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.
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
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"