Pastor, Church & Law

§ 10.12.01

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Key point 10-12.01. Churches can reduce the risk of liability associated with pastoral or lay counseling by adopting risk management policies and procedures.

Churches can implement a number of risk management strategies to reduce the risk of liability associated with pastoral or lay counseling. These include the following:

1. Reducing the Risk of Sexual Misconduct and False Accusations

Churches have adopted a number of precautions to reduce the risk of sexual misconduct by pastoral and lay counselors. These precautions also reduce the risk associated with false accusations. Consider the following:

(1) the "third person" rule

One effective way to deal with these risks is to adopt a policy prohibiting any male minister or counselor on staff from counseling privately with an unaccompanied female (i.e., opposite sex counseling) unless a third person is present. The third person may be the minister's or counselor's spouse, another minister on staff, or a mature and trusted church employee (preferably female).

Key point. Does the presence of a third person negate the "clergy-penitent" privilege for clergy counselors, meaning that either the pastor or counselee can be compelled to answer questions in a court of law regarding the communications? Not necessarily. In some states, the privilege applies so long as no one other than persons "in furtherance of the communication" are present. It is possible that a court would conclude that a third person who is present during a pastoral counseling session as a matter of church policy is present "in furtherance of the communication." As a result, the privilege may be preserved. Further, some courts have ruled that the clergy-penitent privilege is not negated by the presence of a guard during pastoral counseling with prison inmates if the guard's presence is required by law or prison policy. A court may reach the same conclusion in the context of a church policy mandating the presence of a third person during "opposite sex" pastoral counseling sessions.

Key point. Even if the privilege is negated by the presence of a third person, this risk must be weighed against the reduced risk that will occur.

Key point. Some churches that have a ministry to the deaf use a deaf member to serve as the third person. Such a person is ideal, for he or she can observe the entire session but does not apprehend what is said.

Key point. There have been no reported cases involving a claim of sexual seduction of a male counselee by a female counselor. As a result, churches using female counselors are reducing their risks significantly. Of course, there remains the possibility of a male counselee making unfounded accusations against a female counselor, and as a result churches using female counselees may want to consider adopting the same precautions that apply to male counselors.

(2) women counsel women

Since the vast majority of cases of inappropriate sexual behavior involve male counselors and female counselees, churches can significantly reduce their risk by using women to counsel women.

(3) other measures

Churches have implemented a number of other measures to reduce the risk of sexual misconduct, or false claims of sexual misconduct, during pastoral or lay counseling sessions. These include one or more of the following:

• Windows. Installing a window in the pastor's office making all counseling sessions clearly visible to office staff. Of course, such a precaution is effective only if other staff are present and visible throughout the counseling session. This means that the church should implement a policy limiting counseling sessions to office hours when other staff are present and visible.

• Open doors. Some counselors conduct counseling sessions in a room with an open door, so that office staff can clearly see the counselor or counselee. Of course, such a precaution is effective only if other staff are present and visible throughout the counseling session. This means that the church should implement a policy limiting counseling sessions to office hours when other staff are present and visible.

• Telephone counseling. Many smaller churches have no "staff" that is present and visible in the church office during counseling sessions. Some of these churches limit opposite sex counseling sessions to those involving a third person or those that are conducted by telephone.

• Video cameras. Some churches have installed a video camera (without audio) in the office where counseling occurs. The video can be transmitted to a monitor in another location in the church where it is observed by a church employee. Or, the camera can simply record the entire session. If sessions are recorded, tapes should be retained indefinitely, or until they are reviewed by two designated church members who prepare a written summary stating whether or not they observed any inappropriate acts. This review can be performed in "fast forward" mode, and should not take long.

• Boundaries. Many courts have recognized the psychological principle of "transference." To illustrate, one court defined transference as "a phenomenon that occurs that is similar to a state of dependency in which the client begins to project the roles and relationships and the images and experiences that they have had with other people previously in their life, especially other significant people such as mother, father, brothers, sisters, early teachers and adult models, upon the therapist." [155] Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990). Another court defined transference as "a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make."[156] Alpharetta First United Methodist Church v. Stewart, 473 S.E.2d 532 (Ga. App. 1996). Similarly, another court observed, "Transference is the term used by psychiatrists and psychologists to denote a patient's emotional reaction to a therapist and is generally applied to the projection of feelings, thoughts and wishes onto the analyst, who has come to represent some person from the patient's past. … Transference is crucial to the therapeutic process because the patient unconsciously attributes to the psychiatrist or analyst those feelings which he may have repressed towards his own parents. … [I]t is through the creation, experiencing and resolution of these feelings that [the patient] becomes well. … Understanding of transference forms a basic part of the psychoanalytic technique."[157] Bladen v. First Presbyterian Church, 857 P.2d 789 (Okla. 1993).

