Tuesday, July 03, 2007

Confidentiality...means you don't tell

I read a news story over the weekend that continues to disturb me. Last Friday, the Texas Supreme Court voted 9 - 0 that a woman named Peggy Penley could not sue her minister for telling the church elders and the congregation that she had had an affair, information that she had told him in a private counseling session.

Here's a short clip from the AP story:

Kelly Shackelford, an attorney for Westbrook, called the ruling "a great victory for pastors across Texas."

"The U.S. Constitution protects the right of a church to choose its members and govern itself in any manner it chooses according to doctrine and faith, without government interference," added Hiram Sasser, who works...at the Liberty Legal Institute.

Penley's attorney, Darrell Keith, said the decision fails to protect Texas church members from malpractice by secular professional counselors who are also ministers. He said he believes the court misapplied the First Amendment in this case and mischaracterized the pastor's roles.
He said his client will have to decide whether to ask the court to reconsider its ruling. If that is unsuccessful, they could appeal to the U.S. Supreme Court.

Despite my reservations about the current Supreme Court, I hope they do. I believe strongly in my obligation as a minister and pastoral counselor to maintain the confidentiality of my sessions with congregants and clients. I am pretty sure that it's part of the code of ethics I sign. I'm pretty sure that telling others about what I learn in counseling would be grounds for malpractice, and if it's not, it should be. I also am pretty sure that my clients assume that our sessions are confidential. And that's the way it should be.

A victory for pastors? Well, maybe for conservative churches in Texas...but for me it's one more reason that confidence in organized religion is waning. A new Gallup Poll released last week found that trust in organized religion is at a near record low, down from a peak of 68% in 1975 to 46% today. (But only 25% of Americans express confidence in the presidency and only 14% in the Congress.)

A sexually healthy faith community offers counseling from trained religious leaders; Ms. Penley, I am so sorry you didn't have that.


Anonymous said...

This ties into a larger discussion of whether or not congregations should be exempt from the legal regulations that govern secular organizations. The New York Times did a series on this issue. In this
, they give the example of a religious daycare center that does not have to follow the legal regulations on secular day care centers. These regulations are designed to save children's lives.

Congregations deserve freedom to practice their faith. But I don't think this freedom is unfairly hindered by having to follow the laws designed to guarantee adults and children basic safety and rights.

In fact, one could argue that it actually benefits congregations and organized religion in general to adhere to professional and legal standards in areas such as counseling. Congregations should also examine the moral ramifications of ignoring regulations meant to safeguard people in vulnerable situations.

There are, of course, many precedents in which courts have agreed that congregations must follow the law, so the question is where to draw between regulated and unregulated activity. I agree with you that counseling, which has a set of understood obligations in a secular context, should generally fall under legal regulations. I would think one exception might be if a congregation clearly publicized in advance that they did counseling in a different way than is commonly understood, and had participants sign a statement in advance acknowledging that the counseling is not confidential. From your account, it doesn't sound like that is what happened here.

Will said...

What kind of door would that open if congregants could sue ministers in court? I agree that ministers should maintain confidentiality, but a court of law is not the place to address misconduct. Let churches deal with their ministers.

Will said...


Isn't there a difference bet. spiritual counseling and medical/mental counseling? I wouldn't go to a minister for therapy. Don't ministers provide spiritual counseling and refer medical cases to the medical professionals? Of course, it's tough at times to draw the lines.


Anonymous said...

What an unfortunate situation. It will be interesting to follow the case.

Anonymous said...


My understanding of pastoral counseling within congregations is that people bring a variety of concerns to their ministers, including substance abuse, mental illness, marital problems, family problems, and other life challenges. Ministers may choose to refer congregants to specialized providers, religious or secular. They might make this decision because congregants require more than a few sessions of counseling, or because they present with problems the minister does not have the expertise to address. People come to ministers with some of the same problems that are dealt with in secular counseling. For that reason, and because the word "counseling" implies a certain set of understood obligations and protections, I think ministers must be clear with congregants in advance if they will not be abiding by generally-understood norms of confidentiality, and should provide a clear explanation of why they will not be respecting confidentiality.

That said, I'm not an expert in how pastoral counseling is practiced in congregations, and there may be a wide range of practices among different faith traditions and different ministers. An expert in these areas could probably give us a better understanding the content and ethics of pastoral counseling within congregations.

Unknown said...

Rev Haffner,

You're a trained and credentialed professional. You hold yourself to an explicit ethical standard.

