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Informed Consent

By Ken Sande
Biblical and Legal Protection for Church Discipline

America is one of the most litigious countries in the world. Therefore, when a church begins the process of exercising formal, biblical discipline, it will often receive a letter from the member's attorney threatening to sue the church for defamation, invasion of privacy, and intentional infliction of emotional distress. Many church leaders who would not back down have found themselves forced into court, subjected to days of humiliating cross-examina­tion, and shocked to see juries penalize their churches with six-figure damages awards. This trend was triggered by the Guinn case in 1984, which resulted in a $400,000 judgment against a church and its leaders, and has continued to grow for twenty-five years.

Many of these judgments occur because churches have not clearly established and communicated how they will minister to members who are caught in conflict and sin. As a result, unrepentant members are able to persuade juries that the church's actions were unreasonable and offensive, which is not difficult to do in a culture that prizes autonomy and despises accountability.  

Even when a church wins in court, it usually pays an enormous price in terms of legal fees, lost time and energy, damaged witness, distraction from ministry, and congre­gational confusion and dissension. Therefore, it is not good enough for a church to behave so well that it will prevail in a lawsuit. Instead, churches must act with such wisdom and integrity that they will prevent lawsuits from being filed in the first place.

One of the most effective ways to prevent such lawsuits is to adopt explicit biblical policies that comprehen­sively describe how your church will exercise discipline over unrepentant members. These policies will provide your church with one of the most effective defenses to any lawsuit: informedconsent. To secure this defense, a church needs to be able to prove to a court that the person complaining of a wrong was in fact fully aware of the church's policies and procedures and knowingly agreed to be bound by them. 

Although most churches have provisions in their bylaws about "exercising discipline pursuant to Matthew 18," this kind of general statement is usually insufficient for today's individualistic and anti-church legal climate. Therefore, it is essential that churches update their governing documents by adding language that preserves the church's right to shepherd its flock and rescue wayward members from sin. This added language should address specific challenges that may arise, such as continuing discipline after a member attempts to leave the church or informing your members of your disciplinary actions in order to protect others from harm (e.g., when someone is defrauding senior members through misleading investment schemes).

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September/October 2009
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