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Biblical and Legal Safeguards

So in everything, do to others what you would have them do to you,
for this sums up the Law and the Prophets (Matt. 7:12).

Since 1982 Peacemaker Ministries has mediated or arbitrated hundreds of legal disputes involving churches. Most of these conflicts could have been prevented if church leaders had implemented some basic biblical and legal safeguards beforehand.

Several of the key preventive measures they could have taken are discussed below. Some of these measures can be promptly adopted and implemented by church leadership. Others will require much more study, discussion, and interaction with the congregation.

Protecting your people from harm and reducing your exposure to legal liability does not come easily. But it is worth the investment. If you saved just one child from sexual abuse, ended one disciplinary case with restoration, prevented one divorce, or headed off one bitterly divisive congregational meeting, wouldn’t that be a highlight in your ministry this year?

In addition to protecting people and preserving relationships, your investment in peacemaking can save your church hundreds of hours of time and many thousands of dollars in legal fees. Everything you redeem through peacemaking—relationships, time, energy, and money—can be reinvested in building God’s kingdom.

A. Follow the Golden Rule

It could happen to you. A couple was dismayed to discover that a teenage volunteer had touched their daughter inappropriately on a Sunday school outing. Fearing that other children might have been similarly wronged, they asked the church to do a thorough investigation of the youth ministry. Thinking that the parents were actually laying the groundwork for a lawsuit—and dreading the scandal that might arise if people learned of the incident, the pastor downplayed their concerns and tried to cover up the incident. After he had avoided her for nearly a month, the mother mentioned the incident to her cousin, who had recently graduated from law school. Within three days the legal wheels began to turn, and the youth worker, pastor, and church were soon named in a $100,000 lawsuit.

The wisest and most practical legal advice you could ever receive will not cost you a dime. You can find it in the Bible, in Matthew 7:12:

“So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.”

Many of the conflicts that lead to lawsuits could be avoided if people consistently followed this timeless principle. Would you like your concerns to be taken seriously? Then take others’ concerns seriously. Would you like others to admit when they’ve been wrong? Then confess your wrongs. Would you like others to change behavior that may hurt innocent people? Then do so yourself.

If the pastor described in the true story above (and many pastors like him) had paused long enough to consider these simple questions, he would have served that family well and may have spared his church and himself the ordeal of an expensive and embarrassing lawsuit. Since there were major potential liability issues at stake, it certainly would not have been wise for him to blurt out a blanket admission. But simply meeting with the parents and their daughter, listening compassionately, and expressing deep concern for what had happened to her could have changed the entire course of this conflict.

When major liability and financial issues are at stake, it is wise to consult with your insurer and a qualified attorney before talking with someone who claims to have been harmed. Be careful, however, not to automatically accept the typical legal advice to “make no admissions” and to communicate only through your attorney. This impersonal and shortsighted approach has been played out in hundreds of sexual abuse lawsuits during the last decade, often infuriating juries and resulting in multi-million-dollar damages awards.

By all means, seek and listen carefully to qualified legal counsel. But always evaluate and apply that counsel in the light of the Golden Rule and the other overarching principles of wisdom and justice presented in Scripture.

B. Use Conciliation Clauses

It could happen to you. The church’s plumbing had been falling apart for years. Dale, a professional plumber who had begun attending the church a few months earlier, told the deacons he would make the necessary repairs “at cost.” All the deacons understood him to mean “the cost of materials only,” and they gave him the go-ahead. Two weeks later he submitted a bill to the deacons for $1,000 in materials and $1,800 in labor. When the deacons questioned the labor charge, Dale stormed out of the meeting, calling the deacons “a bunch of crooks.” Within a week the deacons heard that Dale was going around town calling them dishonest. A few days later, they learned that the plumber had filed a court action to force them to pay his entire bill.

One of the best ways to maximize your ability to resolve a conflict according to biblical principles and to stay out of court is to include a “conciliation clause” in all of your agreements. These clauses are legally enforceable1 in most states and help to ensure that the church and its members will resolve conflicts through biblical mediation or arbitration rather than through litigation. The following language is being used by thousands of churches, ministries, and businesses throughout the United States:

Any claim or dispute arising from or related to this agreement shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker® Ministries. (The complete text of the Rules is available at www.Peacemaker.net/rules.) Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties understand that these methods shall be the sole remedy for any controversy or claim arising out of this agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision.