Rev. Buddy Westbrook is, apparently, an untrained layman who was elected to his position as pastor. He never held himself out as subscribing to your ethics. Indeed, the constitution of CrossLand Community Bible Church explicitly calls for the standard he followed.

If Peggy Penley had told a friend about her affair, and the friend had spread the news all over the church — that shouldn't be actionable, should it? (It better not be. I was in a church where the minister had an affair with a married congregant. She swore her close friend to secrecy and confided. The friend told the truth to the board. Should the friend have been open to a lawsuit?)

I think that people should assume extra responsibility when they become clergy. But those responsibilities should be defined by the congregation and the denomination, not by courts.

Anonymous said...

I am new to your blog and....what a breath of fresh air! Personally, I am not religious at all, but I respect people of all faiths and I was very excited to see your comments were so grounded and full of common sense. I feel that laws and government should protect the people. I feel that religious leaders and entities as groups should be able to practice freely without persecution, but if an individual feels she or he has been treated unjustly by these, the law of the land should prevail in order to protect the individual whose voice would otherwise be drowned and abuses would go unreported due to lack of numbers. Otherwise, we are going to be witnesses of horror stories of each religion abusing individuals without anyone being able to defend themselves outside the arbitrary laws of each religious group (I guess we've already been witnesses to such atrocities, right?). How can I help?

Anonymous said...

I don't see how telling the congregation someone else's secret is a part of any code of conduct. How pathetic!!! I call it gossip, witch hunting, cowardice.To listen to someone else's problems and then go behind their backs and tell the world instead of offering help, advice, support, love, and alternatives is an act of selfish righteousness. Obvoiusly, this woman was mislead into thinking that her pastor was indeed a shepard and not just one of the sheep. Had she wanted to risk her situation to be divulged, she would have told a friend instead, someone at her same level. She has obviously gone through enough pain and grief that she felt forced to seek secular help for what she considered an abuse of power within her congregation - something we see with alarming frequency.

Anonymous said...

There has been some good discussion here so I won't pile on to the other arguments already made. (Especially those touching on the confidentiality/pastoral duty issues.) One comment I would like to accentuate is the matter of sin in the church and what to do with it.

If you are a Christian and following the Scripture, you will follow the Matthew 18 text. This appears to be what Pastor Westbrook followed. There you will find the Lord's prescription for handling church members who refuse to turn from their sin. In the Penely case, it was only after repeated requests that she stop her extra-marital affair that Pastor Westbrook finally brought the matter to the congregation for church discipline.

For those of you who are not Christians, this is going to stretch you a little, but going before the congregation was an act of love. An act of love for the congregation and for Penely, her adulterous lover and for her husband. Sin is the destroyer for me, you and everyone. It needs to be dealt with. The Lord attones for our sin, to those who accept Christ, but He also asks us to "turn and sin no more." We all fail at this and continue to sin from time to time. But the key here is the willingness to turn and repent from the sin.

I feel bad for Ms. Penely, but hope that the ordeal has caused her to question what's really important in this life.

eeka said...

Unfortunately, I believe they're right. A counselor of any type is only bound to ethical guidelines if they hold some sort of credential that includes these. Your denomination provides extensive training to clergy and has you swear to ethical standards, but others do not.

I'm a board-certified music therapist and licensed mental health counselor in Massachusetts. There is frequently action here from people who want to see legislation so that "counselor" or "therapist" titles can only be used by us. I very strongly disagree with this approach, because I think it gets into the area of legislating which worldviews are valid, which I don't support. I believe that consumers should have the right to go to any sort of self-trained counselor or religious counselor or new-age crystal therapist, if they feel that that person is helping them. What's important for me is that we as credentialed professionals continue to educate the public that we are bound to a code of ethics. When someone chooses a credentialed person, they know exactly what guidelines we must abide by, and they know they can come after us free of charge with the blessing of the state if we do something unethical.

I'm not as versed in the standards of clergy as I assume you are, but I know that in your instance, you have some ethical guidelines, and your denomination has a formal government that upholds these. This isn't the case with every random storefront church. This is where I draw a parallel between your profession and mine -- it's a person's right to choose to go to a church that doesn't have formal ethical standards, but then they don't get the protection of such things. The law only steps in if unlicensed therapists or rogue churches do something outright abusive or illegal. There's no protection for moral/ethical infractions unless one can prove breach of a legally binding contract.

It's frustrating to see people abused like this, I know, but I believe strongly that we have to support the rights of autonomy for places of worship and other organized worldviews. The only thing we can do is help people to become educated consumers. Find out your rights, insist on a contract, etc. Go with the more regulated folks if you don't feel like having to enforce the contract on your own time and dime.