In the era of transparency, churches and denominations are publicly revealing sexual misconduct claims that in prior generations would not have been made public. Youthful indiscretions of non-clergy lay members in prior generations would not have been considered a matter of church transparency. That is no longer the case. Those churches or denominations that have been forced into bankruptcy law protection by similar claims may publicly reveal sexual misconduct claims. The question may then arise, for the non-clergy lay person that was a youth leader, can they get their name off such a public disclosure.
In the bankruptcy of the Roman Catholic Church of the Archdiocese of Santa Fe, Opinion (Bankr. D. NM 2021), the federal bankruptcy court in New Mexico had to decide whether to lift the bankruptcy stay in order to permit the state court Plaintiff’s defamation case to proceed. The state court Plaintiff alleged he was defamed by being listed by the church in its public disclosure regarding sexual misconduct of “Priests, Deacons, and Religious Accused of Sexual Abuse of Children.” The victim’s complaint was that the Plaintiff, a 19-year-old youth leader in 1970 was accused by the then 17-year-old victim of rape and molestation in a complaint filed in 1995 by the now deceased victim. The Plaintiff alleged the sexual encounter was consensual. The church listed the then 19-year-old Plaintiff as a “Benedictine brother” but Plaintiff denied he was ever such, nor was he ever a church employee. Plaintiff attended seminary for a couple of years but was never ordained in any capacity. Plaintiff served as a “lay minister” for 39 years (but the Court’s understanding of the role of a “lay minister” in the church in question was not explained). After being listed, Plaintiff was no longer allowed by the church to serve in any capacity. Plaintiff wrote a $5,000 check in 1997 and gave it to his lawyer but could not say how the money was used. However, the victim’s lawsuit was settled, apparently by the church and its insurer, and the Court did not know whether part of the money came from Plaintiff. The federal bankruptcy court refused to lift the stay because Plaintiff could not disprove that the victim made a complaint in 1995. The Court held that the settlement precluded any finding the allegations were untrue. The Court held the Plaintiff should have “appealed the decision through the church’s appellate channels.” The Court cited no church authority or governing document regarding the availability of such a process.
The facts in the reported case are so odd that extrapolating principles from the case involve a degree of risk. Also, the Court’s “findings” seemed to involve several inferential leaps. In any event, publicly disclosing sexual misconduct allegations regarding a non-clergy, non-employee, 19-year-old seems to be risky and probably should not be done without an excruciatingly careful review of the facts and claims. The first claim that could have been more carefully examined was whether in New Mexico in 1970 a 19-year-old could be a “Benedictine brother.”
In our report immediately prior to this one, the allegation in the case reported was that breach of the policies of the denomination or church by the church was a tort compensable in damages. Generally, tort claims are “wrongful acts” that are committed negligently. Intentional torts are generally those wrongful acts that are intentionally undertaken with the intent to injure, financially or physically, the damaged claimant.
In John Doe v Roman Catholic Diocese of Dallas, Slip Op. (Tex. Civ. App. 2021) the Plaintiff’s claim was that the Defendant committed “fraud by not following its internal policies for responding to sexual abuse after he reported he was sexually abused… .” The trial court held that the internal policies for responding to sexual abuse were “so integrally related to …dogma that it comprises part of the … religious representations, beliefs and teachings.” Therefore, the trial court dismissed the claim pursuant to the Ecclesiastical Abstention Doctrine. The appellate court affirmed the trial court. The appellate court held that an inquiry into whether the church violated its own policies “necessarily [required a] reach behind the ecclesiastical curtain.” The appellate court held that an allegation that the church violated its own policy by mishandling its internal investigation of the allegation was such an inquiry. The appellate court held that the allegation that the church violated its own policy by misinforming congregants of the investigation or its outcome was such a claim.
Internal church governance, its practices and procedures, are often of late the subject of claims. The damages claimed range from defamation to failure to protect from a sexual predator. There is no credible doubt that policies, practices and procedures of churches and denominations are driven by or drafted in conformity with religious beliefs. Therefore, interpretation and compliance by a church or denomination with its policies or procedures will be driven by the same religious beliefs. Nevertheless, churches and denominations should not consider the ecclesiastical barrier impenetrable. Mandatory child sexual abuse reporting statutes in most states, for example, may not tolerate contrary church policies and procedures. In any event, major decisions by leadership that are driven by church policies and procedures, especially those derived from religious beliefs, should be documented and the applicable policy or procedure annotated in the documentation.
