by Josh Bryant
Nehemiah had a big task in front of him. Jerusalem was in ruins, its walls battered. "You see the bad situation we are in, that Jerusalem is desolate and its gates burned by fire. Come, let us rebuild the wall of Jerusalem so that we will no longer be a reproach," he said to the Jewish leaders in Nehemiah 2:17. Likewise, it should be clear to church leaders that we have a big task in front of us. The Church in many regards is in ruins. We are in a bad situation. We have become a reproach to many. They say churches do not care about protecting women and children from sexual predators. They say we do not respond appropriately and are more apt to sweep an allegation under the rug. "They" are right; there is no denying that churches and church leaders have done so. We can and must do better; it is time to rebuild our walls.
While they are right that the actions of some churches and the inaction of others have been tragic and reprehensible, I do not think this is the character of the church. The church is the Bride of Christ which He is sanctifying to present blameless before God. That is to say not only must we rebuild our walls, it is a certainty that we will do so. The only question is how.
Many have added their voices to the conversation. Some have called for apologies; others have called for reparations of sorts. I do not claim to have a solution to past problems. What I can add is simply that these events are rather conclusive evidence of the fact that churches as organizations are ethical actors and agents. While this may seem like a foregone conclusion, we cannot afford to assume as much. Only when we start there - at a place where the church and the Church as organizations have moral responsibilities - can we begin to set aside personal differences of opinion for the good of the church and the Church.
We have an ethical responsibility to respond appropriately to sexual abuse claims in the church. We owe it to God who grieves at every sin committed against His children as anyone reading this would grieve at such sins against their children. We owe it to each other to love one another enough to protect one another. We owe it to the victims and the vulnerable who are far more likely to struggle with their continued walk with Christ as a result of an assault. We owe it to our community: to our neighbors and friends, and to law enforcement and the justice system. We owe it to our mission. Too many seem to believe that sweeping conduct under the rug protects the church. That's myopic. When the accusation becomes public (and it will become public) it will do more harm to the church than had we dealt with it immediately.
Jerusalem's walls were made of rock. Nehemiah did not patch their gaping holes with spackle. He had to tear them down and build them back up again. We must do the same. We must tear down our old paradigms and systems and build new ones that are more secure. This week on the Law and Church podcast, our guest is Gregory Love from Ministry Safe. We all need to go listen. Pay attention to his description of the list - a piece of paper with a checklist on it that serves as our defense against child sexual abuse in the church. At the foundation of that list is a background check, despite statistics that of all abusers in the church in recent history only four percent would have failed a background check and statistics that offenders will offend an average of 150 times before they are caught. Our paper list is mere spackle. We need to get some hewn stone.
Ministry Safe is one such stone. Their training materials and processes are key in putting systems in place that protect children from sexual predators. We'll never know this side of heaven how many children have been protected because of their work. The Church Law Group (Church General Counsel) hopes to be another such stone. Our desire is to train church leaders in how to appropriately respond to claims of sexual abuse in the church in a way that protects the victim and the church. We help investigate claims. We help document prevention practices online so that everyone who needs to know how the church works together to prevent abuse has access to it. We make ourselves available on a day's notice to answer church leaders' questions about what to do in a wide variety of circumstances.
After Nehemiah told the people what God had done to bring him to Jerusalem, their response was "Let us arise and build" and Nehemiah records actions that followed their words, "So they put their hands to the good work." (Nehemiah 2:18). It wasn't just a work - it was a good work. Ours is a good work as well. Let's get to it!
by Josh Bryant
Churches have a heightened sensitivity to background checks right now in light of a report by the Houston Chronicle that found 700 cases of sexual misconduct over the last 20 years in Southern Baptist Churches. But do you know what to do when you get a positive result? The answer may seem to be as simple as telling the person they cannot volunteer or serve on staff, but because of the Fair Credit Reporting Act, it isn't that simple. Here are five things you need to know about a positive background check.
1. Make sure you had their permission before you do anything. Several laws require written consent of the person before you run a background check on them. Failure to have that permission could get your church into trouble with the Federal Trade Commission, the Consumer Finance Protection Bureau, the Department of Justice, and any number of state institutions, not to mention a law suit for invasion of privacy. If you didn't have their permission, go get it and run the background check again.
