STATE of Minnesota, Respondent, v. John Joseph BUSSMANN, Appellant.
No. A05-1782.
Supreme Court of Minnesota.
Nov. 1, 2007.
Rehearing Denied Nov. 28, 2007.
741 N.W.2d 79
John. G. Westrick, Kirk M. Anderson, Saint Paul, MN, for Appellant.
OPINION
HANSON, Justice.
Appellant John Joseph Bussmann was convicted of two counts of third-degree criminal sexual conduct by a member of the clergy, in violation of
Bussmann served as a Catholic priest at two churches, Saint Martin‘s in Rogers, Minnesota and Saint Walburga in Fletcher, Minnesota (the two churches were later consolidated into one, Mary Queen of Peace Church). While serving those churches, Bussmann began sexual relationships with two adult female parishioners, S.J. and D.I. Bussmann‘s sexual relationship with S.J. began in September 2002 and included sexual contact and penetration. Before and during their sexual relationship, Bussmann advised S.J. on religious and marital issues. Their relationship lasted until March 2003, when S.J. reported her relationship with Bussmann to the Archdiocese of Saint Paul and Minneapolis. Later, S.J. contacted the police.
In November 2002, Bussmann also began a sexual relationship with D.I., who he had been counseling through the grief resulting from her mother‘s death. Their relationship also involved sexual contact and penetration. On March 18, 2004,
The complaint against Bussmann was amended several times and eventually charged him with two counts of third-degree criminal sexual conduct based on his relationships with S.J. and D.I. Both charges were tried together. At trial, the state‘s first two witnesses were officials of the Archdiocese who testified extensively about the Catholic Church‘s practices and doctrines, including the religious basis for a priest‘s power in relationship to parishioners; the Church‘s definition of inappropriate counseling and pastoral care; the Church‘s concerns with the growing number of complaints of sexual misconduct by priests with adult parishioners; the procedures followed by the Church under canon law to investigate, prosecute, and adjudicate violations of the Church‘s rules regarding priestly behavior and priestly celibacy; and the Church‘s investigation of Bussmann, which led to the Decree of the Archdiocese that Bussmann had likely “engaged in behavior violative of his priestly authority and of his priestly celibacy.”
D.I. and S.J. testified about their relationships with Bussmann. Bussmann‘s attorney stipulated to Bussmann‘s involvement with the two women, but argued that his relationships did not meet the prerequisites of the clergy sexual conduct statute.
Bussmann was convicted of both counts, sentenced to concurrent terms of imprisonment of 48 months and 68 months, and ordered to pay $2,500 in restitution. The court of appeals rejected Bussmann‘s claims that the clergy sexual conduct statute is void for vagueness or that it violates the Establishment Clause of the United States and Minnesota Constitutions. State v. Bussmann, No. A05-1782, 2006 WL 2673294, at *5 (Minn.App. Sept.19, 2006). As to the Establishment Clause claim, the court of appeals relied on its previous decision, that the clergy sexual conduct statute did not foster “excessive governmental entanglement with religion,” in Doe v. F.P., 667 N.W.2d 493, 500 (Minn.App.2003), rev. denied (Minn. Oct. 21, 2003). Bussmann, 2006 WL 2673294, at *5. In F.P., the court of appeals concluded that the requirement that a court determine whether the “advice, aid, or comfort” provided by a member of the clergy in private was “religious or spiritual” did not foster excessive government entanglement with religion. 667 N.W.2d at 500. We granted review on the constitutional challenges to the statute.
“Minnesota statutes are presumed to be constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). Constitutional challenges are questions of law, which we review de novo. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993).
I.
Bussmann argues that the clergy sexual conduct statute is unduly vague, in violation of due process. The relevant portions of the statute provide:
[A] person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:
* * * *
(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:
* * * *
(ii) the sexual penetration occurred 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.
The void-for-vagueness doctrine requires that “a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Bussmann argues that the clergy sexual conduct statute fails to give fair warning of what conduct is prohibited. Bussmann does not claim that the clergy provision is vague as applied to him, only that it might not give fair warning in other situations. But “speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid ‘in the vast majority of its intended applications.‘” Hill v. Colorado, 530 U.S. 703, 733, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting United States v. Raines, 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)).
