EthicsWalk addresses spiritual care as an ethical enterprise. It explores why relationships between spiritual care providers and those they serve need protection, and examines what that protection entails. PlainViews invites
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Protecting Trust: Policies Complement Personal Integrity
The last column explored the conflicting values of religious freedom, guaranteed by the First Amendment [1], and justice in employment relationships, required through Federal and State legislation.[2] A respondent doubted chaplains could be treated differently than other hospital professionals.
Institutions’ employment and non discrimination polices usually do not treat ministers [3] differently. However, if ministers wish to contest their treatment, they, unlike other employees, rarely find recourse in civil court. The First Amendment usually puts employment disputes between clergy/ministers and religious institutions (including seminaries, church-related universities and hospitals)[4] outside secular jurisdiction. The employee-minister’s treatment is guaranteed only by the institution’s commitment to fairness in its employment practices.
Institutional commitment to fairness and good policies is frequently also all that protects the people served by ministerial employees. Anti-discrimination laws (including sexual misconduct policies) offer little protection against the conduct of ministers if an interaction can be interpreted as occurring in a religious context. For example, cases alleging sexual misconduct by clergy in congregant interactions, chaplaincy or counseling are frequently dismissed. Courts fear examining the relationship between ministers and persons receiving care or consultation could constitute excessive entanglement with religion.[5]
Recently, courts have entertained clergy sexual misconduct cases, on very narrow grounds, in states that specifically include clergy in statutes prohibiting sexual contact between psychotherapists and counselees.[6] However, such statutes implicate criminal liability; successful civil actions for damages continue to be rare.[7]
First Amendment constraints reinforce the moral imperative that every religious institution enforce anti-discrimination practices (including sexual misconduct policies). These should minimally meet federal standards.[8] Both those doing and receiving ministry deserve no less. Our prophetic traditions suggest they deserve even more!
Good policies reflect the moral integrity of conscientious chaplains and responsible institutions. Enforcing policies is not “regulating the healthy spontaneity” of human interaction. Policies prohibiting sexual conduct between ministers and those served; supervisors and those supervised, are not “sex negative.” Rather, they recognize the awesome potential of erotic energy, and the ease with which it is misused, particularly in relationships of unequal power.
Respect for persons informs the ethical and legal reasons for holding ministers accountable for how power is exercised in relationship to those served. Fiduciary duty (holding trust) requires “serving” relationships exist solely to benefit the served.
Power imbalance in professional relationships always makes monitoring those relationships the professional’s duty. A chaplain cannot be “seduced” by a patient’s spouse nor have “consensual” sex with his or her former patient. The chaplain is responsible for maintaining the wholeness (holiness) of the other person’s best interests, which never include sexual contact with the chaplain (or receipt of costly gifts, financial, political or social benefits).
When chaplains violate their fiduciary duty and use their professional power inappropriately, trust is betrayed. The damage is often alienation from the Holy One and a faith tradition – not only for the person betrayed, but for their family and close friends. And, every betrayal potentially casts aspersion on colleagues’ good works and integrity.
The next EthicsWalk discusses professional power: owning it and using it responsibly.
[1] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
[2] The federal government prohibits discrimination based on sex, race, color, religion, or national origin in most work places and education institutions through Title VII of the Civil Rights Act of 1964 as amended and Title IX of the Education Amendments Act of 1972. All states have civil rights laws which may include protections additional to those covered by federal legislation. As discussed in the second EthicsWalk, the Supreme Court ruled that sexual and racial harassment constitute sexual and racial discrimination.
[3] Courts apply the term “minister” to all ordained clergy as well as lay persons who have some pastoral duties.
[4]Cases on point to each situation were cited in footnotes in the last column.
[5]Excessive entanglement violates the Free Exercise clause of the First Amendment.
[6] Doe v. F.P., 667 N.W.2d 493 (Minn.App.2003) upheld the constitutionality of Minnesota’s inclusion of clergy within a statute prohibiting psychotherapist-client sexual contact. Only twelve states to date have specifically included clergy in such statutes.
[7]The U.S. Supreme Court is the only court whose rulings apply to all the nation’s courts. Cases in lower federal or state courts may set precedents but cannot be relied upon as determinative for decisions in other jurisdictions.
[8] The second column footnote 3 cites the EEOC statement on sexual harassment. Harassment or discriminatory treatment based on race, creed, gender, national origin, age, different ability, and sexual orientation ought to be included.
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