IN THE SUPREME COURT OF IOWA

No. 12–1899

Filed July 18, 2014

Amended December 3, 2014

STATE OF IOWA,

Appellee,

vs.

PATRICK EDOUARD,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Marion County, Paul R. 

Huscher, Judge.

The State seeks further review of a decision by the court of appeals 

reversing a pastor’s convictions for sexual exploitation by a counselor or 

therapist under Iowa Code section 709.15 and remanding for a new trial. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; CASE 

REMANDED WITH INSTRUCTIONS. 

Gary D. Dickey Jr. and Angela L. Campbell of Dickey & Campbell

Law Firm P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Scott K. 

Brown, and Laura M. Roan, Assistant Attorneys General, and Edward W. 

Bull, County Attorney, for appellee. 
2

MANSFIELD, Justice.

A pastor who had sexual relations with four women in his 

congregation was convicted of four counts of sexual exploitation by a 

counselor or therapist and one count of a pattern or practice to engage in 

sexual exploitation by a counselor or therapist. See Iowa Code

§ 709.15(2)(a), (c) (2013).1 The pastor appealed, contending: (1) the 

district court failed to properly instruct the jury on the sexual 

exploitation statute; (2) the district court abused its discretion in 

excluding expert testimony concerning differences between pastoral care 

and pastoral counseling; (3) the evidence was insufficient to support the 

pastor’s convictions; (4) the district court erred in denying the pastor’s 

discovery request for one of the victim’s counseling records; (5) the 

sexual exploitation statute is unconstitutional as applied to the pastor; 

(6) the district court wrongly excluded certain fact evidence; and (7) the 

district court erred in the amount of restitution awarded against the 

pastor.

On appeal, the court of appeals reversed and remanded for a new 

trial. It found that the jury instructions were improper and the district 

court had abused its discretion in excluding the proffered expert 

testimony. Upon further review, we respectfully disagree with the court 

of appeals and find no error on these points. We therefore vacate the 

court of appeals decision.

We also reject the pastor’s remaining claims of error, with two

exceptions. We find the district court should have conducted an in 

1For the sake of convenience, we cite to the current version of Iowa Code section 

709.15 (2013). The general assembly made nonsubstantive changes to the relevant 

provisions of section 709.15 in 2013, which do not affect our analysis here. See 2013 

Iowa Acts ch. 90, § 230. Prior to those 2013 changes, the legislature had last amended 

section 709.15 in 2004. See Iowa Code § 709.15.

 
3

camera review of the counseling records. We therefore remand so this 

review may occur, along with further proceedings if necessary. We also 

reverse the restitution award and remand for further proceedings 

thereon. In all other respects, we affirm the pastor’s convictions and 

sentence.

I. Background Facts and Proceedings.

We recite the facts in the manner most favorable to the jury 

verdicts.2 

Patrick Edouard served as the pastor of the Covenant Reformed 

Church in Pella from 2003 to 2010. Witnesses testified that his sermons 

were “amazing,” “great,” and “dynamic.” He was a “very talented 

speaker.” “He definitely could preach the word of God.”

V.B. and her husband were members of the church from the time 

Edouard arrived in 2003. In 2005, Edouard began making unsolicited 

calls to V.B. on her cellphone. V.B. was undergoing fertility treatments 

unsuccessfully and was struggling with her infertility. Edouard began 

asking questions about V.B.’s personal life, and she began to confide in 

him. 

V.B. and her husband decided to look at international adoption. A 

potential opportunity arose to adopt four siblings from abroad as a 

group. V.B. was personally struggling with this adoption, and at the 

recommendation of her husband and her mother she decided to see 

Edouard. As V.B. related,

I think it was in January or February of 2006, and we were 

getting ready to adopt the sibling group . . . , and I called 

2Three of the victims testified that the first time they had sexual relations with 

Edouard he forced them to do so. Because Edouard was acquitted of the sexual abuse 

charges, we will not include further discussion of that testimony herein.

 
4

him from my office and told him that I wanted to come see 

him.

And he said, ‘Great. I’ve been encouraging you to do that, to 

come see me. You know I’ve told you you can talk to me 

anytime.’ And so he said, ‘Just come tonight. We can just 

meet here at my study.’

When V.B. arrived at Edouard’s house, Edouard’s wife and family 

were present. Edouard told his wife, “We could be a while,” and he and 

V.B. headed down to the study in the basement. Edouard then locked 

the door to the study so, as he explained, the children would not 

interrupt them. The study served as Edouard’s office, and had 

bookshelves, a desk, and two couches.

Edouard asked V.B. how she was doing, and she explained she 

was really struggling with this adoption. “I wasn’t sure if it was what 

God wanted for me in my life,” she said. Edouard asked V.B. about her 

marriage and whether her husband was “meeting [her] needs.” V.B. 

started to cry and said that things were difficult. At that point, Edouard 

made advances toward her and had sexual relations with her.

Edouard continued to call V.B. on her cellphone thereafter. He 

repeatedly told V.B. that her husband was not meeting her needs. He 

also told V.B. he was attracted to her. They would talk two or three 

hours a day. V.B. would call Edouard, in addition to Edouard calling 

V.B. This lasted for months. Edouard also arranged liaisons with V.B. 

during the workday at hotel rooms and other buildings near V.B.’s office. 

Edouard would appear at V.B.’s workplace uninvited. 

Edouard insisted to V.B. that she did not really want to adopt, that 

she was doing it to please her husband. He told V.B. that her real 

struggles resulted from her unhappiness in her marriage—“the sexual 

frustration.” V.B. testified, “His role was to protect me, because I had all 
5

of this sexual energy that needed to be released, and he had to be there 

to protect me.”

Edouard asked V.B. for money. As V.B. explained,

he would make references to . . . it’s possible that . . . God 

brought us together so that . . . I can provide for him out of 

the excess of my abundance, what I had, I could in turn 

bless him with that.

Edouard made it clear he did not want a loan, because he could get a 

loan elsewhere and did not want to be burdened with a repayment 

obligation. V.B. gave Edouard a total of $70,000.

Eventually, after V.B. adopted a child, the relationship cooled. In 

approximately November 2009, V.B. called Edouard and told him she 

knew what he was doing, “that he’s trying to get women into counseling 

for the purpose of trying to have sexual contact with them.” Edouard 

panicked and tried to call or see V.B. at her office, but V.B. refused to 

have any communication with him for several months. Their sexual 

relationship ended. V.B. did not report anything to the church elders or 

the police at the time, because she did not think she would be believed. 

S.K. and her husband were also active members of the Covenant 

Reformed Church when Edouard arrived in 2003. Four years later, when 

S.K.’s husband happened to be out of the country, Edouard began 

calling S.K. to check up on her. 

S.K.’s father was going through a severe illness at that time and 

later in 2007 passed away. S.K.’s husband was depressed. S.K.’s 

daughter was having problems in her marriage. S.K. was feeling down 

because of her father’s death and the troubles in her daughter’s 

marriage. S.K. also learned that her husband had had two affairs. In 

addition, S.K.’s best friend passed away.
6

Edouard called S.K. on her cellphone while S.K. was driving and 

wanted to know how she was doing. S.K. responded that she was not 

doing very well. S.K. started shaking; she pulled her car over. At this 

point Edouard made a comment to S.K. that “he would like it if we could 

be together under the cool, crisp sheets.” He added, “You know, if you 

ever need anybody to talk to, you know, call me. I’ll always be there for 

you.” S.K. was shocked by Edouard’s comment.

However, some months later, in early 2008, S.K. called Edouard 

because she “just had absolutely nobody to talk to.” Her relationship 

with her husband was rocky. Edouard sensed something was going on 

and said, “You can tell me . . . things, and I’ll listen.” S.K. asked him to 

come see her, because she wanted to discuss her problems in her 

marriage with him. At the meeting, she disclosed her husband’s affairs 

to Edouard. After about thirty minutes of conversation, Edouard asked 

S.K. if he could kiss her. Thereafter, Edouard and S.K. had many 

meetings where they kissed. They began having sex. 

In the spring of 2008, Edouard took S.K. down to the study in the 

basement of his house. He locked the door, and S.K. thought they would 

talk. Instead, they had sex. Afterward Edouard told her: 

You will never tell anybody. The elders will never believe 

you. They will only believe me. I’ll make sure everybody 

knows you’re crazy. You’ll kill your husband . . . . You’ll 

destroy the church. You’ll hurt your family and you will hurt 

[my family].

S.K. had sexual relations with Edouard a total of six to eight times. 

S.K. felt that Edouard “had power” over her. “He made me feel like I 

depended on him,” she said. 
7

Eventually Edouard terminated the relationship. But he said to 

S.K., “Call me if you ever need me or need somebody to talk to, I’ll always 

be there for you night or day.”

W.B. and her husband also belonged to Covenant Reformed 

Church when Edouard became the pastor in 2003. W.B.’s father had 

been a pastor himself.

In August 2007, W.B. attended a church service alone. Edouard 

approached her after the service and asked how she was doing. As the 

conversation progressed, W.B. felt Edouard was flirting with her. During 

the course of the week, Edouard called again. The discussion was again 

flirtatious. W.B. could not sleep or eat. She prayed.

On the following Thursday, W.B. asked Edouard for a meeting. 

She intended to “let him down.” It was arranged for the meeting to occur 

in the office in Edouard’s home. Edouard assured W.B. it was fine to 

come to his home during an evening, as he “counsels women” in his 

home.

When W.B. arrived, Edouard and his family were there. Edouard 

took W.B. down to the basement office and locked the door. Edouard 

asked W.B. very personal questions. Edouard posed “a lot of questions—

very concerned about how I was doing, how my father is doing.” W.B.’s 

father had recently been diagnosed with Alzheimer’s. W.B. disclosed to 

Edouard that she had been sexually abused as a child. The conversation 

lasted a couple of hours. There was no sexual contact.

Edouard and W.B. continued to meet. They had sexually charged 

conversations. Soon they began to have sex. Edouard told W.B. not to 

tell anyone because “nobody would understand this. Even if you feel 

close to your husband some night, never tell him. Never think he’s going 

to understand this.” Edouard and W.B. engaged in sexual activity over a 
8

period of years. During the course of her sexual relationship with 

Edouard, W.B. went to marital counseling with her husband. Edouard 

asked W.B. to recite what she had been told at the marital counseling 

sessions and then indicated to W.B. whether or not to follow that advice. 

A.B. and her husband were also members of the church when 

Edouard was appointed pastor. In the spring of 2008, A.B. had a young 

child with special needs, her mother-in-law had passed away, and she 

had an overworked husband. As A.B. put it, “My plate was very full.” 

A.B. had seen a physician and had been prescribed an anti-depressant 

and anxiety medication, which she was taking.

At that time, Edouard called A.B. and asked to set up a meeting. 

She recounted, “He just wanted to make sure that I was doing okay . . . .” 

Eventually a meeting was set for a school day in April in Edouard’s 

basement study. Edouard locked the door from the inside. They began 

with conversation. Edouard probed A.B. on whether she felt stressed. 

He asked her about her family issues. He asked A.B. whether she had 

had premarital sex. After a while, Edouard told A.B. that he was very 

fond of her and “would like to get to know [her] better.” Edouard added, 

“[S]omebody needs to take care of you. You have your hands full.” A.B. 

became uncomfortable. Her feet were trembling.

The encounter ended because A.B. had to leave to pick up her son. 

But other conversations followed. Edouard told A.B., “I just want you to 

sit and tell me everything about you.” Edouard asked A.B. about her sex 

life, telling her she could trust him. He frequently asked whether A.B. 

had been sexually abused as a child. As A.B. put it, “[T]he questions 

were getting deeper and [he was] getting to know me more and more, I 

guess knowing my vulnerabilities, . . . where the voids were in my life.” 
9

Soon Edouard asked to meet A.B. at her home. After he arrived,

he kissed her. Subsequently, Edouard and A.B. called each other many 

times a day. They kissed and made out. A.B. shared with Edouard that 

she longed for someone to take care of her. By May 2008 Edouard and 

A.B. were having sex. This continued at least once a week for the next 

two-and-a-half years. Edouard advised A.B. that this was a “secret 

relationship, and we need to keep [it] a secret.” 

In May 2010, Edouard told A.B. he had something he needed to get 

off his chest. He disclosed to her that he had had sexual relationships in 

the past with V.B. and S.K. V.B. is A.B.’s sister-in-law. A.B. was 

“devastated and shocked.” She “had a very difficult time.” Yet Edouard 

and A.B. continued their sexual relationship. According to A.B., “[H]e 

was just constantly always evaluating me.”

In December 2010, A.B.’s husband arrived at home as Edouard 

and A.B. were having sexual relations. He saw Edouard’s vehicle and 

became suspicious. He spoke to his own brother (V.B.’s spouse) and the 

two of them put the stories together. Then A.B.’s husband went to the 

elders of the church.

Edouard resigned immediately. He called S.K. and informed her he 

had resigned because he had been caught kissing the hand of another 

woman. He reminded her not to disclose their sexual relationship. He 

also called W.B. and told her he had resigned because two affairs had 

come to light. He told W.B., “If anybody says you’re one of them, just 

deny it. I will never tell anybody, and this will all blow over. I love you.” 

He made W.B. role-play and rehearse her denials.

Edouard was charged with three counts of sexual abuse in the 

third degree in violation of Iowa Code section 709.4(1), four counts of 

sexual exploitation by a counselor or therapist in violation of section 
10

709.15(2)(c), and one count of engaging in a pattern or practice of sexual 

exploitation by a counselor or therapist in violation of section 

709.15(2)(a).

Following a change of venue, the case went to trial in Dallas 

County, commencing August 13, 2012. Each of the four victims testified. 

Edouard and his wife testified for the defense. Edouard acknowledged 

having sexual relations with all four women, but maintained that it was 

consensual. Edouard denied having provided mental health services to 

any of the women. 

The jury found Edouard not guilty on the three sexual abuse 

charges, but guilty on the five sexual exploitation charges. He was 

sentenced to one year imprisonment on each of the Iowa Code section 

709.15(2)(c) counts, with the sentences to run consecutively. He was 

sentenced to five years imprisonment on the section 709.15(2)(a) count, 

with the sentence to run concurrently with the section 709.15(2)(c) 

sentences. Edouard timely appealed.

On appeal, Edouard argues: (1) the evidence was insufficient to 

prove that he provided mental health services to V.B., S.K., W.B., or A.B.; 

(2) the district court erred in denying his discovery request for W.B.’s 

counseling records; (3) the sexual exploitation statute is unconstitutional 

as applied to him; (4) the district court abused its discretion in excluding 

expert testimony relating to the differences between pastoral counseling 

and pastoral care; (5) the district court erred in excluding certain fact 

evidence; (6) the district court erred in omitting certain jury instructions; 

and (7) the district court erred in the computation of restitution.

We transferred the case to the court of appeals, which reversed 

and remanded for a new trial. The court of appeals found the district 

court had failed to properly instruct the jury on the “mental health 
11

services” element of the sexual exploitation counts and had wrongfully

excluded Edouard’s proposed expert testimony. The State applied for 

further review, and we granted the application. 

II. Standard of Review.

“We review challenges to jury instructions for correction of errors 

at law.” State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013). The related claim 

that the district court should have given a requested instruction is 

reviewed for abuse of discretion. Id. 

Constitutional challenges to the district court’s discovery rulings 

are reviewed de novo. State v. Thompson, 836 N.W.2d 470, 476 (Iowa 

2013); State v. Cashen, 789 N.W.2d 400, 405 (Iowa 2010), superseded by 

statute, 2011 Iowa Acts ch. 8 § 2. We likewise review de novo challenges 

to a statute’s constitutionality. Thompson, 836 N.W.2d at 483. Statutes 

are presumed to be constitutional. Id. 

The district court’s rulings on the admissibility of evidence are 

reviewed for abuse of discretion. State v. Huston, 825 N.W.2d 531, 536 

(Iowa 2013). Additionally, “[w]e review challenges to the sufficiency of the 

evidence for correction of errors at law.” State v. Neiderbach, 837 N.W.2d 

180, 190 (Iowa 2013). Finally, restitution orders are reviewed for 

correction of errors at law. State v. Hagen, 840 N.W.2d 140, 144 (Iowa 

2013). 

III. Analysis. 

We begin our consideration of Edouard’s appeal with the 

instructional and evidentiary issues that were the basis of the court of 

appeals’ reversal and remand. 

A. Jury Instructions. According to the Iowa Code:

2. Sexual exploitation by a counselor or therapist 

occurs when any of the following are found:
12

. . . . 

(c) Any sexual conduct with a patient or client or 

former patient or client within one year of the termination of 

the provision of mental health services by the counselor or 

therapist for the purpose of arousing or satisfying the sexual 

desires of the counselor or therapist or the patient or client 

or former patient or client . . . . 

Iowa Code § 709.15(2)(c). Sexual exploitation by a counselor or therapist 

within the meaning of section 709.15(2)(c) is considered a serious 

misdemeanor. See id. § 709.15(4)(c). Additionally, it is a class “D” felony

for a counselor or therapist to engage in a “pattern or practice or scheme 

of conduct” of sexual exploitation. See id. § 709.15(2)(a), (4)(a).

The statute defines “counselor or therapist” as follows:

“Counselor or therapist” means a physician, psychologist, 

nurse, professional counselor, social worker, marriage or 

family therapist, alcohol or drug counselor, member of the 

clergy, or any other person, whether or not licensed or 

registered by the state, who provides or purports to provide 

mental health services.

Id. § 709.15(1)(a).

Thus, Iowa law makes it a crime for anyone who provides “mental 

health services” to another person to engage in sexual conduct with that 

person while the mental health services are being provided or within one 

year thereafter. Id. § 709.15(1)(a), (2)(c). The law does not require the 

defendant to have any particular status. Id. § 709.15(1)(a). The 

defendant, for example, need not be a professional or a clergyperson. Id. 

All that is required is that the defendant (1) provided “mental health 

services” to a person and (2) engaged in sexual conduct with that person 

less than one year later. Id. § 709.15(1)(a), (2)(c).

The statute in turn defines “mental health services” to mean “the 

treatment, assessment, or counseling of another person for a cognitive, 
13

behavioral, emotional, mental, or social dysfunction, including an 

intrapersonal or interpersonal dysfunction.” Id. § 709.15(1)(d). 

We have considered and rejected vagueness and overbreadth 

challenges to this law in the past. In State v. Allen, we affirmed the 

conviction of a hypnotherapist who engaged in sexual conduct with a 

patient, while rejecting a vagueness and overbreadth challenge to the 

statute. 565 N.W.2d 333, 337–38 (Iowa 1997). The defendant there had 

fondled the victim and attempted sexual intercourse with her during 

hypnotherapy sessions, which also involved the provision of alcoholic 

beverages and readings of Tarot cards. Id. at 335. We reasoned that the 

statute did not reach a substantial amount of protected conduct because 

“[a] person of ordinary intelligence could understand that the term 

‘mental health services’ . . . does not encompass strictly personal 

relationships involving the informal exchange of advice” and would rarely 

if ever “apply to a marriage relationship.” Id. at 337–38.

