Faith-Based Mental Health Treatment of Minors

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Professor, Department of Epidemiology and Biostatistics, Case Western Reserve University School of Medicine, and Director of the CWRU Center for Minority Public Health. Dr. Loue holds secondary appointments in the Departments of Bioethics, Psychiatry, and Global Health. Dr. Loue is an ordained interfaith minister. She was the 2003 Dr. Arthur Grayson Distinguished Visiting Professor of Law and Medicine at Southern Illinois University School of Law.

Notes

¹Ralph Slovenko, The Transinstitutionalization of the Mentally Ill, 29 Ohio N.U. L. Rev. 641, 641 (2003); see also Jean-Claude Larchet, Mental Disorders and Spiritual Healing: Teachings from the Early Christian East 44-88 (2005).

²For an account of a 1900 case of manslaughter in the Netherlands and the attribution of this homicide to religious belief, see Jacob A. Belzen, Religious Mania and Criminal Nonculpability: Religious and Psychiatric Reactions to a Case of Manslaughter in the Netherlands (1900), 21 Int'l J.L. & Psychiatry 433 (1998).

³Simon Dein, Possession, in Religous Issues in Mental Health Among Minority Groups in Britain in the 1990s (R.J. West, Chair), Applied Psychology Research Group Symposium, Royal Holloway, University of London (Nov. 1996).

⁴Such beliefs have been observed, for instance, in Switzerland, S. Pfeifer, Beliefs in Demons and Exorcism in Psychiatric Patients in Switzerland, 67 Brit. J. Med. Psychol. 247 (1994) and Singapore, Ee H. Kua et al., Spirit Possession and Healing Among Chinese Psychiatric Patients, 88 Acta Psychiatrica Scandinavica 447 (1993).

⁵Newsletter from Sally Clay, Spirituality and Madness, to The Center for Conscious Evolution (1999); Philippe Huguelet et al., Spirituality and Religious Practices Among Outpatients with Schizophrenia and Their Clinicians, 57 Psychiatric Serv. 366, 371 (2006); Robert Lundin, Mental Illness and Spirituality: A Personal View, 8 J. Cal. Alliance Mentally Ill 46, 47 (1997); Patricia Sermabeikian, Our Clients, Ourselves: The Spiritual Perspective and Social Work Practice, 39 Soc. Work 178, 182 (1994).

One United States telephone poll concluded that 82% of Americans believe in the healing power of prayer, 73% believe that praying for an ill individual may help to cure them, and 77% believe that God may intervene to cure seriously ill individuals. Yankelovich Partners, Inc., Telephone Poll for TIME/CNN, June 12-13, 1996, Time, June 24, 1996, at 58.

For an examination of illness and healing in Christianity, including mental illness, see generally Amanda Porterfield, Healing in the History of Christianity 104 (2005). The Christian Science perspective on the treatment of mental illness through prayer can be found in Mary Baker Eddy, Science and Health, with Key to the Scriptures 414 (2000).

⁶Lundin, supra note 5, at 48.

⁷Karen N. Lindgren & Robert D. Coursey, Spirituality and Mental Illness: A Two-Part Study, 18 Psychosoc. Rehab. J. 93, 95 (1995); Russell E. Phillips, III et al., Development and Implementation of a Spiritual Issues Psychoeducational Group for Those with Serious Mental Illness, 38 Community Mental Health J. 487, 491 (2002).

These effects appear to be more widespread than only among individuals with severe mental illness. Research findings suggest that a significant proportion of the United States population derives a sense of protection and comfort from a feeling of the sacred or divine. A recent survey of United States religious beliefs and practices found that, of the 1700 adults surveyed, 55% believed they were protected from harm by a guardian angel, 45% felt called upon by God to do something, 23% had experienced or witnessed a miraculous physical healing, and 20% had heard the voice of God speaking to them. Cathy Lynn Grossman, Most Say They're Touched by Guardian Angels, USA Today, Sept. 18, 2008, at 1A. For a discussion of the prevalence of these or similar beliefs in other nations, see generally Joseph Pier & Marinus Van Uden, Religion and Coping in Mental Health Care 79 (2005).

⁸Leslie Tepper et al., The Prevalence of Religious Coping Among Persons with Persistent Mental Illness, 52 Psychiatric Serv. 660, 662 (2001).

⁹ Id. at 663; Logan Mitchell & Sarah Romans, Spiritual Beliefs in Bipolar Affective Disorder: Their Relevance for Illness Management, 75 J. Affective Disorders 247, 252 (2003).

¹⁰Lindgren & Coursey, supra note 7, at 96; W. Patrick Sullivan, Recoiling, Regrouping, and Recovering: First-Person Accounts of the Role of Spirituality in the Course of Serious Mental Illness, 80 New Directions Mental Health Serv. 25, 32 (1998).

¹¹Tepper et al., supra note 8, at 664.

¹²Philip S. Wang et al., Patterns and Correlates of Contacting Clergy for Mental Disorders in the United States, 38 Health Serv. Res. 647, 650 (2003).

¹³Jacqueline S. Mattix et al., Uses of Ministerial Support by African Americans: A Focus Group Study, 77 Am. J. Orthopsych. 249, 253 (2007); Robert J. Taylor et al., Mental Health Services in Faith Communities: The Role of Clergy in Black Church, 45 Soc. Work 73, 74 (2000); John L. Young et al., The Integral Role of Pastoral Counseling by African-American Clergy in Community Mental Health, 54 Psychiatric Serv. 688, 672 (2003).

¹⁴Mattix et al., supra note 13, at 74.

¹⁵ Joseph Veroff et al., The Inner American: A Self Portrait from 1957 to 1976, at 104 (1981).

¹⁶Taylor et al., supra note 13.

¹⁷ Kate Loewenthal, Religion, Culture, and Mental Health 32 (2007); Bernard Spilka et al., The Psychology of Religion: An Empirical Approach 207 (2003).