In most states, in order to recover on a tort, a Plaintiff has to prove up a duty to the Plaintiff, breach of the duty by the Defendant, and damages. The unstated other element of proof is that the breach of duty actually caused the damages. There are many duties imposed in the law. However, while some secular duties can be imposed on a church or denomination, such as picking up the trash and mowing the lawn, not all can be. Herein we often report on federal employment laws that impose duties on secular employers but not on religious employers.
In Woodward v Miller, Slip Op., consolidated appeals, (Miss. En Banc, 2021) the Mississippi Supreme Court reversed the trial court and rendered Judgment in favor of the denomination and a minister that was also a psychotherapist with a certification in sex addiction. Miller was the original Plaintiff and the wife of a minister. The minister engaged in risky homosexual behaviors with multiple partners as well as engaging in sexual relations with his wife. The minister contracted HIV. The wife contracted HIV. The couple initially contacted another minister, Woodward, who was also a psychotherapist that attempted to assist the couple with the trauma. The wife sued the denomination claiming that the denomination should have detected her husband’s sexual adventures and warned her by properly enforcing its own policies and procedures. The wife sued the minister – psychotherapist for advising the husband to purge from his computer pornography and email, through which he engaged in the sexual conduct, resulting in spoliation of evidence. The appellate court held the denomination’s policies and procedures could not form the basis for a tort duty because the courts would be barred from considering them by the Ecclesiastical Abstention Doctrine. The appellate court held the minister psychotherapist consulted after the wife knew of the HIV infection did not spoil evidence in a future hypothetical civil claim but rather was only alleged to be treating an addiction.
The duty to treat homosexual conduct no differently than any other type of sexual conduct is imposed on secular employers through federal anti-discrimination statutes. Such a duty is not imposed on church employers because of religious entity exemptions in such statutes and the Ecclesiastical Abstention Doctrine of the First Amendment. The closer question will probably always be whether the actions taken by the denomination spoiled evidence of wrongdoing. For example, in the reported case the computer hard drive could have been taken into “protective custody” by the denomination as a means to “purge” the tools of addiction temptation rather than “purged.” But, spoliation without motive is usually not actionable. The minister psychotherapist was not alleged to have any motive.
Confessional privilege is not particularly in doubt in most states except at the outer boundaries. Typically, the boundaries waiver among the states depending on the role of the person claiming the confessional privilege. Priests, ministers, rabbis, pastors and other clergy are usually identifiable by licensure, ordination, or church governance documents that describe their duties as ecclesiastical. But, when non-clergy exercise some of the duties ordinarily thought of as ecclesiastical, whether the confessional privilege extends so far is unclear in most states and in others clearly does not apply.
In Caekaert v Watchtower Bible and Tract Society, et al, Order Motion to Compel Hardin Congregation’s Subpoena, (D. Mont., Billings Div., 2021) the federal trial court had before it a motion to compel various entities including the local church to comply with a Subpoena. The Plaintiff’s claim was that she was subjected to serial child sexual abuse by two members of the local church. The Plaintiff complained to church leaders, but because she could not produce a second witness, her complaint could not proceed. Meanwhile, the sexual abuse allegedly continued. In the lawsuit that followed, Plaintiff sought copies of reports by the local church Elders both internally and to the denomination. The Defendants objected to the Subpoena arguing that members were promised that confession of sin to Elders would remain confidential. Because Montana was a mandatory reporting statue state, the tension with the confessional privilege was inevitable. The trial court enforced the subpoena by requiring that the documents be submitted for review by the Court for a determination of whether the confessional privilege applied to any one of or all of the documents. The trial court held merely labeling the documents sought as “confidential” did not make them cloaked by the confessional privilege. Further, the court would not extend the confessional privilege to “nonclerical church member statements.”
Ecumenical churches will face these questions regarding the scope of the confessional privilege that may be asserted by the diaconate. Evangelical churches also often have “Elders,” and may describe their office or duties in governance documents sufficiently to trigger a confessional privilege. Questions also will arise when recognized clergy counsels with a member and present also is a member of the diaconate or an “Elder.” Unless the statutes defining confessional privilege or mandatory reporting are amended to avoid conflicting duties, these questions will persist in arising.