It's A Crime, Not An Affair

State Laws Criminalize Clergy Sexual Relations with Congregant

Fiduciary duty refers to the responsibility of licensed caregivers (doctors, therapists, lawyers, social workers, etc.) to "do no harm." Society's expectation of these caregivers is that they will attend to the needs of those in their care.

Caregivers are prohibited by state criminal statutes, fiduciary duty laws and by codes of ethics from exploiting their clients or patients to meet their own emotional and psychological needs.

Bradley Toben and Kris Helge. "Sexual Misconduct of Clergypersons with Congregants or Parishioners: Civil and Criminal Liabilities and Responsibilities." This article is posted on the Baylor University Clergy Sexual Misconduct Study website under Legislation Materials.
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.

For examples of how some cases have been handled in the courts, see excerpts below.

Ministers, pastors, priests and rabbis are often the first choice for those seeking emotional as well as spiritual assistance. Their role as counselors gives them fundamentally the same responsibility to those in their care as therapists have to their current or former clients.

Nicholas Bakalar. "Two paths: Religion and psychiatry." The New York Times (September 18, 2007).
Most doctors would refer a patient to a psychiatrist for emotional problems. Protestants were about half as likely as those with no religious affiliation to do so, preferring [to refer their patients to] clergy or other religious counselors.

Jared Turner. "Seminar to help equip clergy for counseling." Roanoke Times (October 7, 2006).
. . . the number of people who look to clergy or pastoral counselors before social workers and psychologists is on the rise . . . "There are people who may not go see a counselor or social worker, but they're comfortable with their rabbi, priest, pastor or clergy member."

Sample state criminal statutes regarding clergy sexual relations with congregants

The Rape, Abuse & Incest National Network (RAINN) website has a state-by-state resource guide to definitions of sexual assault and the relevant statutes of limitations for reporting sexual assault.

If a significant amount of time has passed since the crime occurred, RAINN still strongly encourages reporting the crime to the police. It may be more difficult for the case to be prosecuted, especially if there is a lack of DNA evidence. However, reporting the crime may lead to an arrest, and thus help get another [predator] off the streets.

Full text of statutes can be found at Washburn University School of Law.

Arkansas State Legislation. 5-14-126
5-14-126. Sexual assault in the third degree.

(a) A person commits sexual assault in the third degree if the person [is]:

(B) A professional under Ark. Code Ann. 12-12-507(b) or a member of the clergy and is in a position of trust or authority over the victim and uses the position of trust or authority to engage in sexual intercourse or deviate sexual activity…

(2) (b) It is no defense to a prosecution under this section that the victim consented to the conduct.

Connecticut. Chapter 952 Penal Code. Title 53a Sec 73a. (53a-73a)

Iowa. Title XVI Criminal Law. Subtitle 1. Chapter 709. (709.15). Sexual exploitation by a counselor, therapist…

Minnesota. Chapter 609 Criminal Code. (609.344)
609.344. Criminal sexual conduct in the third degree.

Subdivision 1. Crime defined. A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:

(1) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:

(ii) the sexual penetration occurred during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private. Consent by the complainant is not a defense…

New Mexico. Chapter 30 Criminal Offenses. (30-9-10)
Article 9. Sexual Offenses.

As used in Sections 30-9-10 through 30-9-16 NMSA 1978:

A. "force or coercion" means:

(5) the perpetration of criminal sexual penetration or criminal sexual contact by a psychotherapist on his patient, with or without the patient's consent, during the course of psychotherapy or within a period of one year following the termination of psychotherapy.

F. "psychotherapist" means a person who is or purports to be a: (11) minister, priest, rabbi or other similar functionary of a religious organization acting in his role as a pastoral counselor…

North Dakota. Chapter 12.1 Criminal Code. (12.1-20-06.1) (pdf file)

Texas. Penal Code Chapter 5. (22.011)
Title 5. Offenses against the person.

Chapter 22. Assaultive Offenses.

Sec. 22.011. Sexual assault.

(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:

10) 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…

Utah. Criminal Code Title 76.

Wisconsin. Criminal Code 940.22.

State Fiduciary Duty Laws

Fiduciary Duty Laws Restrict Sexual Contact Between Licensed Caregivers and Their Clients Even After the Professional Relationship Has Ended

Florida 491.0112(1): "sexual misconduct with a client or former client when the professional relationship was terminated primarily for the purpose of engaging in sexual contact"

Iowa 709.15 (1)(b): "a former patient or client is considered to be emotionally dependent for one year following the termination of the provision of mental health services"

Michigan 750.520e(1)(e): "the sexual contact occurs during or within two years after the period in which the victim is his or her client or patient"

Minnesota 609.344(h)(ii): "the complainant is a former patient of the psychotherapist and the former patient is emotionally dependent upon the psychotherapist"

New Mexico 30-9-10(A)(5): "during the course of psychotherapy or within a period of one year following the termination of therapy"

Rhode Island 5-63.1-1 (1): "a person who obtained . . . therapeutic service from a mental health professional within two years prior to sexual contact with the mental health professional"

Texas Penal Code 22.011(b)(9): "by exploiting [the patient or former patient's] . . . emotional dependency"; and (b)(10) "by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual advisor"

How Courts (and Congregations) Handle Cases of Clergy Sexual Misconduct

Donald Dean Budd

Amy Pearson. "$1.4 million for woman abused by former pastor." Winona Daily News (October 8, 2011).
A jury has awarded $1.4 million to a woman who was sexually abused by a pastor at Winona's McKinley United Methodist Church. Donald Dean Budd, 67, must pay the woman $1 million in punitive damages and a portion of $410,000 in compensatory damages, awarded late this week by a Hennepin County jury.