¹⁸ Loewenthal, supra note 17, at 15-24. For an excellent review of the difficulties associated with the relationship between schizophrenia and religion and the implications for care, see Sylvia Mohr & Philippe Huguelet, The Relationship Between Schizophrenia and Religion and Its Implications for Care, 134 Swiss Med. Wkly. 369 (2004). As an example of how symptoms of mental illness may be interpreted in a religious context, Covington's account of his experiences with the snake-handlers of the Church of Jesus with Signs Following includes an anecdote about a woman who “was fighting a spirit that had been telling her to cut her children's head off,” which was attributed to demon possession rather than mental illness. Dennis Covington, Salvation and Sand Mountain: Snake Handling and Redemption in Southern Appalachia 187 (1995).

¹⁹Kate M. Loewenthal, Religious Issues and Their Psychological Aspects, in Cross-Cultural Mental Health Services: Contemporary Issues in Service Provision 15 (K. Bhui & D. Olajide eds., 1999). A delusion has been defined as a belief that appears to others to be bizarre and without basis in reality. Loewenthal, supra note 17, at 15.

²⁰ Loewenthal, supra note 17, at 105-24.

²¹ Spilka et al., supra note 17, at 513.

²² Joseph Pieper & Marinus Van Uden, Religion and Coping in Mental Health Care 39 (2005). The reverse may also occur; Deuteronomy 28:28 warns transgressors that “the Lord shall smite thee with madness.” It is believed that there are approximately two million individuals in the United States who speak in tongues. David Greenberg & Eliezer Witztum, Content and Prevalence of Psychopathology in World Religions, in Religion and Mental Health 305 (John F. Schumaker ed., 1992). The vast majority identify themselves as members of revivalist Christian groups, although the practice is also found among some American Lutherans, Presbyterians, and Catholics. Id. For accounts of speaking in tongues and the religious beliefs that underlie this practice, see Fred Brown & Jeanne McDonald, The Serpent Handlers: Three Families and Their Faith 264 (2000).

²³ Pieper & Van Uden, supra note 22, at 40.

²⁴Taylor et al., supra note 13, at 74.

²⁵Richard F. Larson, The Clergyman's Role in the Therapeutic Process: Disagreement Between Clergymen and Psychiatrists, 31 Psychiatry 250, 255 (1968).

²⁶George Domino & Barbara J. Swain, Recognition of Suicide Lethality and Attitudes Toward Suicide in Mental Health Professionals, 16 Omega J. Death & Dying 301, 303 (1985-1986).

²⁷Barry A. Hong & Vernon R. Wiehe, Referral Patterns of the Clergy, 2 J. Psychol. & Theology 291, 292 (1974).

²⁸Larson, supra note 25, at 251.

²⁹P. G. Wright et al., The Clergy's Attitudes About Mental Illness, Counseling, and the Helping Professions, 1 Can. J. Community Mental Health 71 (1982).

³⁰Harold W. Neighbors et al., The African American Minister as a Source of Help for Serious Personal Crises: Bridge or Barrier to Mental Health Care?, 25 Health Educ. & Behav. 759, 765 (1998); Taylor et al., supra note 13.

³¹Neighbors et al., supra note 30.

³²Timothy P. Daaleman & Bruce Frey, Prevalence and Patterns of Physician Referral to Clergy and Pastoral Care Providers, 7 Arch. Fam. Med. 548 (1998).

³³Richard F. Mollica et al., A Community Study of Formal Pastoral Counseling Activities of the Clergy, 14 Am. J. Psychiatry 323 (1986); Henry A. Virkler, Counseling Demands, Procedures, and Preparation of Parish Ministers: A Descriptive Study, 7 J. Psychol. & Theology 271 (1979).

³⁴Debra P. O'Neill & Elaine K. Kenny, Spirituality and Chronic Illness, 30 Image: J. Nursing Scholarship 275 (1998).

³⁵Roy J. Mathew et al., A Retrospective Study of the Concept of Spirituality as Understood by Recovering Individuals, 13 J. Substance Abuse Treatment 67 (1996); Robert D. Warfield & Marc B. Goldstein, Spirituality: The Key to Recovery from Alcoholism, 40 Counseling & Values 196 (1996).

³⁶Edward R. Canda, Spirituality, Religious Diversity, and Social Work Practice, 69 Soc. Casework: J. Contemp. Soc. Work 238, 238 (1988).

³⁷Anita M. Titone, Spirituality and Psychotherapy in Social Work Practice, 2 Spirituality & Soc. Work Communicator 7, 8 (1991).

³⁸R. Elliott Ingersoll, Spirituality, Religion, and Counseling: Dimensions and Relationships, 38 Counseling & Values 98, 102 (1994).

³⁹ Kenneth I. Pargament, The Psychology of Religion and Coping: Theory, Research, Practice 32 (1997).

⁴⁰M. Vincentia Joseph, Religion and Social Work Practice, 69 Soc. Casework: J. Contemp. Soc. Work 443, 444 (1988).

⁴¹ Kate M. Loewenthal, Mental Health and Religion 9 (1995).

⁴² James W. Fowler, Stages of Faith: The Psychology of Human Development and the Quest for Meaning 33 (1981).

⁴³ U.S. Const. amend. I.

⁴⁴Torcaso v. Watkins, 367 U.S. 488, 493 (1961).

⁴⁵Emp. Div., Dep't of Hum. Res. v. Smith, 494 U.S. 872, 877 (1990).

⁴⁶ Id. at 879.

⁴⁷Davis v. Beason, 133 U.S. 333, 342 (1890).

⁴⁸United States v. Macintosh, 283 U.S. 605, 633-634 (1931) (Hughes, C.J., dissenting).

⁴⁹This was noted in dictum in Torcaso, 367 U.S. at 495, and later in a concurring opinion in Malnak v. Maharishi Mahesh Yogi, 592 F.2d 197, 206 (3d Cir. 1979) (Adams, J., concurring).

