Richard L. Guido
New Horizons: January 2021
Also in this issue
by Darby Strickland
by Naghmeh (Abedini) Panahi
What are the church’s obligations when a member of the church reports sexual abuse against her by a family member, another member of the church, or by a church officer? A survivor of sexual abuse comes to the church as one of Christ’s lambs whom the church has an obligation to nurture and protect. (See John 21:15–17.) And the church’s ministerial responsibility is not only to her, but also to the alleged abuser and to the entirety of the congregation. (Although men may also be victims of abuse, this is less common, and this article will reflect this.) The church may also have important obligations to the civil magistrate and others outside the church. The church, then, must carefully take into account all these ministerial relationships and external obligations as it deals with reports of sexual abuse.
The church’s investigation must be thorough, sensitive, and confidential. The church should acquaint itself with the particular characteristics of sexual abusers, some of which may mislead and disarm investigators. It will be most helpful if the church has developed a policy beforehand to deal with cases of sexual abuse.
The church’s first impulse may be to seek to achieve reconciliation within the church itself (using, e.g., Matt. 18:15–19), but the church should be wary of rushing into this before other steps have been taken. The essence of biblical reconciliation is personal interaction between brothers and sisters in Christ. Given the nature of the harm suffered by a survivor, and the power inequality between survivor and abuser, however, their further interaction, especially at this early stage, may do more harm than good.
The church’s investigation must also recognize that, to the survivor, it is an ordeal. She is called upon to reveal the most sensitive things to men having religious authority over her.
The church will also have ministerial obligations to the accused. Allegations of sexual abuse have important family, economic, and reputational ramifications. The accused also has rights that must be respected, including a presumption of innocence. The church must therefore act with care and confidentiality in hearing his side of the case.
Of course, the other members of the church must also be of compelling concern to the church as it investigates reports of sexual abuse. The church has a duty to warn, even as it endeavors to preserve confidentiality.
Government and others may be helpful allies. The church may need to reach out to police, legal counsel, professional counselors, health professionals, social workers, private investigators, and child protective services. In this sense, the church may be more a coordinator of help to the survivor than the sole provider of help.
If an employee of the church is implicated in the complaint, the church should provide notice to its insurance company without delay.
In the case of sexual abuse involving children, the church will have a legal obligation to report abuse to state authorities. Failure to do so is punishable by law. There is not a general legal duty for churches to report other domestic abuse, though many states do impose that duty on medical personnel if they discover injuries evidencing abuse.
The costs to the church and to the survivor in proceeding further are other important considerations, especially if outside civil litigation is recommended. Will the church consider helping the survivor with such expenses? Diaconal help? Help in locating an attorney for her? Another key issue concerns state statutes of limitation, which impose time limits within which claims for legal redress must be brought. In some states these begin to run only when a victim becomes able to recall and appreciate the consequences of an abuser’s action, not when the abuse actually took place.
If the church determines from its investigation that the survivor is in danger, it may need to take immediate steps to keep her from further harm. This may mean isolating her from her abuser, as difficult as that may be, especially if the accused is a church officer or a spouse or other family member. If relatives or friends of the survivor are not available, the church may offer a pre-selected “foster family” within the church as a haven. Providing meals and childcare may also be undertaken. The survivor may also take action under her personalized domestic violence safety plan, if she has one. This may include such things as changing locks in her home, opening new bank accounts in her name alone, obtaining new credit cards, making sure she has copies of car and house keys, and relocating to preselected and undisclosed emergency locations using predesignated evacuation routes.
The church may also recommend that the survivor seek a protective or restraining order from a court. These take many forms under state law. In general, they temporarily prohibit an abuser from having contact with the survivor, and sometimes her children, except for specified reasons. They may sometimes be obtained on an emergency and confidential basis without prior notice or hearing. Violations of protective orders may subject the abuser to arrest.
Having completed its investigation, a church may decide to proceed with formal church discipline against an abuser. (The church should, however, avoid confronting an abuser in the courts of the church until the survivor is ready for it.) In such a case, the church acts in its name against an individual for the preservation of the church’s purity, peace, and good order. Church discipline is thus unlike a criminal case, where the state acts to preserve public order and to punish wrongdoing. It is also unlike a civil action, where an injured party seeks monetary compensation for her injuries. Church discipline sanctions may include admonition, rebuke, suspension from office and the Lord’s Supper, deposition from office, and excommunication from the church.
Nevertheless, formal church discipline may be problematic until other remedies have been thoroughly reviewed. Criminal and civil remedies provide means of punishing an abuser or compensating the survivor that the church does not possess. Church disciplinary action may also prejudice privileges that might otherwise be claimed in a civil or criminal proceeding and may risk involvement of the church in later outside legal proceedings.
