Pastor, Church & Law

Clergy Malpractice

§ 4.05

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “non-religious” counseling.

Malpractice generally is defined as a failure to exercise an accepted degree of skill in the performance of professional duties that results in injury to another. In the past, malpractice suits were restricted almost exclusively to doctors and lawyers—a doctor prescribed the wrong medication or made a faulty diagnosis; a lawyer missed a pleading deadline or made an error in a title search. But in recent years a small number of malpractice suits have been brought against ministers.

the Nally case

In the most significant ruling addressing “clergy malpractice,” the California Supreme Court ruled that a church and certain of its ministers were not legally responsible for the death of a suicide victim who had been a member of the church and who had counseled with the ministers.⁸⁰In 1973, while attending college, Kenneth Nally became depressed after breaking up with his girlfriend. He often talked about the absurdity of life, the problems he had with his girlfriend and with his family, and he occasionally mentioned suicide. Though raised in a Roman Catholic home, Nally converted to Protestantism and in 1974 began attending Grace Community Church in Sun Valley, California, and became active in various church programs and ministries.

At the time of the events in question, the church employed about 50 pastoral counselors to serve a congregation of over 10,000 persons. Pastoral counseling, according to the church’s 1979 annual report, was “a very important part” of the church’s ministry. The church offered its counseling services not only to members, but also to large numbers of nonmembers. In 1979, the annual report noted that about half of the persons seeking counseling were nonmembers. A church publication entitled the “Guide for Biblical Counselors” noted that a number of symptoms and disorders fell within the pastoral counselor’s domain, including “drug abuse, alcoholism, phobias, deep depression, suicide, mania, nervous breakdown, manic-depressive disorder and schizophrenia.” The Guide devoted separate sections to a number of disorders, including suicide, with hypothetical questions and answers. For example, one question read: “You mean I could counsel with an extreme problem like a suicidal tendency or nervous breakdown or something like that?” The answer read: “With the proper understanding of God’s Word to diagnose and treat the problems, this could not only be done occasionally but could become the rule.”

The church taught that the Bible is the fundamental Word of God containing truths that must govern Christians in their relationship with God and the world at large, and in their own lives. As a result, pastoral counseling was essentially religious in nature. The church’s senior pastor testified that “we just respond as pastors, so what we do is on a spiritual level, and a biblical level or a prayer level.”

Nally was aware of the church’s professed ability in treating severe depression and suicidal symptoms. He had been a student in one of the church’s courses on biblical counseling (which used the Guide as a text) and sought out formal and informal pastoral counseling from the church during each of his several suicidal crises. Early in 1979, Nally again became depressed after his breakup with another girlfriend. He confided in his mother that he “could not cope.” His mother had him see a general medical practitioner who prescribed a strong anti-depressant drug but who did not refer Nally to a psychiatrist. By late February of 1979, Nally’s depression did not appear to be subsiding. He was examined by another physician, and spoke briefly with one of the church’s pastoral counselors during a drop-in counseling session.

On March 11, Nally attempted to take his life by consuming an overdose of the antidepressant drug that had previously been prescribed for him. He was rushed to a hospital and his life was saved. His parents, concerned about their friends’ reactions to their son’s suicide attempt, asked the attending physician to inform others that Nally had been hospitalized for pneumonia. On March 12, two of the church’s pastors visited Nally at the hospital. Nally, still drowsy from the drug overdose, informed them that he was sorry he had not succeeded in his suicide attempt. The pastors assumed that the hospital staff was aware of Nally’s unstable mental condition, and accordingly they did not discuss Nally’s “death wish” with anyone else. A few days later, a staff psychiatrist examined Nally and recommended that he commit himself to a psychiatric hospital. When Nally and his father expressed reluctance at the thought of formal commitment, the psychiatrist agreed to release Nally for outpatient treatment. However, he warned Nally’s father that it would “not be unusual” for a suicidal patient to repeat his suicide attempt. Nally was released the next day, and moved in with one of the church’s pastors because he “didn’t want to return home.” The pastor encouraged Nally to keep his appointments with the hospital psychiatrist, and arranged to have him examined by a physician who attended the church. This physician concluded that Nally was a continuing threat to himself, and recommended commitment to a psychiatric hospital. Nally rejected this advice, and the psychiatrist later called Nally’s father to recommend immediate commitment. This plea was rejected by Nally’s parents, his mother saying, “No, that’s a crazy hospital. He’s not crazy.”