These types of clauses may be used in bylaws, counseling agreements, employee policy manuals, and employment agreements2, permission slips, and liability release forms for church activities, and contracts with vendors and contractors. A simplified version of this clause is included in the Relational Commitments .

Including a conciliation clause in your church’s bylaws or Relational Commitments can prevent a conflict over control of your church from ending up in civil court. Such a provision is especially important in independent churches that have no outside appellate process for resolving internal deadlocks. Churches that do have an outside appellate structure can still benefit from these clauses. Although courts generally defer to the appellate processes that are commonly found in hierarchical churches,3 conciliation clauses in bylaws or Relational Commitments can still serve to prevent lawsuits when a member disagrees with the decision made by a higher body within the denomination.

Conciliation clauses are legally binding with regard to most contractual relationships, such as contracts for goods and services and employment agreements. They are not always enforceable with regard to personal injury (tort) claims, however. Even so, including a conciliation clause in documents like church permission slips and Relational Commitments is worthwhile. Even if the clause is not legally enforceable, it can be used as the basis of a personal appeal to an injured party to resolve a claim through biblical mediation or arbitration rather than going to court.

Before using these clauses, it is wise to check with a local attorney and your insurance agent to find out whether your state or insurer has any special requirements for or limitations on such agreements.

C. Establish Prudent Counseling Policies

It could happen to you. A woman came to her pastor for advice on how to respond to her cold and indifferent husband. Sincerely wanting to help her, he provided godly and compassionate counsel. One afternoon when his secretary was gone to a doctor’s appointment and the woman came in for counseling, she hugged the pastor and told him she had developed an emotional attachment to him. When he pulled away, she felt rejected and ran from his office. He lay awake all night wondering if she was going to endanger his reputation by claiming he had made advances toward her. She did. The next day her husband came to the office, angrily accusing the pastor of trying to seduce his wife and threatening to call in his attorney.

Counseling is a vital activity of the church that goes to the heart of pastoral ministry (see Acts 20:20; Rom. 15:14; 1 Thess. 5:14). Unfortunately, counseling within the church also involves significant legal risks. Pastoral counselors can be sued for intentional wrongdoing, such as the seduction of a counselee or violating confidentiality. These allegations can result in claims of assault, defamation, invasion of privacy, alienation of affections, intentional infliction of emotional distress or breach of fiduciary responsibility.

Pastors and churches also can be sued for negligent wrongdoing, such as a failure to properly select and supervise church counselors or failure to refer a suicidal person for “professional help.” In most states standards for pastoral (“non-therapist”) counselors are not as high as standards for professional counselors and therapists.4 This preferential treatment is under attack, however, and courts are being urged to establish a higher “duty of care” owed by pastoral counselors to counselees. Among other things, this could involve a duty to refer a counselee to a licensed health care professional when secular standards might suggest that the pastoral counselor is not competent to handle a problem, or a duty to warn others if a counselee might harm himself or a third party. A church may be liable for the acts or omissions of its pastoral counselors5 and of any lay counselors6 who work at the request or under the supervision of the pastoral staff.

Sadly, many churches are responding to these potential risks by reducing or even eliminating their counseling ministries. Instead of fulfilling God’s command to minister the gospel in all aspects of life, they are succumbing to fear and automatically referring members to professional counselors outside the church, some of whom do not provide consistently biblical counsel.

Wholesale retreat from biblical counseling is not necessary. There are several practices that pastors and churches can follow that will enable them to carry out robust counseling, while substantially reducing their exposure to legal liability.