Bussmann next argues that the terms “ongoing” and “religious or spiritual advice, aid, or comfort” leave jurors free to decide what conduct is prohibited. In Giaccio v. Pennsylvania, the Supreme Court stated that a law fails to meet due process requirements if it “leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” 382 U.S. 399, 402-03, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). But due process requirements are satisfied “by specifying standards of conduct in terms that have acquired meaning involving reasonably definite standards either according to the common law or by long and general usage.” State v. Bolsinger, 221 Minn. 154, 167, 21 N.W.2d 480, 489 (1946).
The term “ongoing” has a reasonably definite meaning in common usage, generally understood to be synonymous with the term “continuing.”1 In the context of the clergy sexual conduct statute, “ongoing” simply means that the clergy-counselee relationship that was established at a meeting continued for the period specified in the complaint. Whether a clergy-counselee relationship was established, whether an established clergy-counselee relationship actually continued, and whether the proscribed sexual conduct occurred during that ongoing clergy-counselee relationship are factual matters for the jury to decide and do not present vagueness concerns.
The term “religious or spiritual advice, aid, or comfort” has acquired a reasonably definite meaning from the use of the same term in the evidentiary clergy privilege statute.
Because the terms “ongoing” and “religious or spiritual advice, aid, or comfort” have acquired reasonably definite meanings, those terms provide a sufficiently fixed legal standard to determine what is prohibited. Accordingly, the clergy sexual conduct standard is not unduly vague and does not violate due process.
II.
We turn next to Bussmann‘s argument that the clergy sexual conduct statute facially violates the Establishment Clause. We are equally divided on this issue, but will discuss the two opposing views on facial invalidity.
A. The view that the statute facially violates the Establishment Clause.
The author of this opinion concludes that the clergy sexual conduct statute facially violates the Establishment Clause and should be stricken as unconstitutional. The discussion supporting this view is contained in this part A.
To begin the analysis of this issue, it is helpful to place the clergy sexual conduct statute in the context of the variety of third-degree criminal sexual conduct crimes described in
Before 1993, one exception created by the legislature, where a person‘s consent was not a defense to a sexual conduct crime, was in the psychotherapist-patient relationship.
In 1993, the legislature amended section 609.344, to expand the criminal liability of a psychotherapist to include sexual penetration that occurred between a psychotherapist and patient outside of a therapy session if an “ongoing psychotherapist-patient relationship exists” (subdivision 1(h)(ii)). Act of May 20, 1993, ch. 326, art. 4, §§ 18-20, 1993 Minn. Laws 1974, 2031-33. Simultaneously, the legislature amended section 609.341, subdivision 17, to remove “clergy” from the definition of “psychotherapist” and to create a separate crime of third-degree criminal sexual conduct exclusively for clergy. Act, id. The new clergy sexual conduct statute became section 609.344, subdivision 1(l).
After the 1993 amendments, there were significant differences between the elements of the offense of criminal sexual conduct for clergy compared to that for psychotherapists. Essentially, the psychotherapist provisions require proof of some causal connection between the position of the psychotherapist and the sexual conduct, either that the psychotherapist actively abused that position by “therapeutic
In contrast, the clergy sexual conduct statute does not require proof of any causal connection between the sexual conduct and the position of the clergy or the mental or emotional state of the parishioner. There is no requirement of proof that the clergy member was in a position to influence the parishioner; that the clergy member abused any such position; that the parishioner sought or received religious or spiritual advice because of any mental or emotional need; or that the parishioner‘s consent was influenced to any degree by the religious or spiritual advice that was given. Thus, unlike a psychotherapist-patient relationship, where the patient seeks counseling as treatment for a mental or emotional need, a parishioner may seek religious or spiritual advice out of intellectual curiosity without any mental or emotional need that could be seen as vulnerability.
The Establishment Clause of the United States Constitution provides that “Congress shall make no law respecting an establishment of religion.”
1. Secular Purpose
The plain language of the clergy sexual conduct statute suggests that the legislation had a secular purpose, even though it separates clergy from other counselors. Bussmann does not vigorously contest this conclusion. Rather, citing Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983), he acknowledges that governmental regulation of religion generally survives the secular purpose inquiry.
When I review the legislative history of the 1993 amendments, I see that advocates for the amendments sought to build on the original intent of the legislature to prosecute clergy under the psychotherapist-patient statute, but to make it “more practical to apply.” Hearing on H.F. 873, H. Subcomm. Crim. J. and Fam. L. (Jud. Comm.), Mar. 24, 1993 (audio tape) (comments of an Assistant Ramsey County Attorney). The amendment was sought to close a “loophole” in the definition of psychotherapy that allowed clergy members to claim that they were not engaged in secular counseling but rather were engaged in spiritual or religious counseling. Hearing on H.F. 873, H. Subcomm. Crim. J. and Fam. L. (Jud.Comm.), Mar. 24, 1993 (audio tape) (comments of the Executive Director, Walk-In Counseling Center, Minneapolis).
