SBC Elites cite distinguished lawyer and Southern Baptist Matthew Martens; however, Martens has written persuasively about the duty Christians have to justice, even for those convicted of serious crimes. Does what the Task Force recommends even meet Martens’ criteria?
Southern Baptist Convention insiders are pushing to use highly questionable legal standards to ruin lives of those it deems “credibly accused” of sex abuse. The plan pushed by the SBC’s Abuse Reform Implementation Task Force is to deem someone credibly accused if the person meets one of four criteria. Some of the criteria such as being convicted in court or having publicly confessed are not controversial; however, a cornerstone part of the policy is to deem someone credibly accused if a private investigative firm determines guilt based on a “preponderance of the evidence.”
You can see the criteria here. For an excellent critique of the danger of what SBC Elites have crafted check out this Twitter thread by Megan Basham. She correctly highlights the similarities between what the SBC is pushing and what the Obama Department of Education pushed to determine guilt for sexual assault allegations on college campuses. The standard is so bad that even publications like The Atlantic took notice of it.
To defend the use of “credibly accused” and “preponderance of the evidence,” SBC Elites cited distinguished lawyer and Southern Baptist Matthew Martens.
According to the Task Force, “Independent inquiries by a qualified firm(s) meet the standard of biblical justice. Please see this article by attorney Matt Martens. While false allegations are rare, we recognize that they do happen. That is why the SBC has adopted a standard of proof that meets the requirements of our civil court process. This is also why the adopted recommendations require qualified firms to perform the inquiries into accused individuals in order to meet the ‘credibly accused’ standard, and why conduct will be legally evaluated against defined standards in each jurisdiction. The Ministry Check website will provide a second level of review to give greater confidence in the authenticity of a credible accusation as determined by a qualified firm.”
The Task Force links to a Martens op-ed on how the SBC’s approach to determining the guilt of an abuser should meet some biblical standards of justice. In that article Martens argues, “Although the Bible does not use that exact terminology, the concept of due process is certainly embodied in several Scripture passages.”
This is a good start. Then Martens argues that due process can look like the American system or like other systems such as continental systems. He writes, “Now let me turn to the issue of due process. Although the Bible does not use that exact terminology, the concept of due process is certainly embodied in several Scripture passages.”
Martens then discusses the use of Third-Party investigators.
According to Martens, “The third-party independent investigations that the Task Force recommendation envisions are something more analogous to the inquisitorial model. If designed well, such investigations can easily satisfy the biblical standard of just process. While Americans are more accustomed to cross-examination of witnesses by their adversaries, the inquisitorial model relies primarily on questioning of the witnesses by the judges. Here, the third-party investigators would interview the various witnesses privately, testing their account of the events through questioning and by gathering other evidence that corroborates or contradicts the testimony.”
If designed well does a lot of heavy lifting in this paragraph. But it is good to ponder if what the SBC’s Abuse Reform Implementation Task Force has indeed designed well.
The Task Force is promoting the idea that investigators must be “trauma informed.” That means investigators should take lack of corroborating evidence as proof.
For example, Megan Basham explains that trauma informed means that “the absence of verbal or physical resistance, inability to recall crucial parts of an alleged assault, a changing story—none of these factors should raise questions or doubt about a claim. Indeed, all these behaviors can be considered evidence an assault occurred.”
This means the “decision maker” (to borrow from Martens’ analogy) would be biased toward believing the victim and in fact must construe even conflicting statements in a way to believe the victim.
Does that sound fair? Does it sound just?
Let’s ponder a few other things that the distinguished lawyer and Southern Baptist Matthew Martens has penned. In this article published by the Notre Dame Journal of Law, Ethics, and Public Policy, Martens argues persuasively that Christians must be concerned with due process and proportionality as elements of justice.
Martens writes of the Sixth Amendment, “In other words, if you say it, you’re going to have to say it to my face. No accusations whispered behind closed doors. No convictions by affidavit. If you are going to accuse me of a crime, you are going to have to say it to my face, and you are going to have to answer a few questions about your accusation. As John Wigmore, the author of the most famous legal treatise on evidence ever written, said about cross examination, it is ‘the greatest legal engine ever invented for the discovery of truth.’ After nearly twenty years of trying cases across the country, I can attest to this truth.”
