dissenting.
Because I conclude that the protection of the First Amendment free exercise clause is not available to these defendants and therefore no instructional error occurred, because I disagree that the plaintiffs’ experts necessarily expressed that Wolfe violated a professional standard of care, and because I perceive no reversible error as to damages, I would affirm the judgment with one modification. Therefore, I respectfully dissent.
I.
First Amendment
A.
In my view, Wolfe’s assertions do not pass the preliminary test of whether his conduct was a part of a sincerely held religious belief. Hence, no jury instruction on the issue was necessary.
1.
If a person raises the free exercise clause as a defense, the threshold question is whether the conduct complained of is religious. See Destefano v. Grabrian, 763 P.2d 275 (Colo.1988).
Thus, it is not sufficient for Wolfe to claim free exercise clause protection because he is a minister, or because the counseling sessions included prayer and discussion of spiritual matters. See Destefano v. Grabrian, supra. To invoke free exercise clause protection, the conduct in question must be a professed religious practice or rooted in a religious belief. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
According to the evidence, the massage of young males — as practiced by Wolfe and which, by his own admission, included removal of their shirts and pants, and massage of their backs and legs — is contrary to a generally held societal view that children should *236not be touched in that manner outside of bona fide medical treatment.
Wolfe argues, nonetheless, that he is entitled to reject this view and use his massage technique in spiritual counseling.
In order successfully to defend his conduct on free exercise grounds, however, Wolfe must show that this assertion rests upon a religious foundation; if his choice to use massage is, instead, philosophical or personal, it does not warrant free exercise protection. See Wisconsin v. Yoder, supra.
The trial court found, as a matter of law, that Wolfe posited no religious basis for his massage technique. I agree.
According to the record, even though he claimed that he could not remember using massage on the minor plaintiff, Wolfe explained that he used massage to assist his counselees in communicating their problems to him so he could help them. Since he believed human touch to be one of the best methods of communication between people, he chose this type of massage to help counse-lees relax and, consequently, communicate more freely with him.
Thus, although his ultimate goal in spiritual counseling was for counselees to receive help from God in resolving their problems, by Wolfe’s own testimony, his choice to use massage with children had no biblical, doctrinal, or spiritual basis, justification, or underpinning. Despite the religious setting, the described massage technique simply reflects Wolfe’s choice of a relaxation and communication method between himself and his coun-selees.
2.
Furthermore, even if Wolfe’s conduct was a religious practice, the free exercise clause is inapplicable because the jury, by its verdicts against him, necessarily found that Wolfe’s belief in the use of massage as a beneficial counseling technique was not sincerely held. In other words, the jury determined that Wolfe used massage for personal gratification and not for the spiritual benefit of his counselees, therefore, that the jury was not instructed to consider whether his conduct was part of a religious belief is immaterial.
The jury was instructed that, in order to find for plaintiffs on the breach of fiduciary duty claim, it must find that Wolfe was acting as a fiduciary. It was further instructed that “[o]ne who is acting as a fiduciary must act with the utmost good faith and loyalty on behalf of, and for the benefit of that person.”
Wolfe asserted that he used massage so that the counselees could receive more effective assistance with their problems. The jury, however, found that as to the minor plaintiff, Wolfe did not act with utmost good faith and loyalty, thus rejecting the premise that Wolfe sincerely believed massage would benefit the counselees. In fact, the jury specifically found that, when committing the offending acts, Wolfe was acting outside the scope of his employment as a pastoral counselor.
Similarly, the verdict against Wolfe on the outrageous conduct claim required a specific finding by the jury that Wolfe engaged in intentional or reckless behavior causing severe emotional distress. Such a finding also is irreconcilable with his assertion that he sincerely believed massage would improve the counseling experience.
B.
Finally, even assuming, arguendo, that Wolfe’s behavior was based on a sincerely held religious belief, I do not agree that his otherwise tortious conduct is entitled to First Amendment protection.
The possession and enjoyment of all constitutional rights are subject to reasonable state restriction essential to safety, health, peace, good order, and the equal enjoyment of the same rights by others. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905). When children are involved, the state’s authority is quite broad. Prince v. Massachusetts, 321 U.S. 158, 169, 64 S.Ct. 438, 443, 88 L.Ed. 645, 654 (1944) (child labor is within the state’s power to regulate “whether against the parent’s claim to control of the child or one that religious scruples dictate contrary action”).
*237Conduct which poses a substantial threat to public safety, peace, or order is within the state’s power to proscribe, even if it is in accord with the actor’s personal religious convictions. And, when weighed against the actor’s First Amendment rights, the balance will tilt in favor of the state’s interest in controlling such conduct. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); see also Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879).
