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Clergymen tempted to have sexual affairs with members of their congregations should beware: They might be liable. On Friday, San Francisco’s First District Court of Appeal ruled that under the correct circumstances, clerics engaging in sexual misconduct could be held liable for breach of fiduciary duty. “We conclude,” Justice J. Anthony Kline wrote, “that a pastor may be subject to tort liability for sexually inappropriate and injurious conduct that breaches a fiduciary duty arising out of a confidential relation with a parishioner, provided the alleged injurious conduct was not dictated by a sincerely held religious belief or carried out in accordance with established beliefs and practices of the religion to which the pastor belongs.” Justices Paul Haerle and James Lambden concurred. The case began when a parishioner identified only as Richelle L. claimed that the Rev. Felix Namocatcat, her priest at Mill Valley’s Church of Our Lady of Mount Carmel, had seduced her into having a sexual relationship for three months in late 1999. Once the affair ended, Richelle was devastated and sued for punitive damages on several grounds, including breach of fiduciary duty, arguing that she and Namocatcat had a “special relationship” — akin to that of a lawyer and client or doctor and patient — that established a duty of care that the priest violated. The court, following established precedent, ruled that while there is no such thing as clerical malpractice, clergymen could be held liable for their actions if the claims arose from purely secular conduct and were not defended on the basis of a sincerely held religious belief or practice. “Subjecting such secular conduct to tort liability, therefore, would not ordinarily discourage a religious organization from putting its beliefs into practice,” Kline wrote. “Moreover, the sexual exploitation of parishioners by pastors with whom they have a confidential relation poses a threat to public safety, peace or order that is seemingly as substantial as that posed by deceptive religious recruitment practices, and the state possesses at least as compelling an interest in discouraging such exploitation.” Kline, citing cases from around the nation, indicated that ministers could be liable for sexual misconduct if they were providing their parishioner with marital, family or financial counseling, but not if they are engaged in spiritual counseling. Unfortunately for Richelle L., however, the court found her complaint lacking. For one, the court noted, she had not claimed to be in a counseling relationship with Namocatcat. And for another, she said her piety made her vulnerable to the priest’s influences, whereas the essential elements for a claim of vulnerability involve advanced age, youth, lack of education, weakness of mind, grief, sickness or some other incapacity. “Thus the crucial questions whether appellant was vulnerable to Rev. Namocatcat and unable to protect herself effectively would focus sharply on the nature and depth of her religious faith, and its basis, if any, in Roman Catholic doctrine,” Kline wrote. “These are, of course, profoundly religious questions, as to which the courts may not constitutionally inquire.” The appeal court also tossed out negligence and breach of fiduciary duty charges against Namocatcat’s employer, the Archdiocese of San Francisco. Attorneys on both sides claimed satisfaction with the ruling. San Francisco solo practitioner Brian McCaffrey, who represented Richelle L., said he was pleased that the court ruled that clerics can be held liable in some instances, but was disappointed that it found no case against Namocatcat. “We respectfully disagree with that conclusion,” he said. “Nevertheless, this decision will establish a basis for redress for other plaintiffs in the future, and represents a major development in the law in this area.” McCaffrey’s opponent, Paul Gaspari of San Francisco, said he was happy the court reaffirmed that there is no clergy malpractice rule and that a purely religious relationship will not lead to civil liability. But he said he doesn’t think the ruling is as “broad or far-reaching” as McCaffrey believes. “Specifically, with regard to counseling, [Kline] suggests that perhaps marital counseling might be deemed to be such a secular activity [that could result in liability],” the Tobin & Tobin partner said. “I think that’s terribly facts-dependent, and I certainly would take the position that a pastor engaging in marital counseling is actually engaged in religious activity, not secular activity, and would still be protected.” The case is Richelle L. v. Roman Catholic Archbishop of San Francisco, 03 C.D.O.S. 1389.

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