I would conclude that the legislature‘s intent was to protect Minnesota citizens
2. Excessive Government Entanglement with Religion
I necessarily begin my analysis of this question with our decision in Odenthal. Although Odenthal focused on civil, not criminal, liability statutes, its analysis is quite useful in identifying the limitations that the Establishment Clause imposes on a state‘s ability to regulate religion, religious organizations, and religious activities. 649 N.W.2d at 434-41. To ensure that the standards applied for the civil liability of clergy were secular, not religious, we confined our consideration in Odenthal to the standards embodied in three statutes that were also applicable to counselors who were not clergy members, namely:
statutes regarding unlicensed mental health practitioners,
Minn.Stat. §§ 148B.60-.71 (1998) ; statutes setting forth licensure requirements for marital and family counselors,Minn.Stat. §§ 148B.29-.39 (1998) ; and statutes creating a cause of action for sexual exploitation by a psychotherapist,Minn. Stat. §§ 148A.01-.05 (2000) .
We concluded in Odenthal that clergy who provided mental health services equivalent to those provided by other mental health practitioners were subject to the statute; that the statutory definition of “mental health services” was neutral on its face—describing counseling in secular terms without regard to whether religious or spiritual principles are involved; and that, accordingly, the application of the statute to clergy would not impinge on the religious character of the relationship or excessively entangle the courts in religion. 649 N.W.2d at 437-38. We emphasized that
the standards of conduct for those providing mental health services apply to all who meet the definition of unlicensed mental health practitioner, regardless of whether the relationship is one of clergy and church member. The statutory standards identified by Odenthal as establishing negligence, including protecting the health, safety and welfare of clients, the confidentiality of communications, and the impartiality of the mental health professional, do not suggest any unique or distinct application with respect to clergy.
Viewed in the context of Odenthal, the absence from the clergy sexual conduct statute of neutral or secular standards raises several concerns. Contrary to the statutes relied on in Odenthal to establish secular standards, the clergy sexual conduct statute criminalizes solely the conduct of clergy and prohibits sexual penetration solely when the counseling is “religious or spiritual” in nature. As argued by Bussmann, the statutes in Odenthal applied “in spite of [a person‘s] membership in the clergy,” whereas the clergy sexual conduct statute applies “because of [a person‘s] membership in the clergy.” In my view, the standards of the clergy sexual conduct
I also conclude that the clergy sexual conduct statute establishes legislatively-determined facts that need not be proven at trial or decided by a jury. For example, the statute establishes the irrebuttable presumption that all clergy-advisee relationships have the same religious attributes—that is, that the clergy member is always in a position of power over an advisee; that such power is always embodied in the clergy member‘s role as a religious or spiritual advisor; that religious or spiritual advice always renders the advisee legally incapable of giving consent to sexual penetration; and that an advisee‘s consent to sexual penetration is always legally ineffective so long as the advisee is receiving religious or spiritual advice, aid, or comfort. If I am correct that these legislative determinations have established these facts as a matter of law, the only proof that would be required in a prosecution under the clergy sexual conduct statute is that the clergy member had sexual contact with an advisee at a time when the advisee was “meeting on an ongoing basis with [the clergy] to seek or receive religious or spiritual advice, aid, or comfort in private.”
In this respect, the clergy sexual conduct statute stands in sharp contrast to the psychotherapist sexual conduct statute, which eliminates consent as a defense only where the state proves facts that render the consent legally ineffective. Thus, if the victim is a current patient, consent is not a defense for a psychotherapist if the state proves beyond a reasonable doubt that there is an “ongoing psychotherapist-patient relationship” (section 609.344, subdivision 1(h)(ii)), which requires proof that the patient is a person who suffers from a “mental or emotional illness, symptom, or condition” (section 609.341, subdivision 18). If the victim is a former patient, consent is not a defense for a psychotherapist if the state proves beyond a reasonable doubt that the patient is “emotionally dependent upon the psychotherapist” (section 609.344, subdivision 1(i)) or the “sexual penetration occurred by means of therapeutic deception” (section 609.344, subdivision 1(j)). Thus, under the psychotherapist [criminal] sexual conduct statute, the vulnerability of the victim is not presumed to exist, but must be proven by either the pre-existence of a mental or emotional condition or by the deceptive conduct of the psychotherapist. The presence of one or both of these facts is presumed to exist under the clergy sexual conduct statute.
