice, and negligent supervision and retention. (3) Although a priest may not be held to be in a fiduciary relationship with a parishioner merely based upon his status as a priest, a claim for breach of fiduciary duty is not prohibited by the First Amendment simply because of a defendant’s status as a priest. But the wife failed to prove the existence of a fiduciary relationship between the priest and herself. There was no evidence that she was a dependent person or reposed any trust or confidence in the priest in the course of her confession to adultery, nor was there evidence that she was requested by her husband to attend a marital counseling session with her priest. Nothing, whatsoever, approaching any reasonable concept of marital counseling was discussed. (4) Although the wife’s fraudulent concealment claims against the church and diocese were properly dismissed, the fraudulent concealment claim against the priest was not subject to dismissal. Case # 1752 (Miss.) On remand, the lower court granted summary judgment in favor of the priest on the fraudulent-concealment claim. The Mississippi Supreme Court affirmed. The trial court found that although initially, before remand, the wife had asserted that had she known she was being taped, she would have responded differently or refused to participate in the conversation, on remand the wife gave a deposition and submitted an affidavit in which she stated that she suspected that her husband was taping her. The trial court found that these concessions showed that the wife was not prevented from discovering the tape recording; and therefore, she could not establish one of the necessary elements for a cause of action based on fraudulent concealment. On appeal, the wife argued that the trial court failed to apply the proper elements of fraudulent concealment, however, the Supreme Court found nothing inherently wrong with the test used by the trial court. However, the Supreme Court disagreed with the trial court’s finding that no genuine issue of material fact existed regarding the wife‘s knowledge of the recording. Considering the facts in the light most favorable to the wife, the Supreme Court found that it was plausible that the wife merely suspected, but did not seriously believe or know, that the conversation was being taped. Even so, summary judgment in favor of the priest on the fraudulent concealment claim was proper because, the Court having previously found (for purposes of the breach of fiduciary duty claim) that no fiduciary relationship existed between the wife and priest, the priest had no legal duty to disclose any knowledge he had of the recording. On remand, the wife had also sought relief from the trial court’s previous judgment dismissing her claim for breach of fiduciary duty, arguing that the trial court’s prior ruling was based on false affidavits submitted by her husband and the priest, as well as a fabricated transcript of the recorded meeting. However, even if these allegations were true, the wife’s request for relief from the judgment was time-barred because a motion for relief from judgment based upon fraud or misrepresentation may not be brought in Mississippi more than six months after the judgment or order is entered   Case # 3491 (Miss.)

Action by former members of The Way International, a worldwide religious organization, arising out of The Way’s alleged “coercive persuasion” and “mind control” practices. Plaintiffs alleged claims for negligent and intentional misrepresentation, fraud, deceit, intentional infliction of emotional distress (IIED), violations of the Tennessee Consumer Protection Act (TCPA), breach of fiduciary duty, and conspiracy. Plaintiffs alleged, inter alia, monetary damages resulting from The Way’s teachings and practices of avoiding debt and tithing. They stated that, in fear of The Way’s teaching that harm or death would come to them if they incurred debt, they withdrew money from their retirement accounts, rather than obtain a loan to purchase a home and that, in fear of being “marked and avoided,” they were “coerced” into “abundant[ly] sharing” the proceeds of a disability settlement. They stated that their tithe money was not used for The Way’s outreach purposes, but rather for the “prurient interests” of The Way’s leadership. Among the millions of dollars sought in compensatory and punitive damages, plaintiffs sought a refund of the monetary contributions made by them to The Way between 1972 and 2001. Plaintiffs alleged that The Way’s “various manipulative and exploitative thought reform techniques” (the “marked and avoided” doctrine used to ostracize members, the fear of harm and death associated with debt, and the local leadership’s negative response to plaintiff’s use of medications) caused them to sustain serious mental injury. Most of the claims were time-barred. The complaint sought damages for both personal and property injuries. The allegations that plaintiffs were emotionally harmed and distressed by the defendants’ actions sounded in personal injury and were governed by the one-year statute of limitations found at Tenn. Code Ann. § 28-3-104(a)(1) (2000). The alleged cause of action under the TCPA was subject to the one-year statute of limitations prescribed by Tenn. Code Ann. § 47-18-110 (Supp. 2005). The allegations that plaintiffs suffered economic injuries as a result of defendants’ conduct were “injuries to personal property” requiring the application of the three-year statute of limitations found at Tenn. Code Ann. § 28-3-105 (2000). The discovery rule did not toll the limitation periods. In addition, there was no authority suggesting that simply being “brainwashed” tolls the running of the applicable statute of limitations. Tenn. Code Ann. § 28-1-106 (2000) tolls the applicable limitation period for persons who are “of unsound mind” when their cause of action accrues, but the courts narrowly define “unsound mind” as meaning “incapable of attending to any business, or of taking care of [one]self.” With respect to any claim not covered by the ruling on the statute of limitations issue, the claims were barred by the First Amendment   Case # 2509 (Tenn. Ct. App.)

Plaintiff, a Mormon missionary, became ill on assignment in Guatemala, probably contracting malaria; mission was terminated and plaintiff was returned to the U.S. and hospitalized in "behavioral science unit"; claims concerning all aspects of the missionary program and its training program were barred by the establishment and free exercise clauses; cause of action arising from termination of plaintiff’s medical insurance by Church resulting from termination of missionary activity barred by free exercise clause; action arising from termination of “Temple Recommend,” whereby plaintiff was barred from entry into Mormon temple, was precluded by First Amendment; actions based on information concerning plaintiff’s medical records and termination of mission recorded in Church missionary program and membership files barred by First Amendment; action for defamation not barred by First Amendment, but action based on Church’s disclosure to grandparents of information in Church files concerning plaintiff’s mental condition was subject to the defense of truth; actions for false imprisonment and intentional infliction of emotional distress arising from plaintiff’s confinement in hospital’s “mental ward” not barred by First Amendment, but plaintiff failed to state a cause of action against the Church; in actions for fraud and breach of fiduciary, court was precluded from determining whether a fiduciary relationship existed between plaintiff and the Church arising from plaintiff’s membership in the Church and his activities in and on behalf of the Church    Case # 894 (Tex. Ct. App.)

After being accused of sexual contact with teenage boys, X, a member of defendant Mormon bishop’s ward, pled guilty to misdemeanor assault and was sentenced to community service; the bishop, who arranged for X to help M build a home, undertook to monitor X’s community service; having met M’s daughter D while performing his community service, X married D for “time and eternity” in a Mormon temple after the bishop and another church official certified that the couple were worthy for a temple marriage; thereafter, X and D moved to Montana, followed by M and her son S; two years later, X was arrested in Montana for sexual contact with a teenage boy, following which S revealed that he too had been sexually abused by X inMontana; action by S against bishop for breach of duty to protect him from actions of fellow church member dismissed; the bishop did not have a special relationship with X, nor did he take charge of X, so as to impose on him a duty to control X from inflicting harm on others; and even if there were a breach of duty on the part of the bishop, such breach was not the proximate cause of S’s injuries which were inflicted at least one year after the termination of the bishop’s supervision of X’s community service; action by D against bishop for breach of duty to protect her  from marrying X for “time and eternity” also dismissed    Case # 417 (Wash. Ct. App.)

See also

Breach of Contract by Spiritual Advisor

Criminal Law, "Sex Crimes"

Sexual Abuse and Misconduct

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