⁵⁰ Torcaso, 367 U.S. at 495; Malnak, 592 F.2d at 206.

⁵¹ Malnak, 592 F.2d at 213.

⁵²Scientology, described as a belief system that provides “a general account of man and his nature [that is] comparable in scope, if not content, to those of some organized religions,” was held to be a religion within the meaning of the free exercise clause. Founding Church of Scientology v. United States, 409 F.2d 1146 (D.C. Cir. 1969). The court also premised its finding on the church's incorporation within the state of Delaware and the existence of licensed clergy who were authorized to marry couples and bury the dead. The court specifically noted that the “fact that [the church] postulates no deity in the conventional sense does not preclude its status as a religion.” Id. at 1160.

⁵³Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993).

⁵⁴United States v. Seeger, 380 U.S. 163, 176 (1965); see also Welsh v. United States, 398 U.S. 333 (1970). The statute in question had defined “religious training and beliefs” as “an individual's belief in relation to a Supreme Being involving duties superior to those arising from any human relation, but [which] does not include essentially political, sociological, or philosophical views or a merely personal moral code.”

⁵⁵ Malnak, 592 F.2d at 208-10 (Adams, J., concurring).

⁵⁶“The notion of religion in the free exercise clause must be expanded beyond the closely bounded limits of theism to account for the multiplying forms of recognizably legitimate religious exercise. It is equally clear, however, that in the age of the affirmative and increasingly pervasive state, a less expansive notion of religion was required for establishment clause purposes lest all ‘humane’ programs of government be deemed constitutionally suspect. Such a twofold definition of religion expansive for the free exercise clause, less so for the establishment clause may be necessary to avoid confronting the state with increasingly difficult choices that theory of permissible accommodation … could not indefinitely resolve.”

Lawrence Tribe, American Constitutional Law 827-28 (1978); see also Paul A. Freund, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1686-87 n.14 (1969); Marc Galanter, Religious Freedom in the United States: A Turning Point, 1966 Wis. L. Rev. 216, 266; Harvard Law Review Association, Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056, 1084 (1978).

⁵⁷Everson v. Bd. of Educ., 330 U.S. 1, 32 (1947) (Rutledge, J., dissenting); Malnak, 592 F.2d at 212 (Adams, J., concurring).

⁵⁸Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

⁵⁹Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring).

⁶⁰ Id.; County of Allegheny v. ACLU, 492 U.S. 573 (1989).

⁶¹Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 211-12 (1948). Justice Jackson observed: “Authorities list 256 separate and substantial religious bodies to exist in the … United States.… If we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds.” Id. at 235.

⁶²Smith v. Bd. of School Commissioners, 827 F.2d 684, 692 (11th Cir. 1987).

⁶³ Em. Div., Dep't of Human Res., 494 U.S. at 874.

⁶⁴ Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531 (1993); Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 884-85 (Cal. Ct. App. 1989).

⁶⁵All names and locations have been changed to protect the privacy of the individuals involved. The diagnoses and circumstances as depicted here are accurate.

⁶⁶One court found that a father had abused his child when he called his non-homosexual son “fag,” “faggot,” and “queer.” In re Shane T., 453 N.Y.S.2d 590, 591 (N.Y. Fam. Ct. 1982).

⁶⁷ Ronald Bayer, Homosexuality and American Psychiatry: The Politics of Diagnosis (1993). The listing of homosexuality as a mental disorder can be found in American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III) (1980).

⁶⁸ American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) (2000).

⁶⁹A diagnosis of gender identity disorder is premised on: the existence of a persistent, strong identification with the opposite biological sex; a persistent discomfort with one's own sex or the gender role of that sex; the absence of a physical intersex condition; and resulting clinically significant distress or impairment in one or more important domains of functioning. Id. at 581. Significantly, the criteria delineated as a basis for diagnosis fail to consider that the distress may result from societal and/or familial reaction to the individual, rather than the condition itself, and further fail to consider the possibility that transsexuality may exist along a spectrum of normality. For a discussion of transsexuality, see Joanne Meyerowitz, How Sex Changed: A History of Transsexuality in the United States (2002); see also Pat Califa, Sex Changes: The Politics of Transgenderism (1997).

⁷⁰Ingrid Ricks, Mind Games, Advocate, Dec. 28, 1993, at 38, 39.

⁷¹ See Tracie L. Hammelman, Gay and Lesbian Youth: Contributing Factors to Serious Attempts or Considerations of Suicide, 2 J. Gay & Lesbian Psychotherapy 77, 77-89 (1993) (“violence, age, substance abuse, family rejection and gender also have an impact on suicidal behavior among gay and lesbian youth”). See generally Bertram J. Cohler & Robert M. Galatzer-Levy, The Course of Gay and Lesbian Lives: Social and Psychoanalytic Perspectives 256-84 (2000); Ritch C. Savin-Williams, Lesbian, Gay, and Bisexual Youths' Relationships with Their Parents, in Psychological Perspectives on Lesbian, Gay, and Bisexual Experiences 298-326 (Linda D. Garnets & Douglas C. Kimmel eds., 2003) [hereinafter Psychological Perspectives].

⁷²Among Christians, religious belief in the sinfulness of homosexuality is rooted in various portions of the Old and the New Testaments. These include: Genesis 1:27 (“So God created man in his own image, in the image of God he created him, male and female he created him.”); Genesis 19:1-9, in which the men of Sodom threaten to have sex with the angels remaining in Lot's house; Leviticus 18:22 (“Do not lie with a man as one lies with a woman; that is detestable.”); Leviticus 20:13 (“If a man lie with a man as one lies with a woman, both of them have done what is detestable ….”); Romans 1:24-27, which speaks of men engaging in “indecent acts” with other men; 1 Corinthians 6:9, referring to “homosexual offenders”; and Jude 7, referring to “sexual immorality and perversion.” For a discussion of beliefs relating to the sinfulness of homosexuality across various faiths, see Dawne Moon, Religious Views of Homosexuality, in Handbook of Lesbian & Gay Studies 313-28 (Diane Richardson & Steven Seidman eds., 2002).

