Research Tools: State-by-State Laws on Sexual Violence Issues, Including Clergy Sexual Misconduct (aka “Fiduciary Duty”)

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:

  1. Sex Crimes: Definitions and Penalties (i.e., rape and sexual assault)
  2. Consent Laws
  3. Mandatory Reporting: Children
  4. Mandatory Reporting: The Elderly
  5. Criminal Statutes of Limitations
  6. Termination of Rapists’ Parental Rights
  7. Laws about Private Communications (i.e., confidentiality)
  8. 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.)

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[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.

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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.

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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.

Here is my brad/futuristguy comment that rounds up the preliminary research:

Okay, so, I went through the RAINN database to survey all 50 states, the District of Columbia, and the U.S. territories. I was looking specifically to find where there are sexual misconduct* [SEE NOTES BELOW] situations involving clergy, religious figures, counselors, therapists, people “in positions of authority,” and such like where the other adult’s “consent” could not be used as a defense in a criminal trial because the answer is “Yes” to the question, “Does the relationship between the victim and actor impact the victim’s ability to consent?”

NOTES:

* I used the term “sexual misconduct” above NOT because it is a technical legal term, but simply as a catch-all category — because the range of charges could go from misdemeanor to assault to aggravated assault or other terms. Read the particular state laws to see what scope of charges they have.

* I think I captured most of the situations, but cannot guarantee it. If I did, there are 10 states/territories with relevant information: Delaware, Georgia, Iowa, Minnesota, New Hampshire, South Dakota, Texas, Virgin Islands, Washington, and Wisconsin.

After all of that, two observations:

1. “Clergy” or some other title for a member of a religious organization appears three times: Delaware, Minnesota, and Texas.

2. There are numerous terms used to describe people who supply counsel, guidance, mental health services, pastoral counseling, therapy, psychotherapy, etc. I ran a search on the RAINN “no consent as a defense” entries for those 10 states that I compiled above — I was looking for one particular word: “licensed.” As in licensed counselor. NOTE: It does NOT appear even once.

I did not check the full state codes on these 10 states/territories to see if the word “licensed” appears in the actual statutes. But, let’s just assume that if it was in the actual codes, RAINN would have made sure to put it in their database. In my opinion, this could prove to be an important observation. Pastoral care, spiritual direction, pastoral counseling/guidance, etc., might well be considered as a form of “counseling” without it having to be licensed.

* There are some statements I found particularly intriguing that deal with holding a role or position of authority or influence over the victim:

NEW HAMPSHIRE — A person commits aggravated felonious sexual assault if he or she (1) engages in sexual penetration with a victim to whom that person provides therapy or medical treatment, and (2) acts unethically or uses that position to coerce the victim. H. Rev. Stat. Ann. § 632-A:2(g). (Emphasis added.)

VIRGIN ISLANDS — A person is guilty of aggravated rape in the second degree if they perpetrate an act of sexual intercourse or sodomy with a person and the perpetrator’s position of authority over the victim is used to accomplish the sexual act. 14 V.I.C. § 1700a.

The term “position of authority” includes, but is not exclusive to the following: an employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, baby sitter, or substantially similar position, and a police officer or probation officer other than when the officer is exercising custodial control over a minor. 14 V.I.C. § 1700. (Emphasis added.)

WASHINGTON — (a) a person in a significant relationship with the victim and abuses a supervisory position within that relationship, […] Wash. Rev. Code Ann. §§ 9A.44.093, 9A.44.050, 9A.44.096, 9A.44.010. (Emphasis added. I include this because it struck me as I read it that this could potentially apply to someone in ministry who is overseeing others — elder, deacon, ministry leader, etc., who is in charge of others, whether paid staff or volunteers.)

* Final Thoughts: So, 10 out of 54 states, district, territories where “consent” of the other adult party CANNOT be used as a defense for sexual misconduct actions as some type of counselor or clergy — or when the actor is a person in a position of authority over the victim. Doesn’t seem like it’s all that many, but that’s about 20%. But it is what it is.

It would be helpful to do a historical study to track when these statutes were adopted, and if there is a recent trend for more states to specify clergy in sexual misconduct, or counselors.

I’m sure there is more to be gleaned from all this, but it is 12:30 a.m. my time. So there that is, for what it’s worth.

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9 thoughts on “Research Tools: State-by-State Laws on Sexual Violence Issues, Including Clergy Sexual Misconduct (aka “Fiduciary Duty”)

  1. I’m glad you found this information. I hope it doesn’t change before your book gets published, but I assume you’ll include the sources in case it does.

    • I’ll be sure to add it to the website that goes with the book series. What’s especially great about the RAINN State Law Database is that it appears to be updated on regular basis. So much technical expertise goes into that project, I’m very thankful these legal firms keep things up-to-date.

      • It took me quite a while to get things more clear in my own thinking about this topic. And, the reality is, we all start at ground zero on anything anyway, so the key is whether we’re open to learning and refining what we (think we) know! At least, that’s the way I see it …

  2. Brad, I think one reason there’s so much problem of the sort you cover is that power corrupts and absolute power corrupts absolutely, as the saying goes. When people are treated like they’re worshipped they eventually feel like they deserve it and are above the law other people must obey.

    • Yup. A sense of entitlement, being better-than, often seems to result in lack of boundaries, that The Higher Person can take whatever from whomever for whyever — because they are their own kingdom that has overrun all others around them. And the book series will have lots of examples of that.

    • Thanks EB. The chapter I’m currently working on deals with system issues and leadership. I am laying out 4 areas that may be relevant in any given situation: (1) biblical moral and ethical mandates, (2) legal requirements that must be followed (such as mandatory reporting of known/suspected child abuse), (3) regulatory agency requirements if it’s a non-profit (such as transparency, accountability, no excessive benefit to any board or staff etc.), and (4) professional requirements (such as licensing for counselors, denominational rules governing church staff, etc.). I’ll likely be posting additional research tools for looking into some of these 4 areas.

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