1-03 Clergy Sexual Misconduct and Fiduciary Duty

SECTIONS ON THIS PAGE

  • Introducing Clergy Sexual Misconduct and Potential Issues of “Fiduciary Duty”
  • Baylor University Website #1: Clergy Sexual Misconduct Awareness and Prevention
  • Baylor University Website #2: Diana R. Garland School of Social Work
  • RAINN State Law Database, Consent Laws, and Criminal Sexual Misconduct by People in Authority
  • Notes from My Initial State-by-State Search of the RAINN State Law Database
  • Adult Victims of Sexual Exploitation by Clergy
  • PASA Partners Against Sexual Abuse — Laws Against Clergy/Counselor Sexual Abuse

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Introducing Clergy Sexual Misconduct

and Potential Issues of “Fiduciary Duty”

I was recently editing a book chapter on character/moral, legal, regulatory, and professional aspects of church and Christian non-profit leaders. The topic of clergy sexual misconduct had come up in that material, as well as in a case study of a pastor who engaged in sexual grooming or grooming plus adultery with multiple women — one a parishioner in the church he pastored and others from other venues in his ministry platform.

In some prior tweet threads, blog posts, and survivor blog comment threads, I’d merged the concepts of professional “fiduciary duty” with power differential in cases of clergy sexual involvement with congregants. Tweeter ProgressiveXianAtty let me know that the two aren’t always the same. So, I wanted to do what I could to correct my understanding of this issue, and also to find online resources that clarify when “clergy sexual misconduct” is both an ethical issue because of biblical mandates on morals for people considered leaders, AND a legal issue because of the power differential between clergy and congregant nullifies the legal defense of “consent.”

Overall, it seems like the issue of clergy sexual misconduct lies in the overlap zone of at least the following factors:

  • Consent laws, and instances when consent is prohibited as a legal defense for engaging in sex.
  • People in roles of legal, physical, psychological, or spiritual authority/power over others (e.g., legal guardians, police, prison employees, coaches, physicians, teachers, therapists, social workers, and such clergy as pastors and rabbis).
  • Power dynamics in “dual relationships” where the person in the position of power acts as if he/she is a peer to the person he/she is sexually involved with; it is coercion, not consent. (For instance, pastors and counselors often know intimate details about parishioners to whom they offer spiritual direction/counsel. The process of disclosure can create emotional ties to the one who now knows this very personal information — giving potential undue power to him/her over the parishioner.)

This page represents my attempts to find and sift through resources on this set of relevant issues. Although some issues need a lawyer’s expertise to clarify when and how clergy sexual misconduct can overlap with fiduciary duty, many issues are accessible to survivors, their advocates, and social change agents. Hopefully, these websites and documents will lead to the kinds of information needed, whether technical or not.

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Baylor University Website #1:

Clergy Sexual Misconduct Awareness and Prevention

OVERVIEW. The Clergy Sexual Misconduct Awareness and Prevention website from Baylor University focuses on the academic research in 2008-2009 of Dr. Diana Garland (School of Social Work, Baylor University; died September 21, 2015) and Dr. Mark Chaves (Department of Sociology, Duke University). This is the most extensive resource I know of for covering multiple dimensions of system dynamics when there is misuse of the power given by a role of spiritual authority/influence, resulting in sexual misconduct.

This valuable website has links to numerous journal and newspaper articles, bibliographies, research background documents, case studies, and legislative materials. Materials may be targeted to survivors of clergy sexual misconduct, survivor advocates, church/ministry leaders, denominational leaders, congregation members, academicians, lawyers and legislators, mental health professionals and social workers, and/or the general public. It is well worth the effort to preview the entire website. Most links lead to downloadable documents.

ARTICLE ON DUAL RELATIONSHIPS. The Documents page on this website has a link to an article entitled, Dual Relationships when Clergy Counsel Congregants, by Jessica A. Justice, MSW, and Diana Garland, LCSW, PhD. “A brief description of the ethical challenges created when religious leaders also serve as professional counselors to their congregants.”

ARTICLE ON CRIMINAL LIABILITY. I’ve found that some of the more difficult topics to find resources on, related to clergy sexual misconduct, are aspects dealing with understanding the legal aspects involved. The Documents page on this website has a link to a downloadable paper entitled, Sexual Misconduct of Clergypersons with Congregants or Parishioners — Civil and Criminal Liabilities and Responsibilities. This paper does not specifically note the author(s) at the beginning, but the download title is “clergy paper Diana – second original long form rev. 2-17-11.” So, it is apparently from Dr. Diana Garland and last revised February 17, 2011.