Accordingly, free exercise protection stops where infringement on the rights of other, non-consenting persons, begins. See Erickson v. Christenson, 99 Or.App. 104, 781 P.2d 383 (1989) (claims against pastor for intentional infliction of emotional distress and breach of confidential relationship not barred by First Amendment); Van Schaick v. Church of Scientology, 535 F.Supp. 1125 (D.Mass.1982) (First Amendment provided no defense to claim of intentional infliction of emotional distress for activities conducted against former member); cf. Lawson v. Commonwealth, 291 Ky. 437, 164 S.W.2d 972 (1942) (free exercise clause does not preclude state from prohibiting religious practice that endangers participants or others).
Thus, even a traditional practice, such as “laying on of hands” to heal or to communicate with God, could amount to an offensive or harmful touch and constitute an intentional tort if used on a non-consenting individual who held strong objections to that technique. See CJI-Civ.Sd 20:5 (1989) (elements of battery). The First Amendment would not provide protection from liability for any harm the touch might have caused.
In contrast, religious practices which do not interfere with the rights or interests of others may not be prohibited or punished merely because they are different from that of the majority. See Wisconsin v. Yoder, supra (Amish tradition of discontinuing formal education after eighth grade); Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (refusal to accept employment requiring active participation in the direct production of armaments); Sherbert v. Vemer, supra (refusal to accept employment requiring work on Saturdays); cf. Watson v. Jones, 80 U.S. 679, 13 Wall. 679, 20 L.Ed. 666 (1871) (The full and free right to practice any religious principle, which does not infringe on personal rights, is accorded to all persons). See 42 U.S.C. § 2000bb (1993) (the compelling state interest test as adopted in Sherbert v. Verner reestablished by the Religious Freedom Restoration Act).
Similarly, a religious practice which would otherwise constitute an intentional tort may receive First Amendment protection if performed upon a member of the same religious society, because the offended member expressly or impliedly has- consented to the society’s doctrines and practices and, thus, arguably, to the conduct in question.
Consent is a defense that essentially nullifies a claim of intentional tort; one cannot simultaneously consent to and complain of the same act. See Restatement (Second) of Torts § 892 (1977); People ex rel. City of Arvada v. Nissen, 650 P.2d 547 (Colo.1982). All persons voluntarily united in membership in a religious society impliedly consent and submit themselves to its ecclesiastical decisions; this consent would be meaningless if the members could appeal to the secular courts for redress from such decisions. Watson v. Jones, supra.
Accordingly, for example, “laying on of hands” may be protected if the party distressed by it was a member of a group that practiced that technique as part of religious worship and thus necessarily was aware of, and might expect that, the touch would occur.
In this ease, however, I perceive no consent to the offending conduct. At the time Wolfe began counseling, the minor plaintiff did not have the capacity to consent to improper sexual conduct as a matter of law. See W. Keeton, Prosser & Keeton on Torts, § 18 (5th Ed.1984); Commonwealth v. Nickerson, 87 Mass. (5 Allen) 518 (1863); cf. Prince v. Massachusetts, supra. Nor was there any evidence to suggest that the minor unreasonably subjected himself to the risk of harm.
I do not view Destefano v. Grabrian, supra, as altering this relationship between intentional torts and religious practices. Al*238though the court there explained that, because the conduct of the defendant priest was clearly outside of the beliefs and practices of the Catholic church, no First Amendment questions were raised, it did not determine that constitutional protection attaches anytime a cleric defendant asserts that his or her conduct is dictated by a sincerely held religious belief or is consistent with the practice of religion.
Hence, as a matter of law, I would hold that if, as here, significant harm is done to a nonconsenting minor, the offending acts are not protected by the First Amendment simply because they are committed in the name of religion.
II.
Expert Witnesses
I also do not agree with the majority’s conclusion that plaintiffs’ expert witnesses impermissibly testified regarding a professional standard of care.
A claim may be maintained against a member of the clergy for breach of fiduciary duty. See Moses v. Diocese of Cobrado, 863 P.2d 310, 323 (Colo.1993) (“Once a member of the clergy accepts the parishioner’s trust and accepts the role of counselor, a duty exists to act with the utmost good faith for the benefit of the parishioner.”); Destefcmo v. Grabricm, supra. Defendants do not dispute that Wolfe was acting as a fiduciary towards plaintiffs.
The duty required by a fiduciary is not tantamount to a “professional standard” of care such as that imposed on a physician or attorney or other specialist. Rather, it imposes an “external standard of a [person] of ordinary prudence in dealing with his own [interests].” See Restatement (Second) of Trusts § 174, comment a (1959). Such standard of ordinary prudence will apply, for example, in the context of a parent’s duty to his or her child, a trust officer’s duty to a trust, or partners’ duties to each other in the course of partnership business.
Simply stated, a fiduciary’s duty is always to take the more prudent course of action. See In re Petition of First Interstate Bank, 767 P.2d 792 (Colo.App.1988). ' Thus, the testimony of the plaintiffs’ witnesses was unquestionably relevant to the question whether Wolfe acted with the ordinary prudence required of a fiduciary when he counseled the minor. Plaintiffs’ witnesses gave their opinion that Wolfe’s conduct was imprudent and, more particularly, inappropriate, unadvisable, risky, confusing, and harmful.
