Can Pastor Counselors Be Prosecuted for Malpractice?
It is not uncommon for congregants to seek counseling from their ministers. Whether described as marriage counseling, family counseling, or spiritual counseling, many congregants seek advice and guidance from clergy members to deal with problems they and their loved ones are experiencing.
In providing these counseling services, clergy members enjoy certain legal protection, in part because of the First Amendment to the U.S. Constitution, but the protection in not absolute. In addition, potential liability varies from state to state. Consequently, there are some best practices in which clergy should engage.
States typically impose education prerequisites on professional counselors, require licensing, and set standards of care.
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For example, in Illinois, "professional counseling" means the provision of services to individuals, couples, groups, families, and organizations in any one or more of the fields of professional counseling, which may include "clinical counseling and psychotherapy in a professional relationship to assist individuals, couples, families, groups, and organizations to alleviate emotional disorders, to understand conscious and unconscious motivation, to resolve emotional, relationship, and attitudinal conflicts, and to modify behaviors that interfere with effective emotional, social, adaptive, and intellectual functioning."
In California, not even a Licensed Professional Clinical Counselor is permitted to treat couples or families unless that person has completed all of the required experience and coursework specified in the California Business and Professions Code.
Most states, however, expressly or, through case law, exempt the clergy from any such requirements.
For example, the Illinois Act expressly provides that it does not apply to employees or agents of a church unless the church holds these employees or agents out to the public as professional counselors or clinical professional counselors.
Consequently, although a want ad for a professional counselor might list requirements such as professional licensure and, at least, a master's degree in a relevant field of study, a want ad for a clergyperson to provide counseling through a church could read: "Wanted: Marriage and family counselor. No license, education, training, experience, OR SKILL necessary."
Not only do ministers who provide counseling services not need a formal education in counseling, psychology, or social work, they do not need a recognized college degree in anything. Many schools that hold themselves out as "Bible Colleges" are not accredited. This, however, may not prevent them from bestowing degrees, and their graduates from placing "Dr." in front of their names.
Potential Harm to Those Seeking Counseling
Those seeking counseling from any source are vulnerable to harm. That potential harm may be increased when individuals with no training, guidelines, or recognized standard of care, behave in a manner that injures those who sought them out for help. In addition, church members, who might have a legal cause of action against a licensed counselor or therapist, may find that they have no legal recourse when the same improper acts are performed by the clergy.
For example, in the case of Berry v. Watchtower Bible & Tract Society of New York, Inc., 879 A.2d 1124 (2005), sisters claimed that, while seeking counsel for marital and family issues, their mother informed certain elders of the Wilton Congregation of Jehovah's Witnesses that the sisters were sexually abused by their father, and the elders failed to report the abuse to law enforcement authorities, and counseled their mother that she should keep the matter within the organization of Jehovah's Witnesses.
The trial court ruled that all conduct complained of by the plaintiffs, "whether sounding in common law negligence or deceit, fell under the heading of 'clerical malpractice' and that it would be a violation of the Establishment Clause of the First Amendment for the court to 'review and interpret church law, policies, or practices in the determination of the claims.'"
The Supreme Court of New Hampshire affirmed the trial court's decision.
In Strock v. Pressnell, 527 N.E.2d 1235 (1988), while providing marriage counseling to a couple, a Lutheran minister allegedly engaged in consensual sexual relations with the wife. Although the Ohio Supreme Court held that it could not "accept the premise that the sexual activities in which [the minister] is alleged to have participated are protected by the Free Exercise Clause," it nevertheless held that there was no cause of action for clergy malpractice.
In Borchers v. Hrychuk, 727 A.2d 388 (1999), a woman alleged that, when she was having marital difficulties, she sought advice from a Seventh-Day Adventist pastor, who exploited his position to initiate a sexual relationship with her. The Maryland Court of Special Appeals held that the claimant could not assert a claim for marital counseling malpractice, in part, because the pastor was not licensed or certified to provide such services, therefore, the claimant could not establish that there had been a "professional counselor-patient relationship."
In addition, in a few states, confidentiality may simply be an illusion. For example, in Maryland and Virginia, although clergy members cannot be compelled by a court to reveal information learned in private from those seeking spiritual advice, apparently under statutory law in those states, the clergypersons voluntarily can disclose the information if they so choose.
Clergy Member's Potential Criminal Liability
"Transference" refers to the affection or attraction that some clients feel toward their counselors. Taking advantage of that transference can result in criminal charges.
Although most states do not recognize a civil cause of action for clergy malpractice, at least with regard to sexual relationships between ecclesiastical counselors and congregants, some states have passed laws criminalizing certain behavior, and eliminating certain defenses.
Under Minnesota law, a person who engages in sexual activities with another is guilty of criminal sexual conduct if "the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and: (i) the sexual [activities] occurred during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or (ii) ... 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."
Under Wisconsin law: "Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class F felony." Consent of the victim is irrelevant. The term "therapist" includes a member of the clergy who performs or purports to perform psychotherapy, i.e., "the use of learning, conditioning methods and emotional reactions in a professional relationship to assist persons to modify feelings, attitudes and behaviors which are intellectually, socially or emotionally maladjustive or ineffectual."
Under Utah law, a sexual act is deemed without the consent of the victim if the actor is a "minister, priest, rabbi, bishop, or other recognized member of the clergy" and "the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the victim reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the victim could not reasonably be expected to have been manifested."
Thus, in Utah, there is the additional requirement that the clergy member trick the victim into believing that the sexual act is part of the counseling. Although some may say this is far-fetched, it is not difficult to imagine a situation in which a trusting and naïve congregant is taken advantage of by a spiritual leader.
Best Practices
From a legal point of view, risk management involves not only being able to assert a defense to a lawsuit, but preferably avoiding the initiation of any lawsuit.
Parts of the Psychotherapist's Oath include "I must first do no harm," "I will provide only those services for which I have had the appropriate training and experience ..." and "I will not violate the physical boundaries of the client and will always provide a safe and trusting haven for healing."
Although clergy members who are not licensed counselors or therapists may be under no professional obligation to abide by these canons, presumably, adhering to them would be advantageous to the population they are serving, reduce the risk of scandal, and help avoid criminal liability where applicable.