The paper is 34 pages long, academic in tone, with 71 footnotes. An important paragraph on pages 3-4 notes the 13 states plus District of Columbia that have specific criminal statutes regarding clergy sexual misconduct. (That list may have changed since this compilation in 2011.)

Despite the growing revelation of this problem among clergypersons and increased exposure in the media, it appears that most clergyperson sexual misconduct is not prosecuted.  Many explanations are posited as to why.  Most states, to be sure, do not have penal statutes that specifically criminalize sexual misconduct by clergypersons.  Only thirteen states and the District of Columbia have penal statutes that, in at least some circumstances, support the criminal prosecution of clergypersons engaged in sexual misconduct with congregants or parishioners.  These statutes, enacted by Arkansas, Connecticut, Delaware, Iowa, Kansas, Minnesota, Mississippi, New Mexico, North Dakota, Texas, South Dakota, Utah, Wisconsin and the District of Columbia turn on various linguistic formulations, including most commonly, the specification that the misconduct occur within the confines of the counseling relationship. Only a handful of state penal statutes, to be discussed, address clergyperson sexual misconduct outside of the context of the counseling relationship. [Emphasis added.]

The paper includes citations from many legal cases, and it looks like the footnotes it includes citations from the legislative codes at all 13 states plus the District of Columbia that the author(s) noted “have penal statutes that, in at least some circumstances, support the criminal prosecution of clergypersons engaged in sexual misconduct with congregants or parishioners” (page 3). Major sections in the paper are:

  • The Principal Bases of Liability for Clergyperson Sexual Misconduct Involving Adults
  • Predicate Constitutional Issues Bearing Upon Liability for Sexual Misconduct in a Religious or Spiritually Based Counseling Context: More on the Entanglement Doctrine
  • Criminal Liability of Clergy for Sexual Contact with Congregants or Parishioners
  • Crafting a Model Statute That Will Be Likely to Withstand Constitutional Invalidation or Statutory Ambiguity.
  • Proposed Model Statute

LINKS TO PURCHASABLE OR RESTRICTED-ACCESS ARTICLES. A few links lead to articles that have restricted access or require rental/purchase, including the following.

The homepage includes a link, summary, and executive summary for their journal article, The Prevalence of Clergy Sexual Advances towards Adults in Their Congregations, Journal of the Scientific Study of Religion(48)4, 817-824. This article can be rented for 48 hours, or purchased in either a cloud or PDF version. For details, click on the orange bar that says “Get access to the full text of this article.” The summary says:

This research study involved two companion projects: (1) a national random survey to determine the prevalence of clergy sexual misconduct (CSM) with adults; and (2) a qualitative study of three groups of women and men: (a) those who self-identified as survivors who had been the objects of CSM, (b) family or friends of survivors, and (c) offenders who had themselves committed CSM. The goal of both projects was to define the scope and nature of CSM, so that effective prevention strategies can be proposed for the protection of religious leaders and congregants.

The homepage includes a link to another article, How clergy sexual misconduct happens: A qualitative study of first-hand accounts, from the Social Work and Christianity. This is available to those with a membership account at North American Association of Christians in Social Work (NACSW).

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Baylor University Website #2:

Diana R. Garland School of Social Work

Clergy Sexual Misconduct (CSM): refers to a religious leader’s sexual overture, proposition, or relationship with a congregant who was not his/her spouse or significant other. (See Terminology page.)

See the Clergy Sexual Abuse Research homepage, and the left-hand navigation bar with additional pages. There are multiple links to resources on these pages, some of which repeat links found on the Baylor University Website #1.

Research — Key findings from the 2015, first national survey of adult survivors of clergy perpetrated sexual abuse.

Resources — Links to documents on CSM ethics, Q&A, group/congregation study curriculum, church best practices, prevention strategies, etc.

Partnerships — Presumably these were foundations and organizations that supported CSM research at Baylor.

Previous Research — References the research by Dr. Diana Garland and Dr. Mark Chavez from 2008-2009, as detailed in Baylor University Website #1. It also includes links to Terminology, (terms: clergy sexual misconduct, abuse of power, offender, survivor), Case Studies (a series of personal stories), Academic Publications, and Executive Summary by Dr. Garland (general statistics, prevalence of CSM, how CSM happens, and prevention strategies).

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RAINN State Law Database, Consent Laws, and

Criminal Sexual Misconduct by People in Authority

The RAINN State Law Database offers information in the following topics:

  1. Rape and Sexual Assault Crime Definitions.
  2. Consent – determining consent.
  3. Mandatory Reporting – known or suspected abuse (1) of children, (2) of elderly or disabled.
  4. Criminal Statutes of Limitations.
  5. Termination of Rapists’ Parental Rights – limits on rapists’ parental rights.
  6. Confidentiality Laws – confidentiality protections.
  7. HIV/AIDS Testing of Sex Offenders – HIV/AIDS testing requirements.

