By Josh Bryant
In a blog last week, I described five ethical questions for church leaders to ask. As a recap, the first was about as simple as it gets: what would God want? This is the classical understanding of organizational ethics as it applies to the church. The question requires church leaders to develop a systematic or biblical theology regarding the question at hand. What does the Bible say that would help answer the question of how to handle sexual abuse?
The question may seem like a no brainer, but I’ve received two phone calls in as many days about situations in which pastors told victims that it would be best to handle something internally rather than appropriately address an issue of sexual abuse. This conclusion and others like it are usually based on one fallacy: viewing Scripture through a pinhole. Typically, the verse people point me to when arguing with me over whether they can keep an issue of abuse internal to the church is 1 Timothy 5:19, which reads “Don’t accept an accusation against an elder unless it is supported by two or three witnesses.”
One verse is not a system. Broadly speaking, systems require more than one moving part working together. Unless the rest of Scripture is totally silent on the topic, we cannot stop with this one verse as a dispositive answer.
We certainly cannot pick this one verse out of 1 Timothy and read nothing around it. Taking verses out of context in this manner is a fatal exegetical error. If we read the entire passage we’ll notice that this verse is set in contrast to “good leaders…who work hard at preaching and teaching” (v. 17) and followed by commands to publicly rebuke those who sin (v. 20) and to be cautious and deliberate in how the church appoints elders (v. 22). Paul reminded Timothy to be impartial (v. 21) and that some people’s sin remains hidden (v. 24). When a church leader’s sin surfaces, we must take steps to deal with it. We cannot say under the circumstances that there are not enough witnesses and dismiss someone alleging sexual abuse against a church leader. Churches must act, but what must they do?
Most leaders who prefer to sweep things under the rug do not consider other passages, such as Romans 13. There Paul instructed the church in Rome to teach submission to governing authorities and explained why they should so teach. “…government is God’s servant, an avenger that brings wrath on the one who does wrong. Therefore, you must submit, not only because of wrath, but also because of your conscience.” (v.4b-5).
Classical organizational ethics require the church to turn the criminal conduct of the elder over to law enforcement. We must be able to separate the man from the office. While we may be able to seek grace for not exercising church discipline immediately because of a lack of witnesses (although that would be unwise legally), we cannot do so for failing to hear the accusation against a church leader and to turn it over to the authorities. As Paul said, “the one who resists the authority is opposing God’s command, and those who oppose it will bring judgment on themselves.” (v. 2). Too many church leaders are experiencing the consequences of their choice to resist submission to authorities by not reporting crime to law enforcement.
By Josh Bryant
In my experience, many people in congregations across America do not understand mandated reporting. This usually is not evident until a volunteer or staff member must make a report to the child abuse hotline. If a parent or guardian finds out that someone from the church made a report to the hotline, it can really cause some hard feelings. Some of those feelings come just from the perception that making the call is immediately a personal accusation of child abuse. Other feelings come from an ignorance of the facts of the situation.
Many people in your congregation probably define mandated reporter only by that title. The think a mandated reporter is someone who must report child abuse. However, they do not usually include in that definition that a mandated reporter is someone who could be criminally charged if they fail to make a report of child abuse. It never crosses their minds that you or another from the church really does not have a choice.
Few people in the church understand that very rarely is a call to the child abuse hotline an actual allegation. You may have only seen inexplicable bruising on a child’s face. Someone may have just told you that they were being sexually abused without disclosing the offender’s identity. Sometimes your report to the hotline may be made on credible hearsay. A report is just that – a report. They do not understand that in many instances it is not an accusation that a person is abusing their child.
Very few people in the church understand the necessity to err on the side of caution. They do not stop to place themselves in the shoes of other parents. They do not consider how they would feel about sending their child to the church if another child was abused and the church did not report it. Most simply just do not understand that church leaders must weigh the evidence they have at the time and determine whether a reasonable person would suspect that child abuse could have occurred. They do not understand how low of a burden that is; most church leaders do not understand how low of a burden “reasonable suspicion” is. In close calls, church leaders must make a report.
What’s a church leader to do?