In State v. Gonzalez, we reversed the dismissal of a trial 

information charging a psychiatric nursing assistant with violating the 

statute. 718 N.W.2d 304, 305 (Iowa 2006). According to the 

information, the defendant had inappropriately touched a female 

patient’s genital area. Id. Accepting the facts in the information as true, 

we found it sufficient to allege criminal conduct. Id. at 308–09. The 

defendant had provided “treatment” because he “performed nursing 

tasks to assist in providing care of psychiatric patients” and 

“assessment” because he “performed nursing tasks to assist in 

monitoring psychiatric patients.” Id. at 308. In dicta we also quoted a

definition of “counseling” from Webster’s dictionary, stating that the term 

means:
14

“a practice or professional service designed to guide an 

individual to a better understanding of his problems and 

potentialities by utilizing modern psychological principles 

and methods esp. in collecting case history data, using 

various techniques of the personal interview, and testing 

interests and aptitudes.” 

Id. at 308 (quoting Webster’s Third New Int’l Dictionary 518 (unabr. ed. 

2002)). Our opinion, however, did not address whether the defendant 

had provided counseling. 

We also rejected vagueness and overbreadth challenges in 

Gonzalez. Regarding vagueness, we explained:

Any person who renders “treatment, assessment, or 

counseling of another person for a cognitive, behavioral, 

emotional, mental, or social dysfunction, including an 

intrapersonal or interpersonal dysfunction” provides 

“ ‘[m]ental health service.’ ” Id. § 709.15(1)(d). There is no 

doubt the language of section 709.15 applies to the services 

Gonzalez is alleged to have provided to the female patient 

under the facts in the trial information and attached 

minutes. Therefore, we conclude Gonzalez’s vagueness claim

is without merit.

Id. at 310. We then refused to find the statute overbroad because 

Gonzalez had not identified any protected conduct. Id.

Edouard does not ask us to reexamine Allen or Gonzalez. He does 

not argue on appeal that the statute is void for vagueness or overbroad. 

Instead, we are asked to decide whether the district court’s sexual 

exploitation jury instructions were proper. 

Here, for each alleged victim, the district court instructed the jury 

as follows:

The State must prove each of the following elements of 

Sexual Exploitation by a Counselor or Therapist as to 

[alleged victim]:

1. On or about [relevant time period], the defendant engaged 

in sexual conduct with [alleged victim].
15

2. The defendant did so with the specific intent to arouse or 

satisfy the sexual desires of either the defendant or [alleged 

victim]. 

3. The defendant was then a counselor or therapist. 

4. [Alleged victim] was then receiving mental health services 

from the defendant, or had received mental health services 

from the defendant within one year prior to the conduct. 

Additionally, the court instructed the jury that “a ‘counselor or therapist’ 

includes a member of the clergy, or any other person, whether or not 

licensed or registered by the State, who provides or purports to provide 

mental health services.”

Finally, in Instruction 25, the court provided the jury with the 

following definition of “mental health services”:

As used in element number 4 of Instructions No. 18, 19, 20, 

and 21, ‘mental health services’ is the providing of 

treatment, assessment, or counseling to another person for a 

cognitive, behavioral, emotional, mental or social 

dysfunction, including an intrapersonal or interpersonal 

dysfunction. It does not include strictly personal 

relationships involving the informal exchange of advice, nor 

does it include the giving of general spiritual advice or 

guidance from a clergy member to congregants. It 

contemplates a counseling relationship with the clergy 

member established for the purpose of addressing particular 

mental, intrapersonal or interpersonal dysfunctions.

Thus, the jury was not only given the statutory definition of mental 

health services, see Iowa Code § 709.15(1)(d), the jury was also told—

consistent with Allen—that mental health services do not involve 

informal advice. Additionally, in Instruction 25, the district court 

excluded general spiritual advice or guidance from the definition of 

mental health services. And Instruction 25 required the State to prove a 

counseling relationship, not merely some counseling. 

In crafting this instruction, the district court went beyond the Iowa 

State Bar Association Criminal Jury Instruction, which simply restates
16

the statutory definition of mental health services. See Iowa State Bar 

Ass’n, Iowa Crim. Jury Instruction 920.5 (2013). Essentially, the district 

court adopted a middle position between the parties. The State had 

asked that only the ISBA instruction be given. The defendant had 

requested the following additions to the ISBA instruction:

Counseling means a practice or professional service designed 

to guide an individual to a better understanding of his or her 

problems and potentialities by utilizing modern psychological 

principles and methods especially in collecting case history 

data, using various techniques of personal interview, and 

testing interests and aptitudes.

Mental health services does not mean mere spiritual advice 

or guidance provided by a member of the clergy. Nor does it 

encompass strictly personal relationships involving the 

informal exchange of advice.

The district court, as can be seen, incorporated some of the defendant’s 

proposals (i.e., the second paragraph) but not all of them (i.e., the first 

paragraph).

Edouard argues that his definition of counseling, drawn from 

certain language in Gonzalez, should have been included in the court’s 

jury instructions. “[T]he court is required to give a party’s requested 

instruction so long as it states a correct rule of law having application to 

the facts of the case and when the concept is not otherwise embodied in 

other instructions.” State v. Becker, 818 N.W.2d 135, 141 (Iowa 2012) 

(internal quotation marks omitted). However, “the court is not required 

to give any particular form of an instruction; rather, the court must 

merely give instructions that fairly state the law as applied to the facts of 

the case.” Id. (internal quotation marks omitted).

There is no dispute the district court provided the jury with Iowa 

Code section 709.15(1)(d)’s complete definition of “mental health 

services.” What the court did not do is go a step further. That is, the 
17

district court did not tell the jury what the word “counseling,” as used in 

that statutory definition, meant. “Counseling” is not defined in the 

statute. Edouard contends the jury should have been told counseling is 

limited to “modern psychological principles and methods especially in 

collecting case history data, using various techniques of personal 

interview, and testing interests and aptitudes.”3 Edouard, in other 

words, wanted the jury to be told that in order for him to be convicted, 

any “counseling” he provided had to have been based upon a modern 

psychological approach.

We have said:

In criminal cases, the court is required to instruct the jury 

on the definition of the crime. Generally understood words 

of ordinary usage need not be defined; however, technical 

terms or legal terms of art must be explained.

State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996) (citation omitted). 

“Counseling” is certainly a word of ordinary usage. Thus, it did not need 

to be specially defined for the jury unless the legislature meant to use it 

in a technical way in section 709.15 or viewed it as a “legal term of art.” 

We do not believe the legislature had such a view of “counseling.”

“[S]tatutes must be read in their entirety.” State v. DeSimone, 839 

N.W.2d 660, 666 (Iowa 2013). Read as a whole, Iowa Code section 

709.15 does not appear to use the term “counseling” in a technical or 

specialized way. To the contrary, the statute expressly covers members 

of the clergy. See Iowa Code § 709.15(1)(a). These individuals typically 

do not perform psychotherapy or use “modern psychological principles 

3In his brief, Edouard concedes this is not the only dictionary definition of 

“counseling.” 

 
18

and methods especially in collecting case history data, using various 

techniques of personal interview, and testing interests and aptitudes.” 

Additionally, the statute by its terms does not require that the 

defendant be “licensed or registered by the state,” and it covers even 

persons who merely “purport[] to provide mental health services.” Id. 

This again suggests that the legislature did not intend a strict definition 

of counseling limited to modern psychological principles and methods, so 

long as the individual was addressing “a cognitive, behavioral, emotional, 

mental, or social dysfunction, including an intrapersonal or interpersonal 

dysfunction.” See id. § 709.15(1)(d). 

Furthermore, we do not believe our prior section 709.15 caselaw 

supports Edouard’s requested jury instruction. In Allen we affirmed the 

conviction of a hypnotherapist who plied his victim with alcohol and 

Tarot cards. See 565 N.W.2d at 335. While we excluded mere informal 

advice from the coverage of the statute, we did not say that the use of 

“modern psychological principles and methods” was required. See id. at 

337. To the contrary, the defendant there was a charlatan who used (or 

purported to use) some of the oldest methods in the book—hypnotism, 

adult beverages, and fortune telling. See id. at 335.

Gonzalez, as noted, did not involve “counseling.” See Gonzalez, 

718 N.W.2d at 308. In addition, although we quoted some dictionary 

definitions of statutory terms, we did so to demonstrate the defendant’s 

conduct was covered by the statute, not to indicate those definitions set 

forth the outermost limits of the law. See id.

Notably, when we rejected the argument later in Gonzalez that the 

statute was unconstitutionally vague, we reverted to the statutory

definition of “mental health services,” not to any of the dictionary

definitions we had previously quoted. See id. at 310. Had we intended 
19

the dictionary definitions to be a required gloss on the statute, we 

logically would have repeated them and relied on them in discussing the 

vagueness question. Thus, we do not read Gonzalez as endorsing a 

definition of “counseling” limited to “modern psychological principles and 

methods.”

For these reasons, we reject Edouard’s challenge to Instruction 25. 

Edouard’s other challenges to the jury instructions are less substantial. 

He contends the jury should have been told that each alleged victim had

to have been his “patient or client” in order to sustain a guilty verdict. 

This argument is purely form over substance, because the statute defines 

a “patient or client” as “a person who receives mental health services 

from the counselor or therapist,” see Iowa Code § 709.15(1)(e), and the 

jury was told that each of the alleged victims had to have “receiv[ed] 

mental health services” from Edouard.

Edouard also urges that the jury should have been given a list of 

“all the enumerated professions” referenced in section 709.15(1)(a), 

including those which had no applicability to the case, such as 

physicians, psychologists, nurses, professional counselors, social 

workers, marriage or family therapists, and alcohol or drug counselors. 

See id. § 709.15(1)(a). Instead, the jury was just told that “a ‘counselor 

or therapist’ includes a member of the clergy, or any other person, 

whether or not licensed or registered by the State, who provides or 

purports to provide mental health services.” We see no error. The 

district court’s instruction was an accurate statement of the law; it left 

out only those portions of the statute that had no bearing on the case. 

B. Expert Testimony. At trial, Edouard tried to offer testimony 

from a forensic psychiatrist, Dr. Hollida Wakefield, describing differences 

between “pastoral care” and “pastoral counseling.” In an offer of proof, 
20

Dr. Wakefield testified there is a difference between pastoral care and 

pastoral counseling that is “recognized and accepted generally in the . . .

theological community.” Dr. Wakefield testified that pastoral care occurs 

when

somebody comes with a specific problem, you get an idea of 

what the problem is, you formulate a treatment plan, you 

meet with the person in a structured way. It is usually time 

limited. It doesn’t go on for months and years.

Based on her review of the depositions given by the four women, 

Dr. Wakefield concluded Edouard’s interactions with them did not “fit the

definition of pastoral counseling.” 

The district court refused to allow the testimony. It reasoned it 

was the court’s duty 

to instruct the jury on what the law is regarding mental 

health services and counseling . . . and that it is the function 

of the jury to determine whether the defendant’s conduct did 

or did not constitute the provision of mental health services 

by a counselor or therapist. 

It excluded Dr. Wakefield’s testimony “regarding pastoral care or pastoral 

counseling” because “neither . . . are a part of the elements of this case.”

The admissibility of expert testimony in a criminal case “falls 

squarely within the trial court’s sound discretion.” State v. Hulbert, 481 

N.W.2d 329, 332 (Iowa 1992). Upon our review, we do not believe the 

court abused its discretion. Here, in effect, the defendant wanted to call 

an expert to provide the defendant’s own definition of the crime, and then 

to explain the defendant had not committed it. 

Even if the theological community were in agreement that 

Edouard’s actions did not amount to pastoral counseling, that would not 

resolve whether Edouard’s actions fit within the statutory definition of 

mental health services. See, e.g., People v. Littlejohn, 494 N.E.2d 677, 
21

686 (Ill. App. Ct. 1986) (noting the district court improperly allowed 

evidence by a doctor that confused the jury as to the legal definition of 

insanity by testifying to a “definition [that] may have medical meaning to 

clinicians,” but “clearly [did] not comport with Illinois definition of 

insanity for legal purposes”); State v. Williams, 431 So. 2d 885, 888–89 

(La. Ct. App. 1983) (upholding the convictions of the defendant, a prison 

inmate, on one count of forcible rape and one count of attempted forcible 

rape against a fellow inmate and rejecting the defendant’s argument that 

the trial judge had erred in excluding the defendant’s expert witness 

testimony about “the relationship between prison security and 

consensual versus nonconsensual sex”); State v. Spano, 745 A.2d 598, 

601–02 (N.J. Super. Ct. App. Div. 2000) (upholding the exclusion of 

expert testimony on the meaning of “worrying” in a statute which allowed 

a person to kill a dog if it was “worrying” a domestic animal and affirming 

the defendant’s conviction). 

In 1925, we considered the appeal of an osteopath who, under the 

statutes of that time, had been convicted of practicing medicine without 

a license. See State v. Gibson, 199 Iowa 177, 178, 201 N.W. 590, 590

(1925). The defendant argued on appeal the trial court had erred in 

excluding expert testimony as to the technical meaning of “internal 

curative medicine.” Id. We rejected the appeal, reasoning the words “do 

not import a technical meaning,” and therefore the expert testimony was 

properly excluded. Id. at 178, 180, 201 N.W. at 590, 591. The same 

basic principles concerning admissibility of expert testimony apply today.

In order for the expert testimony to be admissible, it must “assist 

the trier of fact to understand the evidence or to determine a fact in 

issue.” Iowa R. Evid. 5.702. In other words, it must add something to 

the jury’s determination of whether Edouard’s actions fell within the legal 
22

definition of mental health services. The specialized meaning given to a 

term by the theological community is ultimately beside the point in 

determining whether Edouard’s actions met the legislature’s definition of 

the crime. Notably, Dr. Wakefield’s indicia of pastoral counseling—i.e., 

the existence of a “treatment plan,” the “structured” meetings, and 

presence of time limitations—do not appear anywhere in section 709.15. 

Hence, the district court did not abuse its discretion in excluding 

Dr. Wakefield’s proposed testimony. 

C. Sufficiency of the Evidence. Edouard also contends there is 

insufficient evidence to sustain a guilty verdict on any of the charges. In 

particular, he disputes the sufficiency of the evidence that he provided 

mental health services as defined in Iowa Code section 709.15(1)(d) to

any of the four women.

In reviewing challenges to the sufficiency of evidence 

supporting a guilty verdict, courts consider all of the record 

evidence viewed in the light most favorable to the State, 

including all reasonable inferences that may be fairly drawn 

from the evidence. [W]e will uphold a verdict if substantial 

record evidence supports it. We will consider all the 

evidence presented, not just the inculpatory evidence. 

Evidence is considered substantial if, when viewed in the 

light most favorable to the State, it can convince a rational 

jury that the defendant is guilty beyond a reasonable doubt. 

Inherent in our standard of review of jury verdicts in 

criminal cases is the recognition that the jury [is] free to 

reject certain evidence, and credit other evidence.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (citations omitted) 

(internal quotation marks omitted). 

We begin by noting a few common facts. All four women were 

members of Covenant Reformed Church; Edouard had been their pastor 

for several years. Three of the four had preexisting marital problems in 

addition to other difficulties in their personal lives. The fourth developed 

such problems after getting involved with Edouard, who claimed to be 
23

resolving them. Two of the four went to Edouard’s office initially thinking 

they would receive help from him, and Edouard quickly ended up having 

sex with both of them (one of them in the office that day). Before and 

during his sexual encounters with each of the four women, Edouard 

asked each of them deeply personal and probing questions, purporting to 

guide them through their personal difficulties. 

We now review the evidence specifically relating to V.B. She was 

“really struggling with going through” with an international adoption of 

four siblings. She decided to see her pastor, Edouard, to discuss these 

issues and her own infertility. 

Edouard was immediately receptive. He responded, “I’ve told you,

you can talk to me anytime.” He invited her to his office, where he asked 

her how she was doing. V.B. explained that she was “really struggling” 

and that it was a “horrible, painful time” for her. After that, Edouard 

moved into questioning about V.B.’s marriage and whether her husband 

was “meeting her needs.” V.B. began to cry. Regarding her relationship 

with her husband, V.B. told Edouard that “[i]t was hard that we were 

both hurting and not able to hurt together, to connect together and hurt 

through it; that we just seemed like we were separate. It was hard.” By 

the end of the meeting, Edouard was having sexual relations with V.B.

V.B. added that in her faith and the way she was raised, “[w]e just 

didn’t go to outside counselors . . . . [Y]ou would go to the elder or the 

pastor and that was it.”

S.K., like V.B., was experiencing marital problems when she 

decided to call Edouard as a result of “all the stresses in [her] life.” She 

had previously sought counseling from Edouard after her daughter had 

been sexually abused by another member of the congregation. Her 

husband had recently confessed infidelities to her. S.K. felt their 
24

“relationship was rocky,” and that she “had absolutely nobody to talk to.” 

In addition to the marital problems S.K. was suffering, she was also 

coping with the recent death of her best friend. Edouard “sensed 

something was going on,” and Edouard explained to S.K. she could tell 

him “things, and [he would] listen.” They set up a meeting at her house 

to discuss these stressors in her life. S.K. revealed to Edouard her 

husband’s infidelities in that meeting. S.K. “was relieved that [she] could 

tell somebody, that he’s the pastor; that [she] could confidentially talk to 

him about what was going on.” They continued to meet at her house. At 

these ensuing meetings, they were physically intimate, and, S.K. 

testified, they would talk, because she “would want to talk,” and felt she 

“needed somebody to talk to.” 

Edouard’s relationship with W.B. began in a different fashion. 

Some flirtatious conversation between the two of them had occurred. 

W.B. telephoned Edouard to set up a meeting to put an end to things. 

When she asked in the course of that telephone conversation whether it 

was “normal and acceptable” for Edouard to meet with women in his 

office, “he said yes, he counsels women at his home, and . . . it was just 

fine” for her to meet there. 

At the office meeting, Edouard asked “a lot of questions—very 

concerned about how I was doing, how my father is doing.” Her father 

had recently been diagnosed with Alzheimer’s. The questions quickly 

became more personal, and W.B. eventually revealed in the meeting that 

she had been abused physically and sexually as a child. Edouard 

probed that topic more deeply, she explained, as “[h]e was interested in 

it. He wanted to know the dynamics.” Soon thereafter, Edouard began 

to have a sexual relationship with W.B. This led W.B. to seek marital 
25

counseling. Edouard would ask W.B. about what the marital counselor

had said, and then tell W.B. whether to follow that advice or not.

