Clergy Sexual Misconduct: Confronting the Difficult Constitutional and Institutional Liability Issues

Authors

James T. O'Reilly, University of Cincinnati
JoAnn M. Strasser

First Page

31

Document Type

Article

Abstract

Sexual misconduct among clergy members is a rare but troubling societal phenomenon, made more evident in the 1990s by dramatic news reporting and high-profile litigation demands. Revelation is no longer just an uplifting part of the New Testament; revelation is a tabloid tactic for uplifting television ratings and newspaper sales by assailing massive sexual scandals in the churches. This article focuses on a clash of doctrines that is developing in tort cases, when institutional churches are sued for failure to adequately oversee and control their errant ministers and priests. The clash arises because the religious doctrines of faith, responsibility and obedience would be entangled in the limited constitutional authority of civil courts to oversee religious institutions, as the courts exert their tort jurisdiction over clergy misconduct litigation. In the governance of any multi-congregational church, a community of faith believers, the act of disciplining members of the church's clergy is an important ecclesiastical role, one in which mercy and forgiveness are intertwined with corrective steps by the church leaders acting within their institution's moral code. The civil legal system that redresses grievances through money damages brings the individual trial judge into a minefield of religious norms that pose potential for bitter discovery disputes and reversible error. How closely should state trial courts involve themselves with challenges to the ecclesiastical supervision of the errant clergy member? When is a First Amendment entanglement risk justified by civil remedial needs? Does the sexual conduct go so far beyond the religious role that it cannot have been deemed ratified by supervisors? Is the quality of mercy shown by a bishop to his ministers a basis for the allocation of tort damages by a civil court under traditional respondeat superior doctrines? Hundreds of difficult lawsuits are pending in state trial courts. This article examines the complex intersection of religion, constitution and sexual misconduct, and suggests solutions.

Recommended Citation

James T. O'Reilly & JoAnn M. Strasser, Clergy Sexual Misconduct: Confronting the Difficult Constitutional and Institutional Liability Issues, 7 St. Thomas L. Rev. 31 (1994).
Available at: https://scholarship.stu.edu/stlr/vol7/iss1/3