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Connecticut. Chapter 952 Penal Code. Title 53a Sec 73a. (53a-73a). Definitions
are provided in Title 53a Sec 65. (53a-65). http://www.cga.ct.gov/2007/pub/Chap952.htm#Sec53a-65.htm Iowa. Title XVI Criminal
Law. Subtitle 1. Chapter 709. (709.15) New
Mexico. Chapter 30 Criminal Offenses. (30-9-10) Wisconsin Criminal Code 940.22
Alaska - Sec. 11.41.440. Sexual
abuse of a minor in the fourth degree.  (a) An offender commits the crime of sexual abuse of a minor in the fourth degree if (2) being 18 years of age or older, the
offender engages in sexual contact with a person who is 16 or 17 years of age and at least three years younger than the offender,
and the offender occupies a position of authority in relation to the victim. (5) "position of authority" means
an employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse,
psychologist, guardian ad litem, babysitter, or a substantially similar position, and a police officer or probation officer
other than when the officer is exercising custodial control over a minor;
COLORADO - CIVIL LAW - |
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(1) In any civil action for damages by an alleged victim which alleges
damages resulting from a sexual assault on a client by any person who enters into a professional-client relationship that
permits professional physical access to the client's person or the opportunity to affect or influence the thought processes
or emotions of such client, including, but not limited to, actions for professional malpractice or assault and battery, evidence
of specific instances of the victim's prior or subsequent sexual conduct, opinion evidence of the victim's sexual
conduct, and reputation evidence of the victim's sexual conduct shall be presumed to be irrelevant, except as provided
in subsections (2) and (4) of this section. The persons to whom this subsection (1) applies in a civil action against such
persons shall include any psychotherapist as defined in section 18-3-405.5, C.R.S., any medical professional, any member of the clergy, or any person acting under the color of a religious organization.
This subsection (1) shall also apply in a civil action against a parent or other person in a position of trust, power, or
authority over any child or other person, in a civil action by or on behalf of such child or such other person. |
MINNESOTA - clergy is included in 609.344 CRIMINAL SEXUAL CONDUCT IN THE THIRD DEGREE. Subdivision 1. Crime defined. A person
who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the
following circumstances exists:(1) the actor is or purports to be a member of the clergy, the complainant is not married to
the actor, and: (i) the sexual penetration occurred during the course of a meeting in which the complainant sought or received
religious or spiritual advice, aid, or comfort from the actor in private; or (ii) the sexual penetration occurred during a
period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual
advice, aid, or comfort in private. Consent by the complainant is not a defense;
North Dakota - Clergy is included in CHAPTER 12.1-20 BUT ONLY APPLIES TO 15-17 YR. OLDS SEX OFFENSES 12.1-20-06.1. Sexual
exploitation by therapist - Definitions - Penalty.-"Therapist" means a physician, psychologist, psychiatrist, social worker,
nurse, chemical dependency counselor, member of the clergy, or other person, whether licensed or not by the state, who performs
or purports to perform psychotherapy.
Texas Law - clergy listed in CIVIL PRACTICE AND REMEDIES CODE TITLE 4. LIABILITY IN TORT CHAPTER 81. SEXUAL EXPLOITATION BY
MENTAL HEALTH SERVICES PROVIDER
Utah - clergy is listed under 76-5-406. Sexual offenses against the victim without consent of victim -- Circumstances. (12)
the actor is a health professional or religious counselor, as those terms are defined in this Subsection (12), the act is
committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim
reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the
extent that resistance by the victim could not reasonably be expected to have been manifested. For purposes of this Subsection
(12):(b) "religious counselor" means a minister, priest, rabbi, bishop, or other recognized member of the clergy.
