Respondeat Superior, Intentional Torts, andClergy Sexual Misconduct: The Implicationsof Fearing v. Bucher

I. IntroductionAccording to a research study authorized by the United States Conference of Catholic Bishops, a total of 4392 Catholic priests faced allegations of sexual abuse of a minor between 1950 and 2002.1 The epidemic of clergy sexual abuse has resulted in a torrent of litigation, with victims filing lawsuits against both the accused clerics2 and the religious organizations employing these clerics.3 Plaintiffs in these lawsuits have asserted several theories of liability against religious employers, including negligent hiring, negligent supervision, and negligent retention.4 A common thread among each of these causes of action is a requirement that the plaintiff show that the employer was at fault. A plaintiff who lacks evidence of employer fault cannot succeed under these theories of liability, and the victim's lawsuit is instead confined to an action against the offending cleric. In cases involving religious organizations that require their clerics to take a vow of poverty, the victim's recovery is effectively precluded in light of the judgment-proof offender.Under the doctrine of respondeat superior, an employer is liable for an employee's tortious conduct "if the employee was acting within scope of employment. "6 Respondeat superior claims differ significantly from negligence claims in that under respondeat superior "an employer is liable, despite having no fault whatsoever, for the acts of its employees taken within the scope of their employment."7 The basic rationale for imposing this type of vicarious liability is that employers subjected to such a rigid standard of liability will exercise greater care in selecting their employees.8 In theory, the more stringent hiring standard will result in businesses hiring employees who are less prone to tortious conduct.In general, courts are reluctant to find respondeat superior liability in cases of intentional torts.9 In matters of intentional torts involving sexual misconduct, one court has stated as a matter of law that "when the tortfeaseremployee's [sic] activity with the alleged victim became sexual, the employee abandoned and ceased to further the employer's business."10 In Tichenor v. Archdiocese of New Orleans,11 the Fifth Circuit articulated a common judicial reaction to a claim of respondeat superior against a religious institution based upon sexual misconduct, stating that "[i]t would be hard to imagine a more difficult argument than that [a priest's] illicit sexual pursuits were somehow related to his duties as a priest or that they in any way furthered the interests of... his employer."12 Common sense dictates that a cleric's duties are to help others understand and follow religious teachings.13 Sexual conduct of any kind, specifically sexual abuse, could hardly be considered to fulfill this duty.14But one jurisdiction has recognized the validity of respondeat superior claims asserted against religious organizations in cases involving clergy sexual misconduct.15 In Fearing v. Bucher,16 the Oregon Supreme Court addressed the adequacy of a plaintiffs claim of respondeat superior against the Archdiocese of Portland.17 The Fearing court stated that intentional torts, including sexual assault, require a somewhat different respondeat superior analysis.18 Rather than asking whether the sexual assault itself was within the scope of employment, the court instead inquired as to whether the priest's conduct leading up to the assault was within the scope of employment.19 In so doing, the court considered the nature of the relationship between the priest and the plaintiff, including the plaintiff's allegations that the priest abused his clerical authority and manipulated the plaintiffs trust in order to gain the opportunity to commit the sexual assaults.20 The court determined that a reasonable jury could conclude that the priest's legitimate actions preceding the abuse were "a necessary precursor to the sexual abuse" and that the sexual assaults therefore "were a direct outgrowth of and were engendered by conduct that was within the scope of [the priest's] employment. …