Malpractice Revisited: Legal Claims against Clergy

By Thomas, Oliver | The Christian Century, September 24, 1997 | Go to article overview

Malpractice Revisited: Legal Claims against Clergy


Thomas, Oliver, The Christian Century


The new Jersey Supreme Court this past summer reversed a lower court decision that had permitted a claim of clergy malpractice to proceed against an Episcopal priest. The priest is accused of improper sexual relations with one of his counselees.

The court of appeals had broken ranks with all other state and federal courts by holding that judges were competent to determine 1) the proper standard of care that clergy owe to their parishioners, and 2) when that standard of care has been breached. By reversing the lower court, the New jersey Supreme Court recognized the inherent difficulty of allowing judges to establish standards of conduct for what is essentially a spiritual enterprise.

The Supreme Court went on to hold that although clergy could not be sued for malpractice, they could be held to the same standards of conduct applicable to ordinary citizens. Specifically, the court held that a member of the clergy can be sued for breach of fiduciary duty as well as for infliction of emotional distress. As the court put it: "The free exercise of religion does not permit members of the clergy to engage in inappropriate sexual conduct with parishioners who seek pastoral counseling." Claims about breach of duty and emotional distress can both be decided without entangling judges and juries in spiritual matters.

The essence of a fiduciary relationship is that one person places confidence and trust in another who is in a dominant or superior position. The dominant party assumes a duty to act or give advice for the benefit of the person seeking help. Such fiduciary relationships are common in our society, and include the relationships of doctors and their patients as well as those of lawyers and their clients. Some states go so far as to impose criminal penalties on therapists who violate their fiduciary duty by engaging in sexual misconduct with their patients.

It is no surprise that the New jersey Supreme Court declared that a pastor, by accepting a parishioner for counseling, accepts the responsibility of a fiduciary. But the court acknowledged that if the underlying dispute turns on a question of church doctrine, the claim may be barred by the First Amendment. The court noted that it could identify no doctrine that would justify sexual misconduct on the part of clergy. To the contrary, the teachings of the church roundly condemn such acts. Because no theological or ecclesiastical questions need be decided, the court will allow the case to proceed to trial.

In a similar fashion, the plaintiff may sue for infliction of emotional distress. …

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