The chart below summarizes how States have or have not addressed the issue of clergy as mandated reporters (either
specifically or as part of a broad category) and/or clergy-penitent privilege (either limiting or denying the privilege) within
their reporting laws. | | Privilege granted but limited to "pastoral communications" | Privilege denied in cases of suspected child abuse or neglect | Privilege not addressed in the reporting laws |
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| Clergy enumerated as mandated reporters | Alabama, Arizona, Arkansas, California, Colorado, Illinois, Louisiana, Maine, Massachusetts, Michigan, Minnesota,
Missouri, Montana, Nevada, New Mexico, North Dakota, Oregon, Pennsylvania, South Carolina, Vermont, Wisconsin | New Hampshire, West Virginia | Connecticut, Mississippi | | Clergy not enumerated as mandated reporters but may be included with "any
person" designation | Delaware, Florida, Idaho, Kentucky, Maryland, Utah, Wyoming | North Carolina, Oklahoma, Rhode Island, Texas | Indiana, Nebraska,
New Jersey, Tennessee, Puerto Rico | | Neither clergy
nor "any person" enumerated as mandated reporters | Washington5 | Not applicable | Alaska, American Samoa, District
of Columbia, Georgia, Guam, Hawaii, Iowa, Kansas, New York, Northern Mariana Islands, Ohio, South Dakota, Virgin Islands,
Virginia |
To see how your State addresses this issue, visit the State Statutes Search. To find information on all of the States and territories, view the complete printable PDF, Clergy as Mandatory Reporters of Child Abuse and Neglect: Full-Text Excerpts of State Laws (PDF - 262 KB).
Examples of Clergy Sexual
Exploitation Court Cases Involving Adult Victims
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Colorado
Conneticut
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.)
Supreme Court of Florida ____________ No. SC94450 ____________ JANE
DOE, Petitioner, vs. WILLIAM DUNBAR EVANS, III; CHURCH OF THE HOLY REDEEMER,
INC.; THE DIOCESE OF SOUTHEAST FLORIDA; AND CALVIN O. SCHOFIELD, JR., Respondents. [March 14, 2002] PARIENTE, J. We have for review Doe v. Evans, 718 So. 2d 286 (Fla. 4th DCA 1998), a decision of the Fourth
District Court of Appeal that expressly construes the First Amendment of the United States Constitution.
We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The issue presented in
this case is whether the First Amendment bars claims for negligent hiring and supervision and breach of
fiduciary duty against a religious -2- institution based upon alleged sexual misconduct by one of its clergy with a parishioner
in the course of an established marital counseling relationship. For the reasons expressed in Malicki v.
Doe, No. SC01-179 (Fla. Mar. 14, 2002), we hold that the 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. We therefore quash the Fourth District's contrary decision. BACKGROUND Jane Doe brought a lawsuit against the Reverend William Dunbar Evans, III ("Evans"),
the Church of the Holy Redeemer, Inc. ("Holy Redeemer"), the Diocese of Southeast Florida, Inc.
("the Diocese"), and Calvin O. Schofield, Jr., a bishop of the Diocese. Doe alleged in her second
amended complaint that she was a former parishioner at Holy Redeemer, where Evans was employed as the pastor. Doe's complaint asserted that part of Evans' duties as pastor included "providing counseling
and spiritual advice to parishioners having marital difficulties." Doe alleged that Evans approached
her while she was having marital difficulties and asked if he could assist her in counseling, spawning
a counselor-counselee relationship. During the course of this counseling relationship, which lasted several -3- months, Evans instituted
a personal relationship and became involved with Doe in a "romantic manner." Doe
alleged that Holy Redeemer, the Diocese, and Schofield ("the Church Defendants") all were aware
of prior incidents involving sexual misconduct by Evans during counseling "at another church and also
within the Diocese," and also while at Holy Redeemer, all before the counseling relationship between
Doe and Evans began. Doe alleged that "[i]n spite of this knowledge, nothing was done by the
[Church] Defendants . . . to rectify the situation." Doe alleged that the Church Defendants had the
right to exercise control over a "sexually exploitive pastoral counselor" and in fact had exercised
such control in the past. Further, Doe claimed that none of the defendants' conduct was "motivated
by any sincerely held religious belief." Count I of the second amended complaint
set forth a cause of action for breach of fiduciary duty as to all defendants. Doe alleged that Evans and
the Church Defendants assumed a fiduciary duty to her by directly soliciting her trust and
confidence. Evans then breached that duty by becoming romantically involved with her and by failing to
adequately keep Doe's interests paramount, and the Church Defendants allegedly breached their fiduciary
duty because they were aware early on in the counseling process that Evans was abusing his position of
trust but 1 Evans did
not join in the motion to dismiss and the claims against himremain pending in the trial court. See Evans,
718 So. 2d at 287. Evans did not join in the motion to dismiss
and the claims against himremain pending in the trial court. See Evans, 718 So. 2d at 287. -4- failed to protect
Doe. Count II of the second amended complaint set forth a cause of action against the Church Defendants
for negligent hiring and supervision based upon their knowledge of Evans' prior sexual misconduct in
similar circumstances. Count III alleged a cause of action against all of the defendants for outrageous conduct. The Church Defendants moved to dismiss, alleging that Doe's
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Massachusetts
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.)
