There is an implicit warranty that a pastor in either a pastoral or counseling role is trustworthy. Pastor’s frequently hold themselves out as professionals skilled in counseling. Reasonable and prudent people invest trust in both secular and faith-based counselors. This is perhaps because people often come to see God in their pastors. Pastors and counselors alike are regularly afforded trust by clients, whether or not the individual placing trust in the pastor is a member of the church where the pastor is employed. Laypeople, whether or not they are a member of a particular church, regularly seek spiritual and non-spiritual guidance from pastors and clergy people. Thus, it is foreseeable that a pastor could easily abuse their power differential in order to gain access to vulnerable clients and congregants for sex. Statistics from some studies indicate that as many as 38.6 percent or more of clergy self-report an involvement in what they consider to be inappropriate sexual or sexualized relationships with members of their congregations and others entrusted to their care. Additionally, as many as 76.5% of clergy studied reported knowing a clerical colleague who had been involved in a sexual or sexualized relationship with members of their own churches. Furthermore 14.9% felt that they had felt sexual attraction daily for certain members of their congregations, and 21 percent felt sexual attraction weekly.
In a study done by Baylor University, researchers made shocking conclusions about the prevalence of clergy sexual misconduct. By surveying 3,559 individuals across seventeen different Christian and Jewish affiliations, they found that in the average American congregation of 400 congregants, thirty-two people, on average, have experienced clergy sexual misconduct, and that 92% of these sexual advances made by clergy occurred in secret, not in open dating relationships, and furthermore that 67% of the offending clergy were married to someone else at the time of the advance. Upon surveying these individuals, researchers were able to get a better understanding of not only the prevalence of these occurrences, but also the reasons for why they happen. Most common among those affected by those victims of clergy sexual misconduct were themes of trust in the sanctuary, niceness culture in America, and lack of oversight of religious leaders. Churches and congregations are largely revered as “safe spaces” where congregants can feel free to share life experience and private information with clergy members that they would not normally share with others. In most church communities, clergy members play multiple roles, such as that of religious leader, counselor, and friend. They have the unique ability to obtain sensitive information about congregants, which can make them vulnerable and dependent upon the clergy member. This, coupled with the ease of private communication that modern technology affords us, gives these religious leaders access to congregants at virtually all times. Intimate relationships between clergy and congregants are most likely to develop via e-mail and cell phones, where there is complete invisibility to friends and family of the congregant, and also to the rest of the church community. Victims of clergy sexual misconduct across the board reported that they felt culturally expected to be kind and respectful to religious leaders given their position in the community. This expectation means that the congregant should not be confrontational with the clergy member and should give them the benefit of the doubt by overlooking social indiscretions. What makes this phenomenon so prevalent is the fact that the majority of clergy members across denominations answer to no one. These religious leaders maintain offices that are isolated from observation, and are free to move about the community however they choose with no guidance or accountability.
Sexual misconduct and/or sexual harassment committed by counselors, including pastors providing counseling, can, understandably, cause serious psychological injury to their counselees. Typical in abused counselees is the complex and considerable emotional dependency on their offender, accompanied by the feeling of the need to protect their offender due to the severe emotional turmoil, guilt, shame, and feelings of helplessness these relationships foster. Central to these relationships with vulnerable clients and congregants is, more times than not, an issue of power and control.
Despite these statistics, some Louisiana courts, such as the Second Circuit Court of Appeals, do not recognize a cause of action for clergy malpractice. There is no statutory basis that grants clergy members immunity from civil and criminal liability, rather, this idea has evolved through case law. The argument for this idea is that it would be in violation of the First Amendment for courts to insert themselves into matters that are intertwined in religious doctrine. While this notion is surely grounded in reason, in application it presents a large and dangerous gap in Louisiana law. Certainly, there cannot be immediate immunity for secular activities that are not based in religion, yet, unbelievably, Louisiana lower courts in multiple circuits have conflicting decisions. Some have dismissed suits against pastors and clergy for the improper behavior they engage in while acting as a pastor or clergy person, even if that behavior is not at all entangled in religious doctrine. Furthermore, the torts of sexual battery and sexual assault are not religious based and do not fall under the First Amendment. For example, in the Second Circuit, a pastor that engages in counseling with a congregant will receive the immunity of clergy malpractice and will not be held accountable for the harms that he caused. Arguably, the decisions of these matters in Louisiana courts serve as a thorough how-to guide for sexually predatory clergy people seeking to evade liability for their actions. The Fifth Circuit, however, has made the distinction that if a clergy member holds themselves out as a duly qualified psychological counselor, they will be held to the same standard of care as a psychological counselor. The court in Sanders notably stated that, “the First Amendment’s respect for religious relationships does not require a minister’s counseling relationship with a parishioner to be purely secular in order for a court to review the propriety of the conduct occurring within that relationship”. Thus, the immunities of religious leaders are effectively circumvented.