  • Be a biblical counselor. The primary reason for this is to be faithful to Scripture. An additional benefit is that your counselors are less likely to be held to the standard of care applied to licensed health care professionals. Don't hold yourself out as a professional therapist, marriage, family or child counselor, or clinical social worker unless you are one. (In this case, you may subject yourself to a higher standard of care than is required of pastoral counselors.) Avoid using worldly or psychological terms and principles. Clearly articulate the biblical passages and principles underlying your counsel. Rely on traditional Christian counseling resources, such as prayer, teaching, Bible study, discipling, and appropriate discipline.
  • Obtain thorough training in biblical counseling. Peacemaker Ministries has worked closely with the Christian Counseling & Educational Foundation (www.CCEF.org), and highly recommends its training and resources.
  • For lay counseling programs, do background checks on potential counselors (experience, references, criminal record, etc.) and provide them with thorough training in biblical counseling.
  • Obtain informed consent from all counselees. This should be done in two complementary ways. First, explain your counseling practices and limitations in your church’s Relational Commitments document. Second, have each new counselee sign a “Consent to Counseling ” form during his or her first appointment. This form should warn of limitations on confidentiality (e.g., duty to warn others of harm or to inform church of unrepentant sin) and include a conciliation clause (see The Leadership Opportunity Supplemental Materials CD).
  • Don't coerce, bully or harass as a counselor. If necessary, rely on redemptive church discipline to motivate members to repent and grow.
  • Make referrals for matters beyond your training and experience (e.g., medical or legal matters, or when there is a threat of suicide).
  • Do not interfere with a counselee's prescription drugs; if necessary, urge the counselee to seek a second opinion from a different physician.
  • Avoid even the appearance of impropriety. When counseling with a member of the opposite sex, be visible to others through a window or open door. Be especially cautious about off-site counseling. Avoid any physical contact with a counselee other than what would be appropriate for casual friends in public.
  • Guard against the idolatrous tendencies of counselees, which can include a counselee looking to a counselor for the hope and security that only God can provide, or a woman looking to a pastor for the love and intimacy that only a husband can provide.
  • Counsel a member of another church only with that church's consent and cooperation. Encourage and assist unchurched counselees to make a commitment to a church as part of their counseling regimen.
  • Decline compensation, gifts, and loans from counselees, because receiving compensation may weaken your claim to be a pastoral counselor and bring you under the standards placed on licensed professional counselors.
  • Keep careful records, including date, time, and location of each meeting, and who was nearby. Clearly indicate whether notations are objective or subjective. Protect your notes from unauthorized access. Finally, develop a consistent policy on when records should be destroyed.

With these safeguards in place, you can carry out a Christ-centered, church-based counseling ministry with little exposure to legal liability, and experience much joy as you see the gospel transform lives and save precious relationships.

D. Define and Respect Confidentiality

It could happen to you. A couple came to their pastor for marriage counseling. During their discussions, the husband admitted that he had occasionally lost his temper and struck his children in anger. The wife eventually gave up on counseling and filed for divorce. In an effort to help her obtain custody of the children, her attorney asked the pastor to testify that the husband abused his children. When the pastor refused to testify against one of his own church members, the attorney served him with a subpoena, which required him to appear before the judge or face charges of contempt. The husband’s attorney found out about the subpoena and moved to block it in court. He also hinted that he would sue the pastor if he disclosed to others what his client had shared in confidence during pastoral counseling.

(1) General Legal Principle Regarding Confidentiality

The general rule regarding confidentiality is that when a person, such as a church member or counselee, communicates confidential information to another person in a private and non-public manner and in the context of a special relationship, such as pastoral counseling, that information should not be divulged to other persons without a legitimate reason. This rule imposes an ethical duty on the person receiving the information to keep it confidential.

A breach of this responsibility can resort in legal (tort) liability. In some states, pastors who divulge confidential information without the consent of the person who gave the information can be held liable for defamation, invasion of privacy, and other intentional torts. 7

The key question to ask with regard to confidentiality is, “Did the person communicating the information have a reasonable expectation that the information would be held in confidence?”

There are several exceptions to the general rule regarding confidentiality. These include a duty to warn others of imminent harm (generally applies only to professional counselors, not to pastoral or lay counselors), a duty to report actual or suspected child abuse, discussions of confidential information with a counseling supervisor, and voluntary informed consent to disclosure.

(2) A Biblical Perspective on Confidentiality

Scripture strongly supports the principle that personal and confidential communications should be carefully guarded. Gossip is equated to the betraying of confidences, and is specifically forbidden (Prov. 11:13, 20:19). The Golden Rule calls us to treat other’s confidences the same way we would like them to treat ours (Matt. 7:12). Even the primary passage on church discipline calls us to keep the circle of people involved in a problem as small as possible for as long as possible (Matt. 18:15-17). Respecting confidences is essential to creating an atmosphere of mutual trust in which people feel safe to confess their sins and ask for help (see Prov. 11:13; James 5:16).

Absolute confidentiality is neither expected nor required by Scripture, however. In cases of unrepentant sin, others may need to be informed of the situation so that they can help to encourage repentance and can be protected from harm themselves (see Matt. 18:12-17; Rom. 16:17; 1 Cor. 5:1-13; 2 Tim. 2:16-18, 4:14-15). Furthermore, civil authorities may sometimes need to be informed of a problem so they can carry out their God-given responsibility to prevent potential crime (Rom. 13:1-5).