⁷³ Sexual Conversion Therapy: Ethical, Clinical, and Research Perspectives (Ariel Shidlo et al. eds., 2001). For an excellent review of the history, logic, and ethics of reparative therapy, see Cohler & Galatzer-Levy, supra note 71, at 338-61.

⁷⁴Karolyn Ann Hicks, “Reparative” Therapy: Whether Parental Attempts to Change a Child's Sexual Orientation Can Legally Constitute Child Abuse, 49 Am. U. L. Rev. 505, 515 (1999). One model of reparative therapy seeks to cure the patient of his same-sex orientation through the establishment of a father-son relationship between the therapist and the patient, thereby obviating (theoretically) the need for sexual-romantic relations with other men. Joseph Nicolosi, Healing Homosexuality: Case Stories of Reparative Therapy 18 (1993).

⁷⁵ Sexual Conversion Therapy, supra note 73, at 1. Christian conversion programs include Homosexuals Anonymous, Metanoia Ministries, Love in Action, Exodus International, and EXIT of Melodyland. Douglas C. Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, in Psychological Perspectives, supra note 71, at 680, 689. Several of these Christianity-premised counseling programs have been denounced by their original founders and/or clients as ineffective, or even worse, exacerbating depression and guilt. Id. at 690. For a discussion of the use of exorcism as a treatment for homosexuality, see Michael W. Ross & Olli W. Stålström, Exorcism as Psychiatric Treatment: A Homosexual Study, 8 Arch. Sexual Behav. 379 (1979).

⁷⁶One individual, writing from both his personal experience and professional experience as a mental health provider for survivors of ex-gay groups, observed of individuals who undergo religious faith healing for their homosexuality:

They are often taught not to trust their own instincts. They become convinced that, due to their sinful brokenness, they cannot trust or believe in themselves.… When the ex-gay struggler admits to his or her defective sinfulness, fundamentalist Christians are quick to confirm this and offer strict guidelines and conditional acceptance.… [E]x-gays develop a victim mentality.

Jeffrey G. Ford, Healing Homosexuals: A Psychologist's Journey Through the Ex-Gay Movement and the Pseudo-science of Reparative Therapy, in Sexual Conversion Therapy, supra note 73, at 84. For additional discussion of the adverse effects of conversion therapies, see David B. Cruz, Controlling Desires: Sexual Orientation Conversion and the Limits of Knowledge and Law, 72 S. Cal. L. Rev. 1297, 1351-60 (1999).

⁷⁷Kathleen Y. Ritter & Anthony I. Terndrup, Handbook of Affirmative Psychotherapy with Lesbians and Gay Men 153 (2002); John C. Gonsiorek, The Use of Diagnostic Concepts in Working with Gay and Lesbian Populations, 2-3 J. Homosexuality 9 (1982).

⁷⁸Bipolar disorder, once called manic-depressive illness or disorder, is characterized by the occurrence of one or more manic episodes, as in bipolar I disorder, or the occurrence of one or more major depressive episodes accompanied by at least one hypomanic episode, as seen in bipolar II disorder. DSM-IV-TR, supra note 68, at 382-83, 392-93. For an in-depth examination of this mood disorder, see Bipolar Disorder (Mario Maj et al. eds., 2002); see also Frederick K. Goodwin & Kay Redfield Jamison, Manic-Depressive Illness 29 (1990).

⁷⁹Gonsiorek, supra note 77; Ritter & Terndrup, supra note 77.

⁸⁰Gonsiorek, supra note 77; Ritter & Terndrup, supra note 77.

⁸¹Gonsiorek, supra note 77; Ritter & Terndrup, supra note 77.

⁸² See Karasek v. LaJoie, 699 N.E.2d 889 (N.Y. 1998) (psychologist misdiagnosed plaintiff as having multiple personality disorder); Doe v. Bd. of Educ., 453 A.2d 814 (Md. 1982) (psychologist would have been found liable for malpractice for failure to diagnose dyslexia if not employed by the Board of Education). Such action would also raise ethical concerns. See generally Medical Malpractice and Psychological Disorders: Medical Malpractice Statistics for Psychological Disorders, available at http://www.wrongdiagnosis.com/p/psychological_disorders/malpractice.htm (last visited Mar. 24, 2009). Cf. Stephen C. Halpert, “If It Ain't Broke, Don't Fix It”: Ethical Considerations Regarding Conversion Therapies, 5 Int'l J. Sexuality & Gender Stud. 19 (2000) (discussing ethical issues of such therapies in general, ethical obligations of psychologists, and ethics of providing a treatment whose efficacy has not been demonstrated).

⁸³DSM-IV-TR, supra note 68, at 307.

⁸⁴ Id. at 312.

⁸⁵ Clinical Handbook of Schizophrenia (Kim T. Mueser & Dilip V. Jeste eds., 2008).

⁸⁶Exorcism of Children (Prohibition) Bill 2000 (UK), available at http://www.publications.parliament.uk/pa/cm200001/cmbills/033/2001033.htm (last visited Mar. 24, 2009).

⁸⁷ See Randall Balmer & Lauren E. Winner, Protestantism in America 175-76 (2002) (quoting Rev. Jerry Falwell).

⁸⁸ Practical Child and Adolescent Psychopharmacology 18 (Stanley Kutcher ed., 2002).

⁹² Id. at 960.

⁸⁹763 P.2d 948 (Cal. 1988).

⁹⁰ Id. at 956.

⁹¹ Id. at 959-60.

⁹⁵ Id. at 1318-19.

⁹³21 P.3d 198, 203 (Utah 2001).

⁹⁴White v. Blackburn, 787 P.2d 1315 (Utah Ct. App. 1990).

⁹⁶779 F. Supp. 321, 328 (S.D.N.Y. 1991).

