‘A’ will create legal exposure for the PCUSA By Robert L. Howard The Presbyterian Layman Sept/Oct, 1997 In addition to biblical and theological reasons that have been given for opposing Amendment “A,” a proposal that would permit the ordination of persons who refuse to limit their sexual behavior to the covenant of marriage, there is another compelling, albeit secular, reason. Amendment “A” creates enormous legal exposure for the Presbyterian Church (USA). Under standard legal principles, corporations and institutional entities, including churches, are liable for injuries or harm caused by their officers or employees of the entity if their conduct was within the course and scope of their employment or official duties. Sexual misconduct and harassment cases are burgeoning throughout the United States, and plaintiffs’ attorneys almost always seek to impose liability on entities above or behind the perpetrator of the offending conduct in order to recover more substantial damages. Civil damage liabilities In July of this year, a civil jury in Dallas, Texas, rendered a verdict of $119.6 million against the Catholic Diocese, finding “gross negligence” in its handling of a priest who allegedly sexually abused boys at three churches. Any church that repudiates previously established prohibitions against sexual misconduct by its ordained ministers and officers, and substitutes an unclear policy permitting its ministers and officers to determine their own standards, invites costly legal claims, regardless of the ultimate merit of the suits. Creative plaintiffs’ lawyers will inevitably claim such church action had the effect of granting actual or apparent authority to its ministers and officers to self-define standards of sexual behavior, bringing any such behavior within the “course and scope” of the duties or church-related activities of the ministers or officials. Sexual conduct is actionable as “sexual harassment” if perpetrated on employees of the church, or as “sexual abuse” if perpetrated on parishioners and counselees of the church. PCUSA church corporations and entities, from congregations to General Assembly, are liable for civil wrongs committed by its ministers, officers, or employees if their actions are within the actual or apparent scope of authority established by policies of the church. Even if misconduct occurs outside the scope of authority, a church can still be subject to liability if it was negligent in failing to prohibit wrongful conduct. An employer, for example, that knows of sexual harassment in the workplace in violation of its own policy, yet fails to take remedial steps, creates liability for itself. While it is true that the General Assembly has adopted official policies against sexual misconduct/harassment, and, one hopes, all synods and presbyteries have adopted similar policies, Amendment “A” proposes a change in the Constitution that will seriously impair, if not effectively rescind, the validity of such subordinate policies. If the prevailing constitutional standard leaves it to individuals to define the limits of acceptable conduct, an agency of the church may not be viewed as credible in its defense if it relies on subordinate policies. Ultimate liability is one thing; legal exposure is another. Those who defend Amendment A may argue that in leaving it to individuals to define for themselves the limits of acceptable sexual behavior, churches move further away from, rather than closer to, responsibility for behavior that individuals choose for themselves. It might also be argued that sexual harassment or abuse is, by legal definition, unwelcome or nonconsensual, whereas under Amendment A, fidelity and integrity mean mutuality and reciprocity. Such arguments are unlikely to prove successful in court because of the legal theories by which liability can be imposed. One thing is certain: Amendment A clouds the outcome of the litigation it surely invites. And such suits, even if unsuccessful, are costly to defend. Legal theories of liability Negligent Failure to Prevent or Remedy. Courts consistently hold employers responsible for sexual misconduct by those in authority toward subordinates where the employer has also been negligent. Entities of the church may be found negligent and liable for failing to prevent or remedy sexual misconduct, after it knew or with reasonable care should have known of it. Failure to prevent or remedy after knowledge was the basic theory used by plaintiffs in the recent Texas case. Abuse of Delegated Authority to Control Work Environment. The United States Court of Appeals for the Tenth Circuit recently held that an employer may also be held responsible where it delegated authority to control the work environment to a supervisor who then misuses that authority to aid perpetration of sexual harassment. Apparent Authority. Where the minister, officer, or supervisor of the church purports to act or speak with authority of the church, the victim need not prove that the church had actual notice or knowledge of the misconduct, or that the church was negligent in some way in preventing or remedying it. Rather, the victim need only prove that: (a) the harasser/abuser appeared to be acting under the authority of the ordination standards of the church, (b) the victim thought the harasser/abuser had such authority, and (c) harm resulted. Conclusions All entities of the PCUSA are subject to the law allowing recovery of damages for sexual harassment in the workplace or sexual misconduct against those who should be protected by the church, such as parishioners and counselees. The law places the burden on the church to monitor voluntary and involuntary sexual relationships involving those whom the church has a duty to protect. The church cannot close its eyes to such relationships Legal principles imposing liability for sexual abuse/harassment apply regardless of gender or sexual orientation of the abuser/harasser or of the victim. What is initially deemed a voluntary relationship and claimed holy may become involuntary and hostile, with severe personal psychological damages. An ordained officer of the church often has the power to continue a relationship after sexual contacts are no longer welcome – and the church can find itself responsible for the results Most insurance policies do not cover the cost of defense or damage awards incurred in sexual harassment/abuse cases. Such costs can be enormous and will rob the church of funds needed to further its mission. The existing constitutional policy makes it absolutely clear that the PCUSA does not condone any form of sexual misconduct. With Amendment “B” in place, no victim can reasonably claim that a minister or officer of the church had the actual or apparent authority to engage in sexual relationships that may turn into harassment or abuse. Unfortunately, proposed Amendment “A” does not prohibit sexual misconduct. Rather, it effectively delegates authority to ministers and other ordained officers of the PCUSA to self-define what sexual relationships are acceptable by claiming any relationship is conducted with “fidelity and integrity.” It is a toss-up whether those who engage in sexual misconduct or the lawyers who will seek to impose liability for such misconduct will be the most creative in defining “fidelity” and “integrity.” In the real world of high-dollar litigation, the only “safe sex” is fidelity in the covenant of marriage between one man and one woman or chastity in singleness. Surely we, as people of “The Book” and the great Reformed tradition, should have standards at least as high as those imposed by the courts of law. Robert Howard is senior partner and chairman of Foulston & Siefkin, a 65-member law firm based in Wichita, Kan. He has 38 years of experience in the defense of individuals and institutions against claims for civil damages and is a Fellow of the American College of Trial Lawyers. Ordained an elder in 1960, he has been active in the teaching and missions ministries of Eastminster Presbyterian Church in Wichita. He is vice-chair of the Presbyterian Lay Committee.

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