The Minnesota Court of Appeals has ruled that a church may be sued and held liable to a congregant arising from alleged
wrongful conduct by its pastor when rendering secular counseling services. The Court rejected the church's contention
that the constitutional prohibition on state entanglement in religious affairs barred the lawsuit. Thus, the court allowed
the plaintiff to proceed to trial on his civil claims for money damages. Although the case involves claims against
a church, its holdings certainly apply to any religious institution as well as clergy of all faiths. We have summarized
the case below and provided recommendations to religious institutions for minimizing and managing the risk of such a claim.
Background Facts These are the facts of the case set forth in the published opinion, Odenthal
v. Minnesota Conference of Seventh-Day Adventists, et al, Nos. C1-01-278, C4-01-291, slip op. (Minn. Ct. App. Jan. 27,
2003). The plaintiff in this case, Steven Odenthal ("Steven") and his ex-wife ("Diane") are Seventh-Day
Adventists. They sought and received numerous sessions of marital counseling from their pastor, Lowell Rideout "("Rideout").
In the course of the marital counseling, Rideout and Diane allegedly became attracted to each other and later became romantically
involved. They did not tell Steven, whom Rideout continued to counsel. Eventually, Rideout and Diane divorced their spouses
and were married. While the counseling was occurring, the president of the Adventists' Conference ("Carlson")
received three anonymous letters complaining about the alleged inappropriate relationship between Rideout and Diane. Carlson
did not investigate. Steven's mother also complained to Carlson. This caused Carlson to review Rideout's personnel
file. The court noted that it contained a letter stating that, while Rideout had been the pastor at another church, a woman
had accused him of sexual improprieties. Carlson spoke to Rideout, who described Diane as a special friend but denied having
an inappropriate relationship. Church policy required investigation of complaints involving sexual improprieties, including
formation of a sexual ethics committee. Carlson did not invoke the policy, believing that he did not have enough information
to proceed. Ultimately, a group of church members met with Carlson to discuss their concerns about Rideout's alleged
relationship with Diane. He learned that at least 10 people had met with Rideout regarding alleged inappropriate conduct with
Diane. Carlson then confronted Rideout, and Rideout resigned. Lawsuit Steven sued the church
for negligently employing Rideout, including claims of negligent supervision and retention of Rideout. He sued Rideout individually
for negligent counseling, intentional infliction of emotional distress, clergy malpractice, and breach of fiduciary duty.
He alleged that the church was vicariously liable for the claims against Rideout.
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California 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.)
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Michigan 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.)
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New Jersey
New York
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.)
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.)
1997 ND 96L.C., Plaintiff and Appellant
v.
R.P., individually and as a duly ordained
and credentialed pastor and member of the North Dakota Conference of the Methodist Church d/b/a United Methodist Church Dakotas
Area, Defendant
and
the North Dakota Conference of the Methodist Church d/b/a United Methodist Church Dakotas Area,
Defendant and Appellee Civil No. 960156 Appeal from the District Court for Burleigh County, South
Central Judicial District, the Honorable Bruce B. Haskell, Judge.
AFFIRMED.
Opinion of the Court by Meschke, Justice.
Charles T. Hvass, Jr. (argued), Suite 450, 100 South 5th Street, Minneapolis, MN 55402-1027, for plaintiff and appellant.
Leo F. J. Wilking (argued), of Nilles, Hansen & Davies, Ltd., P.O. Box 2626, Fargo, ND 58108, for defendant and appellee.
L.C. v. R.P., et al. Civil No. 960156Meschke, Justice.