A few days later, Nally met with another of the church’s pastors, and asked “whether Christians who commit suicide would nevertheless be saved.” The pastor assured Nally that “a person who is once saved is always saved,” but warned Nally that “it would be wrong to be thinking in such terms.” A few days later, Nally moved back home. He was examined by two physicians, at least one of whom recommended commitment in a psychiatric hospital. Nally then saw another pastor of the church, who recommended that Nally see a particular psychologist. Nally did so, and was referred to a psychological clinic. Nally visited the clinic and met with a registered psychologist’s assistant. A few days later, Nally met with a former girlfriend who rejected an apparent marriage proposal by telling Nally “I can’t marry you when you are like this. You have got to pull yourself together.” Three days later, on April 1, 1979, Nally committed suicide by shooting himself in the head with a shotgun.

Nally’s parents filed a lawsuit naming the church and four of its pastors as defendants. The parents alleged that the pastors were responsible for the death of Nally on the basis of “clergyman malpractice.” Specifically, they alleged that

the church was negligent in the training and selection of its spiritual counselors, and in not referring Nally to medical professionals
the pastors failed to make themselves available to Nally following his first suicide attempt, and “actively and affirmatively dissuaded and discouraged him from seeking further professional psychological or psychiatric care,” and
the pastors were guilty of “outrageous conduct” for teaching “certain Protestant religious doctrines that conflicted with Nally’s Catholic upbringing” and which “exacerbated Nally’s pre-existing feelings of guilt, anxiety, and depression.”

With regard to the third allegation, the parents alleged that the pastors’ counseling was “outrageous” because they “taught or otherwise imbued Nally, whom they knew to be depressed and having entertained suicidal thoughts, with the notion that if he had accepted Jesus Christ as his personal savior, he would still be accepted into heaven if he committed suicide.” As proof of their charge, the parents referred to the counseling session in which Nally had been informed that a Christian who commits suicide would nevertheless be “saved” since “a person who is once saved is always saved.”

The parents also relied on a short passage taken from a 12-part tape recorded series by one of the pastors entitled “Principles of Biblical Counseling” that was recorded several months after Nally’s death. The tape recorded passage stated that “suicide is one of the ways the Lord takes home a disobedient believer. We read that in the Bible. … Suicide for a believer is the Lord saying, ‘Okay, come on home. Can’t use you anymore on earth. If you’re not going to deal with those things in your life, come on home.” The parents also cited an occasion when Nally’s father opened the office door of one of the pastors and found Nally in the midst of a counseling session and on his knees crying. They also referred to a statement of the church’s senior pastor that spiritual counseling (such as he gave Nally) could potentially cause “the deepest depression.” The trial court granted the church and pastors a summary judgment, and the parents appealed to a California state appeals court. The appeals court reversed the summary judgment, concluding that a legitimate question existed on the issue of outrageous conduct. The trial court again ruled in favor of the church and its pastors, concluding that “there is no compelling state interest to climb the wall of separation of church and state and plunge into the pit on the other side that certainly has no bottom.” The state court of appeals again reversed, noting that “nontherapist counselors,” both religious and secular, have a duty to refer suicidal persons to psychiatrists or other physicians qualified to prevent suicide. That ruling was then submitted to the state supreme court for review.

The California Supreme Court rejected the court of appeals conclusion that a pastor has a legal duty to refer suicidal persons to medical professionals. It acknowledged that in a few previous rulings it had found hospitals and staff psychiatrists responsible for the deaths of suicide victims confined in hospital psychiatric wards. However, the court concluded that such cases were limited to “the limited context of hospital-patient relationships where the suicidal person died while under the care and custody of hospital physicians who were aware of the patient’s unstable mental condition.” Such cases were of no relevance to churches and clergy “not involved in a supervised medical relationship” with a suicidal person.

