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.
My Momma always told me never talk about religion or politics - at least someone's momma told me that. Here we are about to talk about both in one post. The political activity of churches has been in the news a lot this year since President Trump allegedly repealed the Johnson Amendment that prohibited 501(c)(3) tax exempt organizations from politicking from the pulpit. Did you know that isn't exactly true? The President doesn't have the authority to change congressional legislation. By executive order, he changed the way it is to be interpreted by the IRS. As has been proven time and time again over the last several administrations, with the stroke of a pen that interpretation can again be changed. Here are some reasons to have your Church General Counsel review your political activity policy.
- A written policy on employee political activity is wise.
First of all, a written policy on employee political activity is wise. Do you want your staff or your church to support a particular party or candidate from the pulpit? Does such conduct align with the vision and mission of your church? Is it ok for your staff members to run for office? Can church funds be used for political purposes? What about church resources - could they be used on behalf of a political candidate? Is it ok for church staff to use church time to lobby or campaign? These are all questions which your personnel committee, elders, and/or senior pastors need to answer and put in writing so that everyone is aligned with the direction of church leadership.
Secondly, it is important that you have a political activity policy that is flexible and can be changed quickly. Right now, the Executive Order on the Johnson Amendment prohibits the IRS from finding a church guilty of violating the Johnson Amendment if it could not also find a secular institution guilty. How that would play out if litigated is far from certain since churches have a much bigger pulpit (pun intended) than most 501(c)(3) organizations. Nevertheless, this is just an executive order that cannot overturn congressional legislation. As quickly as it was signed by President Trump, it could be revoked by Congress, the courts (if challenged), or a subsequent president. As such, you need the ability to quickly update, disseminate, and educate others on a policy that aligns with the law as it changes. Managing Attorney Josh Bryant stands ready to help your church comply with this law.
Third, churches need to be fully informed of the repercussions of violating IRS regulations for 501(c)(3) tax exempt organizations. If prosecuted, a church could lose its tax exempt status. That means that every donation made to your church is no longer deductible by your donors. It could hurt your annual giving and ultimately shut the doors to your church. Now, we don't want to be alarmists, and to be fair this is something that has not been tested. However, the law clearly states that you could lose your tax exempt status if found guilty of violating this law. Churches are wise to render unto Caesar in this regard.
Finally, your church needs to understand that there is a difference between endorsement of a particular candidate or party and issue advocacy. You can preach on abortion or poverty until you are blue in the face as long as it doesn't appear that you are endorsing a particular candidate or political party. The government can even complicate this though, as the law up until know has allowed the government to infer violation based on a number of factors even when the content of the message appears on its face to be simply issue based and not directed toward any given party or candidate. Josh Bryant has worked with churches on this issue before, and he can help your church ensure compliance with this unusual law.
There are many different best practices that you could engage in to protect your church from this risk. While we don't want to stifle political speech, we do want to make sure your church is protected from undue government interference. Subscribe to Church General Counsel today for more information.
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.