We turn finally to A.B. Edouard inquired as to how she was doing 

and how she was “juggling everything.” He asked if she “would like to set 

up a meeting with him.” Even though she testified she was not suffering 

from a mental disease or dysfunction at the time of their initial meeting, 

A.B. also testified she was taking depression and anxiety medication at 

the time and had various stressors in her life. She agreed to meet with 

Edouard in his home office. She perceived this meeting to be a 

“counseling session, something [she] could go to that he was . . . a 

pastor[.]” The conversation in that initial meeting, she testified, started 

out with “typical conversation.” Edouard asked gradually more probing 

questions, such as, “Do you feel stressed? Do you feel upset?” A.B. 

testified she was “very open with him” because “it [was] all supposed to 

be confidential,” so she “definitely shared with him the ins and outs of 

how it felt to be a mom and taking care of everyone.” As the conversation 

progressed, Edouard began to ask even more “dig-deep kind of 

questions,” inquiring, for example, about her relationship with her 

husband. Many of the questions made her feel uncomfortable, and she 

left the meeting “[c]onfused and very nervous.” 

A.B. immediately called her sister, and reported, “I just got done 

with a counseling session with Pastor Edouard, and I—it went fine, but 

at the end, it was just odd.” Edouard continued to have meetings with 

A.B., and Edouard continued to ask her probing questions, often of a 

kind that made her feel uncomfortable. She described these questions as 

“intellectual” and “constantly-thinking questions that no one has ever 

asked me before.” A.B. characterized Edouard’s inquiries as “digging and 
26

finding out [her] vulnerabilities.” By this time, they were having sexual 

relations. 

We find sufficient evidence to sustain Edouard’s convictions on all 

of the sexual exploitation counts. There is substantial evidence that he 

counseled each of the four women for an “emotional . . . or social 

dysfunction, including an intrapersonal or interpersonal dysfunction.” 

See Iowa Code § 709.15(1)(d). As required by the district court’s jury 

instructions, this went beyond an “informal exchange of advice,” or “the 

giving of general spiritual advice or guidance from a clergy member to 

congregants.”4 There is substantial evidence that a relationship was 

established between Edouard and each victim, at least initially, “for the 

purpose of addressing particular mental, intrapersonal or interpersonal 

dysfunctions.” To some extent, as in Allen, it appears sexual contact was 

part of Edouard’s program of pseudotherapy and treatment for his 

victims.5 

D. Production of Mental Health Records. The four victims in 

this case participated in group therapy sessions after Edouard’s conduct 

came to light and he resigned from the church. V.B., S.K., and A.B. 

voluntarily agreed to waive any privilege with respect to the records of 

these sessions. W.B. did not. Nonetheless, the district court ordered 

their production and they are not at issue on appeal. 

W.B. also went through marital counseling while she was still 

seeing Edouard. She underwent additional counseling thereafter. She 

declined to waive the privilege as to those records. Edouard argues the 

4Instruction 25, which we have upheld, is the law of the case for sufficiency-ofevidence purposes. See, e.g., State v. Merrett, 842 N.W.2d 266, 275 (Iowa 2014).

5According to V.B., Edouard advised her that she had “all this sexual energy 

that needed to be released, and he had to be there to protect me.”

 
27

records were relevant to show that W.B. was not suffering from “a

cognitive, behavioral, emotional, mental, or social dysfunction, including 

an intrapersonal or interpersonal dysfunction,” Iowa Code § 709.15(1)(d), 

and therefore Edouard could not have been providing mental health 

services to her. See id. 

The district court denied Edouard’s motion for access to the 

records and found he had not met the burden under Cashen or Iowa 

Code section 622.10 to show at least a reasonable probability that these 

records “contain something that may be exculpatory.” See Iowa Code 

§ 622.10; Cashen, 789 N.W.2d at 405. Edouard argues the district court 

improperly applied Cashen, and as a result, prejudice is presumed. He 

insists the denial of the access to the records violated his right to due 

process. 

This court developed the Cashen protocol to determine whether a 

criminal defendant should have access to the mental health records of a 

victim. See Cashen, 789 N.W.2d at 408–10 (requiring a defendant to 

make a good faith showing that there is a “reasonable basis to believe the 

records are likely to contain exculpatory evidence tending to create a 

reasonable doubt as to the defendant’s guilt”); see also Thompson, 836 

N.W.2d at 479–80 (discussing the Cashen protocol). However, a 2011 

change in the Iowa Code superseded Cashen by providing a defendant 

seeking to obtain privileged records must:

demonstrat[e] in good faith a reasonable probability that the 

information sought is likely to contain exculpatory 

information that is not available from any other source and 

for which there is a compelling need for the defendant to 

present a defense in the case.

Iowa Code § 622.10(4)(a)(2)(a); see 2011 Iowa Acts ch. 8, § 2 (amending 

the statute); Thompson, 836 N.W.2d at 481, 490 (recognizing the 
28

amendment as a “reaction to Cashen” and upholding the amended 

statute as constitutional on its face). This amendment was in effect at 

the time of the hearing on the motion for subpoena, and thus controls in 

this case. 

We discussed section 622.10(4)(a)(2)(a) in length in Neiderbach, 

837 N.W.2d at 195–98. In Neiderbach, the defendant and codefendant 

were charged with child endangerment after the victim, their son, 

suffered a number of injuries, including permanent brain damage, over a 

three-week period shortly after his birth. Id. at 187–89. We concluded 

the district court erred by failing to conduct an in camera inspection of 

the codefendant’s medical records sought by Neiderbach under section 

622.10(4)(a)(2)(a). Id. at 197. We noted the codefendant’s credibility was 

“a central issue” in the case and Neiderbach’s “defense strategy included 

raising reasonable doubt whether certain injuries may have been 

inflicted by [the codefendant] instead of him.” Id. Because the 

codefendant gave inconsistent statements, concocted a false story with 

Neiderbach to present to hospital staff, and behaved strangely in jail, we 

concluded the defendant “ ‘demonstrate[d] in good faith a reasonable 

probability that the information sought . . . is likely to contain 

exculpatory evidence . . . and for which there is a compelling need for 

[the defendant] to present a defense’ within the meaning of section 

622.10(4)(a)(2)(a).” Id. at 197 (quoting Iowa Code § 622.10(4)(a)(2)(a)). 

We observed that the records of her mental health counselor “may very 

well have enabled defense counsel to more effectively cross-examine her 

at trial or assisted counsel’s preparation for her deposition.” Id. at 198. 

However, despite our conclusion, we declined to reverse 

Neiderbach’s conviction outright. Id. Rather, we entered the following 

order:
29

Accordingly, we reverse the district court’s ruling 

denying [Neiderbach]’s motion for an in camera review of [the 

codefendant]’s mental health records and remand the case 

for the district court to conduct that review pursuant to 

section 622.10(4)(a)(2). If the district court finds no 

exculpatory evidence on that review, [Neiderbach]’s 

remaining convictions shall remain affirmed. If exculpatory 

evidence is found, the district court shall proceed as directed 

in section 622.10(4)(a)(2)(c) and (d) and determine whether 

[Neiderbach] is entitled to a new trial. 

Id.

We recognize that this case presents a different set of facts than 

Neiderbach. Rather than seeking the records of a testifying codefendant, 

here Edouard seeks the counseling records of one of his alleged victims. 

Even after the legislature’s adoption of section 622.10, we reiterated our 

recognition of the “importance of maintaining confidentiality in mental 

health treatment.” Thompson, 836 N.W.2d at 483. In reviewing the 

constitutionality of the legislature’s policy choices contained in section 

622.10(4), we stressed a “victim–patient’s constitutional right to privacy 

in her mental health records” was protected, in part, by the legislature’s 

choice “to have a neutral judge review the victim’s private records, rather 

than the advocate for the alleged abuser.” Id. at 487. We determined 

this protection, along with others contained in the statute, was a

constitutional way “to balance the competing rights of criminal 

defendants and their victims.” Id. at 490.

Having said that, we believe a similar approach to the one we took

in Neiderbach is warranted in this case. W.B. testified that during her

sexual relationship with Edouard, she was also going through marital 

counseling at a counseling center. Edouard’s counsel used this fact to 

close her cross-examination of W.B. with a flourish:

Q. You and your husband don’t go to marital 

counseling with [Edouard]? A. Correct. 
30

Q. You go to Pine Rest? A. Right. 

Q. And Pine Rest is a counseling center? A. Yes. 

Q. And that’s what they do there, is they have 

Christian counselors, right? A. Yes. 

Q. So you never do actually go to Mr. Edouard for 

your counseling? A. Right. 

The defense did not ask W.B. about the content of her marital 

counseling sessions. However, needing to rehabilitate W.B., the State 

then got her to testify on redirect that Edouard went over the same 

matters with her that her marital counselor had covered with her:

Q. After you would have a session at Pine Rest with 

the marriage counselor, would you tell Pastor Edouard what 

the counseling session was about? A. Yes. 

Q. Would he ask you? A. Yes. 

Q. Would he ask you lots of questions about the 

counseling session? A. Yes. 

Q. And would you answer his questions? A. Yes. 

Q. What kind of questions would he ask about a 

counseling session at Pine Rest that you attended with your 

husband? A. He wanted to know all the dynamics. He 

wanted to know what we said, what she said. 

Q. Who is “she”? A. The counselor. 

Q. And would you tell him specifics about what she 

said and what the two of you talked about with her? A. Yes. 

Q. Would you share with him—you said “the 

dynamics.” What do you mean by that? A. What did I say? 

Q. You said something about “the dynamics” of the 

session, he would ask about the dynamics. A. What was 

said. 

Q. And would you—if the counselor gave you and your 

husband a piece of advice that was supposed to help you, 

did he ask you whether the counselor gave you advice? 

A. Yes. 

Q. And would you tell him? A. Yes. 
31

Q. Would he express an opinion on whether he agreed 

with that? A. Yes. 

Q. Would he advise you whether to follow the advice of 

that counselor at Pine Rest or not? A. Yes. 

Q. Could you explain that? Give us an example. 

A. There was oftentimes he did not like the advice that she 

gave, and he would tell me a different way to do it or “Just 

don’t listen to her.” 

Q. And then would you do it her way or his way? 

A. His way. 

This sequence involving two talented trial lawyers demonstrates 

that Edouard’s quest for W.B.’s mental health records was clearly more 

than a fishing expedition. Cf. Thompson, 836 N.W.2d at 490 (noting the 

absence of “a nexus between the issues at trial and the mental health 

treatment received by [the victim]”). Nevertheless, the State argues the 

records were not likely to contain exculpatory information for two 

reasons. First, the State points out that W.B. consistently admitted her 

mental health was fine in 2007 before she started seeing Edouard. Thus, 

it contends Edouard did not need those records to establish the absence

of a dysfunction. Second, the State urges that the existence or lack of a 

diagnosis is irrelevant to whether Edouard provided “mental health 

services.”

We disagree with the State. Although W.B. admitted her mental 

health was fine before her sexual relationship with Edouard began, she 

described having personal difficulties thereafter. Counseling records for 

the time period when W.B. was seeing Edouard and shortly thereafter 

would be potentially relevant to the extent they touch upon the nature 

and extent of those problems. And while the State insists that a 

diagnosed dysfunction is not a required element of the crime, the lack of 

diagnosis for such a dysfunction would seem to us an appropriate 
32

subject for jury argument. In its closing, the State argued with respect to 

W.B.:

What is a mental health service? “. . . . The providing 

of treatment, assessment, or counseling to another person

for a cognitive, behavioral, emotional, mental or social 

dysfunction, including an intrapersonal or interpersonal 

dysfunction.” 

In other words, she’s having personal problems, and 

[Edouard’s] counseling her for those problems. That’s what 

all that fancy language is. 

In short, the State argued to the jury that dysfunction means 

nothing more than “personal problems.” But a defendant should have 

latitude to argue it means something more than that. Perhaps W.B.’s 

counseling records would have assisted Edouard in fashioning an 

argument that W.B. was not suffering from a dysfunction during any 

relevant time period.

In addition to showing a reasonable probability the records might

likely contain exculpatory information necessary to his defense, Edouard 

also had to show the information “is not available from any other 

source.” See Iowa Code § 622.10(4)(a)(2)(a). We previously pointed out 

in Neiderbach that, under certain circumstances, information is not 

“available” from another source just because testimony can be obtained 

from the patient or client. 837 N.W.2d at 197–98. We believe this is

another one of those situations. Information in the counseling records 

could have significantly undermined W.B.’s testimony. We do not know.

Therefore, we reverse the district court’s ruling that denied 

Edouard’s request for in camera review of W.B.’s counseling records. We 

emphasize the limits of this decision. The crime charged requires the 

State to show the defendant counseled W.B. for a dysfunction, and the 

record shows W.B. was receiving outside counseling at the same time 
33

and shortly thereafter. Also, as in Neiderbach, if the district court finds 

no exculpatory evidence, Edouard’s convictions will stand affirmed. See

837 N.W.2d at 198 & n.3. If exculpatory evidence is found, the district 

court would then determine if a new trial is required on the Iowa Code 

section 709.15(2)(c) count relating to W.B. and the section 709.15(2)(a) 

pattern or practice count.

E. Constitutional Challenges. Edouard raises two constitutional 

challenges as a part of his appeal. First, he contends that section 

709.15(2), as applied to him, unconstitutionally burdens his 

fundamental right to enter into sexual relationships. He maintains that 

section 709.15(2) “creates a per se ban on all sexual relations between 

certain categories of individuals regardless of the existence or 

nonexistence of consent,” and that “[i]mplicit in the jury’s verdict finding 

Edouard not guilty of sexual abuse in the third degree is the conclusion 

that his sexual relationships with all four women were consensual.” In 

Edouard’s view, section 709.15(2) is not narrowly tailored to address a 

compelling interest using the least restrictive means possible.

Edouard refers to the Due Process Clauses of both the United 

States Constitution and the Iowa Constitution in his brief. However, he 

does not advance a separate analysis under the Iowa Constitution. For 

this reason, we will undertake the same analysis for both claims. See 

State v. Kennedy, 846 N.W.2d 517, 522 (Iowa 2014) (stating that “[w]e 

jealously protect this court’s authority to follow an independent approach 

under our state constitution for provisions of the Iowa Constitution that 

are the same or nearly identical to provisions in the United States 

Constitution” but choosing not to interpret the Iowa Constitution any 

differently from the United States Constitution where the defendant had 
34

not proposed a specific test under the Iowa Constitution (internal 

quotation marks omitted)).

In Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 

508 (2003), the United States Supreme Court overturned the convictions 

of two male adults for engaging in consensual sexual conduct. The 

Court found the defendants were “free as adults to engage in the private 

conduct in the exercise of their liberty under the Due Process Clause of 

the Fourteenth Amendment to the Constitution.” Id. at 564, 123 S. Ct. 

at 2476, 156 L. Ed. 2d at 516. Edouard cites us to Lawrence, but it is 

important to note that Lawrence “does not involve persons who might be 

injured or coerced or who are situated in relationships where consent 

might not easily be refused.” Id. at 578, 123 S. Ct. at 2484, 156 

L. Ed. 2d at 525. By contrast, Lawrence involved “two adults who, with 

full and mutual consent from each other, engaged in sexual practices 

common to a homosexual lifestyle.” Id.

In State v. Musser, we rejected a constitutional privacy challenge to 

Iowa’s statute making it a felony for a person knowing he or she was HIV 

positive to engage in intimate conduct with another person who was not 

aware of that status. See 721 N.W.2d 734, 748 (Iowa 2006). We found 

that Lawrence was “readily distinguishable” because there was “not ‘full 

and mutual consent’ ” where one sexual partner was unaware of the 

other’s infected status. Id. (quoting Lawrence, 539 U.S. at 578, 123 

S. Ct. at 2484, 156 L. Ed. 2d at 525). “Consent in the absence of such 

knowledge is certainly not a full and knowing consent as was present in 

Lawrence.” Id. We also observed that “the sexual partner of an infected 

person is at serious risk of injury and even death from the prohibited 

sexual contact.” Id. 
35

To some extent, the distinctions we recognized in Musser also exist

here. Based upon their testimony, the relationships between Edouard 

and each of the four women did not involve full and mutual consent. In 

each case, Edouard used—misused—his position of authority as a 

counselor to exploit the vulnerabilities of his victim. The relationships 

were of a kind where “consent might not easily be refused.” Lawrence, 

539 U.S. at 578, 123 S. Ct. at 2484, 156 L. Ed. 2d at 525. 

And the women suffered harm. Following her experience with 

Edouard, A.B. was “scared” and “struggling.” She later wrote the word 

“Freedom” in her husband’s notebook because “[t]he longer you’re out of 

[Edouard’s] grip, the more freedom you get.” V.B. felt it “was hard to 

keep going” after her experience with Edouard and was afraid of “[l]osing

everything” because she felt no one would believe her over him due to his 

reputation in the congregation. S.K. was “trapped,” and felt that 

Edouard was “a ball and chain.” After Edouard was exposed, W.B. 

“couldn’t eat” and was “losing weight.” 

Edouard is not the first person to assert that any sexual 

exploitation laws that criminalize consensual sexual relations between 

adults are unconstitutional. Similar arguments have been raised, 

generally without success, in other jurisdictions. For the most part, the 

courts have reasoned that the statutes do not implicate fundamental 

rights and are not controlled by Lawrence because the relationship is 

imbalanced and not fully consensual. See, e.g., State v. Freitag, 130 P.3d 

544, 545–46 (Ariz. Ct. App. 2006) (rejecting an argument that 

prostitution was protected by a “fundamental constitutional right to 

engage in adult consensual sexual conduct” as recognized in Lawrence); 

Talbert v. State, 239 S.W.3d 504, 511–13 (Ark. 2006) (upholding a 

statute that prohibits a member of the clergy from using his or her 
36

position of trust and authority to engage in sexual activity with a victim 

and finding Lawrence distinguishable); State v. Edwards, 288 P.3d 494, 

498–503 (Kan. Ct. App. 2012) (finding a statute that prohibited a teacher

from engaging in sexual activity with an eighteen-year-old student was 

subject to a rational basis review, noting, “[w]hen read in its entirety, it is 

clear that the intent of this statute is to prohibit sexual conduct of 

certain persons who have authority over other persons where the ability 

to freely consent is questionable”); State v. Lowe, 861 N.E.2d 512, 515–

18 (Ohio 2007) (determining that Lawrence did not apply and the 

defendant did not have a fundamental right to engage in sexual 

intercourse with his consenting adult stepdaughter); State v. Green, 989 

N.E.2d 1088, 1089–90 (Ohio Ct. App. 2013) (finding no fundamental 

right to engage in consensual sexual activity for hire); Ex parte Morales, 

212 S.W.3d 483, 490–98 (Tex. Ct. App. 2006) (finding a statute that 

criminalized sexual conduct between a dormitory residential advisor and 

a student over the age of majority should be reviewed under a rational 

basis standard, which it met); see also Flaskamp v. Dearborn Pub. Schs., 

385 F.3d 935, 943 (6th Cir. 2004) (indicating that a ban on relationships 

between teachers and their students for one year after graduation would 

not be a direct and substantial burden on the right to intimate 

association and would be subject to a rational basis review). But see 

Paschal v. State, 388 S.W.3d 429, 434–37 (Ark. 2012) (finding a statute 

that criminalized sexual conduct between a teacher and an eighteenyear-old student infringed upon a fundamental right to privacy under the 

Arkansas Constitution).

