NY Sets Bar High for Adult Victims of Predatory Clergy

National News

New York’s highest court has set the bar prohibitively high for proving certain civil cases against predatory clergy by ruling that a woman cannot sue a rabbi who had an affair with her because she was not “uniquely vulnerable and incapable of self-protection."

Some state and federal courts have upheld breach of fiduciary duty claims arising from sexual misconduct by clergy with adult parishioners whom they are counseling. A fiduciary duty exists, those courts said, if the clergy member “held himself out as possessing the education and experience” of a professional counselor.

Only last month, an intermediate New York appeals court recognized a fiduciary duty claim for the first time in the case of a woman who sued a Catholic priest for damages arising out of her adulterous relationship with him. Doe v. Roman Catholic Diocese.

But the New York Court of Appeals pretty much slammed the door on such cases in finding last week that Adina Marmelstein had “insufficiently demonstrate[d] that she developed a fiduciary relationship” with Rabbi Mordecai Tendler.

“Allegations that give rise to only a general clergy-congregant relationship that includes aspects of counseling do not generally impose a fiduciary obligation upon a cleric,” the opinion said.

“To establish that a course of formal counseling resulted in a cleric assuming 'de facto control and dominance' over the congregant,” it continued, “a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue.”

Tendler, who officiated at an Orthodox Jewish synagogue in New Hempstead, N.Y., counseled Marmelstein for emotional problems. They allegedly began their affair after he told her that “a course of sexual therapy” would make her more attractive to men and help her find a husband.

Marmelstein's allegations were insufficient, Judge Victoria A. Graffeo wrote for the appeals court, because she “has shown only that she was deceived by Tendler, not that she was so vulnerable as to surrender her will and capacity to determine her own best interests.”

In a footnote, Graffeo said she was not suggesting that “a cleric who is also a licensed professional, such as a psychiatrist, psychologist or attorney, could not assume fiduciary obligations under existing laws and the secular standards that govern the practice of those professions.”

But her decision means clerics who are not licensed professionals cannot be sued for sexual misconduct unless the plaintiff somehow meets a “vulnerability” standard which completely disregards the inherent “control and dominance” that clergy assume over congregants.

As a more enlightened New York appellate judge put it, “The hallmark of fiduciary duty -- an imbalance of power between the parties -- is especially manifest in the relationship between a priest and parishioner.” Langford v. Roman Catholic Diocese, 271 A.D.2d 494 (2000).

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USCIS Issues Clarifying Guidance on NAFTA TN Status Eligibility for Economists

U.S. Citizenship and Immigration Services (USCIS) announced today that it is clarifying policy guidance (PDF, 71 KB) on the specific work activities its officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist.

The North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the U.S. to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, resulting in inconsistent decisions on whether certain analysts and financial professionals qualify for TN status as economists.

TN nonimmigrant status is intended to allow a limited number of professionals and specialists to work temporarily in certain specifically identified occupations in the United States. This updated guidance provides USCIS officers with a specific definition of one such category – economists – allowing them to adjudicate applications in a way that complies with the intent of the agreement. This policy update clarifies that professional economists requesting TN status must engage primarily in activities consistent with the profession of an economist. Individuals who work primarily in other occupations related to the field of economics — such as financial analysts, marketing analysts, and market research analysts — are not eligible for classification as a TN economist.

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