1. Educate Your Congregation.
Many churches have parent orientation meetings or something similar. If you are not already telling your church that you have a zero-tolerance policy for child abuse, you should take the opportunity to do so. Teach them about what mandated reporting really means: criminal liability for mandated reporters who do not report, reporting and not accusing, and the low burden of “reasonable suspicion.”
2. A Congregational Thought Experiment
Make your congregation think through the scenario before it happens. Ask parents what they would do if a child that was not theirs was abused and the church did not call it in. Most will tell you that they would leave or at least hesitate to put their children in care. Make sure they understand that feeling before a point comes where you may have to make a report concerning their child.
3. Weigh the Alternatives.
Most people would reach a conclusion of concern when faced with that thought experiment. As a church leader, weigh the alternatives of not reporting. On the one hand you could report and maybe lose a family or two that are upset with you. On the other hand, you could not report and lose many families concerned about your failure to report. You could also get a little jail time. When in doubt, report.
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:
Southern Baptists have been busy discussing what is appropriate in counseling after statements Southwestern Seminary's President Dr. Paige Patterson made regarding counseling divorce in the case of abuse came under scrutiny. The line of demarkation is clear at this point - some defending Patterson with a heavy emphasis on the sanctity of marriage; some calling for his resignation over insensitivity to abuse. I can add little clarity to that discussion, except to say that I pray I am raising a daughter who will run from such a situation (God forbid she ever find herself there), and sons who will never treat women so disrespectfully. We should also remember that we live in a day in age in which wives can abuse husbands too.
What I can add to the conversation is a review of the risks churches assume in counseling victims of domestic abuse. Here are a few liability vectors that churches and pastors need to consider on this subject.
A pastor can be held liable in this situation under a theory of general negligence. There are four things an abuse victim would have to prove: 1) the pastor or church owed a duty to the abuse victim, 2) the pastor breached that duty by an act or omission, 3) damages, and 4) the pastor in some way caused the damages.
Generally, the courts will not hold a pastor responsible for counseling on strictly spiritual matters due to the First Amendment. For many evangelicals, marriage counseling is a deeply spiritual matter to which Scripture speaks a great deal. Unfortunately, our culture is increasingly divorcing marriage from spiritual life. As such, some courts have held that pastors have a duty of care to persons seeking marriage counseling, the breach of which is not subject to First Amendment protections. Damages would be easy enough to prove in the case of physical abuse. Causation can be established by the trusting and somewhat authoritative relationship between pastor and person seeking pastoral guidance. Pastors therefore take a big risk by advising abuse victims to stay in an abusive situation.
Negligent Hiring, Supervision, or Retention
Liability for the church in this scenario would only stand if proven vicariously. In other words, the church is not directly responsible to the abuse victim, but as with all organizations it does have a responsibility to adequately interview, supervise, and if necessary fire any employee of the church. The duty is not the focus; churches have duties to oversee their employees. If the church does not do a thorough interview of a pastor, or if the church knew the pastor's stance was that victims should only pray for their abuser and remain in an abusive home, then the church could be held liable for negligent hiring. If the church does not supervise activities of a pastor that a court could deem as "non-spiritual" so as to allow a suit to proceed, then the church can be held liable for the actions of the pastor under a negligent supervision theory. If the church does supervise and knows that a pastor is counseling abuse victims to remain in abusive situations, then the theory would not be negligent supervision but negligent retention. In either of these cases, both the church and the pastor could be held liable and worse, the pastor and church will often end up bickering over who is more liable.
Some churches utilize peer counseling ministries in lieu of strictly pastoral counseling. Even in these scenarios, churches must be very careful in selecting, supervising, and revoking the privileges (if necessary) of lay counselors. Failure to do so can result in the church being held liable for the advice of the lay counselor.
Knowing now that counseling in and of itself contains risk regardless of the circumstance, what are some things we can do to protect ourselves?
1. Hire or refer. The psychological dynamics of abuse take counseling here out of many pastors' realm of expertise. However, seminaries are churning out tons of counseling graduates that could work at your church. Hire a pastor of pastoral care for your church to handle things like hospital, assisted living, and hospice visits, counseling, benevolence, and so forth. If you don't have the budget for another staff member, gather a list of good Christian counselors in the area and refer the matter out.