Nor does the fact the experts also discussed the nature of pastoral counseling transform their opinion into‘an evaluation of Wolfe’s conduct as a “professional standard” of care. The testimony merely placed the issue in context.
Except for Wolfe’s use of massage, the content of the counseling sessions was not in issue. Rather, the expert testimony related to the nature of the harm incurred by the minor because of Wolfe’s position of trust arising from the pastoral counseling relationship and the intimate, if not overtly sexual, aspects of the massage technique used. The expert testimony was not a commentary on Wolfe’s religion and did not require the jury to consider whether his religious beliefs and practices conformed to a standard of competence within the pastoral community.
Moreover, by using his massage techniques on children, Wolfe disregarded the generally held societal view that children should not be touched in that manner. Thus, his actions were subject to an intentional tort action apart from any standard of professional, clerical, care. Cf. CJI-Civ.Sd 15:12 (1989) (action against physician for battery based upon treatment or operations without consent is a claim separate from malpractice or lack of informed consent).
Thus, that this conduct also might be characterized by some as violative of a professional standard of care is immaterial and does not abrogate the jury’s findings. The question of professional standards of care was not before the jurors, nor were they instructed in any way that would have required them to consider a professional standard of care.
Finally, I do not agree that the jury instruction regarding breach of fiduciary duty is so lacking in guidance as to require reversal. The jury was sufficiently informed that *239Wolfe’s conduct was, by its very nature, imprudent, inappropriate, and carried a risk of harm to the minor, and it was entitled to conclude that it represented a breach of fiduciary duty.
III.
Damages
I also do not agree that the damages awarded by the jury were duplicative or inherently inconsistent.
In the majority’s view, the separate jury awards for the breach of fiduciary duty claim and the outrageous conduct claim are dupli-cative because the jury was authorized to award damages under each alternative claim for the same injury and it is not possible to determine what losses the separate awards were intended to compensate. I do not agree, however, that the different claims merely represent alternative legal theories which seek recovery for the same, indivisible, injury.
The plaintiffs claimed that the minor suffered injuries as result of improper touching amounting to outrageous conduct, and their expert witnesses testified as to the emotional harm which can occur from such touching by a cleric. In addition, the plaintiffs claimed that the minor suffered injuries as a result of a breach of fiduciary duty and their expert witnesses also testified as to the emotional harm which occurs when the position of trust accorded a cleric during a pastoral counseling relationship is abused. Thus, the jury could have determined that additional emotional or other harm occurred because of this breach of trust beyond that which had occurred because of the improper touching.
Moreover, the jury was specifically instructed not to award damages more than once for the same injuries. Each of the verdict forms also directed it to award the damages it found were caused by each defendants’ actions under that particular claim for relief and not to award any damages awarded under any other claim. The jury must be presumed to have understood and followed the court’s instructions. Schmutz v. Bolles, 800 P.2d 1307 (Colo.1990).
The majority also concludes that the award against the church on the negligent hiring or supervision claim, because based upon the acts of Wolfe, is duplicative of the award against Wolfe. The majority reasons that the church may not be liable for any additional harm to plaintiff beyond that which is already represented by the awards against Wolfe. Again, I disagree.
The basis of an employer’s liability for the negligent supervision or hiring of an unfit employee is entirely separate from the basis of liability under the doctrine of respondeat superior. And, in a claim of negligent hiring or supervision, there is an important distinction between the scope of an employer’s liability as opposed to the measure of damages which result from the employer’s conduct.
In determining liability, an employer is liable for harm “only to the extent that the harm is caused by the quality of the employee which the employer had reason to suppose would be likely to cause harm.” Restatement (Second) of Agency § 213 comment d (1958) (emphasis added). For example, if Wolfe had harmed plaintiffs by hitting them with his car on his way out of the church parking lot after a counseling session, the church could not be liable for negligent hiring or supervision based upon the information they possessed concerning his counseling technique.
However, this criterion for determining if liability should be imposed upon the church for negligently hiring and supervising Wolfe is completely irrelevant to whether damages caused by this negligence may be awarded in addition to those which were directly caused by Wolfe. In that regard, the jury was directed not to award damages already awarded under any other claim for relief and to enter damages of “zero,” should it find that plaintiff already had been fully compensated for this harm. Again, we must presume that the jury followed these instructions.
Finally, because neither party objected to the verdict forms, and the issue has not been raised on appeal, I would not dissect the verdicts for possible inconsistencies. See Wilson v. Board of County Commissioners, 703 P.2d 1257 (Colo.1985); Mt. Emmons *240Mining Co. v. Town of Crested Butte, 690 P.2d 231 (Colo.1984); see also Lee’s Mobile Wash v. Campbell, 853 P.2d 1140 (Colo.1993).
IV.
As to plaintiffs’ cross-appeal, I agree with the majority that no basis existed to assert contributory negligence by the minor plaintiff as to the negligent hiring and supervision claim. I would modify the judgment accordingly, and, as modified, I would affirm the judgment.