In State v. Hollenbeck, the New Hampshire Supreme Court 

confronted a psychologist’s constitutional challenge to a New Hampshire 

law that made it a crime for a therapist to have sexual relations with a 
37

patient within one year of the termination of the therapeutic relationship 

in a manner which is not professionally recognized as ethical. 53 A.3d 

591, 593 (N.H. 2012). The court found that “the kind of sexual 

relationship alleged here is not included in the constitutional right 

Lawrence recognized.” Id. at 598. Rather, the relationship between a 

therapist and a former client is the kind of relationship “ ‘where consent 

might not easily be refused.’ ” Id. (quoting Lawrence, 539 U.S. at 578, 

123 S. Ct. at 2484, 156 L. Ed. 2d at 525). Accordingly, the court applied 

a rational basis standard of review and upheld the statute as serving 

“legitimate governmental interests in protecting those who are vulnerable 

to exploitation from being exploited . . . and in maintaining the integrity 

of the mental health profession.” Id. at 598–99.

We find Hollenbeck persuasive here. The statute as applied to this 

case does not invade a fundamental right. There is no fundamental right 

to engage in sexual relations in circumstances where one partner is in a 

position of power or authority over another. There was ample evidence 

that Edouard occupied a position of power and authority over each of his 

four victims. We would leave open the question whether a substantive 

due process challenge to Iowa Code section 709.15 could be successfully 

brought in other factual contexts. We also emphasize, as we stated 

earlier, that Edouard has not raised a vagueness or overbreadth 

challenge to section 709.15 in this case. 

Edouard’s other argument is that section 709.15, as applied to 

members of the clergy, violates the Establishment Clause of the United 

States and Iowa Constitutions. See U.S. Const. amend. I; Iowa Const. 

art. I, § 3; Kliebenstein v. Iowa Conference of United Methodist Church, 

663 N.W.2d 404, 406 (Iowa 2003) (noting that “ordinarily the courts have 

no jurisdiction over, and no concern with, purely ecclesiastical questions 
38

and controversies,” but “do have jurisdiction as to civil, contract, and 

property rights which are involved in or arise from a church controversy”

(internal quotation marks omitted)). 

In State v. Bussmann, the Minnesota Supreme Court divided 

equally on the question whether Minnesota’s clergy sexual conduct 

statute—which applies only to members of the clergy—facially violated 

the Establishment Clause of the United States and Minnesota 

Constitutions. See generally 741 N.W.2d 79 (Minn. 2007).6 A majority of 

the court found an Establishment Clause violation as applied to the facts 

of the defendant’s trial because “[t]he state relied heavily on religious 

expert testimony to prove its case and the court allowed the jury to hear 

discussion that intertwined religious doctrine with state law.” Id. at 92. 

The court elaborated, “Virtually all of this testimony lacked foundation to 

connect it to any secular standard, was irrelevant to any secular 

standard, was inadmissible hearsay evidence, and was highly 

prejudicial.” Id. at 93. The court concluded:

[T]he district court allowed the state to introduce extensive 

evidence regarding the Catholic Church’s doctrine on the 

religious power of priests over parishioners; the Church’s 

official policy on counseling and pastoral care; the Church’s 

concerns about priest sexual misconduct; and the Church’s 

official investigation and findings regarding Bussmann’s 

behavior. Through the admission of this evidence, the court 

allowed the religious doctrine of the Catholic Church to 

become entangled with the criteria set out in the clergy 

sexual conduct statute for determining the criminality of 

Bussmann’s conduct. The jury’s verdict was based on this 

evidence, and was unavoidably entangled with the religious 

doctrine introduced into evidence by the state.

6Minnesota’s statute makes it a crime for anyone who “is or purports to be a 

member of the clergy” to have sexual intercourse with another person “during a period 

of time in which the complainant was meeting on an ongoing basis with the actor to 

seek or receive religious or spiritual advice, aid, or comfort in private.” Minn. Stat. 

§ 609.344 subd. 1(l)(ii) (West, Westlaw current through 2014 Reg. Sess.).

 
39

Id. at 94. 

Subsequently, in State v. Wenthe, the Minnesota Supreme Court 

held that Minnesota’s clergy sexual conduct statute did not facially 

violate the Establishment Clause, because it was “part of a larger 

statutory scheme that regulates the behavior of those involved in . . . 

relationships for which the Legislature has determined there is a power 

imbalance between the parties” and “applies neutral principles of law 

and regulates only secular aspects of clergy–parishioner relationships.” 

839 N.W.2d 83, 88–91 (Minn. 2013). 

The court also upheld the constitutionality statute as applied to 

the facts of the case because “the State did not attempt to shift the jury’s 

focus away from the secular elements in the clergy-sexual-conduct 

statute and onto religious doctrine.” Id. at 92. In Wenthe, unlike 

Bussmann, there was no testimony by a Catholic priest and a Catholic 

counselor about the religious power of priests, only a minimal amount of 

evidence admitted by the state related to the policies of the Catholic 

Church on pastoral care, and the state’s evidence about the church’s

response to the sexual relationship was factually relevant to the case. 

Wenthe, 839 N.W.2d at 93–95. 

We do not find section 709.15 violates the Establishment Clause 

as applied to clergy. As the State points out, the statute, unlike 

Minnesota’s, is essentially neutral. It applies to all persons who provide 

or purport to provide mental health services. Iowa Code § 709.15(1)(a). 

Edouard notes the State’s emphasis during trial on the victims’ faith and 

on Edouard’s status as the victims’ pastor. But these were relevant 

evidentiary considerations because they showed why the victims would

allow Edouard to have sex with them even as they were receiving mental 

health services from him. Edouard also overlooks the fact the case, as 
40

tried, included three counts of sexual abuse. Evidence regarding 

Edouard’s status and the victims’ faith was particularly relevant to the 

sexual abuse counts, because it tended to explain why three of the four 

victims would later be willing to have sex with a person who had initially 

forced them to have sex with him.7 Edouard, of course, does not contend

that Iowa’s sexual abuse statute violates the Establishment Clause. See

Iowa Code § 709.1. 

As in Wenthe, while the trial certainly did not veer away from the 

religious setting in which the defendant’s conduct took place, it did not 

dwell on religious doctrine either. The defendant, not the State, sought 

to introduce evidence on standards of pastoral care. In addition to the 

victims themselves, the only witnesses called by the State were a 

psychologist as a rebuttal witness and two church elders. The elders 

testified primarily as fact witnesses to admissions and statements made 

in meetings after Edouard’s conduct began to come to light. In the 

course of cross-examining the first elder, Edouard’s counsel delved to 

some extent into the Covenant Reformed Church’s mission. By doing so, 

Edouard’s counsel was able to get this elder to admit, helpfully, that 

Edouard was expected to provide spiritual guidance—but not mental 

health services—to parishioners.

Notably, when the second elder was asked about his concerns 

regarding his congregation and its members, and Edouard objected on 

the basis of relevance, the district court sustained the objection. The 

court explained:

Counsel, it seems to me that the discussions which 

took place between Mr. Edouard and members of the church 

7Edouard’s counsel attacked the sexual abuse charges during closing argument 

on this very ground.

 
41

are certainly relevant to the extent that they are his 

statements, but I’m concerned that the actions of the church 

and the positions of the church really don’t have a bearing 

on the legal issues that are before the court.

Whether the church in its hierarchy and its 

functioning made a determination that Pastor Edouard had 

sinned, that he should be removed in some manner from his 

duties with the church, or that the church should in some 

manner sanction him, I have trouble believing that that is 

relevant to the issues in this case for this jury; and that the 

inclination would be for the jury to in some manner, 

essentially, be assisted by the findings of the church, which 

would be inappropriate in this case.

This incident illustrates the district court’s sensitivity to the 

potential crossover between church canons and secular laws. It 

demonstrates the court enforced proper boundaries. While we would not 

foreclose an as-applied challenge in a future case, we are not persuaded 

by Edouard’s Establishment Clause arguments here. 

F. Other Evidentiary Rulings. Before trial, the State filed a 

motion in limine seeking to exclude any reference to evidence that 

Edouard’s home in Pella was vandalized or that his family had been 

harassed after his sexual encounters with his parishioners came to light. 

This included evidence of a brick being thrown through his window and 

that his home and personal belongings were posted for sale on Craigslist, 

along with other evidence of harassment and vandalism. 

In response to the motion, Edouard argued the evidence was 

relevant to explain why he left the Pella community after his conduct 

came to light. The court concluded:

In a general sense, the court believes that the evidence 

regarding allegations of a brick being thrown through a 

window, postings on Craigslist regarding the defendant’s 

property, or reports of vandalism or harassment at the 

defendant’s home in 2010 and 2011 is not relevant, at least 

of any apparent nature at this point. 

It appears to the court that such evidence, if admitted, 

would merely confuse the jury, would distract the jurors 
42

from the issues in the case which they must decide, and that 

it has little, if any, probative value in this case. If, in fact, it 

becomes apparent that there is a basis for admitting the 

evidence, the court certainly is willing to take another look at 

that, if raised by the defendant prior to the admission of the 

evidence. 

The defendant presented his evidence in an offer of proof at trial. 

Edouard testified that, before the four women actually went to the police, 

a rock was thrown through his sons’ bedroom window while they were 

sleeping. Additionally, spikes were placed behind the wheels of his 

vehicles in his driveway, his home and personal belongings were listed 

for sale on Craigslist along with his home telephone number, pizzas he 

had not ordered were delivered to his home, and the husband of one of 

the victims followed him “on a couple of occasions.” 

The questioning in the offer of proof ended as follows: 

Q. Did all of these acts influence your decision to 

move to Michigan when you did? A. Yes. Absolutely. 

Q. Why? A. Well, evidently we were not safe there. 

But also, it became clear to me that my presence probably 

was a lightning rod. I didn’t want my children to be 

subjected to that kind of harassment. I wanted for there to 

be healing as soon as possible, and I thought my absence 

would be the first building block toward that. 

Edouard maintains this information is relevant as the “threats and 

fear explain Edouard’s hesitancy in answering questions about the 

allegations to the church elders, his general withdrawal from his 

friendships within the church, and his abrupt move out of Iowa.” The 

State, however, argues the jury did not need this explanation. 

We agree with the State. Edouard had admittedly engaged in 

sexual relations with four married women from his congregation. As he 

explained to the jury, “[T]he sins for which I resigned warranted my 

deposition as a minister.” He testified that he was “censured” and “did 

not contest it.” All this was scandalous enough for the jury to 
43

understand why he left town. A jury would not conclude that Edouard 

believed he was guilty of a crime just because he moved to Michigan. We 

see no abuse of discretion.

Edouard also attempted to offer evidence that one of the victims, 

V.B., had an extramarital affair with another man, R.M., after having

sexual relations with Edouard and before making any allegations against 

Edouard. Edouard indicated that V.B. told him about the details of this 

sexual relationship with R.M. and asked him to lie about it to her 

husband. Edouard argued the information was relevant for three 

reasons: (1) the fact she shared this type of information with Edouard 

about the second affair shows their relationship was one of friendship, 

not counseling; (2) the nature of the relationship V.B. had with R.M. was

very similar to the relationship she had with Edouard, and she later lied 

to her husband about R.M. so it “is exactly the same kind of lie we 

believe she would be telling about Mr. Edouard”; and (3) the fact she gave 

$2000 to R.M. undermines the suggestion that the monetary gifts she 

gave to Edouard were as a result of any type of power relationship 

between the two. 

The court determined the evidence of the affair was “squarely 

within the provisions of the rape shield law.” It concluded evidence of 

the affair or money gift amounted to an argument that V.B. had “the 

same type of relationship the defendant claims” and “would be no 

different than a defendant claiming that the alleged victim had engaged 

in consensual sex with 15 other individuals and that that should be 

admitted as proof that the relationship with the defendant was 

consensual, which is precisely what is precluded by the rule.”

Iowa Rule of Evidence 5.412(a) states, “[I]n a criminal case in 

which a person is accused of sexual abuse, reputation or opinion 
44

evidence of the past sexual behavior of an alleged victim of such sexual 

abuse is not admissible.” The purpose of this rule “is to protect the 

victim’s privacy, encourage the reporting and prosecution of sex offenses, 

and prevent the parties from delving into distractive, irrelevant matters.” 

State v. Alberts, 722 N.W.2d 402, 409 (Iowa 2006). However, “evidence of 

a victim’s past sexual behavior other than reputation or opinion 

evidence” is admissible if it is “constitutionally required to be admitted.” 

Iowa R. Evid. 5.412(b)(1). Additionally, the rule contains a balancing 

test, identical to that contained in rule 5.403, for the admission of

evidence under 5.412(b). Id. r. 5.412(c)(3) (“If the court determines on 

the basis of the hearing described in rule 5.412(c)(2) that the evidence 

which the accused seeks to offer is relevant and the probative value of 

such evidence outweighs the danger of unfair prejudice, such evidence 

shall be admissible in the trial to the extent an order made by the court 

specifies evidence which may be offered and areas with respect to which 

the alleged victim may be examined or cross-examined.”).

We have held that even if evidence of specific instances of sexual 

conduct is relevant, the defendant has no constitutional right to 

introduce that evidence when its probative value is outweighed by its 

prejudicial effect. See State v. Mitchell, 568 N.W.2d 493, 498–99 (Iowa

1997) (refusing to allow evidence of a victim’s sexually transmitted 

diseases which the defendant did not contract because “the probative 

value of the evidence was substantially outweighed by the danger of 

unfair prejudice” and stating, “relevant evidence is not constitutionally 

required to be admitted if the prejudicial effect of the evidence outweighs 

the probative value”); State v. Jones, 490 N.W.2d 787, 791 (Iowa 1992) 

(noting there is no constitutional requirement to admit evidence of 
45

victim’s past sexual history where it is “more prejudicial than probative 

for the purposes urged”). 

In this case, it is highly questionable whether the evidence was 

even relevant. The argument that the disclosure of private information 

about an individual’s sexual liaisons with others is indicative of a 

friendship rather than a counseling relationship does not seem logical. It 

is certainly not unheard of for an individual to discuss an extramarital 

affair with a counselor or to request one’s counselor to keep that 

information secret. 

Additionally, the fact that V.B. lied to her husband about an affair 

with another man would add little, if anything, of value to Edouard’s 

defense. V.B. admittedly lied to her husband about the money she gave 

Edouard, and of course she kept the entire sexual relationship with 

Edouard secret from her husband.

Finally, V.B.’s willingness to give a far more modest ($2000 as 

opposed to $70,000) financial gift to another person with whom she had 

a later affair would not make it much less likely that her relationship 

with Edouard was an uneven one in which he acted as her counselor.

The district court in this case correctly concluded the evidence of 

V.B.’s alleged affair fell within the protection of the rape shield law, rule 

5.412. The court noted the testimony had a clear prejudicial effect: It 

would tend to suggest that because V.B. had a consensual affair with 

another individual, she therefore had a consensual affair with Edouard. 

We find no error in the district court’s ruling.

G. Restitution. Finally, Edouard claims the district court erred 

with respect to the restitution it awarded against him. Each of the 

women and two of their spouses received payments from the crime 
46

victim compensation program (CVCP). See Iowa Code § 915.86.8 The 

State sought to charge those payments against Edouard. See id. 

§ 910.2(1). At the restitution hearing, the State called to the stand the 

restitution subrogation coordinator from the crime victim assistance 

division. The State also presented six exhibits—the crime victim 

assistance division’s files for all four victims and two of the victims’ 

husbands. Following this hearing, the court ordered that the State’s 

CVCP could recoup a total of $12,956.74 in restitution from Edouard. 

In State v. Jenkins, we held that amounts paid to victims by the 

CVCP may not be automatically charged back to the defendant. 788

N.W.2d 640, 645–47 (Iowa 2010). Rather, there may be a review by the 

district court to determine whether the statutory causation 

requirements of Iowa Code section 915.86 have been met. Id. at 647. 

The district court conducted such a review here but Edouard challenges 

its sufficiency.

Specifically, Edouard claims the State’s witness had no firsthand

knowledge that the treatment received by the victims could be linked to 

his criminal conduct. He maintains a causal connection cannot be 

shown simply by calling a witness who brings in paperwork completed 

by others. 

The State’s witness testified to the manner in which requests for 

compensation are approved by the crime victim assistance division:

In every claim that is filed with our office, the victim 

signs a release of information, and they put on the release 

who the providers are that they want assistance with for 

payment. And also on the application there is a place to 

8Under certain circumstances, spouses can be eligible to receive victim 

compensation as “secondary victims,” such as for mental health care and 

transportation. See Iowa Code §§ 915.80(5), .86(12), (15). 

 
47

mark what benefits they’re seeking. So based on that 

information, we send out . . . request forms to those 

providers and they complete them. And we also ask for 

itemized statements and the medical records, and then the 

compensation specialist reviews that and determines 

whether or not it is crime related. 

And . . . then we have a quality control system also 

that reviews that file to make sure that everything was done 

right. 

She further testified that each mental health or medical provider also fills 

out a verification form regarding the treatments that indicates whether 

the service was related to the crime. 

In this case, the providers in question had attested in writing that

all the treatments were related to the crime. Each exhibit contained a 

form signed by the treatment provider that verified the treatments in 

question were “provided as a direct result of the crime.” The coordinator 

also confirmed this in her testimony. Edouard did not attempt to present 

any evidence of his own but did vigorously cross-examine the 

coordinator.

We do not believe restitution proceedings are subject to strict rules 

of evidence. See Iowa R. Evid. 5.1101(c)(4) (stating the rules of evidence 

do not apply in sentencing proceedings). In the review of a restitution 

order, “ ‘we determine whether the court’s findings lack substantial 

evidentiary support, or whether the court has not properly applied the 

law.’ ” Hagen, 840 N.W.2d at 144 (quoting State v. Bonstetter, 637 

N.W.2d 161, 165 (Iowa 2001)). As the district court explained,

[t]he court has reviewed the mental health services provided 

to the victims, and to the secondary victims, to the extent 

the notes and records are available, and finds that the State 

has established the propriety of assessing those mental 

health costs as part of the restitution herein. 

We uphold as supported by substantial evidence the district court’s 

conclusion that the mental health care costs charged to Edouard were 
48

incurred “as a direct result” of Edouard’s crimes. See Iowa Code 

§ 915.86(1); see also id. § 910.2(1) (requiring sentencing courts to order

offenders to make restitution “to the victims of the offender’s criminal 

activities”). 

Next, Edouard contests the travel expenses granted for attendance 

at trial.9 Edouard maintains these were costs of prosecution that 

should not have been charged against him. However, Iowa Code section 

915.86(15) makes clear that victims can be compensated for 

“[r]easonable expenses incurred by the victim [or] secondary victim,” 

including “for transportation to medical, counseling, . . . or criminal 

justice proceedings, not to exceed one thousand dollars per person.” 

The district court’s award was therefore proper.

