What is a minister’s worst nightmare? How about a large group of lawyers gathered to discuss the best way to sue clergy and churches? In 1992 the American Bar Association hosted just such a seminar, and similar ones have been held regionally across the country since then. What is disturbing about these meetings is not their intention of bringing those clergy or churches that act illegally to justice—wrongdoers should be held responsible—but their emphasis oftentimes on how to land large settlement amounts. A Christian lawyer who attended one such meeting described it as “blood being poured into shark-infested waters.” In the last decade, the number of lawsuits filed against ministers and churches has increased precipitously, shattering the old (if incorrect) concept of “sacred immunity” that many churches have operated under. In response, books and seminars have emerged to educate ministers, lay workers, and attorneys on how to defend against these lawsuits. Many divinity schools and seminaries have also instituted courses on “ministry and law” as part of their curricula or as part of their continuing ministerial education. Despite these efforts, though, it seems clear that, guilty or not, ministers and their churches have become large and desirable targets for many plaintiffs’ attorneys and their clients. Clergy, churches, and religious organizations in America appear to be on the defensive.
Given the new litigious environment, churches need to—and can—take concrete steps to lessen the likelihood of their being taken to court. (Even frivolous cases that can easily be defended in court will sap a church’s budget.)
When it comes to ministry, all lawsuits are not created equal. There are what I call the “seven deadly lawsuits” that are particularly damaging to churches because they involve claims of moral as well as legal wrongdoing: fraud, defamation, child abuse, sexual misconduct, clergy malpractice, invasion of privacy, and undue influence.
Here are three stories that demonstrate the very real legal threats churches face today—and suggestions for how such legal dilemmas might be avoided.
Invasion of privacyIn recent years the legal claim of invasion of privacy has gained considerable notoriety. There are four kinds of invasion of privacy claims: (1) intruding upon another’s affairs or seclusion, (2) public disclosure of private facts, (3) publicly portraying another in a false light, and (4) wrongful use of another’s name or picture. Seemingly innocent actions or words sometimes ensnare even the most cautious Christian workers in invasion-of-privacy lawsuits. Consider this case involving “the public disclosure of private facts”:
In his column in the church’s monthly newsletter, Pastor Edwards (the names in this case have been changed) wrote the following:
I was personally deeply blessed this last week after speaking with one of our newest members about his experience in coming to know Christ. He admits to a long history of drug abuse and sexual promiscuity prior to coming to the Lord and becoming involved here at First Church. While he regrets many personal decisions that he now believes were foolish and destructive, he also now sees God’s constant direction in his life, even during his wayward years. We rejoice that he is now with us here at First Church and that he and others like him are willing to share their wisdom and faith with us as well as their personal trials and failures during years without the Lord.
While the newsletter, which was mailed to the congregation’s 550 members, did not explicitly state that the member to which Edwards was referring was Bob, who was a new attorney in town and a new member of the church, its readers could easily deduce it was Bob, since he was the only new member in the church in the last eight months, and since the three previous new members had all been women.
The things the newsletter stated about Bob were factually true. What it did not say was that Bob had told the pastor about his past life in the minister’s office, believing his statements would be kept confidential. When he saw the newsletter, Bob was infuriated. Saying the statements in the newsletter could damage his reputation or even his profession, Bob informed the pastor that he was considering filing a lawsuit for invasion of privacy, based upon the pastor’s public disclosure of facts from his private life.
For Bob or any other party successfully to bring a lawsuit for invasion of privacy based upon public disclosure of private facts, that party will need to prove (1) that there was a publication or public disclosure, (2) the publication or disclosure was of private facts or information by the defendant about the complaining party, and (3) the publicized information was of the kind that a reasonable person of ordinary sensibilities would find objectionable if made public.
In Bob’s case, the publication about Bob was certainly public: it was sent to 550 people. It was also about private information: it involved issues that Bob had told the pastor were now somewhat embarrassing to him and that he had communicated to Edwards as his minister in the pastor’s office. The publication of the facts would probably also be deemed objectionable to the reasonable person of ordinary sensibilities. (Although it is common in some churches for parishioners to discuss their past bad acts in the context of giving a verbal, public testimony of how they came to God, in this case the pastor gave Bob’s testimony for him.)
