Faith in Justice: Fiduciaries, Malpractice & Sexual Abuse by Clergy

This article argues that perpetrators of sexual misconduct should not be granted refuge from the potential consequences of their actions by mere affiliation with a religious institution. Part I of this article examines the theories of malpractice and breach of fiduciary duty, and determines the appropriate cause of action for sexual misconduct and ascertains their capacities to withstand First Amendment scrutiny. Determining the cause of action is essential to the evaluation of the potential constitutional challenges. Part II demonstrates that sexual misconduct by clergy is well outside First Amendment constraints. It examines both the Free Exercise and Establishment Clauses, and evaluates the approaches of courts to the situation of clergy sexual misconduct. Part II then compares the judicial treatment of sexual harassment by clergy under Title VII as guidance for treatment of sexual misconduct by clergy. This Part also discusses a general theory of state intervention in the affairs of religious organizations. This article concludes with an application of the appropriate cause of action under tort law within First Amendment constraints