In Odenthal we noted that the provider of mental health services was governed by a neutral, non-religious standard because the statute required proof that the person was providing assessment, treatment, or counseling for conditions that were specified in the statute, which did not require inquiry into any religious aspect of the counseling. 649 N.W.2d at 438. The conditions specified in the statute which defined the scope of “mental health services,” were “a cognitive, behavioral, emotional, social, or mental condition, symptom, or dysfunction, including intrapersonal or interpersonal dysfunctions.” Id. (citing
The absence of secular standards, and the legislative determination that no consent could be legally effective, would mean that the statute is violated solely or pri-
Ultimately, I conclude that the standards of the clergy sexual conduct statute are not secular and neutral, but instead incorporate religious doctrine, as reflected in the legislative determinations that the clergy member is always in a position of power over an advisee, that any sexual penetration with an advisee is always causally related to the religious and spiritual advice given by the clergy member to an advisee, and that an advisee always lacks capacity to effectively consent to that sexual penetration. I believe that this absence of secular and neutral standards makes the statute unconstitutional on its face.5
I would therefore hold that
B. The view that the statute does not facially violate the Establishment Clause.
Three Justices disagree with the conclusion stated in part A above and would hold that the clergy sexual conduct statute does not facially violate the Establishment Clause. The discussion of this view is contained in this part B and in the dissent of Chief Justice Russell Anderson.
In order for a court to find a statute facially invalid, it must conclude that the statute “could never be applied in a valid manner.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797-98, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).6 For example, in Stromberg v. California, the Supreme Court struck down as facially invalid a state law that prohibited peaceful display of a symbol of opposition to organized government. 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). The court held that such a statute “is so vague and indefinite as to
In New York State Club Ass‘n, Inc. v. City of New York, however, the Supreme Court declined to find a law facially unconstitutional because plaintiffs could not establish that the law was unconstitutional in all of its applications. 487 U.S. 1, 11-14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (considering a facial challenge to the New York Human Rights Law, which forbade discrimination based on race and other factors). And in Taxpayers for Vincent, the Supreme Court considered a challenge to the constitutionality of a Los Angeles sign ordinance. Noting that the challenging party had not argued that the ordinance could never be validly applied, the Court characterized the attack on the ordinance as “a challenge to the ordinance as applied to [appellees‘] activities” and limited its analysis to whether the ordinance was unconstitutional as applied. 466 U.S. at 802, 104 S.Ct. 2118. This court has also found laws unconstitutional as applied, but not facially. See, e.g., State v. Grossman, 636 N.W.2d 545, 551 (Minn.2001) (holding Minnesota‘s patterned sex offender sentence enhancement statute unconstitutional as applied to one defendant and noting our doubts as to whether the statute could ever be constitutionally applied); McDonnell v. Comm‘r of Pub. Safety, 473 N.W.2d 848, 855 (Minn.1991) (holding a Minnesota statute that required police to advise drivers that they were not permitted to consult with an attorney prior to deciding whether to submit to or refuse blood alcohol content testing, and one that imposed criminal penalties on individuals who refused to submit to blood alcohol testing within five years of a prior driver‘s license revocation, unconstitutional as applied.).
Those who support this view conclude that the clergy sexual conduct statute is not unconstitutional on its face as a violation of the Establishment Clause because courts can determine whether a complainant sought or received religious or spiritual advice, aid, or comfort by reference to secular principles, not religious precepts. See Jones v. Wolf, 443 U.S. 595, 603-04, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979); Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 435 (Minn. 2002) (“There is no entanglement problem, however, when the dispute can be resolved according to ‘neutral principles of law.’ “). They observe that our courts already determine whether parties sought spiritual aid in the context of the clergy privilege. See State v. Rhodes, 627 N.W.2d 74, 85 (Minn.2001). They suggest that the state could have put on a case that did not make Bussmann‘s conviction hinge upon his violation of Catholic Church regulations, but rather upon his act of penetration of a parishioner with whom he met on an ongoing basis to provide religious or spiritual advice, aid, or comfort.7
Those having this view acknowledge that the statute does not require the state to prove that the clergy member used his position or influence to take advantage of the mental or emotional state of the parishioner, but conclude that requiring courts to inquire into the power balance of particular clergy/parishioner relationships would create an entanglement problem. They conclude that it is for the legislature to determine whether the state must prove, in the context of a criminal prosecution, an imbalance of power between the victim and the defendant. See
According to this view, a parishioner who wishes to engage in a sexual relationship with a clergy member can easily give effective consent for purposes of
Those with this view do not share the fear that a clergy member who dated and engaged in a mutually consensual sexual relationship with a parishioner would face prosecution if the two were also, as would seem likely, discussing spiritual or reli-
Second, at the time of the sexual penetration, the defendant was or purported to be a member of the clergy.