The church may recommend that the survivor proceed with a criminal action against her abuser. In a criminal prosecution, a public matter, the civil magistrate and not the survivor brings the case. The state also bears all the costs involved. In order to obtain a conviction, a prosecutor will have to establish, beyond a reasonable doubt (the highest standard of proof in the law), each element of the crimes charged under the state’s penal code. Examples include sexual assault, sexual battery, false imprisonment, kidnapping, domestic violence, rape, sexual harassment, stalking, and indecent exposure. (Almost all states have removed marriage as a defense or exemption when one spouse accuses another of sexual abuse.) The prosecutor will undertake an exhaustive investigation that may require the survivor to relive her ordeal. If there is a criminal trial, the accused will have the constitutional right to confront and cross examine the survivor.
A matter of concern to churches may also be the “clergy-penitent privilege,” a privilege that exists under the laws of every state. Under this privilege, a minister may not be compelled to reveal a matter disclosed to him by an accused who comes to him in confidence as his spiritual advisor.
The length of imprisonment for sex crimes under state law may range from up to one year for misdemeanors to life imprisonment for the most serious felonies. An abuser may also be required to register as a sex offender. The accused will have a right of appeal. The ability of the government to appeal is much more limited.
A survivor may seek monetary compensation for her injuries in a civil action against her abuser, whether or not criminal proceedings are commenced. Some Christians may have a scriptural concern about Christians going to law against one other (1 Cor. 6:1–2, 5–6). However, the Scripture’s concern appears to be vexatious lawsuits involving trivial matters. Lawsuits in themselves are not proscribed. In cases involving great personal damage and intentional wrongs, many commentators agree that Christians may rightly seek redress from other Christians in the civil courts.
One advantage of a civil lawsuit is that the survivor (the “plaintiff”) maintains control of the case against the abuser (“the defendant”), not a state prosecutor as in a criminal case. Civil actions, however, are expensive, time-consuming, require the assistance of experienced legal counsel (often on a contingency fee basis), and are not always successful. The defendant may also bring counterclaims, like defamation, against the plaintiff and provide defenses, like the survivor’s consent. The defendant may also compel her to be deposed, to answer written interrogatories, to undergo an examination by a physician picked by him, and to turn over documents, such as tax returns, bank account information, and prior medical histories. Further, “rape shield” laws, which prevent an accused in a criminal case from introducing evidence of a survivor’s previous sexual behavior or reputation, have more limited applicability in civil cases.
The standard of proof in a civil case is a preponderance of evidence, lower than the standard in a criminal case. The survivor or her abuser may appeal a court’s adverse judgment.
Civil actions may be undertaken not only against the abuser for his own intentional misconduct but also against others for their negligent conduct, such as an abuser’s employer (for negligent hiring or supervision) or the owner of the premises on which the abuse took place (for negligent failure to maintain a safe premises). The distinction between intentional and negligent harm is also significant from a church insurance standpoint. Church liability insurance generally does not cover or provide a defense for intentional harm caused by an insured. It is for this reason that many churches have purchased optional coverage that does address church liability for sexual misconduct by its agents.
Damages for personal injury, post-traumatic stress, pain and suffering, loss of consortium, lost wages, or emotional harm may be recovered. It is important to note that in a civil action, the survivor of sexual abuse must be able to prove not only that the abuser committed the act but also the extent of her injuries. (In a criminal case, the state must only prove that the abuser committed the prohibited act. The survivor’s injuries need not be proven.) The survivor’s emotional and psychological injuries may far outweigh the severity of her physical injuries. Yet these kinds of injuries are often difficult to prove.
A key issue is whether the defendant has sufficient assets to pay a civil judgment. Further, an award of damages by a court does not necessarily mean a survivor will actually receive that compensation. The survivor must still record and “execute” on the court’s judgment. This may entail still further time and expense involving seizures of assets by local law enforcement and wage garnishment orders from the court.
It is not unusual for sexual abuse claims to be settled out of court. Out-of-court settlements are legally binding contracts between a survivor and her alleged abuser that avoid further legal process. The survivor receives compensation; the alleged abuser neither admits nor denies misconduct; and the parties pledge to hold in confidence the alleged abuser’s identity, his conduct, and the settlement itself. Out-of-court settlements thus have benefits to the parties: publicity is minimized and settlements may be arrived at relatively quickly and with less expense.
However, non-disclosure provisions in out-of-court settlements are highly problematic in sexual abuse cases. They are built upon secrecy—and abusers feed on secrecy. Further, there is often a power differential between the survivor and the abuser: he may have the ability “to buy her silence.” Most egregiously, secret settlements put at risk others who might have been protected had the matter been made public. Confidentiality obligations may also limit what the church may later be able to do in terms of disciplinary action and in warnings to the congregation.
Unlike the courts and the civil magistrate, the church has the power of the gospel: the hope and means whereby sinners may repent and be reconciled as Christian brothers and sisters. But the resources of government and the courts may be necessary to aid its ministry, punish wrongdoers, and compensate victims. As churches seek to act wisely, they must bear in mind our Lord’s admonition to “feed my lambs.”
The author is an attorney and ruling elder in the OPC. This article does not constitute legal advice and is not a substitute for legal counsel. Questions about individual situations should be addressed to legal counsel in your state. New Horizons, January 2021.
New Horizons: January 2021
Also in this issue
by Darby Strickland
by Naghmeh (Abedini) Panahi
© 2021 The Orthodox Presbyterian Church