Clergy Malpractice

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A breach of the duty owed by a member of the clergy (e.g., trust, loyalty, confidentiality, guidance) that results in harm or loss to his or her parishioner. A claim for clergy malpractice asserts that a member of the clergy should be held liable for professional misconduct or an unreasonable lack of competence in his or her capacity as a religious leader and counselor.

Generally speaking, most clergy malpractice cases are couched in terms of tort law as matters of alleged negligence, abuse of authority or power, inappropriate conduct, breach of confidentiality and trust, or incompetence. The claims assert that members of the clergy owe the same kind of duty to persons they serve as doctors owe to patients or lawyers owe to clients. Most licensed professionals in the secular world, including physicians, lawyers, and psychologists, may be held liable for negligence. Clergy members, however, are not licensed as professional counselors, making them accountable only to religious standards in many jurisdictions. Moreover, because the practice (or "free exercise") of religion is protected by the Constitution, which, under the first amendment, requires separation of church and state, courts remain reluctant to apply secular laws to what they perceive as religious matters. For these and other social reasons, claims of clergy malpractice historically were relatively fruitless, with courts consistently ruling in favor of defendants. In the late 1990s, however, a rising number of sexual misconduct allegations surfaced in the Roman Catholic Church, which resulted in courts taking a closer look at the viability of such a legal premise.

One of the earlier claims for clergy malpractice was brought in Nally v. Grace Community Church of the Valley, 47 Cal. 3d 278, 763 P.2d 948, 253 Cal. Rptr. 97 (1988). In Nally, the parents of 24-year-old Kenneth Nally argued that pastors at Grace Community Church, in Sun Valley, California, were liable for his suicide in 1979. Nally's parents maintained that church pastors should have directed him to seek psychiatric care. Instead, they claimed, the pastors may have actually encouraged Nally's suicide by teaching him that taking his own life would not prevent his entrance into heaven.

The ensuing litigation extended over eight years. The final appeal to the California Supreme Court attracted about 1,500 churches and religious organizations that spoke out in support of Grace Community Church in seeking protection against tort claims under the Free Exercise Clause of the First Amendment. But when the California Supreme Court finally dismissed the lawsuit on November 24, 1988, it did not directly address the First Amendment issue. In a 5–2 opinion the majority held that the clergy in this case were not licensed counselors and could not, therefore, be held legally liable for failing to provide proper care for the people they had advised. The case established the principle that religious counseling need not abide by the same legal standards that apply in other professional areas.

Another case in the 1980s elaborated on constitutional issues more explicitly than did Nally. In 1986, in Baumgartner v. First Church of Christ, Scientist, 141 Ill. App. 3d 898, 96 Ill. Dec. 114, 490 N.E.2d 1319 (1986), Mary Baumgartner brought suit against the church for the wrongful death of her husband, John Baumgartner, a Christian Scientist. The plaintiff Baumgartner, the executor of the decedent's estate, claimed that the First Church of Christ Scientist had prevented her husband from finding treatment for his acute prostatitis condition. The church allegedly informed him that he would die if he sought medical care and that he should instead practice the steps of Christian Science to cure his illness. Church representatives also convinced him to alter his will, leaving half of his multimillion-dollar estate to the Christian Science church.

In addition to claims for wrongful death and medical malpractice, Baumgartner brought a claim for Christian Science malpractice. The substance of this complaint was that a member of the church and a church nurse had deviated from the standard of care of an ordinary Christian Science practitioner and nurse when they treated the decedent. The Illinois Court of Appeals refused to rule on this claim, holding that the First Amendment to the Constitution allows only the church itself to determine whether there has been a deviation from the church's religious standards. The question of whether a practitioner of Christian Science deviated from the church's standard of care was not, held the court, a justiciable controversy.

A 1991 Ohio case took a slightly different look at clergy malpractice claims. In Byrd v. Faber, 57 Ohio St. 3d 56, 565 N.E.2d 584 (1991), Leroy Byrd and his wife, Garnet Byrd, brought suit against the church and its reverend for nonconsensual sex between the reverend and Garnet arising during marital counseling. The Byrds claimed clergy malpractice in addition to fraud, intentional infliction of emotional distress, and nonconsensual sexual conduct. The Ohio Supreme Court denied the clergy malpractice action, calling it a redundant claim. The court held that since the Byrds had not addressed any aspect of the clergy-communicant relationship that could not be redressed through general tort law, allowing them to recover under clergy malpractice would give them two recoveries for the same injury.

Likewise, in the 1994 case of Hertel v. Sullivan, 261 Ill. App.3d 156, an Illinois appellate court refused to hold a priest liable for professional negligence based on an alleged violation of the standards of care applicable to a psychologist. In 2000, a New York appellate court upheld a lower court's dismissal of a woman's claim that her priest breached his fiduciary duty by allowing counseling sessions to develop into a sexual relationship. The court ruled that any attempt to define the duty owed by a member of the clergy would foster excessive entanglement with religion. For similar reasons, the Utah Supreme Court unanimously upheld the dismissal of a rape case in which a woman accused the mormon church of negligence for advising her to "forgive and forget" the childhood incident (Franco v. The Church of Jesus Christ of Latter Day Saints, 2001 UT 25 '2001').

Allegations of sexual misconduct appear among various faiths, but the Roman Catholic Church was rocked by scandal involving child molestation and the supposed cover-up of such acts at the diocesan level. When the news broke in Boston in early 2002, the Massachusetts attorney general began investigating for evidence of a criminal cover-up by the church, and nine priests were criminally charged with rape or molestation. Under mounting pressure, Boston's cardinal Bernard Law resigned. In the ensuing months, more than five hundred alleged victims brought civil lawsuits against the Archdiocese of Boston, coincident with a rash of similar civil suits across the country. In June 2002, the United States Conference of Catholic Bishops, pressed by its constituency, came forward with a formal policy statement, the Charter for the Protection of Children and Young People, declaring that abusive priests would be removed from direct contact with parishioners. In February 2003, Massachusetts Superior Court judge Constance M. Sweeney denied the church's request for dismissal of the hundreds of pending civil suits. She ruled that the cases dealt with the handling of sexually abusive priests by their superiors, and not more prohibitive issues that would require delving into religious principles.

further readings

Burge, Kathleen. 2003. "Judge Rules Church Suits Can Proceed." Boston Globe (February 20).

"'Clergy Malpractice' Cases." October 3, 2002. Available online at <> (accessed June 17, 2003).

Fain, Constance F. 1991. "Clergy Malpractice: Liability for Negligent Counseling and Sexual Misconduct." Mississippi College Law Review (fall).

Graziano, Sue G. 1991. "Clergy Malpractice." Whittier Law Review.

Malony, H. Newton. 1986. Clergy Malpractice. Philadelphia: Westminster Press.

McMenamin, Robert W. 1986. Clergy Malpractice. Buffalo: Hein.

United States Conference of Catholic Bishops. 2002. "Charter for the Protection of Children and Young People." Available online at <> (accessed June 17, 2003).



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Clergy Malpractice

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