CLERGY MALPRACTICE
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. ABCnews
.com. Available online at sections/primetime/dailynews/clergy_malpractice_
sidebar_021003.html> (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 .htm> (accessed June 17, 2003).
CROSS-REFERENCES
Religion.