Edouard’s reliance on State v. Knudsen is misplaced. See 746 

N.W.2d 608, 610 (Iowa Ct. App. 2008). True, the court of appeals there 

noted that prosecution costs generally cannot be included in a 

restitution order. See id. But the difference here is the State is seeking 

reimbursement for crime victim assistance as opposed to direct 

restitution. See Iowa Code § 910.2(1). The crime victim assistance 

statute specifically authorizes compensation to victims for 

transportation expenses under the circumstances presented here. See 

id. § 915.86(15). The State produced evidence to support the victims’ 

claims of trial attendance.

Edouard’s third argument is that the victims were not eligible for 

compensation under Iowa Code section 915.87(2)(a) because they

consented to their relationships with Edouard. That subsection 

9As noted above, the trial location was changed from Marion County, where the 

victims resided, to Dallas County.

 
49

provides that victim compensation “shall not be made when the bodily 

injury or death for which a benefit is sought was caused by . . .

[c]onsent, provocation, or incitement by the victim.” Id. § 915.87(2)(a). 

The trial court correctly found this provision did not apply. It would 

miss the entire point of the counselor–therapist sexual exploitation law 

to hold that these victims’ mental health injuries were caused by their 

“consent,” as opposed to the conduct of the defendant, which we have 

described in detail above.

Finally, Edouard urges that the trial court erroneously overruled 

an objection that the victims had failed to comply with certain 

limitations and reporting requirements contained in Iowa Code sections

915.84(1) and (2). The first subsection requires a victim seeking 

compensation to apply within two years after “the date of the crime” or 

“the discovery of the crime,” and the second subsection indicates an 

individual is not eligible for compensation “unless the crime was 

reported to the local police department or county sheriff department 

within seventy-two hours of its occurrence” or “within seventy-two hours 

of the time a report can reasonably be made” if it cannot be reasonably 

reported within seventy-two hours of its occurrence. Id. § 915.84(1)–(2). 

However, both subsections also indicate the department of justice may 

waive the time limitation and reporting requirements “if good cause is 

shown.” Id. 

Edouard points out that some of the victims used the date of their 

police reports, January 2011, as the crime date, despite the fact that 

much of the sexual abuse and exploitation occurred years before. He 

argues the crimes were not reported within seventy-two hours of their 

commission and reimbursement was not sought within two years of the 

crime. Therefore, unless good cause was shown, the victims and 
50

secondary victims (i.e., the spouses) were not eligible for compensation 

under the statute.

The State argues, in effect, that Edouard has no standing to raise a 

claim of untimeliness because “the decision is between the agency and 

the applicant” whether to award compensation from the CVCP. We 

disagree. We think the rationale of Jenkins holds otherwise. Regardless 

of whether the State has paid some amount to a victim of crime, in order 

to recover that same amount from the defendant as restitution it must 

show it complied with the underlying law. Otherwise stated, defendants 

should be able “to challenge erroneous CVCP payments.” Jenkins, 788 

N.W.2d at 645.

The State’s witness did testify that a timeliness review is regularly 

performed and that a memo is usually prepared if an extension of time is 

approved. However, the memo is “considered confidential.” The witness 

did not know if a memo existed in this case. 

We believe this evidence is insufficient to establish the department 

for justice actually found good cause. Indeed, if it were deemed 

sufficient, no defendant would ever be able to raise a timeliness 

challenge. Admittedly, we have not previously held that Jenkins permits 

a defendant to object to a CVCP restitution award on the ground that the 

deadlines were not waived for good cause. Therefore, we believe the 

appropriate course of action is to reverse and remand to give the State 

the opportunity to introduce evidence that the CVCP waived any 

deadlines in sections 915.84(1) or (2) for good cause shown.

IV. Conclusion. 

For the foregoing reasons, we conditionally affirm Edouard’s 

conviction and sentence under Iowa Code section 709.15(4)(a) and his 

conviction and sentence under section 709.15(4)(c) with respect to W.B. 
51

We affirm Edouard’s remaining convictions. We reverse the restitution 

award to the State. We remand for further proceedings consistent with 

this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; 

CASE REMANDED WITH INSTRUCTIONS. 

All justices concur except Appel, J., and Cady, C.J., who concur 

specially, and Hecht and Wiggins, JJ., who concur in part and dissent in 

part. 
52

#86/12–1899, State v. Edouard

APPEL, Justice (concurring specially).

Part I. 

I agree with Justice Mansfield’s opinion regarding the proper 

interpretation of Iowa’s sexual exploitation statute. I do not join, 

however, the discussion of the state constitutional issues presented in 

this case. Instead, I present a different analysis, which today, as it has 

in many recent cases, commands the support of the majority of the 

court.

Part II.

Where a party raises issues under the Iowa Constitution and the 

Federal Constitution, but does not suggest a different standard be 

applied under the Iowa Constitution, we generally apply the federal 

standard. This comes, however, with an important and indeed critical 

caveat, namely, that we reserve the right to apply that standard 

differently than its federal counterpart. See, e.g., Freeman v. Grain 

Processing Corp., 848 N.W.2d 58, 93 (Iowa 2014) (“[W]here a party does 

not suggest a different standard under Iowa law, we adopt for the 

purposes of the case the federal standard, reserving the right to apply the 

standard differently than under the federal cases.”); State v. Ragland,

836 N.W.2d 107, 113 (Iowa 2013) (noting “we . . . reserve the right to 

apply the [federal standard] in a more stringent fashion than federal 

precedent”); State v. Kern, 831 N.W.2d 149, 172, 174 (Iowa 2013) 

(applying federal standards but explicitly reserving the right to apply 

those standards “in a more stringent fashion than federal precedents”);

State v. Tyler, 830 N.W.2d 288, 291–92 (Iowa 2013) (“Where a party 

raises both state and federal constitutional claims but does not argue 

that a standard independent of the federal approach should be employed 
53

under the state constitution, we ordinarily apply the substantive federal 

standards but reserve the right to apply the standard in a fashion 

different from federal precedent.”); State v. Becker, 818 N.W.2d 135, 150 

(Iowa 2012) (“Even where a party has not provided a substantive 

standard independent of federal law, we reserve the right to apply the 

standard presented by the party in a fashion different than the federal 

cases.”); NextEra Energy Res., LLC v. Iowa Utils. Bd., 815 N.W.2d 30, 45 

(Iowa 2012) (“Even in cases where a party has not suggested that our 

approach under the Iowa Constitution should be different from that 

under the Federal Constitution, we reserve the right to apply the 

standard in a fashion at variance with federal cases under the Iowa 

Constitution.”); State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“[W]e 

do not necessarily apply the federal standards in the same way as the 

United States Supreme Court.”); State v. Breuer, 808 N.W.2d 195, 200 

(Iowa 2012) (“[E]ven when the parties advance no substantive distinction, 

we may apply the principles differently.”); State v. Pals, 805 N.W.2d 767, 

771–72 (Iowa 2011) (“Even where a party has not advanced a different 

standard for interpreting a state constitutional provision, we may apply 

the standard more stringently than federal case law.”); State v. Fannon, 

799 N.W.2d 515, 519 n.1 (Iowa 2011) (“[A]lthough we reserve the right to 

apply the principles differently, we generally assume that the legal 

principles governing both provisions are the same.”); King v. State, 797 

N.W.2d 565, 571 (Iowa 2011) (“Even in . . . cases in which no substantive 

distinction ha[s] been made between state and federal constitutional 

provisions, we reserve the right to apply the principles differently under 

the state constitution . . . .”); Simmons v. State Pub. Defender, 791 

N.W.2d 69, 76 n.3 (Iowa 2010) (“Even in cases where no substantive 

distinction has been advanced by the parties [between Iowa and federal 
54

constitutional law], we reserve the right to apply the principles 

differently.”); State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009) (“[W]e 

do not necessarily apply the federal standards in the same way as the 

United States Supreme Court.”); Varnum v. Brien, 763 N.W.2d 862, 878 

n.6 (Iowa 2009) (“[W]e have jealously guarded our right to employ a 

different analytical framework under the state equal protection clause as 

well as to independently apply the federally formulated principles.” 

(Internal quotation marks omitted.)); In re S.A.J.B., 679 N.W.2d 645, 648 

(Iowa 2004) (“In analyzing claims under the Iowa Equal Protection 

Clause, we independently apply federal principles.”); Racing Ass’n of 

Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 6–7 (Iowa 2004) (“[T]his court’s 

independent application of the rational basis test might result in a 

dissimilar outcome from that reached by the Supreme Court in 

considering the federal constitutional claim.”). Of course, this 

established principle does not necessarily mean that we will depart from 

federal applications, as our independent judgment may lead us to agree 

with the federal caselaw. See Breuer, 808 N.W.2d at 200–01 (recognizing 

authority to depart in application of federal caselaw but declining to do 

so). As noted by Robert F. Williams, a leading expert on state 

constitutional law, “State courts might even agree with the United States 

Supreme Court on the meaning—both textually and historically—of 

identical or similar federal and state constitutional provisions, but 

proceed to apply them differently under particular circumstances.” 

Robert F. Williams, State Courts Adopting Federal Constitutional Doctrine: 

Case-By-Case Adoptionism or Prospective Lockstepping?, 46 Wm. & Mary 

L. Rev. 1499, 1501 (2005). 

The distinction between a standard and its application is especially 

important where the legal principles have high degrees of generality, 
55

such as “totality of circumstances” tests, tests based upon “gross 

proportionality,” and tests based upon “reasonableness.” See Robert F. 

Williams, The Law of American State Constitutions 169–71 (2009); cf. 

Jeffrey S. Sutton, What Does—and Does Not—Ail State Constitutional 

Law, 59 U. Kan. L. Rev. 687, 707 (2011) [hereinafter Sutton].10 Even 

accepting the generalized standard, there is often no single correct 

answer to the interpretation of generalized constitutional commands, but 

only a range of plausible answers which must be decided on a case-bycase basis with the exercise of independent judgment. See Chicago & 

N.W. Ry. v. Fachman, 255 Iowa 989, 996, 125 N.W.2d 210, 214 (1963) 

(noting in the context of state and federal equal protection claims that 

“[w]hile the general rules applicable in such cases seem pretty well 

settled, as is so often the case the difficulty arises in their application”). 

A majority of the court today reaffirms the principle articulated in our 

many cases, namely, that where a party raises both state and federal 

constitutional claims, we generally apply the federal standard but reserve 

the right to apply the standard in a fashion different and more stringent 

from federal caselaw. To the extent there is any implication by silence in 

10As noted by Judge Sutton:

Why the meaning of a federal guarantee proves the meaning of an 

independent state guarantee is rarely explained and often seems 

inexplicable. If the court decisions of another sovereign ought to bear on 

the inquiry, those of a sister state should have more to say about the 

point. State constitutions are more likely to share historical and cultural 

similarities. They necessarily will cover smaller jurisdictions. And in 

almost all instances they will be construing individual-liberty guarantees 

that originated in state constitutions, not the Federal Constitution . . . .

Sutton, 59 U. of Kan. L. Rev. at 708. See generally State v. Baldon, 829 N.W.2d 785, 

803–35 (Iowa 2013) (Appel, J., concurring specially) (discussing the historic role of state 

constitutions in the protection of individual rights and the status of independent state 

constitutional law after the incorporation of the Bill of Rights). .

 
56

our cases that do not explicitly cite this well-established principle, we 

reject it. 

Turning to the merits of the constitutional claims presented in this 

case, we conclude Edouard has not advanced a separate standard for 

analysis under the Iowa Constitution, and therefore apply the general 

standard in the federal caselaw. Based on the available cases applying 

the generally applicable standards, we narrowly conclude, as does 

Justice Mansfield, that, as applied under the facts and circumstances of 

this case, the sexual exploitation statute does not invade a fundamental 

right under the United States Constitution. See State v. Hollenbeck, 53 

A.3d 591, 597–98 (N.H. 2012) (concluding constitutional right recognized 

in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 

(2003) does not extend to imbalanced relationships that are not fully 

consensual). We similarly conclude that Edouard has not shown the 

statute as applied to him violates the Establishment Clause under the 

United States Constitution, largely for the reasons discussed in Justice 

Mansfield’s opinion. Cf. State v. Wenthe, 839 N.W.2d 83, 88–91 (Minn. 

2013) (“But the inclusion of religious actors [in the Minnesota clergysexual-conduct statute] does not violate the Establishment Clause 

because the limitation on members of the clergy is part of a larger 

statutory scheme that regulates the behavior of those involved in certain 

sexual relationships—relationships for which the Legislature has 

determined there is a power imbalance between the parties.”). We then 

proceed to the next step in the analysis and decline to apply the 

substantive standards advanced by Edouard in a fashion different from 

the prevailing caselaw under the Iowa Constitution. We decline to apply 

the legal standards on these issues differently than in Hollenbeck and 

Wenthe under the Iowa Constitution because we are persuaded that the 
57

legal standards accepted by those parties have been sensibly applied in 

those cases. As a result, we reject the specific constitutional claims 

raised by Edouard in this case under both the United States and Iowa 

Constitutions. 

Cady, C.J., joins this special concurrence; Wiggins and Hecht, JJ., 

join in Part II only.
58

#12-1899, State v. Edouard

HECHT, Justice (concurring in part and dissenting in part).

I concur in that part of the majority’s opinion reversing the district 

court’s ruling denying Patrick Edouard’s request for in camera review of 

W.B.’s counseling records. I respectfully dissent from the remainder of 

the majority’s opinion because I believe Edouard was prejudiced by the 

district court’s failure to properly instruct the jury and its abuse of 

discretion in excluding expert testimony that would have been helpful to 

the jury and essential to the defense. I would therefore reverse the 

convictions and remand for a new trial. 

Edouard served as the pastor of the Covenant Reformed Church in 

Pella, Iowa, from 2003 to 2010. At various times during that seven-year 

period, Edouard engaged in sexual relationships with four female 

members of his congregation. Details of the relationships first emerged 

in December 2010, and in the next few weeks, Edouard and each of the 

four women had confessed the relationships to their church elders.

In January 2011, the women attended group therapy sessions in 

which they discussed with each other their relationships with Edouard. 

After attending the therapy sessions, the women filed a report with the 

Pella police department, alleging each “was the subject of [Edouard’s] 

counseling and pastoral care.” Edouard was later charged with four 

counts of sexual exploitation by a counselor or therapist, in violation of 

Iowa Code section 709.15(2)(c); one count of a pattern, practice, or 

scheme to engage in sexual exploitation by a counselor or therapist, in 

violation of Iowa Code section 709.15(2)(a); and three counts of third 

degree sexual abuse, in violation of Iowa Code section 709.4(1).

Before trial, the State moved to limit the expert testimony of 

Dr. Hollida Wakefield, an expert offered by Edouard to explain several 
59

features of the relationships to the jury and to aid him in presenting his 

defense that he had not been providing mental health services, for 

purposes of the statute, in any of the four relationships. More 

specifically, the State sought to exclude any testimony about differences 

between pastoral care and pastoral counseling and any testimony 

indicating Edouard may have been engaged in the former, but not the 

latter, with each of the women. That testimony, the State argued, would 

be unhelpful and misleading to the jury and would constitute an 

improper legal conclusion. The district court granted the motion, 

concluding Wakefield’s definitions would be of no assistance in 

explaining the statutory meanings of mental health services or 

counseling to the jury and would improperly invade the “function of the 

jury.” 

At trial, Edouard contended he had not, in any of the four 

relationships, acted as a “counselor or therapist” providing “mental 

health services” under the meaning of section 709.15. He moved for 

judgment of acquittal at the conclusion of the prosecution’s case, and 

later renewed the motion at the conclusion of the trial, contending the 

State had failed to present sufficient evidence of sexual exploitation 

under the requirements of the statute. The district court denied these 

motions.

Upon conclusion of the ten-day trial, Edouard submitted to the 

court a proposed marshaling instruction for the jury. His proposed 

instruction enumerated the specific professions set forth in the definition 

of “counselor or therapist” in section 709.15(1)(a), with additional 

language clarifying that the definition required a “formal counseling 

relationship.” Edouard also requested an instruction indicating a 

conviction under section 709.15 required proof that one or more of the 
60

women had been his “patient or client.” Finally, he requested an 

instruction defining “mental health services” and incorporating 

definitions we have used in previous cases for the statutory terms 

“treatment,” “assessment,” and “counseling.” The district court denied 

these requests and gave its own less detailed instructions over Edouard’s 

objection.

After deliberation, the jury found Edouard guilty of each of the four 

counts of sexual exploitation by a counselor or therapist and guilty of the 

pattern or practice count. He was acquitted of the three counts of sexual 

abuse.

Edouard appealed the convictions, and we transferred the case to 

the court of appeals. Along with challenges to the district court’s rulings 

on his expert evidence and his proposed marshaling instructions, 

Edouard raised additional evidentiary challenges and a constitutional 

challenge to the application of section 709.15 to his conduct and to other 

members of the clergy engaging in similar conduct. The court of appeals 

concluded the trial court had abused its discretion in declining to give 

Edouard’s proposed instruction on “mental health services,” found 

Edouard had suffered prejudice as a result of the error, and reversed the 

convictions. Although unnecessary to its resolution of the case, the 

court of appeals also noted the district court had erred in excluding the 

portions of Dr. Wakefield’s testimony regarding pastoral care and 

pastoral counseling. Having resolved the case on the instructional 

ground and given guidance regarding the expert testimony, the court of 

appeals declined to reach Edouard’s other challenges. I believe the court 

of appeals correctly decided these issues, and I would affirm its opinion 

for the reasons explained below.
61

Section 709.15 prohibits a “counselor or therapist” from engaging 

in a number of enumerated forms of sexual conduct with an “emotionally 

dependent patient or client” who receives “mental health services” from 

the counselor or therapist. See Iowa Code § 709.15(2)(c) (2013). The 

section defines “counselor or therapist” as

a physician, psychologist, nurse, professional counselor, 

social worker, marriage or family therapist, alcohol or drug 

counselor, member of the clergy, or any other person, 

whether or not licensed or registered by the state, who 

provides or purports to provide mental health services.

Id. § 709.15(1)(a). “Mental health service” is defined as “the treatment, 

assessment, or counseling of another person for a cognitive, behavioral, 

emotional, mental, or social dysfunction, including an intrapersonal or 

interpersonal dysfunction.” Id. § 709.15(1)(d). A “patient or client” is “a 

person who receives mental health services from the counselor or 

therapist.” Id. § 709.15(1)(e). The provision also provides a meaning for 

“emotionally dependent,” defining it as “the nature of the patient’s . . . 

emotional condition or the nature of the treatment provided . . . is such 

that the counselor or therapist knows or has reason to know that the 

patient . . . is significantly impaired in the ability to withhold consent.” 

Id. § 709.15(1)(b). 

In examining the application of section 709.15 to specific 

relationships in the past, we have explained we must assess not just 

isolated words and phrases in the statute, but the section in its entirety, 

and we must look for an interpretation best achieving the statute’s 

purpose. State v. Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006). In 

discerning the meaning of the phrase “mental health services,” we have 

noted it cannot “encompass strictly personal relationships involving the 

informal exchange of advice.” State v. Allen, 565 N.W.2d 333, 337 (Iowa 
62

1997). Instead, when we have analyzed the meaning and purpose of 

section 709.15 in the past, we have emphasized the specialized, technical 

meaning of mental health services and its close association with forms of 

therapy provided by professionals. Id.; Gonzalez, 718 N.W.2d at 308–09.