In rejecting the main contention of Nally’s parents—that the church and its pastors were negligent in failing to refer Nally to medical professionals—the court observed:

Nally was examined by five physicians and a psychiatrist during the weeks following his [first] suicide attempt. [The church and its pastors] correctly assert that they arranged or encouraged many of these visits and encouraged Nally to continue to cooperate with all doctors. In addition, following Nally’s overdose attempt, [a physician] warned [Nally’s parents] that Nally remained suicidal and that they should encourage him to see a psychiatrist on his release from the hospital. [Nally’s parents] also rejected [two other physicians’] suggestions that Nally be institutionalized because, according to [the parents], their son was “not crazy.” Nevertheless, we are urged that mere knowledge on the part of the [church and its pastors] that Nally may have been suicidal at various stages in his life should give rise to a duty to refer. Imposition of a duty to refer Nally necessarily would imply a general duty on all nontherapists to refer all potentially suicidal persons to licensed medical practitioners. … While under some circumstances counselors may conclude that referring a client to a psychiatrist is prudent and necessary, our past decisions teach that it is inappropriate to impose a duty to refer—which may stifle all gratuitous or religious counseling—based on foreseeability alone. Mere foreseeability of the harm or knowledge of the danger is insufficient to create a legally cognizable special relationship giving rise to a legal duty to prevent harm.⁸¹

The court emphasized that “neither the legislature nor the courts have ever imposed a legal obligation on persons to take affirmative steps to prevent the suicide of one who is not under the care of a physician in a hospital.” On the contrary, “the [California] legislature has exempted clergy from the licensing requirements applicable to marriage, family, child and domestic counselors and from the operation of statutes regulating psychologists. In so doing, the legislature has recognized that access to the clergy for counseling should be free from state imposed counseling standards, and that ‘the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations” (emphasis added).

In further support of its conclusion that clergy have no duty to “refer” suicidal persons to medical professionals, the court observed that “because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.”

The court also rejected the contention of Nally’s parents that the “outrageous conduct” of the church and its pastors was responsible for Nally’s death. Nally’s parents based their charge of outrageous conduct largely on a segment of a tape recording produced by one of the pastors (quoted above). In rejecting the relevance of this recording, the court observed:

In 1981, 18 months after Nally’s suicide, [one of the church’s pastors] taught a series of classes on biblical counseling. The class sessions included question and answer periods that were tape recorded. During one session, a student questioned [the pastor] on whether a person who committed suicide could be “saved.” [The pastor] replied, in a manner consistent with Reformation Protestant theology views regarding sin, grace and faith, that a person neither acquires salvation by his own works nor forfeits salvation by the commission of subsequent sins. [Nally’s parents] sought to introduce the tape recording at trial on the basis that it provided inferential proof of [the pastor’s] advice to Nally during three counseling sessions in 1979. … [T]he tape does not tend to prove that [the church or its pastors] in any way encouraged Nally to commit suicide or acted recklessly in disregard of Nally’s emotional state prior to his suicide. … [W]hat was said in an extemporaneous answer, which did not precisely reflect the thoughts of [the pastor], given almost two years after [Nally’s suicide] is at best marginally relevant to prove what was said at the time in question.⁸²

Two of the court’s seven justices concluded that the church and its pastors did have a limited duty “to recognize the limits of their own competence to treat an individual, such as Nally, who exhibited suicidal tendencies, and once having recognized such symptoms, to advise that individual to seek competent professional medical care.” However, these two justices also concluded that the church and its pastors did not breach this duty of care, and their actions did not “contribute in any legally significant respect to his suicide.”

What is the impact of the Nally case on churches and clergy? Consider the following points:

1. The Nally case is binding only in the state of California. Courts in other states are free to disregard it. However, decisions of the California Supreme Court generally are treated with great respect by other state courts, and often are followed. The fact that the California Supreme Court unanimously ruled in favor of the church and its pastors should make the Nally decision especially compelling elsewhere. In summary, while it is likely that the Nally decision will be followed by other state courts, such a result is not certain.