[¶1] Lynn Cheshire appealed from a summary judgment dismissing her action against the North Dakota Conference of the United
Methodist Church d/b/a United Methodist Church Dakotas Area (Conference). We hold that a stipulation to dismiss Cheshire's
claims against Robert Paul, a pastor in the Conference, released Cheshire's claims against the Conference for vicarious
liability arising from Paul's sexual relationship with Cheshire. We also hold that Cheshire failed to raise a genuine
issue of material fact about whether the Conference breached a fiduciary duty to protect Cheshire from Paul's acts. We
affirm. [¶2] In February 1983, Cheshire's husband, a United States Marshall in Bismarck, was killed in the line of duty. Paul, a
pastor at McCabe United Methodist Church in Bismarck, formally counseled Cheshire, a parishioner at McCabe, through January
1984. Paul thereafter engaged in informal counseling with Cheshire, and in July 1984, they began a sexual relationship. [¶3] In April 1985, Paul moved to Nashville, Tennessee, to work as a director of adult education in the United Methodist Church.
Paul and Cheshire continued their sexual relationship until March 1992 with meetings four or five times a year at workshops
throughout the country. In January 1993, Cheshire informed Bishop William Lewis of the Conference about Paul's relationship
with her, and Paul was removed from his position in the Methodist church. [¶4] Cheshire sued Paul and the Conference, alleging (1) they breached a fiduciary duty to her, and (2) the Conference was vicariously
liable for Paul's acts.(1) She alleged that the death of her husband placed her in a vulnerable position, and Paul, as pastor and counselor, abused
his fiduciary relationship with her. She claimed that Bishop Boulton and the Conference were informed about the sexual relationship
on two different occasions in 1984 and failed to take appropriate action. [¶5] The trial court granted the Conference's motion for summary judgment. The court ruled, as a matter of law, that the
Conference had not assumed a fiduciary duty to Cheshire and was not vicariously liable for Paul's acts. Cheshire appealed
from the judgment dismissing her action against the Conference. We "temporarily remanded . . . for consideration of the
Stipulation of Dismissal with Prejudice [of Cheshire's claims against Paul] and entry of an appropriate judgment."
See NDRCivP 54(b). The parties thereafter filed a stipulation that Cheshire's claims against Paul "individually, and as a duly ordained
and credentialed pastor and member of the . . . Conference, . . . , may be dismissed with prejudice, without costs and without
further notice to the parties."(2) A judgment incorporating the parties' stipulation was entered.
Oregon
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOHN DOE, CIVIL ACTION NO. 3:04-CV-2427 (JUDGE CAPUTO) Plaintiff, v. REV. ALBERT M. LIBERATORE, JR., DIOCESE OF SCRANTON, SACRED HEART
OF JESUS CHURCH, BISHOP JAMES C. TIMLIN, REV. JOSEPH R. KOPACZ and BROTHER ANTONIO F. ANTONUCCI, Defendants. MEMORANDUM Presently before the Court are Defendants Diocese of Scranton (the “Diocese”), Sacred Heart of Jesus Church (“Sacred Heart”), Bishop James C. Timlin (“Bishop Timlin”),
Rev. Joseph R. Kopacz (“Father Kopacz”) (collectively the “Diocesan Defendants”)
and Brother Antonio F. Antonucci’s (“Brother Antonucci”) (collectively “Defendants”)
motions for summary judgment (Docs. 75-1, 76) as to Counts I, III, IV, V, VI, VII and VIII of Plaintiff
John Doe’s Complaint (Doc. 1). The Diocesan Defendants also seek summary judgment as to Plaintiff’s
claim for punitive damages. For the reasons stated below, the Court will grant in part and deny in part
Defendants’ motions. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367(a).