Third, at the time of the sexual penetration, the defendant was not married to —.
[1] Fourth, the sexual penetration occurred during the course of a meeting in which — sought or received religious or spiritual advice or comfort from the defendant in private. Consent is not a defense to this charge.
[2] Fourth, the sexual penetration occurred during a period of time in which — was meeting on an on-going basis with the defendant to seek or receive religious or spiritual advice, aid, or comfort in private. Consent is not a defense to this charge.
Fifth, the defendant‘s act took place on (or about) — in — County.
10 Minn. Dist. Judges Ass‘n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 12.35 (5th ed.2006).
Those sharing this view suggests that the harm targeted by the legislature in subdivision 1(l) and many other provisions of section 609.344 is not any particular vulnerability that an individual may have because of that individual‘s characteristics; instead, the harm targeted is the power imbalances that are likely to be present in these particular types of relationships. Thus, they would not read the statutory definition of psychotherapy in
Concluding that Bussmann has not demonstrated that all or even most applications of the clergy sexual conduct statute would foster excessive entanglement of government and religion, and that violations of the statute can be determined by secular principles of law, those sharing this view would hold that the clergy sexual conduct statute does not facially violate the Establishment Clause.
C. The effect of an equally divided court.
Because we are equally divided on the issue of whether the clergy sexual conduct statute facially violates the Establishment Clause of the United States Constitution, we affirm the decision of the court of appeals that the statute does not facially violate the Establishment Clause.
III.
Bussmann argues that the clergy sexual conduct statute is unconstitutional as applied in his trial. The 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. We do not criticize these witnesses. We understand their concern for the well-being of the victims and their commitment to seek accountability for offending clergy members. But we are concerned that the state‘s use of these witnesses engrafted religious standards onto the statute.
The state elicited testimony about Catholic Church doctrine concerning the power
[T]he whole reason we‘re ordained is to exercise power in the name of the church. That power may be one of the most beautiful and fundamental, which is to change bread and wine into the body and blood of Christ. * * * It may be the power that comes from special access to people as pastors do when we assist people with death, with family crisis, with depression, with a variety of other issues. * * * What I train our clergy is that our long experiences of church is that that power, beautiful and important, central as it is to us, is also inherently dangerous because it can be misused for purposes other than what it‘s entrusted to us for.
The testimony also described the potential abuses of that power in religious terms, as “pastoring by seduction“:
[S]eduction means essentially any form of pastoring, the end of which is only to deepen the connection between the pastor and the person rather than to lead that person beyond the pastor to Jesus Christ. This would include sexual seduction, drawing people into one‘s self-pity and a variety of other violations of that fundamental relationship with Jesus.
The testimony described the concern of the Catholic Church with the increased number of complaints about sexual conduct arising out of the pastoral care relationship. These witnesses explained that the complaints of sexual exploitation of adult parishioners outnumbered those of minors. It described the Catholic Church‘s response, which includes training, public education, financial, emotional, and spiritual assistance to victims, and support for efforts to create civil and criminal remedies for violations. The testimony suggested that the Church‘s most important solution to the growing number of complaints was to name the perpetrator and to declare the conduct wrongful.
Finally, the testimony described the religious training that Bussmann had received and the complaints that had been made to the Church about Bussmann‘s behavior. Ironically, this testimony acknowledged that the Church does not regard itself as a mandatory reporter in cases of adult victims unless the victim is incompetent or otherwise vulnerable. Ultimately, the testimony described the determination by the Catholic Church that Bussmann had violated his priestly authority. In other words, the testimony was akin to victim impact testimony, which is only permitted to inform sentencing after a guilty verdict has been returned.