2. In California, and other states that follow the Nally decision, nontherapist clergy will not have a “duty to refer” suicidal or emotionally disturbed persons to medical professionals. Of course, clergy in such states may voluntarily choose to recommend that a suicidal counselee contact a medical professional for assistance.

3. Some churches employ pastoral counselors who are licensed counselors or psychologists. In some cases, clergy who are licensed counselors or psychologists have opened their own private counseling practices independent of any church. While the court did not specifically address the liability of such counselors, it did cite with approval an earlier California state appeals court decision that suggested that a psychiatrist might be legally responsible for failing to take appropriate measures to prevent the death of an imminently suicidal patient.⁸³It is possible that this ruling might extend to clergy in California who are licensed counselors, psychologists, or psychiatrists.

4. Clergy in California and elsewhere may be liable for “clergy malpractice” on the basis of theories of liability other than a failure to refer suicidal persons to medical professionals. For example, a number of persons have attempted to sue clergy for sexual molestation of minors, or seduction of a church member during the course of counseling. In some cases, the plaintiffs allege that such conduct constitutes “clergy malpractice.” As a result, the Nally case does not necessarily eliminate lawsuits alleging clergy malpractice, even in the state of California.

5. Despite the result in the Nally case, churches should purchase “clergy malpractice” or counseling liability insurance for their pastoral staff. There are two reasons for doing so. First, this type of insurance is inexpensive, and in light of the Nally decision should become even less costly. Second, while it is very unlikely that a minister will be successfully sued for malpractice in counseling, it is entirely possible that a minister may be sued. Counseling liability insurance will cover the costs of defending the lawsuit, and will pay any settlement or judgment up to the policy limits. In other words, while clergy who are sued for counseling malpractice will almost certainly prevail in court, the cost of a successful legal defense can easily amount to several tens of thousands of dollars. A counseling liability insurance policy ordinarily will pay these costs.

other cases rejecting clergy malpractice

In the Nally case, the California Supreme Court based its rejection of clergy malpractice on two grounds. First, by exempting clergy from the licensing requirements that apply to other counselors, the state legislature recognized that “the secular state is not equipped to ascertain the competence of [pastoral] counseling.” Second, “it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors” since such a duty “would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” A number of other courts, in rejecting clergy malpractice as a basis for legal liability, have relied on either or both of these grounds. To illustrate, a Colorado court, in concluding that a pastor and his employing church were not responsible for the pastor’s sexual misconduct with a counselee on the basis of clergy malpractice, observed:

[The courts of this state have] joined substantially all of the other courts that have passed upon the issue in rejecting the notion that a claim will lie against a pastoral counselor or the pastor’s church based upon the pastor’s failure to observe any particular standard of care in providing the counseling; no claim for “clergy malpractice” can be asserted. The judicial rejection of such a claim has been based, in large part, upon the effect that recognition of such a claim would have upon the right of religious expression guaranteed by the First Amendment. In order to adjudicate a claim based upon the “malpractice” of a religious counselor, courts would first have to establish the degree of skill and learning normally exercised by members of the clergy in similar circumstances and, then, to determine whether such standard had been violated. … To attempt to require members of the clergy to comply with such a standard, however, could very well restrict their right freely to exercise and practice their religion.⁸⁴

A Texas court, in refusing to recognize “clergy malpractice” as a basis for liability, made the following observation:

Because the [civil courts] must abstain from ecclesiastical disputes involving questions of doctrine or practice, state courts have rejected uniformly claims for clergy malpractice. This is because such a claim requires definition of the relevant standard of care. Defining that standard could embroil courts in establishing the training, skill, and standards applicable for members of the clergy in a diversity of religions with widely varying beliefs. Furthermore, defining such a standard would require courts to identify the beliefs and practices of the relevant religion and then to determine whether the clergyman had acted in accordance with them. Thus, as these courts have correctly concluded, to recognize a claim for clergy malpractice would require courts to identify and apply the teachings of a particular faith, thereby making the judiciary responsible for determining what conduct and beliefs are part of a particular religion.⁸⁵

