Clergy Malpractice: All Religious Sects are Subject to the “Lemon Test”
As clergy abuse attorneys we sadly have assisted clients with clergy abuse and sexual harassment cases. Unfortunately, many victims of such cases are unaware these cases are not limited to what one might consider mainstream religions. When interactions occur with a secular counselor of any religious sect, the nature of your religious identity or “expression” does not come into consideration.
Instead, such cases are based on the secular counselor’s position and their fundamental obligation of care owed to their clients. In fact, regardless of how insignificant you might feel your religious sect might be, all religious sects are subject to what is known as the “lemon test.” Here we explain how this works, and how it can help you win your case.
What is the Lemon Test?
Under the Establishment Clause of the First Amendment of the United States Constitution, some laws include a “sect preference.” This can make a law “religiously neutral.” However, the Establishment Clause has what’s become known as the “Lemon test,” three criteria a religion must pass to be considered religiously neutral. This includes the law:
- Has a secular purpose
- Must not have the primary effect of either advancing or inhibiting religion
- Must not result in an excessive entanglement between government and religion
When the law doesn’t meet any one of these three requirements, it is “constitutionally Invalidated.” In the case of sexual abuse or harassment, if the relationship between the clergy and victim is considered secular-based counseling, then criminalizing sexual contact by a clergyperson is not hindered by the entanglement rule.
Unlike civil liability actions, this doesn’t preclude enforcement of the public interest through penal laws, regardless of religious practice or motivation. It is this third criterion that tends to determine the resolution for civil liability when looking at clergyperson sexual misconduct with a congregant.
Civil Liability for Sexual Misconduct
When counseling has a clear secular purpose establishing a clergy used the secular counseling relationship for the purposes of their own sexual gratification is very important to a civil liability case. An attorney for sexual harassment by clergy will investigate their conduct, and establish the effect of their leveraging the counseling relationship for their own purposes as opposed to providing secular advice and support.
In these cases, when we can establish that they counseled you in the capacity of religiously or spiritually based counseling and used those aspects of the relationship to help negate the need for consent due to your vulnerability, we can help establish civil liability. The clergy has a fiduciary duty in their capacity regardless of any religious implications of their role. They have a generalized standard they are expected to uphold, regardless of any church policies and doctrines they might have.
Recognizing Claims of Clergy Malpractice
There are two general contexts for recognizing claims of clergy malpractice:
- Breach of duty of care in which the wrongdoing shows the clergy failed to provide a reasonable standard of care when offering religious or spiritual guidance to the victim based on religious traditions of the sect.
- Breach of a fiduciary duty in which the clergy uses the trust and emotional leverage of the relationship for their own sexual gratification under the guise of spirituality.
If you have been a victim of clergy or religious counselor abuse, the experts at Malley law firm understand the emotional sensitivities of your case. Speak to our attorney for sexual harassment by a clergy today to learn how we can help.