Editor's note: Brother Lanphear is a faithful member of the West End Church of Christ in Bowling Green and a practicing attorney. He has represented the Guardian of Truth Foundation on more than one occasion. When the problem developed regarding the Collinsville, Oklahoma lawsuit, I asked brother Lanphear to write this article for this special issue of Guardian of Truth.

Just a few weeks ago, many of us read in the headlines that an Oklahoma jury awarded a divorced mother $390,000 in compensatory and punitive damages against a congregation near Tulsa as a result of its effort to discipline her for fornication. The action arose after a statement was read to the congregation explaining the imposition of and reasons for the disciplinary action, although she had earlier withdrawn her membership from the church. She filed suit against the congregation and its elders for $1.3 million alleging invasion of privacy and intentional infliction of emotional distress, and recovered on each claim.

While the Oklahoma case will apparently be appealed and possibly set aside, the fact that the law tolerates such a claim is as perplexing as it is dismaying. It is significant however, that this is not an isolated case inasmuch as at least two similar lawsuits are pending in other states. As a result, elders and congregations must be aware of and prepare for the legal dangers posed in matters of discipline.

First, you must be aware that all statements of law included herein are general rules which may differ in some detail from state to state. Therefore, while they are generally applicable to the matters discussed, they may or may not vary in your jurisdiction. Consequently, what may be actionable in Oklahoma, for example, may not be in Kentucky, and vice versa.

Additionally, there may be statutes in your state of which I am unaware which codify or alter these general rules or have some bearing on these issues.

Also, due to topical considerations and space restrictions, discussion of legal rules and theories will be limited to that which is pertinent here, and is by no means to be understood as exhaustive on the general subject.

Finally, if it is not yet apparent, lawyers sometime find it difficult to speak in absolute terms since most adhere to the principle that there is an exception to nearly every rule. Therefore, it is imperative that you remember that "Every case turns on its own facts," and, if you are confronted with a specific legal problem, you should consult an attorney for specific legal advice.

From its inception, the law in this country was designed and has grown to accommodate and promote the exercise of religious freedom. In so doing, rules have developed to fairly and equally deal with a large number of varied religious beliefs, practices and societies. Generally stated, the law recognizes that one accepted as a member of a religious group continues as a member in good standing unless he voluntarily withdraws or is properly expelled. Should the group choose to expel a member, it is under a duty to substantially comply with its rules governing such matters. The courts ordinarily have no jurisdiction to review the action taken, and the sentence may be read publicly to the congregation without constituting an action for libel or slander.

However, the claims which have recently arisen and need to be addressed involve the impact of church discipline on an individual's right to privacy and the emotional distress one may suffer under certain circumstances.

Right of Privacy

The "right of privacy" was not recognized as a separate theory of recovery and cause of action until this century, and therefore, its development is of fairly recent origin. It is actually a categorical designation for four distinct legal theories whose common denominator is the "right" to be let alone. Although only two of these sub-categories are important to this discussion, the four are: (1) intrusion; (2) public disclosure of private facts; (3) false light in public eye; and (4) appropriation of name or likeness for benefit. The two theories to which attention will be given here are intrusion and public disclosure.

Intrusion. This rule has developed to protect one from and permit recovery for intrusion into his solitude or seclusion. Its elements require an actual invasion into matters which are private and are entitled to be private, and the invasion must be offensive or objectionable to a reasonable person. The wrong is committed when the intrusion takes place and there is no requirement for subsequent publication (to divulge or repeat to another). Thus, subject to the defenses and suggestions mentioned herein below, an attempt by elders or concerned brethren to pursue discussions with an errant Christian may constitute an intrusion and invasion of their right to privacy.

Public Disclosure of Private Facts. Similar in several respects to intrusion, public disclosure of private facts involves the disclosure of facts which are private and not a matter of public record. The disclosure, or publication, may be either written or oral, but the facts must be disclosed to someone other than the complaining party. Finally, the facts disclosed must be of the type which would cause mental suffering, shame or humiliation and be offensive and objectionable to a reasonable man of ordinary sensibilities.