A federal court in New York refused to find a pastor guilty of malpractice on the basis of his alleged sexual seduction of a church member he had counseled for several years. A woman (the “victim”) began a counseling relationship with a pastor when she was a child of 12. The relationship continued for nearly 30 years. The victim alleged that the pastor engaged in repeated sexual contact with her over the years, and that she terminated the relationship with him only after seeing a psychotherapist who convinced her that the pastor’s behavior had been wrong. The victim later sued the pastor, claiming that his acts amounted to clergy malpractice. The court dismissed this claim, along with all of the victim’s other claims of liability against the pastor and her former church. In addressing the claim of malpractice, the court observed:

The court must address the real issue here—clergy malpractice. … Whether an independent tort denominated “clergy malpractice” exists has become a frequently litigated issue in the courts of this nation. … And the fact is that neither the legislature nor the courts of New York have upheld or authorized a claim for clergy malpractice. … Nor is this likely in New York. … [The pastor, church, presbytery, and denomination] concede, as they must, that tort claims can be maintained against clergy, for such behavior as negligent operation of the Sunday School van, and other misconduct not within the purview of the First Amendment, because unrelated to the religious efforts of a cleric. Claims of malpractice stand on a different footing. While the clergy of most denominations do provide counseling to youths and other members of their congregations, when they do so it is normally part of their religious activities; in so doing, they do not thereby become subject to the same standards of liability for professional malpractice which would apply, for example, to a state-licensed psychiatrist or a social worker. That there is no recorded instance of a New York court upholding an action for clergy malpractice, in this most litigious of states, speaks to this point, and loudly.

It would be impossible for a court or jury to adjudicate a typical case of clergy malpractice, without first ascertaining whether the cleric, in this case a Presbyterian pastor, performed within the level of expertise expected of a similar professional (the hypothetical “reasonably prudent Presbyterian pastor”), following his calling, or practicing his profession within the community. As the California Supreme Court has held in Nally v. Grace Community Church of the Valley: “Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of a particular denomination or ecclesiastical teachings of the religious entity.” This court agrees with Nally, and regards the unconstitutionality as more than possible. It is real. … Any effort by this court to instruct the trial jury as to the duty of care which a clergyman should exercise, would of necessity require the court or jury to define and express the standard of care to be followed by other reasonable Presbyterian clergy of the community. This in turn would require the court and the jury to consider the fundamental perspective and approach to counseling inherent in the beliefs and practices of that denomination. This is as unconstitutional as it is impossible. It fosters excessive entanglement with religion.

It may be argued that it requires no excessive entanglement with religion to decide that reasonably prudent clergy of any sect do not molest children. The difficulty is that this court, and the New York courts whose authority we exercise here, must consider not only this case, but the next case to follow, and the ones after that, before we embrace the newly invented tort of clergy malpractice. This places us clearly on the slippery slope and is an unnecessary venture, since existing laws against battery, and the criminal statute against sexual abuse if timely invoked, provide adequate protection for society’s interests. Where could we stop? Assume a severely depressed person consults a storefront preacher, unaffiliated with any of the mainstream denominations, but with them, equally protected by the First Amendment. The cleric consults with our hypothetical citizen, reminds him of his slothful life, and that he is a miserable sinner; recommends prayer and fasting and warns of the Day of Judgment. Our depressed person becomes more so, and kills himself and a few more people. These deaths are followed by lawsuits. As to a licensed psychiatrist or social worker, our lay courts should have no trouble adjudicating a claim of professional malpractice on these facts. As to a clergyman, it would be both impossible and unconstitutional to attempt to do so.