Pastoral and lay counselors often are tempted to engage in inappropriate sexual contact with a counselee because of unfamiliarity with this phenomenon. They misinterpret transference as affection, and fail to engage in anti-transference precautions that reduce the risk of inappropriate physical or emotional bonding. These precautions can include one or more of the following: (1) require a third person to be present for any counseling occurring off of church premises; (2) allow one-on-one counseling on church premises only during office hours if other staff members are present and visible; (3) limit counseling sessions to 45 minutes; and (4) permit no more than five counseling sessions with the same person during a calendar year.

Key point. Churches that adopt any of these other measures must recognize that they are not reducing risk as much as if they applied the "third person rule" or required women to counsel women. It is imperative that churches adopting these lesser measures incorporate them into official church policy and strictly monitor them to prevent any deviations. Remember, windows or open doors are of no value if a counseling session extends beyond normal office hours and the church staff leaves.

2. Other Risks

Another significant risk of lay counseling, when unlicensed counselors are used, is negligence in selecting and using a counselor with little if any formal training. Churches can reduce this risk by adopting a number of risk management strategies. Consider the following:

(1) counseling policy

Churches that use unlicensed lay counselors should prepare a suitable brochure or statement clearly communicating to each counselee that the church considers counseling to be an essential aspect of its ministry, and that it is important for persons seeking counseling to recognize certain legal considerations that apply in the context of counseling. These may include many considerations, including the fact that the counselee understands and agrees that counseling is provided on the basis of the following conditions:

• The counselors are engaged solely in spiritual counseling based on their understanding of the Bible, and they are not engaged in the practice of psychology, professional counseling, or psychotherapy.

• State law may require a counselor to report allegations of child abuse to civil authorities.

• Statements made in confidence to a pastor in the course of counseling ordinarily are "privileged," meaning that neither the counselee nor the pastor can be compelled to disclose in a court of law any statements made in the course of the counseling. However, the presence of a third party during a counseling session may jeopardize the privilege, since the counseling may no longer be considered "confidential." To illustrate, statements made in the course of pastoral counseling may not be privileged if a counselee brings a friend along to the counseling session.

• Any statements made in confidence in the course of counseling will be kept in strict confidence by the counselor. As noted above, the duty to maintain confidences may not apply in the context of child abuse. Further, the counselor may reserve the right to disclose confidential information in specified situations (such as threats of suicide, or an intent to harm another person).

(2) avoid controversial therapies

Counselors should be instructed to avoid any controversial counseling techniques that have been associated in recent years with staggering levels of liability (such as age regression therapy or multiple personality disorders).

(3) referrals

Counselors should have a clear understanding of those cases that need to be referred to a professional counselor.

Tip. When referring counselees to a professional counselor, it is important to avoid endorsing the person. Simply inform the counselee that the counselor is state licensed (as a counselor, psychologist, or psychiatrist), and has satisfactorily served a number of other members of the congregation.

(4) insurance

Does the counselor have counseling insurance? If so, what are the coverage amounts? What exclusions exist? These are questions that should be addressed prior to the time the counselor begins counseling. Also check to see if the church's liability insurance policy covers the counseling activities.

(5) legal agreement

Consider executing a legal agreement with the counselor that expresses the conditions of the arrangement.

(6) disclaimer

Have every counselee sign a form acknowledging that the counselor is not acting as an agent or representative of the church, and that the counselor is not acting under the control or supervision of the church.

(7) use of the term "counselor"

It is unlawful in most states for unlicensed persons to use the term counselor or counseling in connection with their services. Pastors who engage in counseling of church members in the course of performing their pastoral duties are exempted from this limitation, but lay counselors generally are not even though they are working in a church.