Category: Sexual Misconduct

CHURCH POLICIES AS TORT DUTIES

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 BOUNDARIES

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.

RIDING THE RAPIDS – DENOMINATIONAL OVERSIGHT LIABILITY

Most local churches are separately incorporated.  Each denomination exercises a unique level of control and supervision of their local churches that ranges from virtually none to substantial oversight.  In those denominations that exercise substantial oversight, liability for the actions of the local church or parachurch organization might exist if the denomination was deliberately indifferent to those actions.

In Buettner-Haratsoe v Baltimore Lutheran High School Association, et al, Memorandum Opinion (D. Maryland, 2021) the federal trial court denied motions to dismiss allegations the church school and the denominational supervisory body failed or refused to control sexual harassment and abuse of minor female students by other students on campus as well as off.  Social media, of course, was a major culprit but sexual assault and battery was alleged as well.  The culture of the high school was characterized by the Plaintiffs as “hyper-sexualized.”  One male student was prosecuted and pled out.  The denomination sent a crisis management team to the school to try to address the allegations.  The Plaintiffs alleged the crisis management team’s actual agenda was to squelch faculty complaints and the Plaintiffs’ allegations rather than take any action to remediate the situation.  The trial court held “deliberate indifference,” an element of federal statutory discrimination claims, in this instance Title IX, sufficiently alleged against both the local church school and the denomination.  The trial court held that none of the allegations required inquiry into any “ecclesiastical controversy.”  The case will proceed through discovery and possibly future motions for summary judgment or trial.

If the allegations had sufficient credibility, due to numerosity if nothing else, to warrant dispatch of a special team to conduct onsite situational evaluations, the denomination should have dispatched qualified investigators, too.  Qualified investigators should have included, for example, retired or former law enforcement officers and attorneys qualified to conduct such investigations.  Each complaining student should have been interviewed on the record.  Each faculty member that claimed to observe anything or to be the recipient of a complaint from one of the female students should have been interviewed on the record.  Some of the complaints might have triggered state mandatory child abuse reporting statutes.  Reasonable actions should have been designed based on the investigations and may have included student disciplinary actions as well as employee disciplinary actions.  Local churches and denominational supervisory bodies that fail to make a record of duly diligent inquiry risk more than is risked by making a wrong decision about what to do about it.

CONFESSIONAL PRIVILEGE VERSUS MANDATORY REPORTING

There is in some states a conflict between confessional privilege and statutes that require clergy to report suspected child abuse.  The obvious conflict is between the religious duty of confessional secrecy and the legal duty to report child abuse.  In some states failure to report suspected child abuse is a crime.  In some states, the confessional privilege is also preserved by statute and the question presented by those statutes is who may claim the confessional privilege?  Is the confessional privilege capable of being invoked only by “recognized” clergy?

In Ivy Hill Congregation v Pennsylvania, Slip Op. (Penn. 2021), the church sought a declaratory judgment that “Elders” of the church could invoke confessional privilege.  Clergy were specifically named as mandatory reporters in the child abuse reporting statute.  The church plaintiff did not have “clergy.”  Rather, male members that were deemed qualified were nominated in the local church but had to be confirmed by an “Elder” responsible for all of the churches in a designated area to be Elders.  The Supreme Court of Pennsylvania overruled the state’s various objections to the declaratory judgment action.  However, the Court refused to decide the central question of whether “Elders” were “clergy” as anticipated by the mandatory reporting statute or the confessional privilege.  The Court sent the case back to the trial court for development of a factual record that might answer whether “Elders” qualified under either.

Many independent congregations with no denominational hierarchy may face similar questions.  In such churches, the ordination of the clergyman comes with the first paycheck and ends with the last.  Some have formal religious training and many do not. Many confessional privilege statutes exclude “lay” or “self-appointed” clergy.  The church governing documents may be the only source of authority describing the role and authority of the pastor or minister sufficiently to trigger the confessional privilege or the mandatory reporting statute, or both.  Independent churches should engage counsel to consider the governing documents in the light of both types of statutes in those states that have them.