The court concluded that since clergy malpractice was not recognized in New York, it had no choice but to dismiss the lawsuit against the pastor.⁸⁶

The Colorado Supreme Court refused to recognize the theory of “clergy malpractice” in a case involving the seduction of a female church member by a Catholic priest.⁸⁷The woman had claimed that the priest “negligently performed his duty as a marital counselor.” The court viewed this theory as a claim of malpractice, which it defined as “any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.” Since a priest was involved, the court characterized the malpractice claim as a claim of “clergy malpractice.” However, the court ruled that the lower courts had properly dismissed this claim since “to date no court has acknowledged the existence of such a tort” and it raises “serious First Amendment issues.” The court acknowledged that psychologists and psychiatrists may be sued for malpractice if they engage in sexual relations with counselees. However, a Colorado statute specifically excluded clergy from the list of counselors who can be sued for malpractice on the basis of such conduct, and accordingly the court ruled that the priest could not be sued for malpractice.

A New York court ruled that a church and diocese could not be sued on the basis of malpractice for the alleged sexual misconduct of a priest. The priest allegedly molested a minor pupil at a church-operated secondary school. A state appellate court rejected the malpractice claim, noting that malpractice is based on negligent rather than intentional behavior, and that the sexual assault alleged in this case was an intentional act. The court also pointed out that “we are unaware of any authority supporting the proposition that sexual abuse by a member of the clergy is cognizable as clergy malpractice.” The court referred to the Nally case.⁸⁸

The Ohio Supreme Court refused to recognize the alleged tort of “clergy malpractice” in a case involving the sexual seduction of a wife during marital counseling. A husband and wife who had been experiencing marital problems went to a minister for counseling. They selected him because “he held himself out to the public … as a minister and counselor trained and able to provide counseling for marital difficulties.” During the final three or four weeks of counseling, the minister allegedly engaged in consensual sexual relations with the wife. These relations, and the counseling, ended when the husband learned of the affair. The husband, who was later divorced from his wife, sued both the minister and his church. The suit against the minister alleged “clergy malpractice” among other theories of liability. The Ohio Supreme Court dismissed all of the husband’s claims. It concluded that the minister could not be guilty of clergy malpractice since malpractice implies negligent conduct, and the minister’s actions were intentional in nature. The court observed:

The reluctance of courts to embrace the tort of clergy malpractice may be attributed to the many, and often complex, questions that arise under it. For example, what exactly are the “professional services” rendered by a cleric? And does the standard of the professional vary with the ecclesiastical office? In other words, is a rabbi, priest, pastor, or lay elder held to the same standard of care regardless of training or wide variances in the authority and obligation of religious offices? Also, where a “professional service,” such as the marriage counseling involved in this case, is not unique to the cleric, should the cleric be held to the same duty of care as secular counselors? Finally if a legal duty is imposed on clergy to perform or not to perform in a particular way, will this clash with the religious beliefs of some faiths and thus violate the free exercise clause of the First Amendment to the United States Constitution?⁸⁹

In another ruling, the Ohio Supreme Court, in rejecting clergy malpractice as a basis for liability in a case involving sexual misconduct by a minister with a counselee, noted that if a minister’s behavior “fits within an established category of liability, such as fraud, duress, assault, or battery, it would be redundant to simultaneously hold the cleric liable for clergy malpractice; to avoid a redundant remedy … any functional theory of clergy malpractice needs to address incidents of the clergy-communicant relationship not already [the basis of legal liability].” Since the plaintiff’s claim of clergy malpractice was based entirely on facts that also supported claims of battery, fraud, and the intentional infliction of emotional distress, the court refused to recognize any claim of clergy malpractice.⁹⁰

The Oklahoma Supreme Court rejected clergy malpractice as a basis for liability in a case brought by a husband for “bad advice” he had received from a minister. The court concluded:

Once a court enters the realm of trying to define the nature of advice a minister should give a parishioner serious First Amendment issues are implicated. We decline to determine the nature of the advice a minister must give during counseling sessions with a parishioner, and we decline to recognize a claim for bad advice from a minister under the facts before us.⁹¹

