Gerald J. Russello*
Can a minister be subject to civil liability for engaging in a
sexual relationship with a parishioner who sought counseling? Last
term, the New Jersey Supreme Court held that a parishioner may bring
a breach of a fiduciary duty action in these situations. F.G. v.
MacDonell, 696 A.2d 697 (1996), raises important questions about
the applicability of legal standards of care to members of the clergy.
The facts are relatively straightforward. In April 1992, F.G. sought
counseling from Rev. MacDonell, her parish rector, for a variety
of personal problems. Shortly thereafter, the two began a sexual
relationship that lasted until the end of 1993. MacDonell was married
throughout their affair. In April 1994, F.G. spoke to the assistant
rector, Rev. Harper, about MacDonells conduct. Harper then
apparently reported this conduct from the pulpit during a sermon
to the parish as a whole.
F.G. sued both ministers in April 1995, alleging "clergy malpractice,"
negligent infliction of emotional distress, and breach of fiduciary
duty. Against Harper alone, F.G. alleged defamation, false light
and breach of privacy. The trial court granted the defendants
motions on the pleadings, ruling that to allow the action would
unduly entangle church and state.
The Appellate Division reversed. Although acknowledging the seriousness
of the issues, the court considered "overstated" the concerns
over entanglement. Because the nature of the alleged conduct was
unlikely to involve evaluation of religious dogma, the court found
clergy malpractice a cognizable claim. The court analogized to recognized
causes of action against other sorts of professionals, such as accountants
or real estate brokers. There was no "impenetrable barrier,"
the court reasoned, "to establishing a standard of care applicable
to cleric-counselors in the context of an allegation" of sexual
The defendants petitioned the New Jersey Supreme Court. In a 5-2
opinion written by Justice Pollock, the Supreme Court affirmed the
Appellate Division in part and reversed in part, and remanded. The
Court held that F.G. could pursue a claim for breach of fiduciary
duty against MacDonell. F.G. could also proceed against Harper,
if on remand the trial court found that such an action would not
result in entanglement with church doctrine. The majority framed
the issue as whether "the First Amendment to the United States
Constitution shields a member of the clergy from a claim of inappropriate
sexual conduct with a parishioner who has consulted the member of
clergy for pastoral counseling." Id. at 701. The Court canvassed
cases from other jurisdictions that have allowed claims on the basis
of a fiduciary duty between clergy and parishioner for certain types
of torts. No court, however, has recognized a separate clergy malpractice
claim, because of a hesitation to become entangled in religious
teaching or to judge clergy by secular standards of care.
The Court found the breach of fiduciary duty cases persuasive,
and held that pastoral counseling creates a fiduciary relationship.
"By accepting a parishioner for counseling, a pastor also accepts
the responsibility of a fiduciary." Id. at 703. Like psychotherapists
and their patients, pastoral counselors may be liable for breaches
of fiduciary duty toward their parishioners. Id. at 705. The First
Amendment, therefore, does not protect a cleric from a breach a
duty claim when the clerics actions arise in the context of
a counseling relationship. "[T]he record supports the inference
that MacDonells alleged misconduct was not an expression of
a sincerely held religious belief, but was an egregious violation"
of his duty toward the plaintiff. Id. at 702. The Court recognized
deposition testimony presented to the trial court from Episcopal
church officials that affairs between married priests and parishioners
contravene church doctrine, which the defendants did not dispute.
The Court did not address how trial courts would determine whether
the clerics actions arose from sincerely held religious beliefs.
The majority also left unclear its contention that pastoral counseling
resembles a secular activity rather than a religious one, which
can be examined under the standards applied to secular professionals.
Based in part on the testimony regarding Episcopalian teaching,
the majority reasoned that breach of fiduciary duty claims would
not raise the same difficulties encountered in clergy malpractice
claims. "The essence of a fiduciary relationship is that one
party places trust and confidence in another who is in a dominant
or superior position." Id. at 703. Proof of breach would not
require an inquiry into particular religious doctrines or determination
of a standard of care. An allegation need require only that the
plaintiff trusted and sought counsel from the defendant cleric.