Joseph Ngoc Tu Nguyen (Joseph Tu)

"Fort Worth's Catholic Diocese settles suit with 6 victims in alleged priest abuse case." The Republic (Dallas) (October 7, 2011).
The Catholic Diocese of Fort Worth has reached a settlement with six women who accused a Roman Catholic priest of sexual abuse while he served at churches in Arlington and Bedford. The Fort Worth Catholic Diocese was a defendant in the case, along with the Rev. Joseph Tu, also known as Joseph Ngoc Tu Nguyen.

Patrick Edouard

Steve Woodhouse. "Edouard case continued." Knoxville and Marion County Journal-Express (August 5, 2011).
Court records indicate that Edouard, pictured, forced sexual contact on at least three women while serving as the minister from 2003-10. … the defense team could be ready for trial by Dec. 5 … the pretrial conference in this case is scheduled for Nov. 18.

Charles Kanu

"Baxter County prosecutor: No criminal charges against former Mountain Home priest." Baxter Bulletin (April 19, 2011).
Baxter County Prosecutor Ron Kincaid told The Bulletin Monday no charges will be filed against a former Mountain Home priest accused of sexually exploiting a parishioner. The unidentified woman made a criminal complaint against Father Charles Kanu with the Mountain Home Police Department. Chief Carry Manuel said an investigation was completed and the information was forwarded to Kincaid. "From our standpoint, no criminal activity took place," Kincaid said.

Josh Rosenthal. "Woman says priest sexually abused and exploited her." Fox16 (Little Rock, AR) (April 13, 2011).
… filed suit against the Little Rock Catholic Diocese Wednesday, saying Father Charles Kanu sexually abused and exploited her when she went to him for counseling.

Michael Segelstein

Americans United for Separation of Church and State. "Religious staff must be accountable for sex crimes." Opinion by AUSCS (December 14, 2009).
The First Amendment's religious liberty provisions do not shield houses of worship from liability when their staff members or volunteers commit crimes, Americans United for Separation of Church and State has told the Nevada Supreme Court. … Americans United and the other organizations take issue with claims made by the Roman Catholic Bishops of Las Vegas and Reno and the Church of Jesus Christ of Latter-day Saints (LDS), which argue in their brief that religious organizations should be immune (except in very narrow circumstances) when their employees or volunteers commit crimes like sexual assault.

Sherri Ann Forbes and Marci A. Hamilton. Statement of Amicis Curiae (December 11, 2009).
The harm caused by a religious organization that negligently or recklessly permits sexual assault, harassment or abuse is no different from the harm generated by a secular entity and it can be worse. … A number of religious organizations have proven themselves incapable of ending cycles of abuse by themselves. Therefore civil and criminal laws are the only effective means of protecting the vulnerable. … There is no Constitutional right of religious organizations to punish crime victims for reporting crimes committed by employees or volunteers to the authorities. … The LDS and Bishops argue that they have a constitutional right to punish victims for going to the authorities because judicial inquiry into the issue would lead to impermissible entanglement.

Mike Fehlauer

Roger Croteau. "Two file suit after pastor's (Mike Fehlauer) affair with church member." My San Antonio (July 1, 2008).
In a stunning hourlong sermon delivered in April by Ted Haggard, president of the 30 million-member National Association of Evangelicals, church members were told Fehlauer had admitted to ‘sexual misconduct’ with a married woman and resigned at the urging of Tree of Life officials. … the woman, Angela Benson, … [accused] the church of treating Fehlauer like he was the victim by giving him $60,000 to relocate, while offering her family nothing.

Mordecai Tendler

Matthew Heller. "Woman loses suit over affair with Rabbi." OnPoint News (June 29, 2008).
New York's highest court has set the bar prohibitively high for proving certain civil cases against predatory clergy … ‘Allegations that give rise to only a general clergy-congregant relationship that includes aspects of counseling do not generally impose a fiduciary obligation upon a cleric,’ the opinion said. … Tendler, who officiated at an Orthodox Jewish synagogue in New Hempstead, N.Y., counseled Marmelstein for emotional problems … Marmelstein's allegations were insufficient, Judge Victoria A. Graffeo wrote for the appeals court …

Peter DeBellis

Matthew Heller. "Court OKs woman's suit over affair with priest (Peter DeBellis)." OnPoint News (June 5, 2008).
Striking a long-overdue blow against predatory clergy, a New York appeals court has for the first time recognized that a clergyman acting as a marital counselor who has sex with a parishioner can be sued for breach of fiduciary duty. … Update: New York's highest court dismissed the case in a March 26, 2009 opinion. Applying the test it recently established in Marmelstein v Kehillat New Hempstead, 11 N.Y.3d 15 (2008), the Court of Appeals said, "The bare allegation that Jane Doe was ‘a vulnerable congregant’ is insufficient to establish that plaintiff was particularly susceptible to Father DeBellis's influence."