UPDATE: Case of Rabbi Mordecai Tendler - New York State’s top appellate court's recent decision

In Sex-Abuse Case, Court Issues Watershed Ruling on Rabbinical Duty
By Anthony Weiss
The Forward
July 10, 2008


What is a rabbi to a congregant? A therapist? A friend? A conduit to God?

These questions were taken up by New York State’s top appellate court in a recent decision that pivoted on the issue of what rabbis can and cannot do in the eyes of the law. The answers the judges gave were not definitive, but the 10-page decision does give insight into a probing debate about the role that rabbis play in society.

The debate arose in the context of the already controversial case of Rabbi Mordecai Tendler, who lost his pulpit job in upstate New York after allegedly having an inappropriate sexual relationship with a congregant.

In a unanimous decision, handed down June 25, the New York State Court of Appeals dismissed a lawsuit alleging that Tendler had abused his position to manipulate his former congregant. The court did not say that the relationship did not exist. Instead, the judges determined that Tendler had not been established to have a “fiduciary duty” to (Name Removed), the congregant in question, that would have prohibited him from such behavior.

“Fiduciary duty” is a term used to describe professional relationships that involve disparities of power and authority, such as therapist-patient, attorney-client and professor-student.

Most professions forbid sexual relationships between professionals and their clients, particularly in situations where vulnerability is an issue. For example, divorce lawyers are forbidden to have sex with clients, and a sexual relationship between a therapist and a patient is automatically considered abusive by the law. This arises out of an assumption that in each case, the professional holds a position of power over the emotionally vulnerable client.

The same might be thought to be true of rabbis, but the judges decided that it is not so clear-cut.

According to the decision, the relationship between rabbis and congregants, even one that includes “aspects of counseling,” does not automatically create a power differential of the sort that characterizes a fiduciary duty. To prove that duty, a congregant has to demonstrate that he or she became “uniquely vulnerable and incapable of self-protection regarding the matter at issue.”

Tendler has been the focus of allegations of sexual misconduct for several years. Complaints that he allegedly had sexually harassed a number of women surfaced in 2003 and were taken up for investigation in 2004 by the Rabbinical Council of America, the main organization of Orthodox rabbis. In March 2005, the RCA barred Tendler from the organization as a result of the investigation. In December 2005, (NAME REMOVED) filed a civil suit against Tendler on a number of causes, including fraud, breach of fiduciary duty and infliction of emotional distress for coercing her into a sexual relationship. The recent Court of Appeals decision dismissed the last of those complaints.

Tendler was suspended from the pulpit of Kehillat New Hempstead in February 2006. A New York State appellate court ruled on June 3 that Tendler’s dismissal from his pulpit was in violation of his contract.

(NAME REMOVED) alleged that she had gone to Tendler, who was then her rabbi, for counseling about her frustration at failing to find a husband. She claimed that Tendler had proposed a course of “sexual therapy” to manipulate her into having a sexual relationship with him, thus abusing his position as a “counselor, adviser and therapist.” (NAME REMOVED) was seeking damages from both Tendler and Kehillat New Hempstead.

The court ruled that she had not established that Tendler’s position amounted to a fiduciary relationship.

Lawyers familiar with clergy related legal issues say that in cases where clergy have abused children, such as the priest sex abuse scandal that shook the Catholic world, the legal strictures are relatively clear. But they say that the boundaries between clergy and adults are less clear, as courts try to balance the rights of consenting adults against the unique power and prestige of the clergy.

“The mere status one has as a member of the clergy and as a member of a congregation doesn’t automatically establish a fiduciary relationship,” said Mark Chopko, former general counsel for the United States Conference of Catholic Bishops.

One reason that the law on this front is not fully settled is that these lawsuits against clergy are a relatively recent phenomenon.

“People never sued churches, synagogues or their religious leaders; it was part of the social contract at the time,” Chopko said. “You may find a handful of historical examples that go back 50 or 100 years, but for the most part, the body of law has grown up over the last 15 to 20 years.”

In recent cases, some lawyers have argued the line that the judges took in the Tendler case, namely that clergy-congregant relationships are not automatically ones with a power differential.

But other legal experts have said that the courts should recognize a clergy member’s special status, because of his or her spiritual position.

“The clergy-congregant relationship has a higher dimension of trust, because clergy have what they call ‘reverential deference.’ Because they are revered and make a claim to divinity in various forms, they enjoy a particular position of special trust,” said Jeffrey Anderson, a St. Paul, Minn., attorney who specializes in cases of clerical abuse.

In the Tendler case, (NAME REMOVED) hinted at the spiritual status of Tendler when she claimed that he told her he “talks to God all the time” and was “the messiah.” Her suit, however, steered clear of delving into the religious entanglements — territory, the judges noted, that is fraught with constitutional complications about the separation of church and state. Instead, her case focused on the counseling relationship.

The judges, however, ruled that (NAME REMOVED) had simply participated in “an extended voluntary sexual affair between consenting adults.”

Rabbis unrelated to the case said that the legal ambiguities surrounding the clergy-congregant relationship reflect the ambiguities inherent in the relations. Rabbi David Ackerman, a longtime pulpit rabbi who now works at the Jewish Theological Seminary, said he knew of several instances where rabbis married congregants. But, he said, it can be dangerous territory to tread.

“That risk is ever-present,” Ackerman said. “The rabbi has an obligation to keep a close eye on the… power balance, because there’s tremendous potential for abuse.”