So, his experience tells him that the protection of public accusations and public confrontation of witnesses against the accused are “the greatest” way to discover the truth—and yet for finding the truth in the SBC, why are private investigations by third-party firms adequate? Especially, when those firms are trauma informed?
Further, these types of investigations do not allow cross examination. While not necessarily required, would it not be helpful when dealing with trauma informed systems?
Lest you doubt trauma informed is integral to the Task Force plan, it says it is in today’s statement. According to the Task Force, “Survivors of sexual abuse need a trauma-informed, confidential agency to interact with if needed, to help ensure their safety, and to help ensure that interactions they have do not cause more harm. Unfortunately, as the Guidepost report revealed, survivors have often been harmed by SBC pastors and denominational leaders.”
Failure to be trauma informed means those leaders in the past “harmed” alleged survivors.
Martens article then explores the injustice of excessive punishment. He gives an example of criminals stealing about $229 and ending up sentenced to life in prison. Martens notes this hardly seems proportional.
Then Martens explores the concept of justice.
He writes, “So what is justice? Saint Augustine, in City of God, said that, ‘justice is a virtue distributing unto everyone his due.’ Justice is not, as Augustine went on to explain, simply ‘[t]hat . . . which is profitable unto the greatest.’ In other words, when it comes to justice as understood by Christians, might does not make right. A government with the power to impose a punishment is not necessarily a government acting justly if the punishment is not that which is properly due for the wrong committed. Justice, as that term is used in the Bible, carries with it a requirement of proportionality, a correspondence between the wrong committed and the severity of the punishment imposed.”
This is a good and fair point.
It prompts one to ask if the proportionality of the punishment should also be weighted not only by the alleged wrongdoing, but the methodology used to arrive at the conclusion. Thus, in criminal trials where we sentence someone to life in prison, we require a proof “beyond a reasonable doubt,” and in civil trials where money is often the main thing on the line, we use the lesser standard “preponderance of the evidence.”
What would be the right standard when tainting someone with the opprobrium of sex abuser?
If someone were wrongly tainted by that and later proof emerged that they were innocent, where would they go to get their reputation back?
Does justice require some type of proportionality in process for the type of punishment to be inflicted? It should.
Further, what is the biblical standard of proof? Is preponderance of the evidence sufficient for entertaining a charge against an elder? (I Tim. 5:19).
As a sidenote, the weakest part of Martens’ essay is the issue of Mercy. He argues that proportionality limits the punishment maximum but does not fix its minimum. That is true as far as it goes; however, the dispute here would be if the state should even consider mercy in executing sentence. An individual Christian is called to mercy; however, the state’s duty is not the same. The state’s duty is to punish evil and thereby to restrain it. It was none other than Cardinal Richelieu who noted that the individual’s duty is toward salvation and the state since it does not have a soul must focus on the temporal. If this is true (and there is good reason to think so), then mercy would be a possibility for the state but should not be a set policy lest it encourage evil.
However, if we were to apply Martens’ argument about mercy to the Church, how would the Task Force’s recommendations fit? Is this system merciful or arbitrarily weighted to the accuser?
Of course, the abuse victims would rightly argue against a tribunal considering the concept of mercy; however, what would Martens think? He argues against excessive sentences by pointing out that “while the law allows proportional punishment, tempering justice with mercy sometimes means forgoing retribution. As Gandhi put it, ‘An eye for an eye leaves the whole world blind.’”
Let’s return to the other Martens’ essay linked by the Task Force. Martens argues that a just process for the SBC must include: “1. both accused and accuser were afforded a meaningful opportunity to be heard; 2. the investigation finding does not rest on the testimony of a single, uncorroborated witness, and 3. the decision-maker was impartial.”
Returning to the theme of trauma informed, how would such a decision-maker be considered impartial?
Considering all of this, does the Task Force recommendation even meet Martens’ criteria?