⁹⁷DeBose ex rel. DeBose v. Bear Valley Church of Christ, 890 P.2d 214, 222 (Colo. App. 1994). This case has a long and complex history. The trial court initially found in favor of the mother and son. The court of appeals reversed, finding that the pastor was entitled to a jury instruction explaining that he had believed his counseling activities were protected by the First Amendment. The Colorado Supreme Court, in Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (1996), reversed this decision of the court of appeals, finding that there was no First Amendment issue because there was no biblical, scriptural, or doctrinal basis, justification, or underpinning to the massage that the pastor had performed. The Colorado Supreme Court reinstated the judgment of the trial court and refused to consider the church's claim that the awards were duplicative and/or inconsistent, finding that the church had failed to preserve the issue for appellate review.

⁹⁸Bohrer v. DeHart, 943 P.2d 1220 (Colo. App. 1996). This was the initial appeal from a decision of the trial court. The court of appeals affirmed the trial court judgment against the youth minister, as well as the judgment against the conference for negligent hiring and supervision, and awarded costs jointly and severally. The court reversed the judgment against the conference for breach of fiduciary duty and punitive damages and remanded to the trial court for a determination of the allocation of fault and the amount of damages. Following various petitions and cross-petitions, the Colorado Supreme Court vacated the appellate court decision at 943 P.2d 1220 and remanded it to the appellate court for reconsideration in light of the decision in DeBose v. Bear Valley Church of Christ, 890 P.2d 214 (Colo. App. 1994). First United Methodist Church v. Bohrer, 1997 Colo. LEXIS 24 (1997). Upon reconsideration, the court of appeals reached the same conclusion as it had in the initial appeal. Bohrer v. DeHart, 944 P.2d 633 (Colo. App. 1997). The Supreme Court of Colorado reversed the judgment of the appellate court with respect to the issues relating to damages only, held that the trial court had committed harmless error in failing to provide computational verdict forms to the jury, and reinstated the jury verdict. 961 P.2d 472 (1998). A later writ of garnishment was filed against the defendant youth minister, for which he sought review. Bohrer v. DeHart, 969 P.2d 801 (Colo. 1998).

⁹⁹ Bohrer, 943 P.2 at 1223.

¹⁰⁰ Id. at 1226.

¹⁰¹763 P.2d 948 (1988). There have been numerous, largely unsuccessful, lawsuits brought against clergy for sexual abuse of clients/parishioners. The majority of the abuse cases have arisen outside of the context of counseling minors, which is the focus of the instant article. For a sample of the nature of these claims, see, e.g., Jacqueline R. v. Household of Faith Family Church, Inc., 97 Cal. App. 4th 198 (Cal. App. 2002) (suit by husband and wife against pastor for engaging in sexual conduct with wife during counseling); Doe v. Redeemer Lutheran Church, 531 N.W.2d 897 (Minn. Ct. App. 1995) (sexual abuse of minor male); and Lovelace v. Keohane, 831 P.2d 624 (Okla. 1992) (sexual abuse of young adult in context of counseling). For an analysis of sexual abuse claims against clergy, see Kelly W.G. Clark et al., Of Compelling Interest: The Intersection of Religious Freedom and Civil Liability in the Portland Priest Sex Abuse Cases, 85 Or. L. Rev. 481 (2006); Zanita E. Fenton, Faith in Justice: Fiduciaries, Malpractice, & Sexual Abuse by Clergy, 8 Mich. J. Gender & L. 45 (2001).

¹⁰²F.G. v. MacDonell, 696 A.2d 697, 703-04 (N.J. 1997) (“The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position.”).

¹⁰³Eileen A. Scallen, Promises Broken vs. Promises Betrayed: Metaphor, Analogy, and the New Fiduciary Principle, 1993 U. Ill. L. Rev. 897, 922.

¹⁰⁴Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).

¹⁰⁵Janice D. Villiers, Clergy Malpractice Revisited: Liability for Sexual Misconduct in the Counseling Relationship, 74 Denv. U. L. Rev. 1, 37 (1996).

¹⁰⁶ Id. at 45.

¹⁰⁷ F.G., 696 A.2d at 702.

¹⁰⁸Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).

¹⁰⁹Lawrence v. Texas, 539 U.S. 558 (2003).

¹¹⁰Nicholas Holtam, Homosexuality, in Encyclopedia of Christianity 592-94 (John Bowden ed., 2005). See generally John J. McNeill, Homosexuality: Challenging the Church to Grow, in Homosexuality in the Church: Both Sides of the Debate 49, 51 (Jeffrey S. Siker ed., 1994) (“The traditional position has been that … every homosexual act is sinful and contrary to God's plan ….”).

¹¹¹ See, e.g., State v. Brown, 449 N.E.2d 449, 452 (Ohio 1983) (declaring a defendant insane because he believed he was in communication with the devil and guardian angels at the time he killed his wife). See generally Faith McLellan, Mental Health and Justice: The Case of Andrea Yates, 368 Lancet 1951, 1954 (2006).

¹¹² Nally, 763 P.2d at 948.

¹¹³ Id. at 953.

¹¹⁴ Id. at 954.

¹¹⁵ Id.

¹¹⁶“Organic” refers to that which is “derived from living organisms” or “[o]f, relating to, or affecting a bodily organ: an organic disease.” American Heritage Dictionary of the English Language 1239 (4th ed. 2000).

¹¹⁷ E.g., Samuel E. Ericsson, Clergy Malpractice: Ramifications of a New Theory, 16 Val. U. L. Rev. 163 (1981).

¹¹⁸Villiers, supra note 105, at 50.