Some may argue that the minister was not overly explicit in his comments about Bob’s past life or bad acts, thus the minister did not violate the “objectionable” element to this type of invasion of privacy. Perhaps, but attributing criminal and sexually promiscuous behavior to an adult professional in the community—especially a new adult member about whom people are highly impressionable—would be considered highly objectionable by most.
Is it significant that the pastor did not actually mention Bob’s name? If it were determined that it was obvious to the reasonable congregation member that the text was about Bob, then the pastor could not be exonerated on this fact alone. Does it matter that the pastor actually meant the comments about Bob in a complimentary and kind way? To a court, the only issue would be whether Edwards published private facts about Bob, and that the publication would have been highly offensive to the person of reasonable sensibilities.
It is noteworthy that, unlike defamation cases, truth is not a defense in lawsuits of public disclosure of private facts. Bob’s attorneys would not argue that his past life was not scandalous. Instead, they would simply argue that Bob’s past should not have been broadcast by the minister in the church newsletter, especially when the minister learned of Bob’s life in a private, confidential context.
There is one absolute defense against claims that a defendant wrongfully publicized private facts about another. If the publicized facts are a matter of public record—even if they are embarrassing or scandalous—there is no legal prohibition against publicizing them. Thus, for example, if Bob’s past acts to which Edwards was referring resulted in criminal convictions or divorce, Bob could not successfully sue Edwards for invasion of privacy. Many facts, such as criminal records, involvement in lawsuits, ownership of certain property, or bankruptcies, are often embarrassing. Ministers may have moral or biblical reasons for not publicizing such facts, but legally they would not be invading another’s privacy to publish them.
Maintaining a high respect for privacy is critical to all ministries. To protect parishioners’ privacy, those in ministry should:
1. Be cautious about how familiar and personal they become with someone until so invited.
2. Get a person’s permission to use his or her picture, story, name, quote, recording, or other personal attribute.
3. Ask if a person has a reasonable expectation of privacy regarding anything that the church staff or a minister wants to make public. If so, either don’t use it, or get permission.
4. Keep private facts private.
5. If given permission to share something personal about someone, get the facts straight.
DefamationWhen counseling or administering church discipline, ministers often must discuss negative aspects of people’s lives. Are those conversations legally defamatory?
Defamation is defined as a claim for damages to a person’s reputation, character, or occupation, resulting from false and disparaging “publications” made against that person. Defamatory words often expose one to public ridicule or contempt. Unwary ministers can commit defamation in some seemingly innocent ways and with the best of intentions. Consider the following case (again, the names have been changed):
Jan grew up an active member in Saint Matthew’s Church. As a teenager, she volunteered as an administrative assistant for the church youth group and later for a traveling drama group, called Acting Christian. Both groups were directed by the church’s associate pastor, David. Jan worked closely in her duties with David, including traveling with him and the other members of Acting Christian for four months a year as a counselor.
After graduating from college, Jan was hired as an associate to Saint Matthew’s recently promoted director of youth ministry, Kevin. Jan also continued as a volunteer for Acting Christian, and thus worked for both David and Kevin.
One spring, Jan went with a group on a church-sponsored trip to the Holy Land that was led by David. While she was out of the country, the youth director, Kevin, entered her office to look for a business file. In his search, he discovered one marked with the initials of David and Jan. Opening it, he discovered personal letters and notes from David to Jan.
Although the notes and letters contained no specific romantic references, they fed Kevin’s growing suspicion that David and Jan were engaged in a sexual relationship. Intending to protect David’s wife, Kevin showed the letters and notes to her and offered specific details about when and where he believed that David and Jan’s rendezvous had occurred. He also showed the letters and notes to an assistant to the senior pastor. A few days after telling David’s wife, Kevin repeated his suspicions to Jan’s mother, again suggesting specific details.