In Allen, for example, we encountered a case of a woman who 

suffered severe emotional problems in connection with significant marital 

strain and due, at least in part, to physical and mental abuse she had 

suffered as a child. Allen, 565 N.W.2d at 335. She had been hospitalized 

frequently in the course of dealing with these problems and had several 

times attempted suicide. Id. After a particularly challenging pregnancy 

and pregnancy-related surgery, she began to experience physical 

symptoms, which went unabated despite medical and psychiatric 

treatment. Id. Eventually, she sought the assistance of an unlicensed 

hypnotherapist. Id. In several lengthy meetings over the course of four 

months, the hypnotherapist supplied her with alcoholic beverages and 

initiated and escalated intimate physical contact with her, assuring her 

“that such physical contact would help her to recover from the effects of 

the sexual abuse she had endured as a child.” Id. 

The hypnotherapist was eventually charged with and convicted of 

sexual exploitation under section 709.15. Id. at 336. On appeal, the 

hypnotherapist did not deny that he was a counselor or therapist for 

purposes of the statute, and likewise, did not dispute that he had 

provided, or at least purported to provide, mental health services. Id. 

Instead, he contended section 709.15 was unconstitutionally vague. Id. 

Analyzing section 709.15 for purposes of that contention, we explained 

we would not entertain the “challenge unless the statute reache[d]” a 

significant amount of protected conduct. Id. at 337. We concluded 

section 709.15 presented no such danger of substantial encroachment, 
63

because it clearly did not reach “informal exchange of advice” or 

“ordinary conversations.” Id. Moreover, we explained, the statute would 

not typically apply to “innocuous event[s]” in “romantic relationship[s],” 

and would rarely, “if ever, apply to a marriage relationship.” Id. at 338. 

The relationship at issue in Allen was much different, we explained: the 

hypnotherapist had at all times been acting “[a]s a therapist,” and in a 

“professional role[].” Id. at 337 n.2. Later in our analysis of the 

hypnotherapist’s challenges to his convictions, we emphasized the victim 

had sought the hypnotherapist out for help with her physical symptoms 

associated with her long history of mental health problems, and that he 

had engaged in his problematic contact with her while she was “in his 

office for treatment” for these issues. Id. at 339. Given those indications 

of a professional treatment relationship, we affirmed the hypnotherapist’s 

convictions. Id. at 340.

In Gonzalez, we had occasion to analyze the meaning of the phrase 

“mental health services” more directly and extensively, as the defendant 

challenged directly, in a pretrial motion to dismiss, the allegations that 

he had been working as a counselor or therapist and had been providing 

mental health services. Gonzalez, 718 N.W.2d at 307–08. The defendant 

in Gonzalez worked as a nursing assistant in the psychiatric unit of the 

University of Iowa Hospitals and Clinics, and had been charged with 

sexual exploitation as a result of invasive physical contact with a female 

patient. Id. at 306. The trial court granted the nursing assistant’s 

motion to dismiss, determining the assistant had not, even accepting 

various allegations by the State as true, been providing mental health 

services within the meaning of section 709.15. Id. The State appealed. 

Id. 
64

Analyzing on appeal the nursing assistant’s contention he had not 

been providing mental health services, we parsed the phrase’s 

component parts of “treatment,” “assessment,” and “counseling” “for 

certain dysfunctions.” Id. at 308. We consulted a dictionary to 

illuminate the meanings of these terms and recognized each incorporated 

a specific, technical meaning, typically associated with professional 

diagnostic and therapeutic modalities, for purposes of the statute. Id. 

Armed with that understanding, we concluded the nursing assistant 

might reasonably be found to have provided treatment for purposes of 

section 709.15, given the allegations that he performed essential tasks in 

“providing care of psychiatric patients,” he assisted in “providing for a 

therapeutic environment,” and he participated “in planning patient care.” 

Id. Similarly, we explained, he may have provided assessment “because 

he performed nursing tasks to assist in monitoring psychiatric patients,” 

and had assisted with the documenting and reporting of patient 

behavior. Id. Most importantly, we emphasized, the nursing assistant 

might reasonably be found to have provided “treatment and assessment” 

to the patient because he had performed his tasks while she was 

admitted in the psychiatric unit for psychiatric care. Id. at 308–09. 

Given the existence of that professional treatment environment and 

relationship, we concluded, the nursing assistant’s provision of certain 

services might reasonably have “qualifie[d] him as a ‘counselor’ or 

‘therapist’ for purposes of Iowa Code section 709.15,” and thus we 

reversed the district court’s dismissal and remanded for trial. Id. at 310. 

Emerging from these analyses is a clear picture of the meaning of 

section 709.15 and its counselor or therapist and mental health services 

requirements. The statute proscribes certain specified forms of conduct 

undertaken in the course of specialized, formal treatment relationships 
65

and environments. See id. at 308–09 (emphasizing the victim’s presence 

in the psychiatric unit, the “therapeutic relationship,” and the 

“therapeutic environment”). The structure and language of section 

709.15 and related provisions in the Iowa Code illuminate this 

understanding. The section’s requirement that the conduct occur 

between the counselor or therapist and a “patient or client” of the 

counselor or therapist, for example, plainly implicates a professional 

relationship, indicating the statute reaches only those relationships 

rising to the level of a formal professional treatment relationship. See, 

e.g., Iowa Code § 709.15(2)(b) (proscribing certain conduct with an 

“emotionally dependent patient or client” or an “emotionally dependent 

former patient or client”).

The statutory definition of “emotionally dependent” is also 

instructive in my analysis, providing the emotional dependence required 

for an exploitation charge must arise from the nature of a patient’s 

emotional condition or “the nature of the treatment provided by the 

counselor or therapist.” Id. § 709.15(1)(b) (emphasis added). We noted 

in Gonzalez that a standard meaning of “treatment” is “ ‘the action or 

manner of treating a patient medically or surgically.’ ” Gonzalez, 718 

N.W.2d at 308 (quoting Webster’s Third New International Dictionary

2434–35 (unabr. ed. 2002)). The incorporation of this specialized 

concept in the statutory definition of emotionally dependent suggests 

section 709.15 reaches a specific class of formal therapeutic 

relationships—namely, those relationships where the services provided 

may be characterized as constituting formal professional treatment. See

Iowa Code § 709.15(1)(b). The related civil damages provision, setting 

forth the statute of limitations for damages claims brought in connection 

with sexual exploitation charges, underscores that understanding, in 
66

providing “action[s] . . . shall be brought within five years of the date the 

victim was last treated by the counselor or therapist.” Id. § 614.1(12) 

(emphasis added).

Section 709.15 very clearly bounds the categories of actors and 

types of relationships that may run afoul of the statute in setting forth its 

definition of “counselor or therapist.” Physicians, psychologists, nurses, 

professional counselors, social workers, marriage and family therapists, 

and alcohol and drug counselors, I recognize, fill specialized, technical 

roles in the realm of psychiatric care, and perform highly specialized 

functions in providing professional mental health services for clients and 

patients. The definition of “counselor or therapist” itself emphasizes as 

much, incorporating the specialized elements of treatment, assessment, 

and counseling we parsed in Gonzalez in identifying these professionals 

as providers of mental health services. Id. § 709.15(1)(a). The 

longstanding inclusion of clergy in this class should not alter this 

understanding, as several sections of the Iowa Code and administrative 

rules indicate clergy, in certain contexts, may provide precisely these 

kinds of formal therapeutic mental health services. See, e.g., id. 

§ 154D.4(1) (noting clergy may provide mental health counseling in 

accordance with standards in their profession); Iowa Admin. Code 

r. 481—53.15(1)(a) (noting spiritual counseling in hospice environment 

shall be provided in accordance with an “interdisciplinary plan of care”). 

Various provisions in the Iowa Code addressing similar subject 

matter highlight the specialized nature of the services these classes of 

professionals provide and the specific training they typically undergo. 

See, e.g., Iowa Code § 135H.1(5) (setting forth coursework and clinical 

training requirements in defining “mental health professional” for 

purposes of chapter addressing psychiatric medical institutions); id. 
67

§ 154D.4(1) (establishing that certain statutory licensing requirements do 

not prevent “nurses, psychologists, social workers, physicians . . . or 

members of the clergy, from providing or advertising that they provide 

services of a marital and family therapy or mental health counseling 

nature consistent with the accepted standards of their respective 

professions” (emphasis added); see also id. § 135G.1(6) (defining mental 

health services as “services provided by a mental health professional 

operating within the scope of the professional’s practice which address 

mental, emotional, medical, or behavioral problems”); Ingeborg E. Haug, 

Boundaries and the Use and Misuse of Power and Authority: Ethical 

Complexities for Clergy Psychotherapists, 77 J. of Counseling & Dev. 411, 

411 (1999) (“Clergy psychotherapists are defined as mental health 

professionals who have received dual education and training as clergy 

and as psychotherapists (the term clergy encompasses Christian and 

non-Christian religions).”). Similarly, numerous administrative rules 

indicate these classes of actors generally receive substantial training and 

typically fill specialized, technical roles in diagnosing and ameliorating 

specific mental health dysfunctions. See, e.g., Iowa Admin. Code 

r. 441—88.61 (defining “mental health services” as “those clinical, 

rehabilitative, or supportive services provided by an individual, agency, 

or other entity that is licensed, accredited, certified, or otherwise 

approved as required by law to treat any mental disorder listed in the 

International Classification of Diseases”); id. r. 645—31.1 (defining 

“mental health setting,” for purposes of licensure of marital and family 

therapists, as “a behavioral health setting where an applicant is 

providing mental health services including the diagnosis, treatment, and 

assessment of emotional and mental health disorders and issues”); id. 

r. 645—31.5 (marital and family therapists); id. r. 645—280.5 (social 
68

workers); id. r. 653—9.3 (physicians); id. r. 655—6.1 (registered and 

practical nurses). The enumeration of these classes of professionals in 

section 709.15, the corresponding exclusion of other categories of actors, 

and the indications in section 709.15, other related sections of the Iowa 

Code, and the administrative rules, of the types of services these 

professionals provide highlight the formal therapeutic and diagnostic 

nature of the relationships contemplated by the statute. 

A survey of related statutes and jurisprudence in sister 

jurisdictions augments my understanding that section 709.15 is 

calculated to criminalize conduct in formal treatment relationships in 

which therapeutic mental health services are provided, or in which the 

defendant has purported to provide such services. A few states have 

sexual exploitation statutes broader than ours, criminalizing conduct 

between various enumerated actors and certain vulnerable individuals, 

without requiring a formal professional therapeutic relationship. See, 

e.g., Ark. Code Ann. § 5-14-126(a)(1)(C) (West, Westlaw through 2014 

Fiscal Sess.) (mandated reporters and clergy members); Tex. Penal Code 

Ann. § 22.011(b)(10) (West, Westlaw through 2013 Third Called Sess.) 

(requiring, in case of clergyperson, merely a role “as spiritual adviser”). 

See generally Bradley J. B. Toben & Kris Helge, Sexual Misconduct with 

Congregants or Parishioners: Crafting A Model Statute, 1 Brit. J. Am. 

Legal Stud. 189, 209–10 (2012) [hereinafter Toben & Helge] (“Of [thirteen 

jurisdictions with sexual exploitation statutes], only two have language 

that is designed to criminalize such conduct by clergypersons outside of 

the counseling context.”). Arkansas, for example, criminalizes conduct 

when a person is a “mandated reporter [of child maltreatment] or a 

member of the clergy and is in a position of trust or authority over the 

victim and uses the position of trust or authority to engage in [proscribed 
69

conduct].” Ark. Code Ann. § 5-14-126(a)(1)(C). The Arkansas statute 

provides no further definition of “trust or authority,” contains no mental 

health services requirement, contains no patient or client requirement, 

and enumerates a list of relevant actors far longer and more inclusive 

than the list enumerated in our own statute. Compare id. § 5-14-126(a), 

with Iowa Code § 709.15(1)(a); see also H.F. 682, 78th G.A., Reg. Sess. 

(Iowa 1999) (proposing an “exploitation by a person in authority” statute 

which would have applied, had it been adopted, to relationships with 

certain school-aged juveniles). 

Other states, by contrast, have more narrowly drawn exploitation 

statutes, more closely resembling our own. See, e.g., Conn. Gen. Stat. 

Ann. § 53a-65(9) (West, Westlaw through 2014 Feb. Reg. Sess.) 

(enumerating in its definition of “psychotherapist” traditional classes of 

mental health providers and adding hypnotists); N.D. Cent. Code Ann. 

§ 12.1-20-06.1(2) (West, Westlaw through 2013 Reg. Sess.) (defining 

“therapist” to mean “a physician, psychologist, psychiatrist, social 

worker, nurse, chemical dependency counselor, member of the clergy, or 

other person, whether licensed or not by the state, who performs or 

purports to perform psychotherapy”); S.D. Codified Laws § 22-22-27(3) 

(West, Westlaw through 2014 Reg. Sess.) (defining “psychotherapist” to 

include various traditional classes of mental health professionals, and 

including clergymembers, marriage and family therapists, and other 

“mental health services provider[s]”); Utah Code Ann. § 76-5-406(12) 

(West, Westlaw through 2014 Gen. Sess.) (enumerating specific classes of 

professional providers and requiring act “committed under the guise of 

providing professional diagnosis”); Wis. Stat. Ann. § 940.22; see also id.

§ 455.01(6) (West, Westlaw through 2013 Wis. Act. 380) (defining 

“psychotherapy” to include specific methods and functions performed in 
70

“professional relationship”). By enumerating certain professional classes 

of actors, including clergy, while defining mental health services or its 

analog, psychotherapy, in terms of the technical therapeutic function 

being performed, these statutes underscore the technical nature of the 

relationships they cover.

Of course, as the majority points out, the definition of “counselor 

or therapist” in section 709.15 does not require state licensure or 

registration, and makes reference to “any” individuals who provide or 

purport to provide mental health services. Those indications, however, 

should not alter the foregoing analysis. In both Gonzalez and Allen, we 

very clearly considered individuals operating in occupational classes not 

explicitly identified in the definition of “counselor or therapist,” and yet 

we examined the nature of the relationship and the nature of the 

environment in each scenario to ensure the interaction rose to the level 

of a formal therapeutic relationship. See Gonzalez, 718 N.W.2d at 308; 

Allen, 565 N.W.2d at 337. As explained, section 709.15 limits its 

coverage in using and defining the term “counselor or therapist”—the 

statute very clearly does not use or define the term “any person,” or “any 

person who provides mental health services,” or “any person in a position 

of power or authority.” Moreover, the definition of counselor or therapist 

has not been set forth so generally as to cover merely “any person who 

provides mental health services,” as our general assembly has clearly 

identified instructive classes of actors before including the less specific 

“any other person” language. As we have explained on numerous 

occasions, the “any other person” language must be read in the context 

of the language surrounding it. See, e.g., Sorg v. Iowa Dep’t of Revenue, 

269 N.W.2d 129, 132 (Iowa 1978) (“Under the applicable rule of Noscitur 

a sociis, the meaning of a word in a statute is ascertained in light of the 
71

meaning of words with which it is associated.”). In this case, the 

language preceding “any other person” indicates specific classes of actors 

who engage in professional therapeutic relationships. Any faithful 

reading of the remaining language in the definition must incorporate the 

same lexical cues and constraints—much like we incorporated them in 

our analyses in Allen and Gonzalez. 

At least one court, analyzing the reach of its specialized 

relationship requirement, has concluded its statute can only be read to 

cover relationships “closely associated with the traditional profession of 

therapeutic psychology,” and relationships in which professionals employ 

“therapeutic techniques” in performing or purporting to perform 

“psychotherapy.” State v. Ambrose, 540 N.W.2d 208, 212 (Wis. Ct. App. 

1995). The court in Ambrose considered a case involving a high school 

teacher who was pursuing a master’s degree in psychology. Id. at 210. 

A student had approached him and asked for help with her depression 

and related family problems. Id. He began meeting with her a few times 

a week, and at these meetings she “told him about her feelings, family 

problems, depression and thoughts of suicide.” Id. The relationship 

lasted several months, was briefly interrupted by summer vacation, and 

eventually escalated into a sexual relationship. Id. at 210–11. The 

teacher was charged and convicted under Wisconsin’s sexual exploitation 

statute, which prohibits sexual contact between “[a]ny person who is or 

who holds himself or herself out to be a therapist and who intentionally 

has sexual contact with a patient or client during any ongoing therapist–

patient or therapist–client relationship.” Id. at 209 n.1; see also Wis. 

Stat. Ann. § 940.22(2). 

The Ambrose court found several factors persuasive in concluding 

its statute could not reach the teacher’s conduct. First, the court noted 
72

a professionalism requirement in its statutory definition of 

psychotherapy, which required “ ‘the use of learning, conditioning 

methods and emotional reactions’ ” “ ‘to assist persons to modify feelings, 

attitudes, and behaviors.’ ” Id. at 209 n.1, 212 (quoting Wis. Stat. Ann. 

§ 455.01(6)). Second, the court highlighted the statute’s enumeration of 

the relevant categories of actors, which read as follows: “ ‘physician, 

psychologist, social worker, marriage and family therapist, professional 

counselor, nurse, chemical dependency counselor, member of the 

clergy.’ ” Id. (quoting Wis. Stat. Ann. § 940.22(1)(i)). Those professionals, 

the court explained, “are closely associated with the traditional 

profession of therapeutic psychology,” indicating the statute’s coverage of 

relationships accomplishing the specialized “purpose of the profession” of 

psychotherapy. Id. at 212. Third, the court noted there was no evidence 

psychotherapy was typically a “part of the training, education or 

expertise” for teachers. Id. Fourth, the court observed that an individual 

“who conducts informal counseling, even one with a degree in 

psychology, is not engaged as a professional therapist.” Finally, the 

court explained, the teacher had never held himself out as a therapist 

publicly or privately; he, much like most other teachers, was not trained 

or experienced in the field of psychotherapy; and he was neither 

employed nor compensated for the performance of psychotherapy 

services. Id. For those reasons, the court concluded, the evidence failed 

to establish the “counseling” performed by the teacher had reached the 

level of professional psychotherapy, and the court therefore reversed his 

convictions. Id.

The Ambrose court’s analysis of Wisconsin’s narrowly drawn 

statute squares convincingly with my understanding of our own narrowly 

drawn statute. Various cues in section 709.15, including the limited 
73

enumeration of specific classes of professionals, the patient or client 

requirement, the incorporation of specific terms in the definition of 

mental health services implicating specialized, formal forms of therapy, 

and the numerous other statutory cues implicating technical, 

professional forms of therapy indicate our statute reaches only formal 

professional therapeutic relationships. If we conclude otherwise—if we, 

for instance, conclude our statute covers less formal relationships, 

regardless whether they might be characterized as involving “counseling” 

or other forms of mental health services, as the majority appears to 

suggest—we must confront constitutional problems of overbreadth and 

vagueness, and might, in cases involving clergy members, encounter 

entanglement and other constitutional issues.11 See, e.g., Allen, 565

11After adopting its sweeping interpretation in lieu of the narrower one I favor, 

however, the majority attempts to sidestep these issues by asserting several times, 

inaccurately in my view, that Edouard has failed to raise overbreadth and vagueness 

arguments on appeal. I believe a few observations are warranted here. 