A Utah court refused to recognize “clergy malpractice” as a basis for legal liability.⁹²A minister who used church funds to send a 17-year-old boy to visit his brother was sued by the boy’s mother. The mother alleged a variety of wrongs, including clergy malpractice and intentional infliction of emotional distress. A trial court granted the minister and church a summary judgment, and the mother appealed. A state appeals court agreed with the trial court, and summarily rejected the mother’s claims. In rejecting the mother’s charge of clergy malpractice, the court observed:

[The mother] admits that no court has recognized clerical malpractice as a cause of action, but argues that such malpractice exists here, not because [the minister], who had not been trained as a counselor, improperly counseled [the boy], but because he failed to refer [the boy] to trained professionals or others who could assist in resolving the family conflicts. In other words, [the mother] wishes to impose a duty upon [the minister] to make further inquiry into the alleged family conflicts, and then, if beyond his expertise, refer [the boy] to others who are qualified to treat such problems. Under the present circumstances, charging lay clergy with this duty of care goes too far because it approaches the same level of care imposed upon trained professionals in medicine and psychology.⁹³

The court quoted with approval from the Nally case (discussed earlier in this chapter): “Because of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” The Utah appeals court agreed with the California Supreme Court’s refusal to recognize clergy malpractice as a basis for legal liability, and refused to impose upon clergy a duty to refer parishioners experiencing emotional trauma to medical professionals. The court also rejected all of the other theories of legal liability alleged by the mother.

other cases recognizing clergy malpractice

A few courts have recognized malpractice claims against clergy in either or both of the following two situations:

sexual misconduct with an adult or minor
“non-religious” counseling

To illustrate, a Colorado court, in concluding that a pastor and his employing church were not responsible for the pastor’s sexual misconduct with a counselee on the basis of clergy malpractice, observed:

[W]hile the services performed by a therapeutic counselor and those provided through pastoral counseling often overlap, so long as the cleric providing pastoral counseling is not held out as a therapeutic counselor, the standards of care applicable to therapeutic counseling cannot be applied to a pastoral counselor.⁹⁴

An Arizona court ruled that a pastor and his church could be sued on the basis of “therapist” malpractice as a result of the pastor’s disclosure of confidential information shared with him by a counselee during counseling. The counselee sought out the pastor to help her through emotional difficulties and depression “because of his 40 years counseling experience.” The pastor relied on several cases rejecting clergy malpractice claims because of First Amendment concerns about determining a standard of care for pastors. The court concluded that these cases were not relevant because the victim sued the pastor for therapist malpractice rather than clergy malpractice, and her claim was based on a psychological therapist’s duty not to disclose confidential information revealed in counseling sessions. The court noted that “the inclusion of biblical passages on the chart [used by the pastor] did not convert the session into religious counseling, especially when the purpose of the meeting was not to provide her with religious or spiritual guidance, the church’s precepts and practices were not part of the counseling, and [the victim] was not a church member when she sought help from [the pastor].” The court concluded, “[The pastor and church] offer no good reason for insulating a counselor from liability for betraying clients’ confidences to their detriment merely because the counselor is a clergy member and unlicensed, and the counseling as well as wrongful disclosure takes place in a religious setting.”⁹⁵

A federal appeals court concluded that two female church employees could sue the minister who had seduced them since he had “held himself out” as a qualified marital counselor. The minister’s duties did not include counseling, and he knew that he was not responsible for providing spiritual counseling to church members. He also knew that the church had a written policy of referring church members in need of non pastoral counseling to a licensed professional counselor. Nevertheless, the minister began counseling with two women after assuring them that he was qualified by both education and experience to provide marital counseling. The women assumed that he was authorized by the church to provide counseling. The minister entered into a sexual relationship with both women, and hired both of them as church employees. When the women learned that they both were having affairs with the same minister, they informed a church deacon. The minister resigned, and the two women were dismissed. The women later sued the minister for malpractice. The court refused to recognize a claim for clergy malpractice, but it did conclude that the women could sue the minister for malpractice as a “marriage counselor.” The former minister insisted that he could not be guilty of malpractice as a marriage counselor unless his counseling was purely secular in nature. And, since he occasionally discussed scripture in his counseling sessions with the two women, his counseling was not purely secular. The court disagreed, noting that the minister’s marriage counseling was “essentially secular” in nature and that this was enough for him to be guilty of malpractice as a marriage counselor.