Rhode Island
Joan D. Martin
: Present: Williams, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ. O P I N I O N Flanders, Justice. This appeal tells
the tale of a parishioner whose pastor engaged in asexual relationship with her during a six-month period
in 1995 and 1996 — allegedly without obtaining her valid or knowledgeable consent to do so. After
sleeping with her pastor, however, did the parishioner then sleep on whatever rights she may have had to
sue both the pastor and her church for their asserted wrongdoing? That question and the proper application
of the governing statute of limitations are the focus of our inquiry. Ultimately, in
1999, plaintiff-parishioner, Joan Martin (Martin), filed a complaint in Superior Court against defendant-pastor,
the Reverend Evan D. Howard (Howard). She accused him of what amounted to clergy malpractice by engaging
in an extramarital sexual affair with her. But did Martin do - 1 - so in a timely fashion,
or, as the trial justice ruled in dismissing her complaint, did she wait too long to take Howard and her
church to court for their alleged misdeeds? This appeal tells the
tale of a parishioner whose pastor engaged in asexual relationship with her during a six-month period in 1995
and 1996 — allegedly without obtaining her valid or knowledgeable consent to do so. After sleeping
with her pastor, however, did the parishioner then sleep on whatever rights she may have had to sue both
the pastor and her church for their asserted wrongdoing? That question and the proper application of the
governing statute of limitations are the focus of our inquiry. Ultimately, in 1999,
plaintiff-parishioner, Joan Martin (Martin), filed a complaint in Superior Court against defendant-pastor,
the Reverend Evan D. Howard (Howard). She accused him of what amounted to clergy malpractice by engaging
in an extramarital sexual affair with her. But did Martin do - 1 - so in a timely fashion,
or, as the trial justice ruled in dismissing her complaint, did she wait too long to take Howard and her
church to court for their alleged misdeeds? Facts and Travel On January 16, 1999, Martin filed her complaint in Superior Court against Howard, the
Central Baptist Church of Rhode Island (church), and the American Baptist Churches of Rhode Island (ABCORI) (collectively, the church defendants). She alleged that from September 1994 through February
1995 — while she was a parishioner and the church’s elected moderator, and while Howard was
the church’s pastor and married to another woman — Howard engaged her in a sexual relationship without
her “valid or knowledgeable consent.” Thereafter, in February 1995, an ABCORI church official
contacted her, informed her that Howard had admitted to his sexual relationship with her, and that the
church defendants would address this situation through an internal church mediation process that would
be conducted in a fair, impartial, and confidential manner. Martin further alleged that a church official
later notified her, on or about May 30, 1995, that Howard had been placed on a paid leave of absence for
six months and that the church defendants had asked him to take steps to address his admitted misconduct.
The church defendants, however, offered no specific redress to Martin in response to her asserted “victimization”
by Howard. Moreover, in June 1995, Howard supposedly denounced her to the congregation in a letter the
church defendants had allowed him to read from the church pulpit, blaming her for causing him to stray
from his ministry and his marital vows. Later, in January 1996, Martin learned that, upon the expiration
of his paid leave of absence, the church defendants had allowed Howard to resume his pastoral duties without
taking any further action to remedy his alleged wrongdoing or to redress Martin’s injuries. As a
result, she - 2 - averred, the church defendants allowed Howard to defame her and to
blame her for his own misconduct, all of which led to her constructive removal from the church. Finally,
Martin alleged, by reason of the foregoing, she suffered grievous emotional and psychological injuries
for which she sought an award of money damages from defendants. Martin then filed an
amended complaint that she divided into eight counts. Count 1 averred that, in light of Howard’s
lubricious liaison with her, the church defendants were negligent in hiring, supervising, and retaining
him as pastor of the church. Count 2 alleged that the church defendants were responsible for Howard’s
wrongful acts because he was acting as their agent, servant, or employee. In count 3, Martin alleged that
all defendants breached the fiduciary duties they owed to her before, during, and after the mediation process.
Count 4 alleged that the church defendants fraudulently misrepresented to Martin that her claims arising
from Howard’s conduct would be redressed through a fair, impartial, and confidential internal church
mediation. Counts 5 and 6 alleged that defendants were guilty of intentional and negligent infliction of
emotional distress upon Martin. Count 7 alleged that the parties had a “binding and enforceable agreement”
that the church defendants would mediate Martin’s claims; that they would do so in a fair, impartial,
and confidential manner through an internal church procedure; and that defendants breached this agreement
by failing to observe and protect her best interests, failing to include her in the mediation, intentionally
protecting Howard to her detriment, and causing defamatory statements about her to be published. Finally,
count 8 of the complaint alleged that defendants breached an implied covenant of good faith and fair dealing
by failing to treat Martin fairly and impartially in the course of and after the mediation had concluded
Texas
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.)
Wisconsin
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.)
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