For more details, plus instructions on how to research topics on that site, see the section on RAINN State Law Database on page 1-01 Child Abuse, Neglect, and Sexual Abuse.

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There are a number of factors that determine if a person legally consents, from their age to whether they’re incapacitated. Learn about consent in your state. ~ RAINN/Consent

How does your state define sexual assault crimes? ~ RAINN/Crime Definitions

All too often, research into instances of reported spiritual abuse also includes clergy/congregant sexual involvement. This crosses moral and ethical boundaries, even if it does not cross legal boundaries.

For legal information for states, territories, and the District of Columbia on fiduciary duty in general, and clergy sexual misconduct in specific, the Consent section is where you’ll likely find the most details. (You can also confirm some details in the Rape and Sexual Assault Crime Definitions section.)

On the main page, select the state in the checkbox list, or click on the state on the map.

Click on the state’s Determining Consent link. This will take you to a page with three distinct segments — Defining Consent, Capacity to Consent, and Defenses — each with a question relevant to criminal sexual misconduct in general and/or clergy sexual misconduct in specific. You may want to browse the entire set of questions and answers. Here are the ones I found most applicable:

In the Defining Consent box, click on the question: Does the definition require “freely given consent” or “affirmative consent”?

In the Capacity to Consent box, click on the question: Does the relationship between the victim and actor impact the victim’s ability to consent?

In the Defenses box, click on the question: Is consent a defense to sex crimes?

There is no consistency nationwide on clergy sexual misconduct as a criminal act. For instance, in some states like Texas, clergy/congregant sexual involvement is defined as a sexual assault crime. In these cases, “consent” by the congregant is NOT a legal defense for the clergy. Here is a partial listing of the description for Texas laws where consent is not a defense for sexual involvement. (Accessed September 27, 2016. Emphasis added.)

[A] sexual assault is considered to occur without the consent of the other person where:

(1) the actor is a public servant who coerces the other person to submit or participate;

(2) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;

(3) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or

(4) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the Texas Family Code.

Other states have differing statutes on clergy sexual misconduct. Their laws may make no specific mention of ministers/clergy.

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Notes from My Initial State-by-State Search

of the RAINN State Law Database

In those states that explicitly disallow the defense of “consensual” for sexual assault, it generally applies to “religious workers,” not specifically “Christian pastors.” And sometimes there are additional specifications about counseling relationships. But basically, keep in mind, it’s NOT “an affair,” it’s an assault.

If you’re interested in an overview of which states have laws about this, check out this post on The Wartburg Watch: It’s Clergy Sex Abuse; Not an Affair! One night in December 2016 when I had insomnia, I went through the entire RAINN state-by-state website and posted the state and key portions of their legal code. I posted one state per comment, and went through the states in alphabetical order. Search for comments by “brad/futuristguy.” And note that there are multiple pages of comments. This particular blog post generated a lot of interaction – over 800 comments – so be sure you check all comment pages to get the various states. Read other people’s comments for analysis and questions.

And keep in mind that I was skimming through key questions about consent, and may have missed states that do deal with fiduciary duty and/or clergy sexual misconduct and I just did not have the focus to see it or the framework to interpret it if it was too nuanced.

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Also, here is my brad/futuristguy comment that rounds up the preliminary research:

Okay, so, I went through the RAINN database to survey all 50 states, the District of Columbia, and the U.S. territories. I was looking specifically to find where there are sexual misconduct* [SEE NOTES BELOW] situations involving clergy, religious figures, counselors, therapists, people “in positions of authority,” and such like where the other adult’s “consent” could not be used as a defense in a criminal trial because the answer is “Yes” to the question, “Does the relationship between the victim and actor impact the victim’s ability to consent?”

NOTES:

* I used the term “sexual misconduct” above NOT because it is a technical legal term, but simply as a catch-all category — because the range of charges could go from misdemeanor to assault to aggravated assault or other terms. Read the particular state laws to see what scope of charges they have.

* I think I captured most of the situations, but cannot guarantee it. If I did, there are 10 states/territories with relevant information: Delaware, Georgia, Iowa, Minnesota, New Hampshire, South Dakota, Texas, Virgin Islands, Washington, and Wisconsin.

After all of that, two observations:

1. “Clergy” or some other title for a member of a religious organization appears three times: Delaware, Minnesota, and Texas.

2. There are numerous terms used to describe people who supply counsel, guidance, mental health services, pastoral counseling, therapy, psychotherapy, etc. I ran a search on the RAINN “no consent as a defense” entries for those 10 states that I compiled above — I was looking for one particular word: “licensed.” As in licensed counselor. NOTE: It does NOT appear even once.