¹¹⁹Lee W. Brooks, Intentional Infliction of Emotional Distress by Spiritual Counselors: Can Outrageous Conduct Be “Free Exercise?,” 84 Mich. L. Rev. 1296, 1305 (1986); David Willows & John Swinton, Spiritual Dimensions of Pastoral Care: Practical Theology in a Multidsciplinary Context 90-94 (2001). See generally Dayle E. Friedman, Jewish Pastoral Care: A Practical Handbook from Traditional and Contemporary Sources (2d ed. 2005). Cf. Mark Unno, Buddhism and Psychotherapy Across Cultures: Essays on Theories and Practices 138, 153 (2006) (“Buddhism and psychotherapy have somehow found each other's company at times comforting and at others discomfiting.”).

The American Association of Pastoral Counselors defines pastoral counseling as

a unique form of counseling which uses spiritual resources as well as psychological understanding for healing and growth. It is provided by certified pastoral counselors, who are not only mental health professionals but have also had in-depth religious and/or theological training.

American Association of Pastoral Counselors, About Pastoral Counseling, available at http://www.aapc.org/content/about-pastoral-counseling (last visited Mar. 24, 2009). Additionally, pastoral counseling provides “psychologically sound therapy that weaves in the religious and spiritual dimension.” American Association of Pastoral Counselors, What Is Pastoral Counseling?, available at http://www.aapc.org/node/3 (last visited Mar. 24, 2009).

Certification as a pastoral counselor requires training in mental health and supervised experience. Id. Degree programs in pastoral counseling and analogous fields similarly require course work and supervised clinical case experience. See, e.g., Loyola College in Maryland, Pastoral Counseling, available at http://graduate.loyola.edu/graduate/academics/pcsc/pastoral.asp (last visited Mar. 24, 2009).

¹²⁰ E.g., Craig S. Cashwell & J. Scott Young, Integrating Spirituality and Religion into Counseling: A Guide to Competent Practice (2004); Froma Walsh, Spiritual Resources in Family Therapy 19 (2003).

¹²² Fla. Stat. § 490.014(f) (2006); see also Ohio Rev. Code Ann. §§ 4757.41(A)(4), 4758.03(B) (2008); N.Y. Educ. Law §§ 7605, 8410 (2008); S.D. Cod. Laws § 36-32-12 (2008); Utah Ann. Code § 58-60-107(3) (2008).

¹²¹ See generally Rose Ministries, FAQ: Officiating Weddings, available at http://openordination.org/state_faq.php (last visited Mar. 24, 2009).

¹²³Clerics assume their roles with widely varying levels of education and from a wide range of denominations. Kelly Beers Rouse, Clergy Malpractice Claims, 16 N. Ky. L. Rev. 383, 385 (1989).

¹²⁴ Cf. R. Michael Cassidy, Sharing Sacred Secrets: Is It (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?, 44 Wm. & Mary L. Rev. 1627, 1657-58 (2003) (discussing applicability of clergy-penitent privilege).

¹²⁵ Wash. Rev. Code §§ 43.43.830, 43.43.832 (2008).

¹²⁶Troxel v. Granville, 530 U.S. 57, 66 (2000).

¹²⁷Parham v. J.R., 442 U.S. 584 (1979). For a discussion of the belief in prayer and ritual as a remedy for illness, see Porterfield, supra note 5. Individuals may find support for the sacrifice of a child for one's religious beliefs in Genesis 22:2 of the Old Testament:

Then God said, “Take your son, your only son, Isaac, whom you love, and go to the region of Moriah. Sacrifice him there as a burnt offering on one of the mountains I will tell you about.”

Genesis 22:2. Genesis then recounts God's ultimate sparing of Isaac and the blessings that were conferred on Abraham because he did not withhold his son.

¹²⁸Prince v. Massachusetts, 321 U.S. 158, 165 (1944). The New York Court of Appeals has observed:

A parent or guardian has a right to consent to medical treatment on behalf of an infant. The parent, however, may not deprive a child of lifesaving treatment, however well intentioned. Even when the parents' decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State's interests, as parens patriae, in protecting the health and welfare of the child. Of course it is not for the courts to determine the most “effective” treatment when the parents have chosen among reasonable alternatives. But the courts may not permit a parent to deny a child all treatment for a condition which threatens his life.

In re Storar, 420 N.E.2d 64, 73 (N.Y. 1981). Of course, this conclusion demands an objective evaluation of the alternatives, a decision as to which are “reasonable,” and a determination that prayer alone does or does not constitute a “reasonable alternative” or “treatment” in a given situation. Id.

¹²⁹For example, court ordered blood transfusions for a child needing surgery, despite his parents' objections premised on their beliefs as Jehovah's Witnesses. Jehovah's Witnesses in St. of Wash. v. King County Hosp. Unit No. 1, 278 F. Supp. 488 (W.D. Wash. 1967), aff'd per curiam, 390 U.S. 598 (1968). In a case involving the death of a small girl following the administration of faith healing to treat a flu-like illness, the court noted that “prayer treatment will be accommodated as an acceptable means of attending to the needs of a child only insofar as serious physical harm or illness is not at risk,” Walker v. Superior Court, 763 P.2d 852, 866 (Cal. 1988); see also Muhlenberg Hosp. v. Patterson, 320 A.2d 518, 521 (N.J. Super. 1974) (holding that it is in the best interest of society as a whole that infants be protected in instances where there is an imminent danger of severe and irreparable brain damage, just as where there is equivalent danger of death, and that the court had power, where there was evidence that failure to permit the transfusion would result in irreparable brain damage to the infant, to order such transfusion).

¹³⁰ E.g., In re Green, 292 A.2d 387 (Pa. 1972) (involving a child suffering from spinal curvature but whose life was not imperiled).

¹³¹Newmark v. Williams, 588 A.2d 1108 (Del. 1991).

¹³²Mark A. Rothstein, Rethinking the Meaning of Public Health, 30 J. L. Med. & Ethics 144, 146 (2002).

¹³³Health has been defined as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” Const. of the World Health Org., 62 Stat. 2679 (1948).