A big issue for these courts that do not follow the view in Sanders is the issue of consent. Arguably, the issue of consent should never even be considered insofar as consent cannot be given due to the power disparity between the positions of religious leader and vulnerable congregant seeking guidance. It is inherent that in every pastoral relationship, the pastor or clergy person has the greater power because of his or her office. As discussed above, the majority of these sexual relationships between pastors and either parishioners or vulnerable clients are based upon a power disparity. To further their means, sexually predatory pastors and clergy people will abuse the trust that their vulnerable clients place in them and engage in “grooming” behaviors that cross boundaries in manipulative ways to increase their control over their counselee. This leaves the counselee confused about the nature of the relationship they have with their counselor, and increases the emotional dependency upon them, even if the relationship is volatile and harmful to the counselee psychologically. This phenomenon is known as transference. Transference typically cannot be disrupted without causing severe and pervasive emotional distress. This transference with the counselor/minister makes the person counseled become dependent on them. The emotions of the person counseled are extremely strong in the person counseled when transference occurs. The person counseled becomes totally dependent on the counselor. The emotion is stronger than, love, sex or an addiction. Engaging in these kinds of manipulations can, essentially, leave the congregant defenseless, which successfully prevents them from having capacity to give consent to these relationships.
In 1985 Minnesota criminalized therapist-client sex, making it a felon. This included sexual contact by clergy. To date more than twenty states have criminalized therapist-client sex. The majority of them include clergy among the counselors.
Therefore, it is imperative that victims of this particular kind of abuse are able to bring civil suits against these offending pastors in order to deter future sexual misconduct. The inability to do so is not only a misinterpretation of Louisiana case law, but is an incredible and foreseeable risk to the community.
By: Glenn McGovern & Peyton Bowman
 Reverend Martin Homan, Secrets Can Kill, Caring Connections, Spring 2013, at 9.
 Richard A. Blackmon, The Hazards of Ministry (Fuller Theological Seminary, 1985)
 Of those seventeen denominations were: Catholics, Baptists, Methodists, Lutherans, Seventh Day Adventists, Disciples of Christ, Latter Day Saints, Apostolic, Christian Scientists, Episcopalians, Quakers, Mennonites, Evangelicals, Nondenominational Christians, and Judaism.
 Garland, Diana “The Prevalence of Clergy Sexual Advances Toward Adults in Their Congregations.” Journal for the Scientific Study of Religion Series 48. 4 (2009): 817-824. Wiley Online Library. Web. 5 April 2018.
 Schoener R. & R. ¶12, April 14, 2017.
 Mary D. Pellauer et al., Sexual Assault and Abuse: A Handbook for Clergy and Religious Professionals 211 (1987).
 Reverend Martin Homan, Secrets Can Kill, Caring Connections, Spring 2013, at 9.
 Roppolo v. Moore, 644 So. 2d 206, 208 (La. App. 4th Cir. 1994).
 Lann v. Davis, 793 So. 2d 463, 465-6 (La. App. 2d Cir. 2001).
 Sanders v. Casa View Baptist Church, 134 F.3d 331, 336 (5th Cir. 1998).
 E. Roy Riley, The Not-So-Secret Life of Bishops – Tending the Professional Boundaries, Caring Connections, Spring 2013, at 6.
 Schoener R. & R. ¶9, April 14, 2017.
 Schoener R. & R. ¶11, April 14, 2017.
 Bisbing, Steve, Jorgenson, Linda and Sutherland, Pamela (1996). Sexual Abuse by Professionals: A Legal Guide. Charlottesville, Va.: Michie, 1995