Priest sued for 'clergy malpractice.'(New Jersey)(Brief Article)

A New Jersey appellate court has allowed a parishioner to sue an Episcopal priest for clergy malpractice after the priest had a sexual relationship with her. This court is believed to be the first to allow this type of claim. (F.G. v. MacDonell, No. A2055-95T2, 1996 WL 325927 (N.J. Super. Ct. App. Div. June 14, 1996).)

The court also allowed the plaintiff to sue the priest--and another minister at the church who told the congregation about the affair in a letter and in his weekly sermon--for breach of fiduciary duty.

The case involved a woman who sought "pastoral care and counseling" from the Rev. Alex MacDonell, the rector of her church. According to the court opinion, MacDonell allegedly exploited her emotional "vulnerabilities" to induce her to engage in sexual acts with him.

The court, quoting the complaint, described the counseling relationship between the plaintiff and MacDonell as "a special relationship in which MacDonell owed a special duty of care not to engage in unethical and harmfill behavior" toward the plaintiff. The plaintiff alleged that MacDonell violated that duty of care, causing her physical, emotional, and psychological injury.

The trial court dismissed the case against MacDonell, finding that neither clergy malpractice nor breach of fiduciary duty by a cleric was a recognized cause of action in New Jersey.

The appeals court reversed. It wrote, "New Jersey courts have recognized causes of action for professional negligence against chiropractors, accountants, and real estate brokers. We perceive no impenetrable barrier . . . to establishing a standard of care applicable to cleric counselors in the context of an allegation that the counselor used his position to sexually exploit the counselee."

Herbert Friedman of Boston and Alan Zegas of West Orange, New Jersey, served as cocounsel for the plaintiff. Friedman said the court's litmus test for allowing the suit was whether the claim required an evaluation of church dogma or ritual.

"The court was concerned with the defendants' First Amendment rights to freedom of religion," Friedman said. "It would not have been comfortable interpreting doctrine or scripture. But this case did not fall that way. We did not argue the content of the counseling, but the conduct of the counselor." The defendants, he said, could hardly claim that a sexual relationship with a priest was sanctioned by the church. In fact, the defendants admitted that such conduct had no basis in Episcopal teachings, Friedman added.

The defense has filed a petition for interlocutory review of the cause of action, Friedman said.