¹³⁴The International Covenant on Civil and Political Rights, art. 18, Mar. 23, 1976, 999 U.N.T.S. 171, available at http://www1.umn.edu/humanrts/instree/b3ccpr.htm. (last visited Mar. 24, 2009), provides that an individual may “manifest his religion or belief in worship, observance, practice and teaching” except to the extent that it becomes “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” The European Convention for the Protection of Human Rights and Fundamental Freedoms similarly specifies:

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society to the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 9(2), 213 U.N.T.S 221, 230, Europ. T.S. No. 5, amended by Protocol No. 3, Eur T.S. No. 45, Protocol No. 55, and Protocol No. 8, Eur. T.S. No. 118. See generally Heather Payne & Norman Doe, Public Health and the Limits of Religious Freedom, 19 Emory Int'l L. Rev. 539 (2005).

¹³⁵ See Kimberly M. Mutcherson, Whose Body Is It Anyway? An Updated Model of Healthcare Decision-Making Rights for Adolescents, 14 Cornell J.L. & Pub. Pol'y 251 (2005).

¹³⁶ Id.

¹³⁷ Id.

¹³⁸More than 30 states recognize the concept of the emancipated minor. Lawrence P. Wilkins, Children's Rights: Removing the Parental Consent Barriers to Medical Treatment of Minors, 1975 Ariz. St. L.J. 31, 59. Whether a minor is emancipated is a factual question that may encompass such circumstances as: parental abandonment, see Murphy v. Murphy, 133 N.Y.S.2d 796, 797 (N.Y. Sup. Ct. 1954); the child's constructive abandonment of his or her parents, see Roe v. Doe, 272 N.E.2d 567, 569-70 (N.Y. 1971) and Alice C. v. Bernard G.C., 602 N.Y.S.2d 623, 625 (N.Y. App. Div. 1993); and whether the child is self-supporting, see Alfonso v. Fernandez, 606 N.Y.S.2d 259, 262 (N.Y. App. Div. 1993). A change in the minor's situation may result in termination of his or her status as an emancipated minor. Hamdy v. Hamdy, 612 N.Y.S.2d 718 (N.Y. App. Div. 1994).

¹³⁹The concept of the mature minor is premised on the observation that some minors possess sufficient maturity to exercise adult-like judgment and understand the consequences of their actions. It is an idea that has been recognized by common-law doctrine. In re E.G., 549 N.E.2d 322 (Ill. 1989); Cordwell v. Bechtol, 724 S.W.2d 739 (Tenn. 1987); Younts v. St. Francis Hosp. & Sch. of Nursing, Inc., 469 P.2d 330 (Kan. 1970); Belcher v. Charleston Area Med. Ctr., 422 S.E.2d 827 (W. Va. 1992). The idea has also been adopted by some state legislatures, e.g., 750 Ill. Comp. Stat. Ann. 30/3.2 (West 1993).

¹⁴⁰ Cal. Fam. Code § 6924(b) (West 2008).

¹⁴¹405 Ill. Comp. Stat. Ann. 5/3-501(a) (West 2008).

¹⁴² Ohio Rev. Code Ann. § 5122.04(A) (West 2008).

¹⁴³ Cal. Fam. Code § 6924(f) (2008); 405 Ill. Comp. Stat. Ann. 5/3-501(a) (West 2008); Ohio Rev. Code Ann. § 5122.04(B) (2008).

¹⁴⁴Jan C. Costello, “The Trouble Is They're Growing, The Trouble Is They're Grown”: Therapeutic Jurisprudence and Adolescents' Participation in Mental Health Care Decisions, 20 Ohio N.U.L. Rev. 607, 619 (2003).

¹⁴⁵DSM-IV-TR, supra note 68, at 313. Command hallucinations and suicidal ideation are common symptoms of the paranoid type of schizophrenia.

¹⁴⁶Gary Remafedi et al., The Relationship Between Suicide Risk and Sexual Orientation: Results of a Population-Based Study, 88 Am. J. Pub. Health 57 (1998). Teens who self-identify as gay or lesbian have been found to be at increased risk because of feelings of isolation, depression, and rejection.

¹⁴⁷ E.g., Steven W. Kairys et al., The Psychological Maltreatment of Children—Technical Report, 109 Ped. e68 (2002) (defining psychological maltreatment); Kieran O'Hagan, Emotional and Psychological Abuse of Children (1993) (defining emotional abuse).

¹⁴⁸ Bessel Van Der Kolk, Psychological Trauma (1987).

¹⁴⁹ E.g., Dorota Iwaniec, The Emotionally Abused and Neglected Child: Identification, Assessment, and Intervention (1997) (defining emotional abuse); Celia Doyle, Emotional Abuse of Children: Issues for Intervention, 6 Child Abuse Rev. 330, 331, 336 (1997) (defining emotional abuse); International Conference on Psychological Abuse of the Child (Office for the Study of the Psychological Rights of the Child 1983) (defining psychological maltreatment).

¹⁵⁰ See Stephanie Hamarman et al., Emotional Abuse in Children: Variations in Legal Definitions and Rates Across the United States, 7 Child Maltreatment 303 (2002).

¹⁵¹For example, the Florida statute refers to “mental injury,” Pennsylvania law refers to “serious mental injury,” and Utah's provisions refer to “child abuse.” Fla. Stat. § 39.01(42) (West 2008); Pa. Cons. Stat. § 6303(a) (2008); Utah Code Ann. § 78A-6-105 (West 2008).

¹⁵²For example, Pennsylvania law defines “serious mental injury” as

a psychological condition, as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that: (1) renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child's life or safety is threatened; or (2) seriously interferes with a child's ability to accomplish age-appropriate developmental and social tasks.

23 Pa. Cons. Stat. § 6303(a) (2008). In contrast, Alaska defines “mental injury” as “an injury to the well-being, or intellectual or psychological capacity of a child, as evidenced by an observable and substantial impairment in the child's ability to function.” Alaska Stat. § 47.17.290(2) (2008).