In light of these principles, it is incumbent on a church to walk a tightrope. Leaders must develop policies that will guard confidential information from improper disclosure. At the same time, these policies should give the church freedom to disclose confidential information if needed to bring a brother to repentance or protect others from harm. This sounds impossible, but it can actually be done quite readily with a properly drafted policy on confidentiality.

(3) Testimonial Privilege

Another key step to navigating successfully through the confidentiality maze is understanding a closely-related legal principle that is referred to as “testimonial privilege” or “clergy-penitent privilege.” This principle protects clergy from being forced to testify in a legal proceeding regarding information they have received in a confessional or counseling context. A statute regarding the admissibility of evidence in court usually establishes this privilege. It is based on a public policy that considers it to be beneficial for people to turn to clergy for help with difficult personal problems that might otherwise grow worse if they are not dealt with promptly.

This policy also is related to the Roman Catholic doctrine of the Confessional, which enjoins (requires) church members to come to their priests regularly to confess their sins. State legislatures have recognized that it would be unfair to take advantage of this doctrine by forcing a priest or clergyman to testify in court about information he had acquired in a confessional or counseling situation, where the church member felt obligated by his faith to confess his wrongs. 8

In order to claim the testimonial privilege, four elements usually must be present:

  • The communication was made in confidence.
  • The communication was made to a member of the clergy who in the course of his church’s practice or discipline is authorized or accustomed to hear such communications.
  • The church requires the person hearing the communication to keep it confidential.
  • Only the clergyman and the person claiming the privilege were present when it was communicated. There have been a few narrow exceptions to this requirement, such as when a conversation took place in a hospital ward where complete privacy was not easily available.

The limitations on this privilege vary from state to state. Therefore, you should talk with a local attorney to find answers to the following questions:

  • Who may assert the privilege or claim its protection? In some states only the penitent controls the privilege, but in others the clergy may invoke the privilege even if the penitent waives the protection.
  • Who qualifies as a “clergyman”? Most states apply the privilege only to ordained clergy, but a few courts have extended the privilege to elders or counselors who are supervised by a clergyman.9
  • What types of communications are protected? Some states restrict the privilege to “penitential confessions,” as distinguished from general communications made in the course of counseling (California and New York, for example), while other states allow a more liberal interpretation of the statute and allow protection of all communications made during pastoral counseling.
  • What types of statements are considered to be communicated to a clergyman in his “professional character” (e.g., counseling in an office as opposed to talking on the street)?
  • What makes a communication “confidential”? For example, if others are present, is the communication no longer considered to be confidential?
  • Is reporting of child abuse and neglect covered by the privilege?
  • Does the privilege cover a pastor's counseling records and files?
  • What should a pastor do if he is subpoenaed to testify?

Answers to these questions can have a significant effect on how you carry out counseling and protect confidences in your church.

(4) Duty to Report Threatened Harm to Others

In some states, professional mental health professionals have a legal duty to report a serious threat of physical violence against others, especially if the endangered person is reasonably identifiable. 10

Although most states have refused to impose this requirement on churches (see the Nally case), Matthew 7:12 would seem to require that a Christian take reasonable steps to protect another person from likely harm. If you wish to preserve your ability to report threatened harm, your church should clearly establish this right in its policy on confidentiality and expressly inform counselees of this possibility.

(5) Establishing a Clear Policy on Confidentiality

There are three steps your church can take to promote open communication and secure the protection of testimonial privilege, while retaining the right to report information when necessary:

  • Make it your consistent practice to carefully guard private communications and to avoid even the appearance of gossip. Among other things, this means not using counseling situations as illustrations for preaching, or changing enough details to completely disguise the counselee’s identity.
  • Establish scriptural policies on counseling and confidentiality that establish your rights and practices in these areas (see the Relational Commitments ).
  • Inform counselees of confidentiality limitations before counseling begins. This can be done through membership classes in which you provide members with copies of your confidentiality policy. You also should explain your policy when people come to you for counseling, providing them with a written Consent to Counseling form (included in The Leadership Opportunity Supplemental Materials CD). 11

A few people may feel some initial concern when they first hear of your policy. But you usually can offset this by your warm and caring demeanor, your clear explanation of the biblical basis for your policies, your earnest desire to serve the person, and your assurance that you will guard confidences unless there are legitimate reasons to do otherwise. As people open their hearts to you, you will be able to show them that the gospel of Christ can address their deepest fears and problems.