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. This testimony bolstered the state‘s claims by informing the jury that the Church condemned Bussmann‘s behavior and believed that it was important that he be held accountable. It provided religious standards by which the jury was to judge Bussmann‘s conduct. It provided a means by which the Church was able to vouch for the credibility of the victims’ testimony. It suggested to the jury that a conviction would be important to assist the Catholic Church in solving the problem of offending priests.
In Odenthal we suggested that the state‘s presentation of evidence concerning the standards of the church for pastoral care presents a serious risk of excessive government entanglement. 649 N.W.2d at 436. Odenthal had argued that the standard of care applicable to his civil negligent counseling claim against a clergy member could be drawn from the Sev-
As a statement of the church‘s policy regarding pastoral counseling, the Minister‘s Handbook poses a serious risk of religious entanglement for a court attempting to discern its limits * * *. Thus, Odenthal must state a cause of action in negligence by reference to neutral standards and not by reference to the Minister‘s Handbook.
Id.
The Establishment Clause applies to the several states by virtue of the Fourteenth Amendment‘s Due Process Clause. McCreary County v. ACLU of Ky., 545 U.S. 844, 853 n. 3, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005); Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). As the United States Supreme Court has interpreted the Fourteenth Amendment, official acts of state judicial officers are subject to the Due Process Clause. Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190, 191, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960) (stating that “[i]t is not of moment that the State has here acted solely through its judicial branch, for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.” (quoting NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958))); Shelley v. Kraemer, 334 U.S. 1, 14, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (“That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court.“). Thus, in order to comply with constitutional requirements, the official acts of state judicial officers must satisfy the three Establishment Clause requirements articulated by the Supreme Court in Lemon v. Kurtzman: (1) they must have a secular purpose; (2) they must have a principal effect that neither advances nor inhibits religion; and (3) they must not excessively entangle government and religion. 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
Under Minnesota law, “conviction” means the acceptance and recording by the court of a plea, jury verdict, or court finding of guilt.
As noted, the 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.8
Affirmed in part, reversed in part, and remanded for a new trial.
PAGE, Justice.
I join in Parts I, II.A, and III of the opinion of Justice Hanson.
MEYER, Justice.
I join in Parts I, II.A, and III of the opinion of Justice Hanson.
ANDERSON, Paul H., Justice.
I join in Parts I, II.B, and III of the opinion of Justice Hanson.
ANDERSON, G. Barry, Justice.
I join in Parts I, II.B, and III of the opinion of Justice Hanson.
GILDEA, Justice, took no part in the consideration or decision of this case.
ANDERSON, PAUL H., Justice (concurring).
I join in Part I of the opinion of Justice Hanson. I also join, for the most part, in Part II.B of Justice Hanson‘s opinion. Finally, I agree with the holding in Part III of Justice Hanson‘s opinion that Bussmann‘s conviction, based on the evidence presented by the state at this particular trial, violated the First Amendment prohibition of “law[s] respecting an establishment of religion,” as applied to the states through the Due Process Clause of the Fourteenth Amendment. Because this error was not harmless, I agree that the appropriate remedy is to reverse Bussmann‘s conviction and remand to the district court. I write separately, however, to clarify my view that the unconstitutional state action in this case was the district court‘s conviction of Bussmann following this particular trial, not the adoption of the statute by the legislature or the application of this statute to Bussmann‘s conduct.
I believe that the view articulated in Part II.A of Justice Hanson‘s opinion reads too much into the statute. The psychotherapist provision makes it a crime for a psychotherapist to engage in acts of sexual penetration with his patient during a psychotherapy session or when an ongoing psychotherapist-patient relationship exists.
Psychotherapy is defined as “the professional treatment, assessment, or counseling of a mental or emotional illness, symptom, or condition.”
Based on my reading of
Thus, I would hold that
ANDERSON, Chief Justice (dissenting).
I respectfully dissent, because I would affirm the conviction. I agree with the court‘s conclusion, stated in Part I of the majority opinion, that the clergy sexual misconduct statute is not unconstitutionally vague.1 But I disagree with the court‘s conclusion and disposition, stated in Part III, that the statute is unconstitutional as applied in this case, warranting reversal of the conviction and remand for a new trial. Further, I disagree with the plurality conclusion stated in Part II.A that the statute is unconstitutional on its face. Although I agree with the conclusion stated in Part II.B that the statute is not unconstitutional on its face, I write separately to explain the reasons for my conclusion on that issue.