2. Statement of Ethics. While your statement of faith will not change with the culture, your statement of ethics will at least grow as conduct once reprehensible becomes more commonplace. Based on what your church believes the Bible says about man, sin, the church, and marriage, how do you expect members to act? In light of the #MeToo movement, growing allegations of sexual assault, abuse, and more, your statement of ethics or white papers should directly address and repudiate any form of abuse. Pastors and lay counselors should then be not only held to that standard, but also enforce that standard by encouraging separation from abusive situations.
3. Documentation. If you are going to have a pastoral counseling practice in your church, you need good documentation. This should include an agreement that a) requires alternative dispute resolution in the event the person seeking pastoral guidance is injured by the counseling process, and b) specifies exactly what you are qualified and not qualified to handle. It should also include routine note taking about what took place in every counseling session and a final letter of some sort indicating that the counseling relationship has ended. These documents must remain confidential.
4. Basic Policy Protections. Institute policies that prohibit male pastors from counseling females alone or that only women may counsel women. Establish other guidelines such as an open door policy or windows so that others may see inside the office while counseling is taking place. Utilize technology for video or telephone counseling. These should be in effect with all interpersonal relationships to prohibit the appearance of impropriety and hopefully limit the chances of a false claim of sexual misconduct. Counseling is often the first step to such an allegation.
5. Specific Policy Considerations. Limit what your pastors or lay counselors can discuss to things that are strictly spiritual or biblical in nature, that deal with a person's sanctification, and so forth. Limit the use of the term "counseling" because that can bring you under state licensing requirements. Instead, offer spiritual guidance or biblical guidance.
6. Insurance. Talk to your insurance carrier about professional liability insurance and Employment Practices Liability Insurance to cover the church in the event a pastor or lay counselor is found to be negligent in the practice of biblical counseling. Depending on the specific practices of your church, these policies can be rather inexpensive.
Jesus said, "Let the little children come to me." It is a sad state of affairs that given such a command we have to talk about a policy that protects kids. Nevertheless, year in and year out, the abuse of kids and vulnerable adults is the top reason why churches end up in court. Since churches get sued most frequently on this issue, the question isn't "why have an attorney review our child protection policy?" The question is, "why wouldn't you?" Here are a few good reasons your church needs a child and vulnerable adult protection policy written by an attorney.
- Your church needs a policy that protects children and vulnerable adults from sexual predators.
Let's start with the main reason you need a good child and vulnerable adult protection policy: sexual abuse in the church hurts the cause of Christ, especially when its victim is a child. The church should be a beacon of hope that points to Christ, not the object of criticism because church leaders did not have a good policy in place to protect kids when they know how prevalent sexual abuse in the church has been up until now. Your church must have a robust policy that does everything it can to prevent abuse from ever occurring.
Secondly, you need a policy that aligns with what most liability insurance companies want. Josh Bryant has experience working with insurance companies on obtaining supplemental sexual incident coverage that is not covered by most general liability policies. Insurance companies are in a great position to know how sexual abuse in the church has occurred in the past, and know exactly what kind of policies they want to see before underwriting an insurance policy.
Third, your church needs a policy that perseveres evidence that a defense attorney will want to present to a judge or jury in the event your church is sued after an allegation of sexual misconduct. Unfortunately, churches in which sexual abuse has occurred are more likely to be guilty until proven innocent, and the only things that proves innocence is evidence. You must preserve evidence as best you can, and Josh Bryant has experience in litigation such that he knows what kind of evidence is necessary.
Fourth, your church needs a policy that is as legally defensible as it is operationally manageable. No policy is worth the paper it is written on if the pastors and volunteers responsible for enforcing that policy don't do it. Most pastors and volunteers don't want to be insubordinate to church policy - they simply don't have the time to do much of what a policy requires sometimes. That is why it is important to have an attorney with experience not only in law, but in ministry as well. Josh Bryant can help balance the ministry needs with the legal best practices.
Finally, you need someone to help with your child protection policies like Josh Bryant, who has the experience necessary to get the job done well. When you sign up for our attorney access plan, this is usually one of the first policies that Church General Counsel will review.
It is so important to have a good child protection policy. Members can see more tips on drafting this policy in our members only area, or you can contact us for more information on how we can help you draft a good child and vulnerable adult protection policy.
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.