E. Work with Local Legal Counsel

Civil laws vary greatly from state to state. Some of these laws also vary in the way they apply to different church governing structures (e.g., hierarchical, congregational or presbyterian). Therefore, it is important that a church work with local legal counsel as it seeks to upgrade its legal risk management practices and policies.

This information can serve as a starting point in your discussion with an attorney. It provides general information, rather than specific legal advice, regarding common legal problems and the preventive measures you can take to avoid those problems. It is sufficiently thorough to save an attorney dozens of hours of research and writing that would otherwise be needed to develop these policies and documents from scratch. (By starting with this foundational material, you will be able to save your church thousands of dollars in legal fees.)

You can reduce your legal costs even further by joining with your state/district denominational office to hire a qualified attorney to do the research necessary for adapting this material to your particular state and church polity.

Look for an attorney who is experienced with the relevant legal issues and understands and respects the unique spiritual dynamics of the local church. Otherwise, he or she may delete the ecclesiastical and shepherding concepts contained in the model documents and present you with policies that are no different from those appropriate for a secular association.

It would be even better if your attorney were personally familiar with your particular church and governing structure. It also would be helpful if he or she has had actual experience applying the concepts in this manual while serving in a position of church leadership. If you would like assistance in locating such an attorney, please contact your state denominational office or the peacemaking network in your community or state.


 

1 The conciliation clause suggested in this section was upheld and enforced in Encore Productions, Inc. v. Promise Keepers, 53 F. Supp. 2d 1102 (D. Colorado, 1999).

2 Courts generally uphold arbitration agreements in employment agreements (see Circuit City Stores, Inc. v. Saint Claire Adams, 532 U.S. 105 (S. Ct. 2001)). This is true even if a plaintiff is trying to assert state statutory claims (see Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20 (S. Ct. 1991); Allied-Bruce Terminix Companies Inc. v. Dobson, 513 U.S. 265 (S. Ct. 1995)). Courts’ support for such provisions declines, however, if the arbitration is to be conducted according to rules that place inappropriate travel, financial, or procedural burdens on employees.

3 See Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696, 49 L.Ed. 151, 96 S.Ct. 2372 (1976); Alexander v. Shiloh Baptist Church, 592 NE.2d 918 (Ohio 1991); Franzen v. Poulos, So.2d 1260 (Fla.App. 1992); Rasmussen v. Bennett, 672 P.2d 278 (Mont. 1987).

4 See Nally vs. Grace Community Church of the Valley, 47 Cal.3d 278,253 Cal.Rpt. 97, 763 P.2d 948 (1988).

5 A “pastoral counselor” is a counselor who provides counseling as a member of the pastoral staff of a local church, whether as an ordained minister, a church officer (elder or deacon), or a paid staff member.

6 A “lay counselor” is a lay member of a church who provides counseling, either at the request of the pastoral staff or on his or her own initiative.

7 See Hester v. Barnett, 723 S.W. 544 (Missouri, 1987); a pastor who provided marriage and family counseling and later shared confidential information with the deacons was held legally liable for damages.

8 Traditional statutory language used to establish this privilege usually reads, “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs” (Montana). More modern statutory language reads, “As used in this article, ‘penitential communication’ means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a clergyman who, in the course of the discipline or practice of his church, denomination, or organization, is authorized or accustomed to hear such communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep such communications secret” (California).

9 See Reutkemeier v. Nolte, 179 Iowa 342 (1917) (protection extended to Presbyterian elder based on language in the constitution) and In re Verplank, 329 F.Supp 433 (1977) (counselor supervised by minister); cf. In re Murtha, 115 N.J. Super. 380 (N.J. Super. Ct., 1971) (a Catholic nun did not fall under the clergy exception because she was only a teacher and “did not perform the normal functions of a priest, did not conduct religious services, and had no powers or functions insofar as the Catholic Church was concerned”).

10 See Ewing v. Northridge Hospital Medical Center, 120 Cal. App. 4th 1289 (2004); Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 551 P.2d 334 (1976) and California Civil Code Section 43.92; and Peterson v. State, 100 Wash.2d 421, 671 P.2d 230 (1983).

11 Limitations on divulging information obtained during counseling vary from state to state, so be sure to talk with a local attorney as you develop your policies and practices on when and how to release confidential information.

 

 

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