Facial Unconstitutionality
The clergy sexual misconduct statute does not entangle government in religion and therefore does not violate the Establishment Clause. The statute only contemplates application of neutral principles. None of the elements of the offense involve review of church doctrine. The statute is based on legislative judgments about the power imbalance inherent in the clergy-counseling relationship that negates true
The First Amendment requires that civil courts abstain from resolving church disputes that would necessitate an adjudication of controversies over religious doctrine. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976) (stating that civil courts must defer to “the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity“); Presbyterian Church v. Mary Elizabeth Blue Hull Mem‘l Presbyterian Church, 393 U.S. 440, 449-50, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969) (holding that civil courts could not determine whether the general church departed from its doctrine).
But civil courts are not required to abstain from resolving church disputes if it can be accomplished by application of “neutral principles of law” that “free civil courts completely from entanglement in questions of religious doctrine, polity and practice.” Jones v. Wolf, 443 U.S. 595, 602-04, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) (noting that the neutral-principles-of-law method in a church property dispute relies “exclusively on objective, well-established concepts of trust and property law“). Civil courts may adopt a neutral-principles-of-law method for resolving church “disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.” Id. (quoting Md. & Va. Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970)).
We used a neutral-principles approach in Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426 (Minn.2002), a negligence action against a member of the clergy, alleging improprieties in marital counseling. The dispute in Odenthal centered on defining the appropriate standard of care. Defendant took the position that any standard of care necessitated assessments of religious components of the counseling relationship. Id. at 438. Plaintiff argued that several statutes, including one regulating defendant‘s conduct as an unlicensed mental health practitioner, could be applied without regard to religion. Id. at 436-37. We concluded that an adjudication of the negligence claim by application of neutral standards set forth in the statute regulating conduct as an unlicensed mental health practitioner did not violate the First Amendment. Id. at 441.
The neutral-principles approach, as employed by the Supreme Court, does not require civil courts to refrain from review of all church-based facts. For example, in settling church property disputes, civil courts can examine church documents such as property deeds, local church charters, and general church constitutions. See Jones, 443 U.S. at 603, 99 S.Ct. 3020. What the neutral-principles approach does require is that any examination of religious documents by civil courts be done “in purely secular terms” and that civil courts not “rely on religious precepts” in resolving disputes. Id. at 604, 99 S.Ct. 3020.
The clergy sexual misconduct statute at issue here does not address church disputes and involves only application of neutral principles. The core elements of the offense are: (1) sexual penetration by the actor; (2) the actor is a member of the clergy or purports to be; (3) the actor is not married to the complainant; and (4)(a) the sexual penetration occurred during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or (b) the sexual penetration occurred during a period of time in which the
The plurality in Part II.A states that
The clergy-counselee relationship and secular counseling relationship reflect a similar power imbalance: “[p]eople seeking help, whether of a spiritual or secular nature, are likely to be vulnerable and dependent.” Janice D. Villiers, Clergy Malpractice Revisited: Liability for Sexual Misconduct in the Counseling Relationship, 74 Denv. U.L.Rev. 1, 43 (1996). This power imbalance is aggravated by: “the counselee‘s initial vulnerability; the counselor‘s control of the environment; the confidentiality of the relationship; [and] the leverage gained from unilateral self-revelation.” Id. at 46. The clergy sexual misconduct provision reflects legislative determinations about the disparity in power in the clergy-counselee relationship, during a period of ongoing counseling in private, that negates true consent.3
Certainly, not all clergy counselees and not all patients are vulnerable. Not all clergy and therapists are seen as all powerful. Nevertheless, “[t]he counselee typically pursues secular or religious counseling for marital difficulties, depression and suicidal tendencies, faith crises or uncertainty or coping skills in many facets of her life,” and is therefore easily subject to exploitation. Id. at 46.
The underlying facts in this case illustrate the exploitation of this power imbalance. One of the complainants sought spiritual help related to family and faith issues. Her husband‘s employment as a sales representative entailed out-of-town travel. The other complainant sought help for severe depression following the illness and death of her mother. During their meetings, because Bussmann was their priest, they placed their trust in him and disclosed confidential information. When Bussmann first came to the church, he made a list of 20 women, 14 of whom he said later “hit” on him; and out of the 14, 12 were married. At the time of Bussmann‘s sexual relations with the complainants, he was having sexual relations with at least one other parishioner. Bussmann‘s sexual misconduct came to light when the first complainant‘s husband became suspicious, taped a phone conversation, confronted his wife and reported Bussmann to the Archdiocese. The second complainant was discovered during the criminal investigation related to the sexual misconduct with the first complainant. At sentencing, the complainants described their shame and pain. They talked about how their sexual relationships with Bussmann imperiled their marriages and damaged their faith. Instead of supporting the complainants and their families, their church community turned against them.
