Reprinted from

By James C. “Beau” Brincefield, Jr.
Virginia Lawyer

For many reasons, civil lawsuits against clergymen, teachers and other types of counselors who have sexually abused their victims are tough cases. Deep psychological and emotional trauma, always a difficult damage to quantify, is almost always present, not only in the victim but in the victim’s immediate family as well. In addition, such claims are almost always vigorously contested, if not by the perpetrator, then by his employer, whether the employer is a church, school district or treatment facility.

One of the most difficult aspects of these kinds of cases for plaintiffs and other lay observers, in general, to understand is that you can win the battle against the perpetrator and still lose the war. A victory against an employee with little or no money or other assets may very well be a hollow victory if no liability is found against his employer and/or the claim is not covered by insurance. As to the last point – insurance coverage – it should he noted that, over the last five years, most (if not all) insurance companies doing business in the United States have simply terminated coverage for sexual abuse by clergymen, teachers and other counselors.

Where the facts allow it, the best way to obtain liability against the employer is to establish vicarious liability by employing the “respondeat superior” doctrine. However, the majority rule in the United States is that the employer will not be held liable for misconduct of the employee which was outside his scope of employment and Courts have been loathe to find sexual assaults as being within the scope of employment of a clergyman, teacher or other counselor. Consequently, in most of the sex abuse cases where liability has been found against the employer, the liability has been predicated upon some direct (as opposed to vicarious) theory of liability such as negligent hiring, negligent supervision or some other conscious, willful cover-up or failure by the employer to protect or warn the public against predilections of the perpetrator which were known (or should have been known) by the employer.

Proving the liability of the employer directly is usually a daunting task in these kinds of cases since the employer (and, frequently, its insurance company) is typically very well financed and tactically committed to a war of attrition. To make matters worse, the evidence needed to prove liability against the employer is almost always solely within the possession and knowledge of the employer and its higher level employees and, consequently, is very difficult to obtain.

The new Clergy Malpractice theory drastically alters the balance of power in these kinds of cases where the defendant has used his job created power or authority to confuse and/or seduce his victim. In such cases, a far easier route to liability against the employer may be followed simply by shifting the emphasis from the physical aspects of the abuse to the mental, emotional and psychological aspects of it.

For example, in the typical Clergy Malpractice case, the defendant has used his job created power and authority to induce the victim to participate in the desired conduct. Typically, this is done by telling the victim that there is nothing wrongful or improper about the activities proposed. The very nature of the clergyman’s position as a teacher and interpreter of church doctrine clothes him with the apparent power and authority to make such judgments and the victim is thereby persuaded to permit the desired activity.

The awesome moral and religious power and authority of even the most humble parish priest or clergyman has been recognized for centuries. A child sees adults, including his parents, kneeling before this man and begging for his blessing, thanking him for his interest in them and his prayers for them, calling him “father”, listening to his sermons, commenting on his goodness, righteousness, asking his forgiveness for their sins and short-comings. And if this power and authority is so manifest even in adults, how much more powerful is it over a boy of tender years?

This is the heart of the Clergy Malpractice theory: that the defendant has misused his job created power and authority to deceive and betray the plaintiff and that this misuse has caused emotional and psychological damage to the plaintiff. According to this theory, the misconduct which is the focus of the tort is not the physical abuse, itself, but rather the clergyman’s misrepresentations of the church’s true positions on matters of faith and morals. In short, the clergyman has been a bad teacher. He has performed badly one of the most important tasks he was employed to perform.

A defense is often made that the courts should not determine the appropriate standard of care for the performance of the duties of a priest or other pastoral counselor. Whatever might be the validity of this position at the fringes of the definition of the applicable standard of care, there are some elements that are common to every conceivable definition. And the overriding public interest in the protection of children from sex abuse demands that at least these elements be recognized by the Courts.

Certainly, among these common elements is the requirement or duty that a clergyman must refrain from misinforming (improperly teaching) minors that it is neither sinful, nor immoral, nor improper to engage in sexual conduct with an older man, whether he be a clergyman or otherwise. No matter who the person is who is trying to define the appropriate standard of care, no credible expert anywhere in the United States is going to go into a court of law and testify under oath that such conduct does not violate every conceivable standard of care that might be developed or applied.

If this be true, then one need not be concerned about the complete definition of the standard of care in all of its details and particulars. It is enough simply to know that this described misconduct breaches every conceivable standard of care that might be applied. If the defendant wishes to say otherwise, let him put an expert on the stand who will so testify under oath. Assuming that the duty and its breach have been established, one should not have too much difficulty in finding an appropriate expert witness to testify regarding the nature and extent of the damages caused by the clergyman’s malpractice. Loss of faith in God and the church, distrust of all clergymen, and loss of respect for authority figures (including teachers, policeman, etc.) are all common and, perhaps, unavoidable consequences of Clergy Malpractice. Viewed in this light, the physical sexual abuse that typically follows Clergy Malpractice is viewed, not as the central focus of damages, but as an exacerbation of the emotional /psychological damages already caused by the bad teaching. Similarly, the causal nexus between the clergyman’s malpractice and the Plaintiff’s damages should not be difficult to establish with proper expert testimony.

In performing an analysis of the tort of Clergy Malpractice, whether it be in the preliminary evaluation of a case or in argument before a court in response to the inevitable demurrer or motion to dismiss, all of the classic requirements for the existence of a tort are found to be satisfied: there is a clear duty owed by the Defendant to the Plaintiff; a standard of care which is sufficiently well defined to enable a jury to determine that there has been a breach of the duty; and the specific breach complained of has proximately caused adequately quantifiable damages to the Plaintiff.

The tremendous value of this new tort to the plaintiff is most evident when one examines what it does to the “scope of employment” defense. It vaporizes it. By virtue of the very definition of the tort, the misconduct complained of is within the scope of employment of the clergyman! He has misconducted himself in the performance of the very duties which are central to his vocational and occupational identity as a priest. And the vicarious liability of the church is assured by the dual realities that the misconduct was not only performed within the scope of the priest’s employment but also because the Defendant was enabled to cause the damage to the Plaintiff specifically by virtue of the job created power and authority which was conferred upon him by the church as his employer.

From now on, whoever the employer may be, once he clothes the clergymen, teacher, counselor, or similar employee with the psychological power and authority to dominate or control the conduct of another, the employer will have to accept the legal consequences if the employee misuses that power and authority.

Reprinted from Virginia Lawyers Weekly, Vol. 37, No. 8, February 1989.