I did not check the full state codes on these 10 states/territories to see if the word “licensed” appears in the actual statutes. But, let’s just assume that if it was in the actual codes, RAINN would have made sure to put it in their database. In my opinion, this could prove to be an important observation. Pastoral care, spiritual direction, pastoral counseling/guidance, etc., might well be considered as a form of “counseling” without it having to be licensed.

* There are some statements I found particularly intriguing that deal with holding a role or position of authority or influence over the victim:

NEW HAMPSHIRE — A person commits aggravated felonious sexual assault if he or she (1) engages in sexual penetration with a victim to whom that person provides therapy or medical treatment, and (2) acts unethically or uses that position to coerce the victim. H. Rev. Stat. Ann. § 632-A:2(g). (Emphasis added.)

VIRGIN ISLANDS — A person is guilty of aggravated rape in the second degree if they perpetrate an act of sexual intercourse or sodomy with a person and the perpetrator’s position of authority over the victim is used to accomplish the sexual act. 14 V.I.C. § 1700a.

The term “position of authority” includes, but is not exclusive to the following: an employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, baby sitter, or substantially similar position, and a police officer or probation officer other than when the officer is exercising custodial control over a minor. 14 V.I.C. § 1700. (Emphasis added.)

WASHINGTON — (a) a person in a significant relationship with the victim and abuses a supervisory position within that relationship, […] Wash. Rev. Code Ann. §§ 9A.44.093, 9A.44.050, 9A.44.096, 9A.44.010. (Emphasis added. I include this because it struck me as I read it that this could potentially apply to someone in ministry who is overseeing others — elder, deacon, ministry leader, etc., who is in charge of others, whether paid staff or volunteers.)

* Final Thoughts: So, 10 out of 54 states, district, territories where “consent” of the other adult party CANNOT be used as a defense for sexual misconduct actions as some type of counselor or clergy — or when the actor is a person in a position of authority over the victim. Doesn’t seem like it’s all that many, but that’s about 20%. But it is what it is.

It would be helpful to do a historical study to track when these statutes were adopted, and if there is a recent trend for more states to specify clergy in sexual misconduct, or counselors.

I’m sure there is more to be gleaned from all this, but it is 12:30 a.m. my time. So there that is, for what it’s worth.

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Adult Victims of Sexual Exploitation by Clergy

The Adult Victims of Sexual Exploitation by Clergy website focuses on clergy sexual misconduct. It includes information (ranging from the 1990s to 2010) on state laws, resource books, articles, academic studies, quotes and statistics, and links to other sites with related topics. Although most of the information relates to the United States, there are references to studies and resources from Canada, Europe, and Australia.

On the homepage, see the “Navigating this website” section for a list of contents for each page.

One especially helpful resource is the page on Denominational Policies related to clergy misconduct. It is not comprehensive, but gives links to policies that can provide samples for other denominations and organizations to study.

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PASA Partners Against Sexual Abuse —

Laws Against Clergy/Counselor Sexual Abuse

The purpose of the PASA Partners Against Sexual Abuse website is primarily to address state laws on clergy and counsel sexual abuse. From the About page:

This is a site dedicated to networking and educating those interested in connecting together in getting laws in their states against clergy and counselor abuse, obtaining help from other states that have passed laws, connecting survivors and advocates to each other to find out what’s going on in other states, sign petitions and get input from experts. There is great strength in numbers and unity!

The home page has a U.S. map where each state is color-coded for one of three categories, regarding clergy/counselor abuse laws, and underneath the map, a listing of the states in each category:

 

  • States in RED are states with laws against clergy and counselor abuse.
  • States in BLUE are states with laws against only counselor abuse.
  • States in WHITE currently have no laws against clergy or counselor abuse.

PASA also includes related resources for survivors, advocates, and activists. Topics are:

  • Clergy Sexual Abuse [definitions, expanded descriptions, research statistics, prevention strategies, laws]
  • Counselor Sexual Abuse [laws, and article: “Criminalization of Psychotherapist Sexual Misconduct,” by Sherri Morgan, Associate Counsel, LDF and Office of Ethics & Professional Review © May 2013. National Association of Social Workers.]
  • Steps to Begin the Process [of Getting a Law Passed]
  • Articles [gives the full text of multiple articles, about 60/40 split between clergy sexual misconduct and counselor sexual misconduct]
  • Resources [two lists of links to print resources, blogs, and support organizations: (1) Adult Counselor Abuse/Exploitation, and (2) Adult Clergy Sexual Abuse]

 

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