¹⁵³Roger J.R. Levesque, Emotional Maltreatment in Adolescents' Everyday Lives: Furthering Sociological Reforms and Social Service Provisions, 16 Behav. Sci. & L. 237 (1998). See generally Leah H. Behl et al., Trends in Child Maltreatment Literature, 27 Child. Abuse & Neglect 215 (2003) (observing that the level of attention to psychological abuse of children remains static in the professional literature).

¹⁵⁴ University of Cincinnati, Ohio State University, & Case Western Reserve University, Netwellness Consumer Health Information: Child Abuse, available at http://www.netwellness.org/healthtopics/childabuse/faq2.cfm (last visited Mar. 24, 2009).

¹⁵⁵Hamarman et al., supra note 150, at 305.

¹⁵⁶ Id. at 306.

¹⁵⁸ Ohio Rev. Code Ann. § 2919.22(A) (2006).

¹⁵⁷James G. Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 Cal. L. Rev. 1371, 1397 (1994).

¹⁵⁹The Fourth National Incidence Study of Child Abuse and Neglect (NIS-4), mandated by the Keeping Children and Families Safe Act of 2003, Pub. L. No. 108-36, seeks to assess the incidence and prevalence of child maltreatment during specified periods of time. The study includes in the definition of maltreatment abuse and neglect by caregivers who were present at the time of its occurrence or had good reason to know of the problem and failed to make a reasonable attempt to protect the child. This includes:

Refusal to allow needed treatment for a professionally diagnosed physical, educational, emotional, or behavioral problem, or failure to follow the advice of a competent professional who recommended that the caregiver obtain or provide the child with such treatment, if the child's caregiver was physically and financially able to do so;

Failure to seek or unwarranted delay in seeking competent medical care for a serious injury, illness, or impairment, if the need for professional care should have been apparent to a responsible caregiver without special medical training.

NIS-4, Definitions of Qualifying Abuse or Neglect, available at https://www.nis4.org/DefAbuse.asp (last visited Mar. 24, 2009).

¹⁶⁰ See Donald Capps, The Child's Song: The Religious Abuse of Children (1995) (noting children may experience decreased self-esteem if the religious tradition emphasizes guilt).

¹⁶² Ala. Code § 26-14-7.2(a) (2008); see also Ohio Rev. Code Ann. § 2151.03(B) (2008); Utah Code Ann. § 78A-6-508(3) (2008).

¹⁶¹Hicks, supra note 74, at 526-29; Sana Loue, Redefining Emotional and Psychological Abuse and Maltreatment of Children: Legal Implications, 26 J. Legal Med. 311, 329-32 (2005).

¹⁶³For example, the court in Hall v. Indiana, 493 N.E.2d 433, 435 (Ind. 1986) held, in a case involving the death of a youngster who was ill with pneumonia, that “[p]rayer is not permitted as a defense when a caretaker engages in omissive conduct which results in the child's death.” The parents maintained that the devil was engaged in a spiritual battle with God and had caused the sickness, which could only be cured through prayer. One scholar has questioned the effectiveness of imposing punishment as a deterrent to other, similarly situated parents, noting that faith healing parents often have a different perception of the benefits and punishments associated with their actions, believing that they answer to a higher, divine, law. Richard A. Hughes, The Death of Children by Faith-Based Medical Neglect, 20 J.L. & Religion 247, 255 (2005).

¹⁶⁴ E.g., American Academy of Pediatrics, Religious Objections to Medical Care, 99 Peds. 279 (1997); American Medical Association: National Advisory Council on Violence and Abuse, Policy Compendium 2008, available at http://www.ama-assn.org/ama1/pub/upload/mm/386/vio_policy_comp.pdf (last visited Mar. 25, 2009) (see House of Delegates Resolution H-60.961, 1993).

¹⁶⁵Seth M. Asser & Rita Swan, Child Fatalities from Religion-Mandated Medical Neglect, 101 Peds. 625, 629 (1998); Janna C. Merrick, Spiritual Healing, Sick Kids, and the Law: Inequities in the American Healthcare System, 29 Am. J.L. & Med. 269, 298 (2003); Jennifer Stanfield, Faith Healing and Religious Treatment Exemptions to Child Endangerment Laws: Should Parents Be Allowed to Refuse Necessary Medical Treatment for Their Children Based on Their Religious Beliefs?, 22 Hamline J. Pub. L. & Pol'y 45, 84 (2000); Judith Inglis Scheniderer, When Children Die as a Result of Religious Practices, 51 Ohio St. L. J. 1429, 1445 (1990).

¹⁶⁶Asser & Swan, supra note 167, at 629.

¹⁶⁷Jennifer L. Rosato, Putting Square Pegs in a Round Hole: Procedural Due Process and the Effect of Faith Healing Exemptions on the Prosecution of Faith Healing Parents, 29 U. San Fran. L. Rev. 43 (1994).

¹⁶⁸ See Cantwell, 310 U.S. at 303-04.

¹⁶⁹ Christian Science Committee on Publication for Arizona, Legal Rights and Obligations of Christian Scientists in Arizona 5-6, 16-17 (1986).

¹⁷⁰ Bryan R. Wilson, Sects and Society: A Sociological Study of the Elim Tabernacle, Christian Science, and Christadelphians 193 (1961); J.D. Fulton, Letters to the Press, with Editors' Endnote, 81 Christian Sci. Sentinel 2127, 2128 (1979).

¹⁷¹Rosato, supra note 169.

¹⁷² Cf. Kelly W.G. Clark, Of Compelling Interest: The Intersection of Religious Freedom and Civil Liability in the Portland Priest Sex Abuse Cases, 85 Or. L. Rev. 481 (2006) (arguing that protection of children must override a claim of religious liberty in cases alleging church liability based on respondeat superior).

¹⁷³Kenneth C. Haugk, Unique Contributions of Churches and Clergy to Community Mental Health, 12 Community Mental Health J. 20 (1976).

¹⁷⁴ Id.