When the group returned, David’s wife, who had reviewed the letters and the notes, talked with her husband and was satisfied by the answers he gave her. She then went to Kevin and told him that she did not believe her husband’s relationship with Jan was sexual. Kevin accepted her understanding of the incident and retracted his allegations. The church initiated counseling sessions, in which Kevin stated that he “no longer believed” the relationship between Jan and David was sexual, and he promised to keep his prior suspicions confidential. He also apologized to Jan and to David for the pain he had caused them.
Despite his promise, some time after the counseling sessions Kevin again repeated his original accusations to several church members involved with Acting Christian. Soon most of the congregation knew of the youth director’s claims about their associate pastor and Jan. At about the same time, Jan began receiving questioning phone calls and letters from church members. Under pressure from members concerned about the allegations, the church leaders formed a special committee to deal with the situation. This time Kevin was able to persuade the church of his position, and a short time later Jan was dismissed from employment at Saint Matthew’s.
Feeling subjected to scorn in her church and neighborhood and unable to find a job commensurate with her skills, Jan sued Kevin for defamation of character and invasion of privacy. She also sued Saint Matthew’s, claiming that it had “ratified” Kevin’s accusations by dismissing her.
After a two-week trial, a jury awarded Jan nearly $230,000 in general damages and an additional $107,000 in “punitive” damages. Although both the youth director and the congregation appealed the jury’s decision, a state appeals court upheld the jury’s verdict.
In the mind of the court, when a plaintiff like Jan sues a “public figure” like the defendant youth pastor Kevin for defamation, she must prove that the defendant publicized false statements that injured the plaintiff’s reputation, and that he did so with “malice,” (meaning the defendant either knew the defamatory statements were false or had said them with reckless disregard as to whether they were true or false). The court held that Kevin, indeed, had made defamatory statements, that the statements had injured Jan’s reputation, and that Kevin had acted with malice because he repeated things that he had earlier consented were not true. The court further held the church liable because it ratified Kevin’s defamatory statements by firing Jan.
Does this mean churches are at risk any time they discipline or fire someone? Under certain circumstances, ministers have absolute or qualified privileges to make statements that may be considered otherwise defamatory. These circumstances might include church disciplinary proceedings or testimony by a minister against someone in court. But every person in ministry should exercise the following cautions to avoid the likelihood of being sued for defamation:
1. As a general matter, speak well of others.
2. Avoid “occupation assassination” of anyone associated with the church.
3. Be cautious about what is published in all church materials.
4. Keep private matters private, particularly where they regard people.
5. Keep church matters in-house.
6. Keep church matters accurate.
7. If defamatory remarks are made, retract them immediately.
These principles are in keeping with the apostle Paul’s directives to his young fellow ministers Timothy and Titus to let even their exemplary speech reflect the purity and soundness of their faith and actions (1 Tim. 4:12; Titus 2:7-8).
Reporting child abuseMinisters often find themselves in the untenable position of being publicly and legally damned whether they report suspected incidents of child abuse or not. If well-meaning clergy fail to report incidents of child abuse, they are often viewed as callous or egregiously careless toward children. If they report an incident and later find the facts to be other than they were told, they are viewed as meddling home wreckers who should have minded their own business. Ministers—and others who work with families and children in the church context—are faced with the dilemma of whether “to tell or not to tell?”
Child abuse is defined in nearly all states as including both sexual misconduct and physical abuse of children. In some states, child-abuse reporting is |required of a broad variety of workers, including ministers. Often lay workers who learn of a suspected incident of child abuse think they are exempt from having to report it because of their unordained status. This is not a safe assumption. Consider the following court case of three church workers named Hartley, Mensonides, and Motherwell. All were employed as paid religious counselors at Community Chapel, but only Hartley was ordained. During the course of counseling, each of the men was told of incidents of alleged abuse.
One woman counselee told Hartley that her husband had sexually mistreated her daughter. Hartley, in an attempt to reconcile the family, subsequently counseled both the woman’s husband and daughter about the allegations. A second woman in the course of counseling told Mensonides that her husband had beaten their four- and seven-year-old sons. Mensonides talked to the older son about the allegations. A third woman told Motherwell that her husband was sexually abusing their eight-year-old daughter and acting violently with the whole family.
