Betrayal of Trust: Clergy Misconduct, Institutional Liability, Ethics and the Law

Abstract

Banner headlines have born witness to a disturbing trend: Priests accused of child abuse; Ministers charged with having affairs with congregants they have been counseling; and Rabbis and Elders violating the confidences of the faithful. The behavior in and of itself is appalling: The betrayal of trust; and the abuse of the innocent by someone charged with their care. That these acts are perpetrated by a religious leader magnifies the crime. It is a betrayal not only of the individual, but of the faith itself. How should society respond? In this paper I will explore the intersection between professional misconduct, institutional responsibility and religious freedom. I will review the various civil claims used to address the problem of clergy misconduct and the defense offered to religious institutions by the religion clauses of the First Amendment. I will be paying particular attention to the role and position of the religious institution (e.g. church, congregation, etc.) I will explore the justifications for these First Amendment defenses, especially in considering the potential for religious bias in even the most reasonable sounding theory of judging religious behavior.