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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.
Like other states, New York does not allow claims for clergy malpractice and a Monroe County judge dismissed the breach of fiduciary duty claim of a woman who sued a Catholic priest for damages arising out of her adulterous relationship with him.
The Jane Doe plaintiff alleged the sexual misconduct of Father Peter DeBellis was a breach of the fiduciary duty that he owed her because he had held himself out as qualified to conduct marriage counseling, and she went to him for that purpose.
But a 3-2 majority of the Appellate Division, Fourth Department reinstated her case, aligning itself with other states which have found a fiduciary duty if the clergy member “held himself out as possessing the education and experience” of a professional counselor.
Doe's case, the opinion said, was distinguishable from Wende C. v United Methodist Church, 6 A.D.3d 1047 (2004), in which the same court said a parishioner could not sue her pastoral counselor over their sexual affair.
In Wende C., “the gravamen of the complaint was clerical malpractice, and the complaint in that case did not in fact allege the breach of a fiduciary duty or that the duty assumed by the defendant cleric therein was secular in nature,” the majority explained.
The two dissenting justices -– Robert G. Hurlbutt and John V. Centra –- cited language from Wende C. which said “there is no meaningful analytical distinction between a cause of action for breach of fiduciary duty by a cleric and one for clergy malpractice.”
Both Doe's case and Wende C., the dissenters said, “involve a claim or cause of action for breach of fiduciary duty based on sexual relations between a parishioner and her pastor during pastoral counseling, and neither pastor possessed any license or credentials as a therapeutic counselor.”
New York's highest court, the Court of Appeals, affirmed the Wende C. decision, but left open “for another day the question whether [a cause of action for breach of fiduciary duty] may arise between a cleric and a parishioner under very different circumstances, not present here.”
It may be time for the Court of Appeals to take another look at the issue and decide definitively whether a pastor must be a licensed counselor to be sued for breach of fiduciary duty or whether he merely has to hold himself out as a professional counselor.
The Appellate Division, Second Department rejected a similar breach of fiduciary duty claim in Langford v. Roman Catholic Diocese, 271 A.D.2d 494 (2000). But in a dissent, Justice Nathan E. Miller said that “the hallmark of fiduciary duty -- an imbalance of power between the parties -- is especially manifest in the relationship between priest and parishioner.”
“In recognizing Langford's cause of action to recover damages for breach of fiduciary duty,” he concluded,
it would, for the first time, pose a deterrent to other predatory members of the clergy who presently have too little reason to fear personal retribution for their conduct causing grave injury to their victims.
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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." As On Point discussed here, Marmelstein has effectively shut the door on adult parishioners in New York alleging they were sexually exploited by clergy.
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By Matthew Heller
6/5/08
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