Father Elano and Judith Rodrigues-Lytwyn

As pickup lines go, “Your presence struck me like a thunderbolt” is passably original. But it was allegedly uttered by a priest who, according to a $125 million lawsuit, exploited the power of the confessional to seduce a female parishioner.

The suit aims a barrage of clergy misconduct claims at Father Elvis Elano and the Roman Catholic Diocese of Brooklyn, N.Y., arising from his seven-month affair with Judith Rodrigues-Lytwyn. “As a result of [Elano's] outrageous conduct, Plaintiff's faith has been shattered,” the complaint says.

New York courts have generally not been receptive to such cases. In June, the state's high court said a woman could not sue a rabbi who had an affair with her because she was not “uniquely vulnerable and incapable of self-protection.” Marmelstein v. Kehillat New Hempstead.

But Rodrigues-Lytwyn, 50, alleges the novel theory that Elano, 44, breached a fiduciary duty to her by failing to “maintain an appropriate and proper confession posture.” She is seeking $25 million in compensatory damages and $100 million in punitive damages.

Elano, who was then pastor of Our Lady of Snows Church in Queens, allegedly began his pursuit of Rodrigues-Lytwyn immediately after receiving her confession in which she spoke of her pending divorce and her husband's “physical abuse of her and his drug use.”

“Defendant Elano professed his love, devotion and physical attraction to the Plaintiff, stating, 'Your presence struck me like a thunderbolt,'” the suit says.

Elano “encourag[ed] her to engage in a sexual liaison with him to assist her with overcoming her pain associated with her husband and because it was 'ordained by God,'” and an “overwhelmed” Rodrigues-Lytwyn succumbed to his advances. During the affair, they met at her apartment, Elano ordering Viagra over the Internet to “enhance their sexual encounters.”

Rodrigues-Lytwyn ended the relationship after the priest acknowledged he had "developed a rash in his groin and legs and believed it was from his sexual liaisons with others."

In Marmelstein, the New York Court of Appeals narrowly defined the scope of a breach of fiduciary claim for clergy sexual misconduct. “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,” it said, and

[A] congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue.

Rodrigues-Lytwyn attorney Andrew C. Laufer has suggested that her case meets that test. "[Elano] clearly manipulated her," he told the New York Daily News. “He saw a very emotionally vulnerable woman, given that she was going through a messy divorce, and he looked at her as an easy mark. It's egregious.”

But the complaint alleges only very generally that “[P]laintiff, as a confessee ... and Defendant Elano, acting as her pastor and confessor, created a special and confidential relationship between them ...” And case law indicates Rodrigues-Lytwyn will have to show more than she was simply Elano's confessee to prove liability.

In Martinelli v Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (1999), the 2nd U.S. Circuit Court of Appeals cited the extensive contacts between a priest and a teenage parishioner in upholding a claim for breach of fiduciary duty.

Rodrigues-Lytwyn also alleges negligent supervision against the Brooklyn diocese. But courts have been reluctant to examine church employment practices unless they “clearly indicate” that supervisors knew or should have known a clergy member was likely to engage in sexual misconduct.

By Matthew Heller
11/2/08