Ibid. The Court treated the charges against Harper under the same
standard, but found that because the alleged tort occurred while
Harper was engaged in a clear religious activity (preaching), more
serious constitutional questions were implicated that required further
examination by the trial court. Id. at 705. Should the trial court
find that the case could proceed without becoming entangled in religious
doctrine, Harper could also be exposed to liability.
Justice OHern, who dissented in an opinion joined by Justice
Garibaldi, concluded that the majority had misunderstood the issue.
The defendant clergy were not alleging that their conduct was excusable
because immunized by the First Amendment; "rather, F.G. asserts
that the conduct is tortious because the defendant is a religious."
Id. at 705. Discussion of First Amendment standards is therefore
only ancillary to the real issue: whether a cleric can be sued for
actions that, outside the defendants status, would not be
actionable. The basis of the plaintiffs case was that MacDonell
breached a duty of pastoral care towards her. Exploration of that
duty necessitates an examination of clerical religious duties. As
there is no general duty for other types of fiduciaries to refrain
from voluntary sexual relationships with their adult clients, the
imposition of liability here rests solely upon the defendants
status. Indeed, the majority went so far as to say that "but
for MacDonells status as a clergyman, his conduct was unrelated
to religious doctrine." Id. at 705. The dissent closed by stating:
[t]he First Amendment offers no defense to sexual crimes or abuse
[but] no principle of general civil law makes it a tort for competent
adults to engage in consensual sexual conduct. . . . Whatever
we may think of the morality of the acts involved, a breach of
the tenets of the Episcopal religion . . . does not give rise
to a tort action.
Id. at 709.
Thus this case differs from those in which a clergy commits a crime
such as fraud or assault; the crime itself is separate from the
clergys religious status and covered by generally applicable
criminal laws. Likewise, when a cleric takes advantage of those
unable to consent, such as children, there is no barrier to imposing
civil liability. Breach of fiduciary duty, the dissent reasoned,
is only an "elliptical" way of characterizing clergy malpractice
and produces the same constitutional difficulties. Id. at 708.
F.G. is troubling because of the pressures it places upon the pastoral
counseling relationship, and the interference it permits the courts
in ascertaining whether a duty has been breached. By analogizing
clergy to secular professionals, the Court has invited trial courts
to set the parameters of the relationship between parishioners are
clergy. The majority most likely was motivated by strong objection
to the kind of activity involved. The opinion, however, is not restricted
to specific conduct; under its standard, the possibility remains
that even activities such as preaching may be actionable.
Nor does the opinion address the diversity of religious practices.
The standard of "trust and confidence in another who is in
a dominant or superior position" that the majority adopts is
vague at best and may work at all only with those religious faiths
that have a formal priesthood. The standard may be difficult to
apply to other religious denominations in which the line between
clergy and laity is less formalized, or in which the counseling
relationship is more fluid.
It is hard to share the majoritys confidence in the low risk
of entanglement with religious doctrine in the future. Subsequent
cases undoubtedly will turn on whether the alleged conduct was within
or without the duties that clergy-fiduciaries now owe to others.
To determine exactly when a parishioner and clergy have entered
into a formal "fiduciary" relationship, trial courts at
the very least will need testimony concerning the clergy-parishioner
relationship as it is understood and expressed by the particular
faith, as well as the competence and training of the particular
clergy-defendant. Even here, paradoxically, the Court relied upon
ecclesial testimony to support its reasoning that sexual misconduct
claims would not involve judicial examinations of religious doctrine.
*Gerald J. Russello is an associate at Donovan Leisure Newton &
Irvine LLP in New York City. Her clerked for Justice Daniel J. OHern,
New Jersey Supreme Court, 1996-97. The views expressed are solely
those of the author.