In the jury instruction colloquy in the district court, Edouard argued “[t]he scope 

of mental health services and the scope of the statute is overbroad, in that it covers 

protected activities” and “the definition and scope of mental health services is 

unconstitutionally vague.” In both his pretrial motion to dismiss and his posttrial 

motion for arrest of judgment, he argued the Federal Constitution and the Iowa 

Constitution provide protection against legislative acts that interfere “with certain 

fundamental rights and liberty interests.” On appeal, Edouard advances several 

specific overbreadth arguments. For example, he argues that under the State’s 

proffered definition of mental health services, “every person would have a mental health 

dysfunction.” Relatedly, he argues “[t]he constitutional flaw in the statute as applied in 

the State’s theory of prosecution is that it presumes an unequal power balance merely 

from Edouard’s status as a member of the clergy.” In addition, Edouard cites very 

prominently in his constitutional analysis Roe v. Wade, 410 U.S. 113, 164, 93 S. Ct. 

705, 732, 35 L. Ed. 2d 147, 183 (1973). By most accounts, Roe was an overbreadth 

case, as the majority explained the Texas statute at issue “swe[pt] too broadly,” and 

made “no distinction between abortions performed early in pregnancy and those 

performed later.” Id. at 164, 93 S. Ct. at 732, 35 L. Ed. 2d at 183; see also Ada v. 

Guam Soc’y of Obstetricians and Gynecologists, 506 U.S. 1011, 1011, 113 S. Ct. 633, 

634, 121 L. Ed. 2d 564, 565 (1992) (Scalia, J., dissenting) (explaining the Roe court 

“seemingly employed an ‘overbreadth’ approach”). These features, among others, of 

Edouard’s appeal are indisputably overbreadth arguments in my view.

Similarly, Edouard’s vagueness arguments abound on appeal. “If [the Gonzalez

definition] does not apply, as the State suggests,” Edouard argues, “then what definition 

 
74

N.W.2d at 337 (explaining statute may be unconstitutional if it reaches 

“substantial amount of protected conduct” (internal quotation marks 

of ‘counseling’ should apply here?” Relatedly, he cites Knight v. Iowa District Court, 269 

N.W.2d 430, 433 (Iowa 1978), for the proposition that “criminal acts that are malum 

prohibitum must be delineated clearly and unequivocally.” And, as noted, he cites Roe, 

where the Court clearly explained it would not address a vagueness challenge only 

because the overbreadth grounds were dispositive. Roe, 410 U.S. at 164, 93 S. Ct. at 

732, 35 L. Ed. 2d at 183. Given these features of Edouard’s appeal and others, I do not 

believe we can seriously conclude Edouard has failed to advance a vagueness challenge 

here.

Finally, I would note I do not believe we can appropriately “compartmentalize” 

Edouard’s vagueness and overbreadth challenges for purposes of analysis here, as we 

have done many times without explanation in the past. See Smith v. Goguen, 415 U.S. 

566, 577 n.20, 94 S. Ct. 1242, 1249 n.20, 39 L. Ed. 2d 605, 614 n.20 (1974) 

(“Appellant is correct in asserting that Goguen failed to compartmentalize in his state 

court brief the due process doctrine of vagueness and First Amendment concepts of 

overbreadth. . . . But permitting a degree of leakage between those particular adjoining 

compartments is understandable.”). As numerous authorities have recognized, the 

purpose of the special vagueness variant applicable in First Amendment cases and 

other cases involving fundamental rights parallels that of both the “ordinary” vagueness 

doctrine and the “ordinary” overbreadth doctrine: Each is designed “to avoid the chilling 

of constitutionally protected expression and to reduce the possibility that an openended delegation of authority may lead to selective enforcement against unpopular 

causes.” Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 904 

(1991) [hereinafter Fallon] (footnotes omitted) (internal quotation marks omitted); see 

also Kolender v. Lawson, 461 U.S. 352, 358 n.8, 103 S. Ct. 1855, 1859 n.8, 75 L. Ed. 

2d 903, 910 n.8 (1983) (“[W]e have traditionally viewed vagueness and overbreadth as 

logically related and similar doctrines.”); Goguen, 415 U.S. at 573, 94 S. Ct. at 1247, 39 

L. Ed. 2d at 612 (“Where a statute’s literal scope, unaided by a narrowing state court 

interpretation, is capable of reaching expression sheltered by the First Amendment, the 

[vagueness] doctrine demands a greater degree of specificity than in other contexts.”); cf.

Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 

276 (1993) (“In fact, the Court has been applying overbreadth analysis in substantive 

due process cases for quite some time, albeit without expressly stating as much.”). 

Thus, it may well be that in a case like this one, Edouard’s vagueness challenge is “best 

conceptualized as a subpart of First Amendment overbreadth doctrine.” See Fallon, 100 

Yale L.J. at 904. Regardless the conceptualization, however, I believe Edouard, in 

addressing the broad interpretation the majority adopts with specific vagueness and 

overbreadth arguments, has asserted his “right not to be burdened by an 

unconstitutional rule of law.” Henry Paul Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 

1, 4 (1981) (“[A]n overbreadth litigant [does not] invoke the rights of third parties; as ‘a 

theoretical matter the [overbreadth] claimant is asserting his own right not to be 

burdened by an unconstitutional rule of law, though naturally the claim is not one 

which depends on the privileged character of his own conduct.”); see also William A. 

Fletcher, The Structure of Standing, 98 Yale L.J. 221, 244 (1988) (“[Someone who makes 

an overbreadth challenge to a statute] is not directly asserting [an]other person’s rights 

to engage in protected conduct; rather, she is asserting her right to be free from control 

by an invalid statute.”); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges 

and the Valid Rule Requirement, 48 Am. U. L. Rev. 359, 367 (1998) (“Thus, the 

overbreadth challenger might claim that he or she is asserting a personal right to be 

free from prosecution because an overbroad law that permits some unconstitutional 

applications cannot be enforced against anyone.”). 

__________________________
75

omitted)); State v. Bussman, 741 N.W.2d 79, 91–92 (Minn. 2007) 

(concluding sexual exploitation statute was unconstitutional as applied 

to clergy member, and noting it might reach any relationship in which 

clergy member and congregant had sexual contact “if the two were also, 

as would seem likely, discussing spiritual or religious matters on an 

ongoing basis”); cf. Carter v. Broadlawns Med. Ctr., 857 F.2d 448, 457 

(8th Cir. 1988) (“[T]he record established that Chaplain Rogers also 

provides a significant amount of purely secular counseling to the 

employees. She testified that her exchanges with staff members 

primarily involved assisting the employees with personal problems, such 

as letting off steam about supervisors, dealing with gossip and teen-age 

children, and venting grief over loss of a family member. Chaplain 

Rogers viewed her service as giving support and encouragement, and she 

stated that it was relatively rare for these interactions to assume a 

religious nature.”). 

As we have explained on numerous occasions, our doctrine of 

constitutional avoidance compels us to avoid constitutionally 

impermissible constructions of statutes where possible. See, e.g., State 

v. Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014). My understanding of section 

709.15 and its coverage of formal professional therapeutic relationships 

avoids implication of the issues recognized in Allen and Bussman, and is 

consistent with our general preference for steering clear of 

constitutionally problematic constructions. See, e.g., Toben & Helge, 1 

Brit. J. Am. Legal Stud. at 215 (“Numerous state legislatures such as 

[those in] Kansas and Texas have recently proposed or passed bills into 

law to attenuate this sexual misconduct problem, however, most of these 

bills passed into law include language that requires a court to interpret 

church policy or doctrine. Consequently, these laws have either 
76

encountered or potentially could meet constitutional entanglement 

issues.”); see also Robert J. Basil, Note, Clergy Malpractice: Taking 

Spiritual Counseling Conflicts Beyond Intentional Tort Analysis, 19 

Rutgers L.J. 419, 444–45 n.96 (1988) (“Analogy to medical malpractice is 

appropriate . . . when the standard addresses a procedural duty which is 

based on a duty of professionalism, rather than religious beliefs.”). 

I would therefore take this occasion to reiterate our longstanding 

recognition that section 709.15 has been narrowly drawn to reach only 

formal therapeutic relationships. See Gonzalez, 718 N.W.2d at 308 

(concluding establishment of “therapeutic relationship[]” with psychiatric 

patient could constitute treatment for purposes of section 709.15); Allen, 

565 N.W.2d at 337 (explaining statute does not reach relationships 

“involving the informal exchange of advice[]”). Further, I would 

emphasize the statute has set forth several specific requirements to 

ensure an interaction rises to the level of covered formal professional 

relationship including, but not limited to: the actor must fit comfortably 

within the classes of professionals enumerated in the definition of 

“counselor or therapist”; the emotional dependence must arise from a 

specific kind of emotional condition or from a specific course of treatment 

provided by the counselor or therapist; the alleged victim must be or 

have been a “patient or client” of the counselor or therapist; and the 

treatment provided by the actor must be consistent with and rise to the 

level of the specific diagnostic and therapeutic services contemplated by 

the terms incorporated in the statutory definition of “mental health 

services.” See Iowa Code § 709.15; see also Gonzalez, 718 N.W.2d at 

308. Edouard’s entire defense was based on the propositions that (1) he 

and the State’s complaining witnesses did not have a formal treatment 

relationship of the type covered by the statute, and (2) he did not provide, 
77

or purport to provide, mental health services to clients or patients. With 

these principles, requirements, and contentions in mind, I turn to 

Edouard’s challenges regarding the marshaling instructions and the 

district court’s ruling on the proffered expert testimony. 

A. Marshaling Instructions. Under Iowa law, the trial court

must provide the jury with instructions setting forth the law applicable to 

all material issues in a case. State v. Marin, 788 N.W.2d 833, 837 (Iowa 

2010). In addition, the court must give a requested instruction when it 

states a correct rule of law applicable to the facts of the case and the 

concept is not otherwise conveyed in other instructions. Id. We have not 

required the trial court give any particular form of instruction; instead, 

we have explained the court must give instructions fairly stating the law 

as it applies to the facts of the case before it. Id. at 838.

Here, the district court instructed the jury as follows:

The State must prove each of the following elements of 

Sexual Exploitation by a Counselor or Therapist as to 

[alleged victim]:

1. On or about January, 2006, through 2008, the defendant 

engaged in sexual conduct with [alleged victim].

2. The defendant did so with the specific intent to arouse or 

satisfy the sexual desires of either the defendant or [alleged 

victim].

3. The defendant was then a counselor or therapist.

4. [Alleged victim] was then receiving mental health services 

from the defendant, or had received mental health services 

from the defendant within one year prior to the conduct.

The court added an instruction defining “counselor or therapist” as 

including “a member of the clergy, or any other person, whether or not 

licensed or registered by the State, who provides or purports to provide 
78

mental health services.” The court also provided the following definition 

for “mental health services”:

the providing of treatment, assessment, or counseling to 

another person for a cognitive, behavioral, emotional, mental 

or social dysfunction, including an intrapersonal or 

interpersonal dysfunction. It does not include strictly 

personal relationships involving the informal exchange of 

advice, nor does it include the giving of general spiritual 

advice or guidance from a clergy member to congregants. It 

contemplates a counseling relationship with the clergy 

member established for the purpose of addressing particular 

mental, intrapersonal or interpersonal dysfunctions.

Edouard objected to these instructions on the grounds they failed to 

convey the patient or client requirement set forth in the statute, failed to 

convey the scientific definitions of the specific terms incorporated in the 

statutory definition of “mental health services” we relied on in Gonzalez, 

and failed to convey the statute’s enumeration of specific professional 

classes of actors in defining “counselor or therapist.” He proposed a 

modified set of instructions incorporating each of these elements, but the 

court declined to adopt them. On appeal, Edouard reiterates his 

contentions and argues the district court abused its discretion in 

declining to give his proposed instructions. 

Based on my review of the explicit statutory requirements and the 

principles articulated in our caselaw, I conclude Edouard’s contentions 

have merit. The “patient or client” requirement, for example, was very 

plainly applicable to Edouard’s defense and his proposed instruction 

accurately stated the relevant law. The requirement is set forth both in 

the statute itself and in the relevant pattern criminal jury instructions. 

See Iowa Code § 709.15(1)(e); Iowa State Bar Ass’n, Iowa Crim. Jury 

Instruction 920.3 (2013). While the district court’s instructions 

incorporated a requirement that the alleged victims had received mental 

health services from Edouard, consistent with the statutory definition of 
79

patient or client, they failed to include the important statutory “patient or 

client” language itself. As I have explained above, this language is 

crucial to understanding section 709.15, as it explicitly emphasizes the 

formal professional therapeutic relationship contemplated by the statute. 

It was the State’s burden to prove more than the fact that Edouard met 

and spoke with the four women about intensely personal matters. The 

meetings and conversation must have been in the context of a formal 

professional therapeutic relationship in which the women became 

Edouard’s patients or clients—not merely members of his congregation. 

Lacking specific language capturing the basic statutory requirement of a 

formal therapeutic relationship, I believe the jury instructions as given 

allowed for an unduly broad understanding of the statute, risking the 

possibility the jury might have concluded the statute reached conduct 

even in the absence of the required specialized relationship. See, e.g.,

Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 452–54, 109 S. Ct. 

2558, 2566–67, 105 L. Ed. 2d 377, 390–92 (1989) (explaining reliance on 

statutory definition was “not entirely satisfactory” and looking for “other 

evidence of congressional intent to lend the term its proper scope”); 

Darryl K. Brown, Regulating Decision Effects of Legally Sufficient Jury 

Instructions, 73 S. Cal. L. Rev. 1105, 1113 (2000) (noting two or more 

“formally equivalent” descriptions of statutory element often lead 

“decisionmakers to different choices” because “one presentation triggers 

inferences and assumptions that change its effective meaning”); Peter 

Tiersma, The Rocky Road to Legal Reform: Improving the Language of Jury 

Instructions, 66 Brook. L. Rev. 1081, 1102–03 (2001) (noting model 

instruction committee will often recommend use of both statutory term 

and more ordinary meaning because jurors may be as familiar with 

statutory term and because ordinary meaning may not be “close enough 
80

in meaning”); cf. United States v. Kozminski, 487 U.S. 931, 969–70, 108 

S. Ct. 2751, 2774, 101 L. Ed. 2d 788, 822 (1988) (Stevens, J., 

concurring) (“In my view, individuals attempting to conform their conduct 

to the rule of law, prosecutors, and jurors are just as capable of 

understanding and applying the term ‘involuntary servitude’ as they are 

of applying the concept of ‘slavelike condition.’ Moreover, to the extent 

‘slavelike condition of servitude’ means something less than ‘involuntary 

servitude,’ I see no basis for reading the statute more narrowly than 

written.”).

Similarly, Edouard’s request for an enumeration of the specific 

categories of mental health professions in the statutory definition of 

“counselor or therapist” duplicated the applicable statutory language, 

and would have provided important context for understanding the types 

of relationships covered by section 709.15. The statutory definition does 

not merely implicate clergy and any other person who might purport to 

provide mental health services, as the definitions offered by the district 

court and majority suggest. Instead, the definition sets forth an 

illuminating list of specific categories of professionals who provide mental 

health services, while excluding other classes of actors who might also 

engage in relationships with emotional or related underpinnings. This 

definition, as I have explained, is crucial context for an appropriate 

understanding of section 709.15. Section 709.15 covers not just any 

relationship involving an enumerated professional and having some 

mental health component, but only those relationships in which the 

provider and an emotionally dependent client or patient (or former client 

or patient) have engaged in a formal therapeutic mental health 

relationship. The statute’s itemization of the professionals who 

commonly provide mental health services emphasizes the importance of 
81

the existence of a formal therapeutic relationship as a key feature of the 

state’s burden of proof and Edouard’s defense. In my view, the district 

court’s omission from the instructions of Eduoard’s request for the 

statutory itemization of professionals providing such professional 

services left the jury with an unduly broad understanding of the statute’s 

circumscribed reach. See, e.g., Sorg, 269 N.W.2d at 132 (“Under the 

applicable rule of Noscitur a sociis, the meaning of a word in a statute is

ascertained in light of the meaning of words with which it is 

associated.”); State v. Roggenkamp, 106 P.3d 196, 200 (Wash. 2005) 

(explaining “shelter” in the phrase “food, water, shelter, clothing, and 

medically necessary health care . . . should not be isolated and analyzed 

apart from the words surrounding it”); see also United States v. 

Zimmerman, 943 F.2d 1204, 1213 (10th Cir. 1991) (requiring 

instructions to “state the law which governs” and provide “the jury with 

an ample understanding of the issues and standards applicable” 

(internal quotation marks omitted)); Robert W. Rieber & William A. 

Stewart, The Interactions of the Language Sciences and the Law, 606 

Annals N.Y. Acad. Sci. 1, 2 (1990) (“In more than one instance, 

linguistics and the law have independently discovered the same 

principles of language. For example, the legal canon of construction 

noscitur a sociis (indicating that the meaning of words is to be known 

from the other words with which they are associated) is, in essence, the 

semanticist’s principle of contextual constraints on lexical meaning.”). 

Finally, Edouard’s request for specific definitions of “counseling,” 

“treatment,” and “assessment” duplicated the definitions we set forth in 

Gonzalez, and was clearly applicable to his defense. The definitions 

would have provided additional important context for the jury, conveying 

the technical nature of these terms and their close association with 
82

professional diagnosis and treatment of emotional and cognitive 

dysfunctions affecting clients or patients. While the Gonzalez definitions 

need not constitute exhaustive definitions for purposes of section 709.15 

analysis, they do accurately convey the general statutory meaning, and 

they do clearly bound the universe of acceptable interpretations of 

mental health services in implicating only specific classes of formal 

therapeutic relationships. See Gonzalez, 718 N.W.2d at 308–09 

(emphasizing therapeutic relationship, therapeutic environment, and 

formal psychiatric environment). The omission of these definitions or 

any related indication of the technical meaning of mental health services 

in the jury instructions given by the district court again raises the risk of 

an unduly broad understanding of the statute. 

Because the jury instructions failed to convey these important legal 

limiting principles, I would conclude the district court erred in refusing 

to submit Edouard’s proposed instructions. See Marin, 788 N.W.2d at 

837. Instructional errors of this kind, we have previously explained, 

warrant reversal unless the record demonstrates an absence of prejudice. 

State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013). For errors of 

nonconstitutional magnitude, we have noted prejudice is established 

when it appears the rights of the complaining party have been injuriously 

affected, or it appears the party has suffered a miscarriage of justice. Id. 

