Churches Shouldn’t Be Immune From Civil Suits By Victims by Ann Walsh Bradley (June/July 1997)

 This excerpts the dissenting opinion of a May 23 ruling by the Wisconsin Supreme Court finding churches not liable for sexually abusive behavior by their employees, even if there is previous knowledge of problems. The abusive priest named is Rev. J. Gibbs Clauder, a hospital chaplain. The woman who sued the Madison, Wisconsin diocese for liability is known as “L.N.N.” L.N.N.’s pastor, Father John Hebl, referred Clauder to counsel her when she was sick in the hospital. “T.E.” is a woman whom Hebl witnessed Clauder straddling and restraining in the rectory prior to referring Clauder to counsel L.N.N. For more on this case, see story page 1.


Justice Ann Walsh Bradley
Wisconsin State Supreme Court

. . . There is a genuine issue of material fact as to whether the Diocese should have known that Clauder’s placement as a hospital chaplain was likely to result in harm to a third party. I also conclude that the majority has unnecessarily reached and erroneously resolved the First Amendment issue presented in this case.

For L.L.N.’s negligent supervision claim to survive the Diocese’s motion for summary judgment, the record must support the existence of a genuine issue of material fact on the following issues: 1) that Clauder was an employee of the Diocese at all relevant times; 2) that Clauder engaged in sexually harmful behavior toward T.E., and later used his position as a hospital chaplain to sexually exploit L.L.N.; 3) that Hebl knew or should have known that Clauder engaged in sexually harmful behavior toward T.E.; and 4) that Hebl’s knowledge is imputable to the Diocese. The majority reverses the court of appeals and reinstates the Circuit court’s grant of summary judgment on the basis that the record is devoid of facts or inferences from facts tending to establish that the Diocese was on notice of Clauder’s alleged tendency to sexually exploit women. I disagree.

. . . One evening around 9:00 p.m., Hebl entered Clauder’s living quarters after hearing Clauder cry for help. Upon entering, Hebl observed the following: Clauder was straddling T.E.; T.E.’s blouse was torn; and Clauder’s hand was bleeding from a bite wound.

Critical to the majority’s analysis of summary judgment is its narrow view of the facts and its characterization of the T.E. incident as a “consensual sexual relationship.” The majority concludes that “[t]hese undisputed facts demonstrate that Clauder, a single man, engaged in a consensual sexual relationship with an adult. . . .” I submit that encountering Clauder, who was bleeding at the wrist from a bite, and was straddling T.E. while she was lying on her back on the floor with a ripped blouse, can lead to a reasonable inference that this is something other than a “consensual sexual relationship.” It can lead to a reasonable inference that Clauder was engaged in sexually assaultive behavior.

Hebl knew T.E. as a woman who had on prior occasions visited Clauder at the rectory. He knew that Clauder had traveled to Japan to spend time with her. He even acknowledged that at the time of the encounter he thought that something sexual might have been going on between Clauder and T.E. Later, after L.N.N. notified the Diocese of her alleged injuries, he reported this encounter to the auxiliary bishop and described it as “suspicious.”

However, at the time of the incident he asked no questions and made no reports. Why? As explained by Hebl: “This was such a disappointment to me, I just wanted to forget about it.”

Two expert witnesses for the plaintiff opined that the incident should have triggered an awareness by Hebl and the Diocese that Clauder might have a tendency to engage in inappropriate behavior with women and such awareness should have led to an evaluation. Dr. Gonsiorek stated:

“In this situation, it was negligent of the Diocese of Madison to continue to place Reverend Clauder as a hospital chaplain without such evaluation. In that placement, the Diocese should have known that Reverend Clauder would have close personal contact as a counselor with adult women, some of whom would be vulnerable because of the severe emotional difficulties they were experiencing as part of their hospitalization.”

. . .[T]he majority goes on to find that L.L.N.’s negligent supervision claim is barred under the First Amendment because it would require excessive court entanglement in matters of ecclesiastical law and internal church policies. It is by now well established that, as a basic rule of judicial decision making, a court should not reach a constitutional issue unless it is essential to the disposition of the case. . . .

L.L.N.’s claim is precluded by the First Amendment, according to the majority, because it cannot be resolved without two constitutionally impermissible judicial inquiries. First, in order to determine that the Diocese had constructive knowledge through Hebl of Clauder’s sexual relationship with T.E., “a court would be required to consider church law, policies, and practices.” Second, “a court would be required to consider and interpret the vow of celibacy in order to determine whether the Diocese negligently supervised Clauder.” The majority errs on both grounds of its First Amendment ruling. . . .

The majority is incorrect in asserting that L.L.N.’s negligent supervision claim against the Diocese is premised solely on Clauder’s breach of his vow of celibacy with T.E. To the contrary, the plaintiff’s complaint makes only the general assertion that the Diocese breached its duty to “supervise and oversee all priests with respect to sexual improprieties.” None of L.L.N.’s claims against the Diocese even mentions the word “celibacy.” . . .

Religious organizations, like any nonhuman entity, can “act” only through their agents and employees.Ê.Ê.Ê. If courts were not permitted to determine the legal relationship between religious organizations and their clerics, religious organizations would be effectively immunized from tort liability.

The First Amendment does not imbue religious organizations with blanket immunity from tort liability. . . .

The majority’s reasoning that the First Amendment bars consideration of the relationship between a religious organization and its clergy has implications far beyond cases dealing with sexual intercourse between clergy and adult parishioners. If courts cannot take notice of the relationship between a church and a cleric, then respondeat superior and negligent supervision claims can never be maintained against a religious organization, regardless of prior notice or the degree of sexual deviation.

Why should a diocesan decision to let a known pedophile work unsupervised with children enjoy ecclesiastical protection?

For example, suppose that a church knows with certainty that one of its priests is inclined to sexually molest children. The church places the priest in a situation where the priest has regular, unsupervised access to children. The priest molests a child. Under the majority’s view, a negligent supervision claim is precluded because the claim requires a court to ascertain whether an employment relationship exists between the priest and the church.

Why should a diocesan decision to let a known pedophile work unsupervised with children enjoy ecclesiastical protection? Is the answer to be, as the majority opinion suggests, that “due to [a] strong belief in redemption, a bishop may determine that a wayward priest can be sufficiently reprimanded through counseling and prayer,” and that “mercy and forgiveness are interwoven in the institution’s norms and practices”? This reasoning, which stretches the fabric of the First Amendment to provide blanket protection to the Diocese in all cases, is erroneous.

If after this case the Diocese were to reinstate Clauder as a hospital chaplain, and Clauder were to use that position to obtain sexual gratification from patients, I cannot accept that the First Amendment would act to bar a negligent supervision claim against the Diocese. The “mercy and forgiveness” of a religious organization toward a known sexually exploitive clergyman does not excuse the organization from responding in damages when the cleric uses his position to procure his next victim. No secular entity enjoys such a broad immunity from tort liability. If a secular employer fails to supervise a servant with known dangerous inclinations, that employer faces liability when the servant uses his or her position with the employer to commit a tortious act. So should it be when a religious organization fails to supervise a cleric known to commit sexually harmful or exploitive acts. . . .


Bradley was joined in this opinion by Chief Justice Shirley S. Abrahamson.

Freedom From Religion Foundation