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.
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.