The omission of the requested instructions here failed to ensure the jury 

would apply each of the distinct statutory elements substantiating a 

formal professional therapeutic relationship in evaluating Edouard’s 

defense he had never engaged in a relationship of the kind contemplated 

by the statute. A failure of that nature, we have often said, will establish 

prejudice. See, e.g., State v. Kellogg, 542 N.W.2d 514, 518 (Iowa 1996) 

(reversing conviction of domestic abuse assault where jury instruction 
83

failed to explicitly enumerate all relevant indicia of cohabitation). 

Analyzing the instructional error here in conjunction with the evidentiary 

error I discuss next, I conclude the record conclusively establishes 

prejudice. 

B. Expert Testimony. Turning to the first of Edouard’s 

evidentiary challenges, I note the district court limited Dr. Wakefield’s 

proposed expert testimony regarding the differences between pastoral 

care and pastoral counseling, on the ground it would be unhelpful to the 

jury and would usurp the “function of the jury.” At the outset, I note we 

have often emphasized our commitment to a liberal view on the 

admissibility of expert testimony. Leaf v. Goodyear Tire & Rubber Co., 

590 N.W.2d 525, 531 (Iowa 1999). For purposes of determining the 

admissibility of expert evidence, we have recently explained, it is of no 

moment that testimony addresses “ ‘an ultimate issue to be decided by 

the trier of fact.’ ” See In re Det. of Palmer, 691 N.W.2d 413, 419 (Iowa 

2005) (quoting Iowa R. Evid. 5.704). Instead, we noted, our evidence 

rules compel us to consider whether the evidence meets our other 

longstanding evidentiary requirements. Id. The problem with a specific 

subset of expert testimony offered in a form embracing a legal 

conclusion, we emphasized, is “not that the opinion” may usurp the 

function “of the jury,” but rather that it may conflict with the 

responsibility of the court to determine applicable law and to instruct the 

jury accordingly. Id. To determine whether that conflict exists, we 

explained, we must look to standard evidentiary inquiries: the question 

of whether the evidence is helpful to the fact finder, the likelihood of 

misunderstanding by the fact finder of the legal terms used, and the 

question of whether the factual basis for any legal terms used has been 

adequately developed. Id. at 419–20.
84

Focusing attention on the appropriate inquiries, I note we have 

often looked for guidance to the approaches other jurisdictions have 

taken in analyzing their own closely related rules of evidence. See id. 

(noting Iowa Rule of Evidence 5.704 is “identical to its federal 

counterpart,” and analyzing federal caselaw and standard evidence 

treatises). Several authorities have set forth principles applicable to our 

helpfulness analysis here. Courts have explained, for example, that 

expert testimony is generally helpful where it relates to subject matter 

outside the common experience of the jury. See, e.g., Fed. Crop Ins. 

Corp. v. Hester, 765 F.2d 723, 728 (8th Cir. 1985) (noting admissibility of 

expert testimony regarding farm production on this basis); United States 

v. Johnson, 735 F.2d 1200, 1202 (9th Cir. 1984) (“The federal courts 

uniformly hold . . . that government agents or similar persons may testify 

as to the general practices of criminals to establish the defendant’s 

modus operandi. Such evidence helps the jury to understand complex 

criminal activities, and alerts it to the possibility that combinations of 

seemingly innocuous events may indicate criminal behavior.”). Expert 

testimony regarding business practices and customs unfamiliar to the 

general public has therefore often been deemed admissible. See, e.g., 

United States v. McIver, 470 F.3d 550, 560–62 (4th Cir. 2006) (concluding 

expert testimony that physician treated patients outside course of 

legitimate medical practice was admissible); United States v. Perkins, 470 

F.3d 150, 159–60 (4th Cir. 2006) (permitting testimony regarding 

reasonableness of use of force, explaining touchstone was whether 

testimony was helpful to jury, and noting questioning focused on 

witness’s “personal” assessment of defendant’s use of force); Berckeley 

Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 218–19 (3d Cir. 2006) (explaining 

testimony regarding securities industry practice and custom was
85

admissible and probative of buyer’s state of mind at time of agreement); 

United States v. Mohr, 318 F.3d 613, 624–25 (4th Cir. 2003) (explaining 

expert testimony that use of police dog “violated ‘prevailing police 

practices’ ” did not impermissibly tell jury “ ‘what decision to reach’ ”); 

TCBY Sys., Inc. v. RSP Co., 33 F.3d 925, 929 (8th Cir. 1994) (permitting 

testimony in action for breach of franchise agreement that franchisor’s 

site-review-and-evaluation process failed to meet minimum custom and 

practice observed by franchisors in fast food franchise industry); State v. 

LaCount, 750 N.W.2d 780, 787–88 (Wis. 2008) (permitting testimony 

regarding the basic factual characteristics of an investment contract to 

assist the jury in determining whether a transaction involved a security). 

In my view, Dr. Wakefield’s testimony was of a type that would 

have been helpful to the jury on multiple levels. First, as Edouard was a 

pastor rather than a psychiatrist, psychologist, or social worker, 

Dr. Wakefield would have provided important context for the jury. 

Unlike the other typical providers of mental health services, pastors 

spend much of their time providing pastoral care that falls outside the 

statutory definition of mental health services. Edouard’s defense turned 

on the jury understanding that pastors interact with their parishioners 

in countless ways that—although often very supportive and beneficial—

do not constitute “mental health services” as contemplated in section 

709.15. The district court’s ruling denied the jury this helpful 

information that was essential to Edouard’s theory of defense, and 

outside the jury’s common understanding. 

Even where proposed testimony falls generally within the common 

understanding of the jury, authorities have typically agreed testimony 

may be helpful when it offers specialized knowledge. See, e.g., Kopf v. 

Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (“The subject matter of Rule 
86

702 testimony need not be arcane or even especially difficult to 

comprehend. If, again in the disjunctive, the proposed testimony will 

recount or employ ‘scientific, technical, or other specialized knowledge,’ it 

is a proper subject.”); 7 Wigmore on Evidence § 1923, at 31–32 

(Chadbourn rev. 1978) (“The true test of the admissibility of such 

testimony is not whether the subject matter is common or uncommon, or 

whether many persons or few have some knowledge of the matter, but it 

is whether the witnesses offered as experts have any peculiar knowledge 

or experience, not common to the world, which renders their opinions 

founded on such knowledge or experience any aid to the Court or jury in 

determining the questions at issue.”). Likewise, where the fact finder 

may have some knowledge of particular subject matter, but the 

knowledge may be incomplete or inaccurate, courts have recognized 

expert testimony may be helpful. See, e.g., United States v. Amuso, 21 

F.3d 1251, 1264 (2d Cir. 1994) (“Despite the prevalence of organized 

crime stories in the news and popular media, [crime family structure and 

terminology] remain proper subjects for expert testimony.”). In this case, 

Dr. Wakefield’s knowledge of the important distinction between pastoral 

care and mental health counseling provided by pastors was specialized 

information that would have been helpful to the jury in sorting out 

whether Edouard engaged, or purported to engage, in counseling as the 

term is defined in section 709.15. Although jurors might be expected to 

have some general knowledge about tasks commonly performed by 

pastors, their knowledge of the distinction between pastoral care and 

pastoral counseling that could have been illuminated by Dr. Wakefield 

was likely incomplete or inaccurate. Dr. Wakefield’s testimony could 

have minimized the risk jurors harbored a misunderstanding that 

counseling by pastors within the circumscribed meaning of section 
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709.15 extends beyond professional therapeutic relationships with 

emotionally dependent patients or clients receiving mental health 

services. Just as the evidence would have assisted the jury, it would

have been very helpful to the defense in this case.

The majority perfunctorily rejects Edouard’s proffer of 

Dr. Wakefield’s testimony as an effort to redefine mental health services 

in a manner incompatible with the meaning of section 709.15 and opine 

that Edouard didn’t provide them. I strongly disagree with this 

characterization. The effort was instead calculated to communicate 

specialized knowledge about mental health services provided by pastors 

in formal therapeutic relationships with clients or patients. The effort 

was to educate the jury that the same definition of counseling and 

mental health services applicable to a psychiatrist, psychologist, or social 

worker in a prosecution under section 709.15 should be applied against 

Edouard as a pastor. In other words, the defense sought through 

Dr. Wakefield’s testimony to guard against the distinct possibility that 

the jury might misunderstand that “counseling” has a much broader 

meaning in the pastoral context than in other professional contexts. 

Accordingly, I believe the majority misses the mark when it asserts 

Edouard’s offer of expert testimony was calculated to redefine the 

statutory standard. The offer was absolutely consistent with the 

statutory framework’s central limiting principles, and should have been 

received. 

Further, where no other evidence is available on an issue, courts 

have explained expert testimony may be crucial to the fact finder’s 

understanding. See, e.g., Harris v. Pac. Floor Mach. Mfg. Co., 856 F.2d 

64, 67–68 (8th Cir. 1988) (noting distinction between testimony regarding 

criteria by which expert would form an opinion about the adequacy of a 
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warning, which was important to fact finder’s understanding, and direct 

testimony regarding adequacy of warnings, which failed to provide 

similar aid). No other trial witness supplied the specialized knowledge 

offered by Dr. Wakefield. 

Perhaps most importantly, courts have recognized the importance 

of the issue to which expert testimony relates is a significant factor in 

assessing the testimony’s helpfulness. See, e.g., United States v. 

Alexander, 816 F.2d 164, 167–69 (5th Cir. 1987) (explaining district 

court erred in excluding evidence bearing directly on issue central to 

determination of defendant’s guilt). In my view, the majority completely 

misapprehends the crucial significance of this evidence to the defense. 

There was no more important witness for Edouard in this case than 

Dr. Wakefield, who offered specialized knowledge illuminating what 

mental health counseling looks like when it is provided by a pastor to 

parishioners who are his clients or patients. 

Courts have also articulated useful principles for analyzing the 

likelihood of jury confusion and the question of whether adequate factual 

basis for any testimony has been developed. As we explained in Palmer, 

we are most frequently concerned with opinions implicating legal 

standards and terminology when the fact finder may not understand the 

legal definitions of the terms and standards used. Palmer, 691 N.W.2d at 

419. Various courts have elaborated on this concern, noting where 

testimony fails to explain how tests and terms with legal meaning relate 

to the facts in the case, the fact finder may not understand the testimony 

or may attribute a meaning unintended by the witness. See, e.g., United 

States v. Simpson, 7 F.3d 186, 188–89 (10th Cir. 1993) (“When an expert 

merely states an opinion on an ultimate issue without adequately 

exploring the criteria upon which the opinion is based, the jury is 
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provided with no independent means by which it can reach its own 

conclusion or give proper weight to the expert testimony.”). Thus, courts 

have explained, experts may often avoid the problem of confusion by 

employing language that does not have unrelated meaning under the law 

applicable to the case. See, e.g., United States v. Duncan, 42 F.3d 97,

103 (2d Cir. 1994) (permitting testimony about defendant’s submission of 

false tax returns, where witness did not rely specifically on terms derived 

directly from statutory language but, instead, used terms laypersons 

could understand). Dr. Wakefield’s testimony was, as I have suggested 

above, clearly calculated to eliminate jurors’ confusion surrounding the 

nature and extent of mental health services provided by pastors. 

Similarly, experts have avoided problems of confusion by using 

language with a meaning accessible to laypeople, by using language 

having the same lay meaning as the legal meaning, or by clearly 

signifying the use of a specific meaning when the lay and legal meanings 

differ. See, e.g., United States v. Nixon, 918 F.2d 895, 905 (11th Cir. 

1990) (“Considered in context, the police detective’s use of the term 

‘conspiracy’ was a factual—not a legal—conclusion and did not track 

unduly the definition of the offense in [the relevant statute].”); United 

States v. Kelly, 679 F.2d 135, 136 (8th Cir. 1982) (permitting narcotics 

officer’s testimony that quantity of cocaine found on defendant at time of 

arrest was “a quantity that would be possessed with intent to 

distribute”); Maury R. Olicker, Comment, The Admissibility of Expert 

Witness Testimony: Time to Take the Final Leap?, 42 U. Miami L. Rev. 

831, 872 (1988) (“There is yet another group of cases [admitting opinion 

testimony] in which the court found that, although the witness reached a 

conclusion using a term of law, his statement must properly be 

understood in another context, completely disregarding the legal 
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meaning. This is not quite the same as saying that the jury will not be 

confused because it will automatically tend to attach the correct meaning 

to the term. Instead, the court is saying that because of the broader 

context of the witness’s testimony, the jury will understand that he did 

not mean the word in a legal sense but in some other sense.”). Dr. 

Wakefield’s testimony on the important distinction between pastoral care 

and pastoral counseling would not, in my view, have increased the risk of 

jury confusion. On the contrary, her explication of the context in which 

pastors—like other mental health professionals—provide mental health 

services to emotionally dependent patients or clients in a formal 

therapeutic environment was expressed in words entirely consistent with 

the carefully circumscribed meaning of the essential terms within section 

709.15.

Finally, various courts have explained the distinction between 

admissible factual opinion and impermissible legal conclusion may often 

be difficult to perceive based on the overlap of the terms used. In these 

cases, cognizant of the potential for confusion, courts have nevertheless 

often allowed the proposed testimony, explaining “[m]edical and legal 

terms often overlap, and a medical expert cannot be expected to use 

different words merely to avoid this specific problem.” See, e.g., United 

States v. Two Eagle, 318 F.3d 785, 793 (8th Cir. 2003); Hagen Ins. Inc. v. 

Roller, 139 P.3d 1216, 1222–23 (Alaska 2006). Fairness and efficiency 

concerns will often dictate admissibility, courts have explained, as long 

as the testimony is confined to relevant issues, is based on proper legal 

concepts, and meets the other requirements of the rules of evidence. 

See, e.g., First Nat’l State Bank of N.J. v. Reliance Elec. Co., 668 F.2d 725, 

731 (3d Cir. 1981) (permitting testimony regarding trade usage of terms 

having legal meaning, to inform jury of bank customs and to assist it in 
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determining whether plaintiff bank was entitled to claim benefits of 

holder in due course); Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 

361, 365 (Tex. 1987).

In summary, I conclude Dr. Wakefield’s proposed testimony about 

the differences between pastoral care and pastoral counseling addressed 

subject matter not commonly known to the jury, contained specialized 

knowledge of the range and types of tasks typically performed in each 

pastoral role, and constituted the only means by which the jury could 

have gathered this information of central importance to the defense. 

Those factors, the courts have explained, are indicative of helpfulness, 

and weigh heavily in favor of admissibility. See, e.g., Kopf, 993 F.2d at 

377; 7 Wigmore on Evidence § 1923, at 31–32. Moreover, Dr. Wakefield’s 

testimony was central to Edouard’s defense. Her testimony was offered 

to explain the types of tasks Edouard might typically be expected to 

perform in his role as a pastoral caregiver, distinguishing those tasks 

from the types of tasks he might be expected to perform in a role as 

pastoral counselor. In furtherance of this distinction, Dr. Wakefield’s 

proposed testimony would have supported an inference that the tasks in 

the latter role would closely track the types of services provided by other 

mental health services professionals under section 709.15. This factual 

background was directly relevant to the jury’s evaluation of Edouard’s 

defense that, although his conduct could be viewed as pastoral care, he 

did not provide mental health services as contemplated by the statute. 

Exclusion of crucial background information of this kind, courts have 

explained, may often constitute reversible error. See, e.g., Alexander, 

816 F.2d at 169 (“The entire case against Victor Alexander turned on the 

photographic identification, and it was clearly erroneous for the district 

court to exclude without good reason relevant expert testimony bearing 
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directly on that issue.”); State v. Eichman, 456 N.W.2d 143, 150 (Wis. 

1990) (concluding sexual exploitation case was “particularly appropriate 

for the admission of expert testimony” explaining certain specific 

practices of psychotherapy and the defendant’s typical responsibilities, 

on the ground the factual background regarding these practices and 

responsibilities would not typically be “within the understanding of the 

ordinary person”). 

Furthermore, I note the distinction between pastoral care and 

pastoral counseling detailed in Dr. Wakefield’s proposed testimony 

presented minimal risk the jury would inappropriately confuse the terms 

and standards she proposed to use with those provided in section 

709.15. The statute makes no reference, in any provision, to pastoral 

care or pastoral counseling. In addition, her use of the word “pastoral” 

to modify the word counseling helped to alleviate concern the jury might 

be unable to distinguish her use of “pastoral counseling” from the 

statute’s use of the word “counseling.” Her description of the role of the 

pastoral counselor also worked to minimize the risk of inappropriate 

confusion, given her exposition of the tasks and techniques involved, and 

the fact that these tasks and techniques largely coincided with those 

associated with the technical meaning of counseling incorporated in the 

statute. See Palmer, 691 N.W.2d at 421 (“[T]here was an abundance of 

testimony by Dr. Salter concerning the meaning of the term ‘likely.’ 

Under these circumstances, Dr. Salter’s use of the statutorily defined 

term ‘likely’ did not render her opinion inadmissible.”); id. (explaining 

danger of jury confusion may arise when expert and jury are not “ ‘on the 

same page’ ” with respect to differing statutory and testimonial meaning). 

Given the demonstrable helpfulness of Dr. Wakefield’s proposed 

testimony, its central importance to Edouard’s defense, the minimal 
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likelihood the jury might confuse the meanings of the terms used with 

unrelated lay meanings, and the extensive factual basis for the use of 

those terms overlapping with the statutory terms, I conclude the district 

court erred in excluding the testimony. As is the case with instructional 

error, I would presume the evidentiary error was prejudicial and requires 

reversal unless the record affirmatively establishes lack of prejudice. 

See, e.g., State v. Paredes, 775 N.W.2d 554, 571 (Iowa 2009). For 

evidentiary errors of constitutional magnitude, we may only find the 

absence of prejudice if we are convinced the “error alleged was harmless 

beyond a reasonable doubt.” See, e.g., State v. Simmons, 714 N.W.2d 

264, 278 (Iowa 2006).

Regardless whether the error here rises to the level of 

constitutional magnitude, I cannot conclude the record affirmatively 

establishes the absence of prejudice. The evidence would have provided 

helpful factual information for the jury directly related to Edouard’s 

defense that he was not engaged in the kinds of formal therapeutic 

relationships contemplated by the statute, and the evidence was 

unavailable from any other source. The instructional error compounded 

the impact of the exclusion, as the jury was left without both important 

factual nuance for distinguishing certain specific classes of relationships 

from others and important legal nuance for application of the relevant 

statutory principles to the types of relationships considered. In effect, 

the jury here was deprived of both factual principles and legal principles 

acutely relevant to the defense. Those deprivations, I conclude, 

conclusively establish prejudice and warrant reversal.12

12Because I conclude my resolution of the instructional and evidentiary 

challenges is dispositive of the outcome here, I will not address Edouard’s remaining 

challenges on appeal.

 
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I join that part of Justice Appel’s special concurrence setting forth 

the analytical approach we take in addressing an issue under the Iowa 

Constitution where a party also raises the issue under the corollary 

provision of the Federal Constitution, but does not suggest application of 

a different standard, or suggest a different application, under the Iowa 

Constitution. 

Wiggins, J., joins this concurrence in part and dissent in part.