The plurality in Part II.A distinguishes the psychotherapist provision as eliminating the consent defense only if the state proves facts that render consent legally ineffective, either through proof of therapeutic deception or proof that the patient suffered from a mental dysfunction or was emotionally dependent. The core elements of the analogous psychotherapist provision are: (1) sexual penetration by the actor; (2) the actor is a psychotherapist; (3) the complainant is a patient of the psychotherapist; and (4) the sexual penetration occurred: (a) during the psychotherapy session; or (b) outside the psychotherapy session if an ongoing psychotherapist-patient relationship exists.
The plurality in Part II.A. concludes that the clergy provision incorporates religious doctrine, as evidenced by legislative determinations about the power imbalance in all private clergy-counselee relationships that negates true consent. But this is no different than legislative determinations about the power imbalance in all private psychotherapist-counseling relationships, even for assessments of emotional symptoms, that negates true consent. There is no constitutional impediment to legislative review of the power imbalance in clergy-counseling relationships and the factors aggravating the imbalance. Cf. Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468, 472 n. 3 (8th Cir.1993) (stating that “[w]hile the district court cannot constitutionally decide the validity of [religious] beliefs, * * * the court may properly determine their existence.“) (internal citation omitted). It is for the legislature “to define by statute what acts constitute a crime. * * * [T]he role of the judiciary is limited to deciding whether a statute is constitutional, not whether it is wise or prudent legislation.” State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990) (internal citation omitted).
In summary, the clergy sexual misconduct statute is based on secular legislative determinations, not on church doctrine. The statute does not require examination of doctrinal matters. That the prosecution chose to present irrelevant church-doctrine evidence, which was completely unnecessary to prove liability as required by the statute, does not demonstrate that it is the statute that fosters the entanglement. I would hold that the clergy sexual misconduct statute does not implicate First Amendment entanglement concerns.
Unconstitutionality as Applied
In Part III of the plurality opinion, a majority of the court concludes that the statute is unconstitutional as applied in this case and reverses the conviction, remanding for a new trial. I cannot agree.
An “as applied” challenge argues that the statute is unconstitutional as applied to the individual‘s conduct. See, e.g., Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (stating the “general rule that constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court“); Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (noting cases involving religious freedom in which the Court held that a statute was “unconstitutionally applied in particular circumstances because it interfered with an individual‘s exercise of those rights“).
Furthermore, even if it were appropriate to review those evidentiary issues, they would not warrant reversal. Given that (1) the trial court provided limiting instructions to the jury, (2) the state and defense counsel made clear in closing arguments that the jury‘s duty was to apply Minnesota law and not church law, and (3) the sole issue in dispute was the existence of an ongoing clergy-counselee relationship, in light of defense counsel‘s concessions in opening remarks that “Mr. Bussmann was a priest” and that he “had sexual relations” with two parishioners, I would hold that the evidentiary errors with which the court is concerned were harmless.
For these reasons I would affirm the conviction.
Deanna L. BYERS, Relator, v. COMMISSIONER OF REVENUE, Respondent.
No. A07-615.
Supreme Court of Minnesota.
Nov. 15, 2007.
Notes
(l) the actor is or purports to be a member of the clergy, the complainant is not married to the actor, and:
(i) the sexual penetration occurred during the course of a meeting in which the complainant sought or received religious or spiritual advice, aid, or comfort from the actor in private; or
(ii) the sexual penetration occurred 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. Consent by the complainant is not a defense[.]
(h) the actor is a psychotherapist and the complainant is a patient of the psychotherapist and the sexual penetration occurred:
(i) during the psychotherapy session; or
(ii) outside the psychotherapy session if an ongoing psychotherapist-patient relationship exists.
Consent by the complainant is not a defense[.]
(i) the actor is a psychotherapist and the complainant is a former patient of the psychotherapist and the former patient is emotionally dependent upon the psychotherapist;
(j) the actor is a psychotherapist and the complainant is a patient or former patient and the sexual penetration occurred by means of therapeutic deception. Consent by the complainant is not a defense[.]
First, the defendant intentionally sexually penetrated —
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