The application of this legal principle to church discipline is clear. A determination of whether the disclosure is offensive and objectionable however, would depend upon the nature of the sinful conduct for which discpline is imposed. For example, a jury may not find objectionable the disclosure that one is unrepentantly divisive, but at the same time be outraged at the announcement tht one hs continued in an illicit sexual relationship. Obviously however, those whose duty it is to impose discipline do not have the "luxury" of choosing the sins brethren may commit, and as a result, must fulfill their scriptural responsibilities despite the legal ramifications.

Defenses. Neither truth nor absence of malice (ill will) are defenses to invasion of privacy claims. However, one may waive his right to privacy either expressly or by his conduct. Thus, it appears to me to be entirely reasonable that when one becomes a member of the church and associates himse~f with a congregation, he thereby consents to the invasion of privacy which may be suffered by scriptural discipline. Of course, this states the matter simply, and it may be affected by other facts (such as prior withdrawal of membership by the errant party). In any event, the merits of this application of the waiver defense will be determined as more cases are practiced and the body of law develops.

Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress is a claim which may result from intentional conduct aimed at the complaining party which is extreme and outrageous, or from that which amounts to an aggravated insult or indignity to a reasonable person of ordinary sensibilities. In order to be actionable, the conduct must cause serious mental suffering and distress, not just an affront or hurt feelings. Once again, the application of this theory of recovery to church discipline depends on the nature of the offense for which discipline is imposed, and whether a reasonable individual of ordinary sensibilities would suffer such distress under the circumstances.

Defenses. It is unlikely that a defense claiming proper motives and spiritual concern would bring much success. Besides a direct attack on whether mental distress was in fact suffered, a more plausible approach (though perhaps no more successful) may follow the waiver defense discussed hereinabove, that is, that when one voluntarily associates himself with the church and submits to its lawful authority and style of life, he does so consenting to this proper expulsion and the consequences thereof.

Recommendations

The following recommendations are certainly not unique or exhaustive, and amount to nothing more than simple, common sense suggestions one may follow to reduce the dange of the legal problems discussed above or complications of the same or similar problems.

(1) Make sure that discipline is not rooted in personality differences, or the product of ill will or hard feelings.

(2) Make sure that discipline is based on conduct and doctrine that is clearly defined and/or proscribed in Scripture, and not that which may fall in the gray realm of judgment or is the proper object of toleration.

(3) Make sure that discipline is based on factually established circumstances. Care should be taken if such matters are investigated to avoid a possible claim of defamation of character.

(4) Strictly adhere to Scripture. This is important not only because God requires it, but also because in co urt the church must explain and prove what procedure it follows in exercising discipline. Therefore, strict adherence is a significant factual and legal matter.

(5) During private conferences with an errant party, emphasis should be given to scriptural duty in these matters, and that the purpose is to bring one back, not drive him away.

(6) Keep a record of private conferences with the party involved-date and time, where it was held, who was there, length of conference and a brief memorandum of what was discussed. If at all possible, these meetings should be held at the church building or similar, independent meeting place because it evidences that both parties met voluntarily for the purpose of discussing the problem.

(7) Treat discussions with the other party confidentially.

(8) Determine whether an umbrella or other insurance policy is available. In most instances, insurance policies do not cover intentional conduct (such as these claims) so specific inquiry should be made.

It is not within my province or ability to discuss the merits of the necessity of withdrawing from those who have disassociated themselves from the local church. However, were one able to adopt the view that it is unnecessary, obvious legal problems would be avoided. Likewise, if one is able to adopt the view that statements of discipline read publicly to the congregation need not specifically detail the sin involved, but rather state generally that one has continued in sin and failed to repent, then the factual basis upon which a claim can be predicated may be substantially reduced.

Finally, there is no substitute for thoughtful deliberation, careful consideration and the exercise of sound judgement in matters of church discipline, both from the standpoint of obeying God and in order to avoid, to the extent possible, the pitfalls which could lead to liability in a civil claim. None of these suggestions wil prevent someone from filing a lawsuit against a congregation or its elders, but they may in some degree prevent its successful prosecution. In no event however, should a fear of the law or lawsuits impede one from fulfilling his scriptural obligations regarding church discipline. In the words of the Apostle Peter: "We ought to obey God rather than men" (Acts 5:29).

Guardian of Truth XXVIII: 19, pp. 590-591
October 4, 1984