I’m in the midst of editing a book chapter on character/moral, legal, regulatory, and professional aspects of church and Christian non-profit leaders. In some prior tweets and posts, I’d merged the concepts of professional “fiduciary duty” with power differential in cases of clergy sexual involvement with congregants. Tweeter XianAtty let me know that the two aren’t always the same. So, I wanted to do what I could to correct my understanding of this issue, and also to find online resources that clarify when “clergy sexual misconduct” is both an ethical issue because of biblical mandates on morals and on people considered leaders, AND a legal issue because of the power differential between clergy and congregant nullifies the legal defense of “consent.”
So far, I’ve only found one source of state-by-state laws on this issue. And that is RAINN’s State Law Database.
RAINN is the acronym for Rape, Abuse & Incest National Network. I found RAINN’s article from October 2015 on Understanding the Laws in Your State helpful for its background on how the database system got put together, who is involved in that project, and why.
You can search their State Law Database by state or U.S. territory for laws on eight topics:
- Sex Crimes: Definitions and Penalties (i.e., rape and sexual assault)
- Consent Laws
- Mandatory Reporting: Children
- Mandatory Reporting: The Elderly
- Criminal Statutes of Limitations
- Termination of Rapists’ Parental Rights
- Laws about Private Communications (i.e., confidentiality)
- HIV/AIDS Testing of Sex Offenders
To find out about fiduciary duty and clergy sexual misconduct, the “Consent” section is where you’ll likely find the answer.
Select the state in the checkbox list, or click on the state on the map.
Click on the Determining Consent link.
Go to the Capacity to Consent box.
Click on the question: Does the relationship between the victim and actor impact the victim’s ability to consent?
There is no consistency on clergy sexual misconduct as a criminal act. For instance, in some states like Texas, clergy/congregant sexual involvement is defined as a sexual assault crime. In these cases, “consent” by the congregant is NOT a legal defense for the clergy. Here is a partial listing of the description for Texas laws where consent is not a defense for sexual involvement. (Accessed September 27, 2016. Emphasis added.)
* * * * * * *
[A] sexual assault is considered to occur without the consent of the other person where:
- (1) the actor is a public servant who coerces the other person to submit or participate;
- (2) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;
- (3) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or
- (4) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the Texas Family Code.
* * * * * * *
Other states have differing statutes on clergy sexual misconduct. Their laws may make no specific mention of ministers/clergy.
I’m thankful this information is available all in one place, because it is all too often still needed for research into instances of alleged spiritual abuse that also involve sexual misconduct.
* * * * * * *
Notes on My State-by-State Search of RAINN Database
ADDENDUM – DECEMBER 3, 2016. In those states that explicitly disallow the defense of “consensual” for sexual assault, it generally applies to “religious workers,” not specifically “Christian pastors.” And sometimes there are additional specifications about counseling relationships. But basically, keep in mind, it’s NOT “an affair,” it’s an assault.
If you’re interested in an overview of which states have laws about this, check out this post on The Wartburg Watch: It’s Clergy Sex Abuse; Not an Affair! One night when I had insomnia, I went through the entire RAINN state-by-state website and posted the state and key portions of their legal code. I posted one state per comment, and went through the states in alphabetical order. Search for comments by “brad/futuristguy.” And note that there are multiple pages of comments. This particular blog post generated a lot of interaction – over 800 comments – so be sure you check all comment pages to get the various states. Read other people’s comments for analysis and questions.