In each of these cases, the counselors did not report the incidents they were told about to authorities within 48 hours, as was required under the state’s statutes controlling child abuse reporting. While there was no question that each counselor had a deep concern for the counselees and the children who had been the victims of the alleged abuse, the question was whether the ministers had handled their knowledge of the abuse lawfully under the state’s child-abuse-reporting law.
The state law did not explicitly include a requirement that “ministers” or “clergy” report such knowledge. In fact, sometime earlier the state legislature had amended the statute to omit the term “clergy,” which had previously been included as one of the groups of professionals required to report child abuse. The statute in effect at the time of the counselors’ alleged failures to report, however, read in part:
“When any practitioner, professional school personnel, registered or licensed nurse, social worker, psychologist, pharmacist, or employee of the department [of social and health services] has reasonable cause to believe that a child or adult has suffered abuse or neglect, he shall report such incident, or cause a report to be made, to the proper law enforcement agency.”
The Washington statutes further defined “social workers” as “anyone engaged in a professional capacity duing the regular course of employment in encouraging or promoting the health, welfare, support or education of children, or providing social services to adults or families, whether as an employee of any public or private organization or institution.”
The trial court found all three counselors criminally guilty of failing to report the suspected child abuse under the statutes, a violation of which was considered a gross misdemeanor. They each received a deferred sentence with one year’s probation. Each was also required to complete a professional education program on the ramifications of sexual abuse. Motherwell was ordered to pay a $500 fine.
All three defendant counselors appealed the convictions. The appellate court upheld the convictions of the two unordained counselors, Mensonides and Motherwell, reasoning that their activities clearly fit the state definition of “social workers,” who were required to report suspected child abuse. The appellate court rejected their defenses that they were entitled under the First Amendment not to report the alleged child abuse. None of the defendants had claimed that their religion required them to keep confidential all information learned in counseling sessions. Thus, the court said that to require the defendants to report suspected child abuse did not prevent them from counseling their parishioners or practicing their religion.
Only Hartley’s conviction was overturned on appeal, because he was an ordained minister. Although there was no applicable privileged communication statute protecting communications made to him by the parishioners in his capacity as a minister, Hartley successfully argued that the state legislature had amended the child-abuse-reporting statute not to include clergy in the list of professionals required to report instances of alleged abuse. The court agreed and further acknowledged that as a matter of public policy, if the government required clergy to report all instances of abuse, abusers would be dissuaded from ever confessing instances of abuse to their clergy in order to repent and bring healing to their lives.
Because child-abuse-reporting laws are unique to each state and often must be understood in tandem with a state’s clergy-penitent privilege statute, a detailed explanation of these laws is beyond the scope of this article. Perhaps more than any other aspect of the law, it is imperative that anyone working in any kind of ministry, whether ordained or not, learn certain fundamentals about child-abuse reporting. Violations of these laws occur far too easily and frequently, and the penalties and repercussions resulting even from seemingly innocent violations are too serious to ignore.
In considering this issue, those in Christian ministry should attempt to answer the following questions:
1. What is the legal definition of child abuse?
2. Must ministers report child abuse in their state?
3. What are the consequences of wrongly reporting or not reporting?
4. What must one report?
5. How does a state’s clergy-penitent privileged communication statute affect a requirement that a minister report child abuse?
In recent decades, our society has become keenly aware of child abuse. Evidence shows not only that it is far more prevalent than many presumed, but also that the damage it causes is more far-reaching than many expected. Churches certainly have a right to maintain the confidentiality of the lives of their parishioners. But that right is not an absolute entitlement; it must be balanced against society’s very legitimate interest in learning about the existence of child abuse.
I know of no church leaders who like the increase in lawsuits. But the fact is that public scandals among a few prominent ministers have soiled the clergy collar and invited closer scrutiny. No matter how we view this development, we can use the increased threat of litigation as an opportunity to restore the public’s perception of ministry as a truly honorable profession; for we know that against love—and policies based on love—there is no law.
Thomas F. Taylor, J.D., is executive director of the Institute for Ministry, Law & Ethics and a minister in the Presbyterian Church U.S.A. He is the author of Seven Deadly Lawsuits: How Ministers Can Avoid Litigation (Abingdon).
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