Category: Sexual Misconduct

INTERNET ANNOUNCEMENTS OF INVESTIGATIONS OF CLERGY

Once completely shrouded behind church tradition if not actual walls, the results of church investigations into their own clergy are now routinely posted on the internet.  Some of the investigations must be understood in the context of Canon Law and not just the language used in the disclosures on the internet.

The case of In Re Diocese of Lubbock, Slip Op. (Tex. 2021) reviewed the posting of lists of clergy the church alleged from its own internal investigation were credibly accused of sexual abuse with a “minor.”  However, in the denomination in question, Canon Law held the word “minor” included vulnerable adults, too.  The Plaintiff alleged he was listed even though the sexual misconduct of which he was accused did not involve a person underage but rather an allegedly “vulnerable adult,” in this instance mentally ill or incapacitated.  The Plaintiff complained he was defamed by the failure to make this distinction clear.  Further, the Plaintiff claimed posting the list on the internet was a publication that took the alleged defamation outside of the protection of the Ecclesiastical Abstention Doctrine of the First Amendment.  The Texas Supreme Court explicitly held that any church investigation into clergy was inherently and necessarily ecclesiastical and that publication on the internet did not obviate the doctrine.  The Court held that Canon Law terminology, the conduct and publication of the investigation under commands from the church hierarchy, and plaintiff’s status as clergy made the matter inextricable from ecclesiastical inquires that could not be made by a Court.  The trial court was ordered to dismiss the case.

The Court, and no court has done so, did not require that due process be provided to the accused including the right to be heard by church leadership.  Likewise, the quality of the investigation, or proof thereof, was not required.  The larger denominations have employed retired law enforcement officers and experienced lawyers to conduct and review the internal investigations.  The high-risk action was publishing the results.  While no churches would accept that risk in prior generations, churches in this generation believe they simply have no choice but to achieve transparency.

WHAT IS SAID IN CHURCH STAYS IN CHURCH? OR DOES IT?

The amount of intensely personal information safely distributed to the “church family” is not clear in all cases and jurisdictions.  In some jurisdictions, the “confessional privilege” is recognized and not in others.  In some jurisdictions, mandatory child abuse reporting statutes make the extent of confessional privilege unclear.  Can the pastor or priest inform the hierarchy of a confession?  In congregational churches, is there a “confessional privilege” at all and does it extend beyond clergy?  If a small group ministry is involved in drug, alcohol, or marriage counseling, does the “confessional privilege” extend to such a group?  If a member of a church is accused of child abuse, to what extent must other parents be informed or warned, and can they be warned of allegations not confirmed judicially?  Can warnings be given to non-members at all?

In Koster v Harvest Bible Chapel, Slip Op. (Iowa, 2021), the Supreme Court of Iowa affirmed dismissal by the trial court of breach of fiduciary duty and defamation claims against a church and pastor.  Allegations of child abuse were made by a wife against a husband on multiple occasions.  However, subsequent investigations by law enforcement did not confirm the allegations.  The family court hearing divorce proceedings awarded “physical care of the children” to the husband.  Before the family court decision, however, the pastor circulated email to various church leaders and church members, and one non-member that was active in the church, regarding the wife’s allegations and recommended staff, members and the non-member to refrain from accepting the husband’s version of events.  The trial court held the circulation of the emails to staff, members and the non-member fully involved in the church did not constitute publication sufficient to sustain a defamation claim.  The trial court also held there were no facts presented that the pastor knew the allegations were false or recklessly disregarded the truth.  The defamatory statements were potentially linked to internal church disciplinary processes.  Some of the disclosures were by the wife and some arose in small group marriage counseling sessions.  The trial court also held that the fiduciary duty claim required intrusion into church internal management to determine the parameters of such a duty and whether it was breached by the pastor.  The Ecclesiastical Abstention Doctrine, the Court held, deprived the Court of jurisdiction to make such an inquiry into internal church management.

The case reported was alluring because a non-member was informed.  The exact extent of the involvement of the non-member in the church was not specified but the inference in the opinion was that it was sufficient to reach the need-to-know plateau.  Also, the opinion had to deal with the confidentiality that could be expected from small group counseling.  The opinion seemed to indicate little confidentiality could be demanded.  The Court expressly noted the participants did not sign a confidentiality agreement.  The lesson might be that small group members must expect candor not to be cloaked in confidentiality.  In other words, what is revealed in church may not be cloaked by privacy.

EUPHIMISTIC OR CODED CHURCH LANGUAGE (2nd Ed)

There is often no proof of knowledge by church employment supervisors that sexual misconduct occurred with a minor until long after the fact.  One cause is that it is simply not reported to those supervisors at the time.  Sometimes, inexplicably, that which is reported is some other tale that does not include any hint of a sexual event.  However, sometimes it does become known to church employment supervisors.

In John Doe 122 v Marianist Province, Slip Op. (Mo. 2021), the Missouri Supreme Court reversed, in part, a summary judgment granted to the church.  The claim sent back for further proceedings was a claim for intentional failure to supervise clergy.  We previously reported on this case on January 29, 2020 regarding the Court of Appeals decision, which should now be considered superseded by this Supreme Court opinion.  The Plaintiff’s proof of culpable knowledge by the church was presented by an apparently credible expert witness that personnel file entries contained euphemistic code words used at the time that, indeed, in code referenced inappropriate sexual behavior with minors.  The trial court rejected such proof but the Missouri Supreme Court reversed and held it was for the trier of fact, probably a jury, to determine what weight to give the opinion.

While it is true that the standards of one era might differ from another, it is hard to imagine that clergy sexual misconduct could be so easily dismissed in any era by any church supervisory authority.  However, it still seems to happen no matter how often legal counsellors decry it.  Any church leader or clergy that becomes aware of sexual misconduct with a minor should consult legal counsel to determine if mandatory reporting is required.  Such a consultation will likely not be free or quick unless the advice is to immediately report.  Advice that indicates reporting is not required should be deliberate, careful, and thoroughly considered.

ALIENATION OF AFFECTION CLAIMS

As a genre, alienation of affection claims, called “criminal conversation” in some jurisdictions are all but archaic reminders of an earlier age.  “Clergy malpractice” claims sometimes were merely alienation of affection claims or “criminal conversation” claims in a different wrapper.  The few states that still allow alienation of affection claims or “criminal conversation” claims require that the claimant prove the marriage was a good one before the interloper intervened.  Most claimants could not make such proof by the 20th century.  In the 19th century, these types of tort claims were considered necessary to protect women because women were considered vulnerable dependents.

In Mosby v Kleinguetl, Slip Op. (Tex. Civ. App. 14th, 2021), the Plaintiff alleged that “counseling sessions” “devolved into a ‘personal relationship’ that culminated in … divorce.”  The Plaintiff alleged this was part of a pattern of conduct.  The trial court twice permitted the Plaintiff to amend the Petition to allege jurisdictional facts but dismissed the case.  In other words, the Plaintiff could not allege facts supporting a claim that a good marriage was destroyed by incompetent or intentional conduct that was actionable.  The appellate court did not hold, and probably deferred such a holding to the Supreme Court of Texas, that there no longer are justiciable tort claims for alienation of affection or “criminal conversation” in Texas.  However, it reached the same result.

It probably does not require pronouncement in this report that a sexual relationship between counselor and counseled is not a good idea.  A “personal relationship” seems all but unavoidable in counseling relationships that extend over a period of time but counseling professionals know to avoid escalation and so too should church counselors.  Common sense would demand such restraint.  Nevertheless, these relationships may no longer be in the purview of tort law.