2. Don't say no...yet. Before you take an "adverse action" against a volunteer or staff member by not allowing them to serve, you must give them a notice that includes a copy of the background check report you received. You must also include a document put out by the CFPB called "A Summary of Your Rights Under the Fair Credit Reporting Act" and give them at least five days to explain or contest the content of the report. To be safe, give them ten.
3. Now you can say no. If they don't contest the information or explain it to your church's satisfaction, now you can tell them no. But you have to do it in a certain way too. You have to tell them that they were rejected because of the information in the report, give them the name, address and phone number of the company that ran the report, inform them that the company who ran the report did not make the decision to deny them the opportunity to serve, and inform them of their right to dispute the accuracy or completeness of the report and get a free copy of the report from the company that ran it within 60 days. But...
4. Make sure you say no uniformly. Especially in the context of employment, failure to uniformly say no is discriminatory and can get your church in trouble. For example, if you tell one applicant no because they had a DWI on their record and another yes even though they also had a DWI on their record, you'd better have a very good reason for treating the two differently or you could be in trouble with the EEOC. Volunteers really don't have much of a recourse, but it does look bad. So write down what disqualifies a person from what roles in the church so that you plan in advance how to handle certain findings on a background check. And...
5. Make sure you maintain confidentiality. You need to lock the report up for a year and then either shred or burn it. If you store it digitally (which I don't recommend), you need to make sure you've got adequate data security in place and that you have the proper IT infrastructure to completely erase the data from your systems after a year. Moving it to the recycle bin or trash can on your computer is insufficient; the FCRA mandates that electronic copies cannot be reconstructed. That usually requires special software or hardware to make happen.
Here at Church General Counsel, we're starting a focus over the next several weeks about dealing with sexual harassment in the church as the #MeToo movement spreads like wildfire through our society refusing to pass over the church. How the church works to prevent sexual harassment in the workplace is crucial, and we'll have resources and further discussion on this topic over the next few weeks. But the second aspect of a good sexual harassment strategy is how to deal with it if a claim is made.
Churches must respond to claims of sexual harassment with a thorough investigation. However, there are many great reasons why churches should not conduct them internally.
1. Churches are not naturally qualified to conduct an investigation appropriately. I don't know of any seminary that teaches a class on fact finding investigative techniques. I know plenty of law schools that do, however. Attorneys are trained in how to build a case, and before the case can be built on the law it must be built on the facts. As such, attorneys must know how to conduct good witness interviews, collect documents and other evidence, and otherwise conduct a solid investigation.
2. Internal investigations can lead to hurt feelings and further conflict. Someone is going to disagree with your conclusion if you do the investigation by yourself. This can cause church members to be upset with you, and you didn't do anything but due diligence in investigating a sexual harassment claim as you should. It can cause more strife on staff. However, if you have an outside attorney conduct the investigation, it brings a formality to the process that relieves you of personally carrying the weight of the decision without an independent recommendation.
3. The content of the investigation can gain extra protections. This is the great benefit of attorney-client confidentiality and privilege. Attorney-client confidentiality just means that an attorney must keep information gained from the attorney-client relationship strictly confidential in a vast majority of circumstances. As such, the things that church staff, members, and others say to the attorney are usually protected. Attorney-client privilege goes further to prohibit a court from requiring an attorney to disclose that information. This is a great protection that you won't get with any other investigator.
4. The results of the investigation can also gain extra protections. This means that whatever the attorney discovers could be protected from anyone else getting access to it. This is because a doctrine known as attorney work-product. It is an exception to the discovery rules - rules that provide for the provision of evidence from one party in litigation to the other in hopes of settling a case or allowing the other party to prepare for trial on equal ground. Except in rare situations, the work of an attorney cannot be "discovered" by an opposing party such that not only communications, but the result of an investigation are protected from disclosure.
At Church General Counsel, we highly recommend our clients utilize our services to conduct investigations in sexual harassment and other personnel matters. Here are some ways we can help:
Church General Counsel Managing Attorney Josh Bryant, J.D., M.Div., authors most of the posts in this section. From time to time, he will post articles from others in the field of church growth, administration, and operations.