The court concluded that the First Amendment did not prevent the former minister from being sued for malpractice as a marriage counselor or for breach of fiduciary duties “not derived from religious doctrine.” It explained its reasoning as follows:

[B]ecause the jury found that [the former minister] held himself out as possessing the education and experience of a professional marriage counselor, his counseling activities with the [two women] were judged, not by a standard of care defined by religious teachings, but by a professional standard of care developed through expert testimony describing what a reasonably prudent counselor would have done under the same or similar circumstances.⁹⁶

Another federal appeals court ruled that a church and denominational agency were not legally responsible for a pastoral counselor’s sexual contacts with a female counselee. However, it concluded that the pastor could be sued for professional negligence with regard to purely secular counseling, and could be liable with respect to such counseling under a state law imposing liability on “psychotherapists” for engaging in sexual contact with counselees. A woman alleged that a pastor told her that she needed “secular psychological” and not religious counseling, and that he was qualified to provide it. The pastor allegedly assured the woman that such treatment was included in his job description at the church. The woman attended counseling sessions with the pastor at his office in the church for more than two years. Over time the pastor increased the frequency and length of the sessions. The woman claimed that he told her that “religion does not apply here. Your problems are so deep you need more psychological treatment from me.” She stated that she became very involved in the therapy and attached to the pastor. He allegedly represented to her that he was a capable, trained professional on whom she could rely to assist her with her personal problems. However, the pastor eventually gave the woman an ultimatum: “I have been giving to you, and I need something back for my services. You must give back to me or I will not work with you anymore.” From that date on the woman claimed that her therapy sessions began with sexual relations with the pastor.

The woman later sued her pastor, church, and a denominational agency. She asserted that the pastor was responsible for her injuries on the basis of professional negligence, breach of fiduciary duty, negligent infliction of emotional distress, and violation of the Sexual Exploitation of Psychotherapy Act. A federal appeals court ruled that the woman could sue the pastor for professional negligence. It acknowledged that no court has permitted clergy to be sued for malpractice, but it limited such cases to the context of religious counseling. The court observed:

Therefore, if a complaint alleges that the psychological services that were provided were “secular” in nature, or that the provider held himself out to be providing the services of a psychological counselor, the negligence claim cannot be characterized as one for clergy malpractice. Tort claims for behavior by a cleric that does not require the examination of religious doctrine are cognizable. Under these circumstances, the claim is for professional malpractice by a psychological counselor, not clergy malpractice.⁹⁷

A New Jersey court allowed a woman to sue her church for clergy malpractice as a result of a sexual relationship that was initiated by her pastor. The woman’s lawsuit alleged that she had sought counseling from a pastor of her church, and that the pastor became aware of her emotional vulnerabilities and exploited them by inducing her to engage in sexual acts with him. The woman filed a complaint with a “standing committee on clergy ethics” of her denomination, and the committee later determined that the minister had “violated his pastoral relationship” with the victim by engaging in “inappropriate sexual behavior toward her.” The committee “sanctioned” the minister. The woman then sued her church, claiming that the pastor’s actions amounted to clergy malpractice. A state appeals court ruled that the woman could sue the church for clergy malpractice. The court acknowledged that a number of courts have rejected liability based on clergy malpractice, but it refused to reach the same conclusion. It observed that “malpractice” is nothing more than the negligent performance of a professional service and “a deviation from the standards of performance applicable to the professional service in question.” The court expressed concern over potential First Amendment violations when civil courts apply the concept of malpractice to members of the clergy. However, it was unwilling to conclude (as many other courts have done) that the First Amendment bars recognition of civil liability for clergy malpractice in all cases. It concluded, “In the present case, it is unlikely that [the church] will assert that sex with a counselee by a pastoral counselor is sanctioned by or somehow involves tenets of the … church, or would otherwise create an entanglement with religious beliefs or rituals of First Amendment concern.”⁹⁸

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