SBC Politics, the Sexual Abuse Investigation, and Waiver of Attorney-Client Privilege

In June of 2021, nearly 15,000 messengers from Southern Baptist Churches from around the country voted overwhelmingly to commission an independent, 3rd party investigation into the handling of sexual abuse allegations by the Southern Baptist Executive Committee officers for the period of 2000 to the present.

It should be clear that the investigation was not into accusations of abuse by the SBC’s Executive Committee officers, but that members of the Executive Committee had handled accusations about local churches poorly and in some cases potentially bullied or manipulated those who claim to have been abused in a local church.

One particular accusation in the past few years turned into a lawsuit against the SBC with a former LifeWay (an SBC entity) employee who made a public accusation of abuse that was misrepresented as a consensual affair. The fallout of that misrepresentation was public abuse (with names hurled that should be unthinkable for confessing Christians) leading to her resignation from LifeWay. The misrepresentation was compounded by an unwillingness to correct the misrepresentation in the SBC-controlled newspaper long after the misrepresentation was identified, which contributed to the abuse hurled at the woman. After a change in leadership, the report was corrected and an apology issued, but a great deal of financial, emotional, and spiritual damage had already been done.

This case, a Houston Chronicle article detailing over 700 cases of sexual abuse in SBC churches over a period of 20 years, along with evidence of serial abuse by individuals who had bounced from local church to local church, often as paid staff, raised concerns that the SBC was doing too little to curb abuse. All of this came at a time when sexual harassment and abuse were a particular public concern in society, but there is little question that concern about abuse is more than a secular movement being imported into religious clothing. These sins should not be tolerated among Christians! (1 Cor 5:1–2)

The Polity Issue

Given the loose association between churches affiliated with the Southern Baptist Convention, there has been resistance to many movements of reform on the basis of our polity and local church autonomy. It is true that some actions are not possible for the SBC. However, as Keith Whitfield has argued:

“We’ve hidden behind false fronts and convenient excuses. Appeals to the autonomy of Southern Baptist churches have derailed various proposals, like creating a Southern Baptist offenders' registry. While our polity may render some proposals nearly impossible to carry out, the appeal to autonomy doesn't justify inaction. Rather, we must use our autonomy to covenant with one another, “to stir one another to love and good deeds” (Heb. 10:31). Our family of churches must find a meaningful and culture-shaping mechanism that leads us to commit to best practices as we strive to prevent abuse in our churches and entities.”

There is little doubt that many critics of the SBC will be dissatisfied with the efforts to curb abuse within the association of churches. This is largely because they misunderstand the nature of the SBC. However, the fact that the demands of some critics cannot be satisfied should not prevent the organization from taking what steps are appropriate within our context. After all, if the SBC can disfellowship a church for ordaining a female pastor or affirming ungodly forms of sexual practice, then the SBC can disfellowship churches for failing to deal with gross sin in their midst. There are likely additional steps that can be taken to prevent or, at least, minimize serial sexual abuse that can be facilitated at the national level without violating basic Baptist polity.

A Turning Point

The June 2021 meeting of the SBC seemed to be a turning point toward addressing concerns over sex abuse in our churches, given the overwhelming vote by the messengers, who are the sole members of the SBC and its entities.

Getting the independent investigation underway has proved difficult for the Executive Committee because of concerns over legal and financial exposure due to the investigation. One contentious aspect of that motion as approved by the messengers was the request that the Executive Committee waive attorney-client privilege for the investigation.

Waiving attorney-client privilege is, indeed, a big step. On the one hand, it provides unimpeded access to documents that may be legally damning, but which could have been kept out of the public eye because they were protected by the confidential relationship between an attorney and her client. There is legal and financial risk to waiving this privilege, which may include the Executive Committee’s insurance company refusing to pay out on settlements related to cases whose evidence is exposed by this waiver. Additionally, evidence may become publicly available (as through the investigator’s report) that would have otherwise have been hidden to litigants or prosecutors. If there has been wrongdoing, it may well be exposed and bring penalty that could have been prevented by non-disclosure.

On the other hand, waiving attorney-client privilege exposes issues to the light of day that would otherwise be left to fester and left unaddressed. It would leave the investigators without all the information needed to bring problems to light, uncover weaknesses in practices, which could lead to greater liability down the line. It would diminish the trustworthiness of the final, public report, because the world would be left wondering what secrets remained hidden behind the veil.

Contributing to the need to waive attorney-client privilege on this issue, the long-time general counsel for the SBC Executive Committee has been in the midst of many of the controversies within the SBC. He has, for example, been part of a plot to misappropriate money from one SBC seminary and has been subsequently banned by judicial order from serving non-profits within the state of Texas or any Southern Baptist entity. The same individual has been deeply involved with another major figure within SBC life who was eventually terminated for mishandling his stewardship of an SBC entity along with public accusations related to covering up abuse. Some of these accusations have not been corroborated, but the risk that communications related to the issue would be kept confidential due to one of the key individual’s role for the Executive Committee made this selective waiver of attorney-client privilege essential to having a transparent, independent investigation. Given that the same individual testified as a character witness for a convicted abuser using his SBC official title, and also called the concerns over abuse a “satanic plot,” there is a reasonable basis for assuming his correspondence may be important to the investigation into handling of sexual abuse.

The Will of the Messengers

In June of 2021, the messengers voted to have the Executive Committee waive attorney–client privilege and form a separate (not approved or appointed by the Executive Committee) task force of Southern Baptists, who would hire a firm to conduct the third-party investigation. This vote was a rare move for the Southern Baptist messengers. Unlike resolutions, which do not have normative force, the motion from the floor was a directive to the members elected to the Southern Baptist’s Executive Committee.

(For those unfamiliar with the polity, the Southern Baptist Convention exists for two days each year from the first gavel to the last gavel of the annual meeting. It is comprised of “messengers” who are sent by their local congregations to vote on issues raised at the meeting. The Executive Committee exists to oversee the budget of the Cooperative Program, improve cooperation between SBC entities, and make arrangements for the annual meeting. The Executive Committee is comprised of people nominated by the Committee on Committees and elected by the messengers of the convention.)

The expectation of many of the messengers was that at the first Executive Committee meeting after the SBC, which is normally conducted in September (~100 days after the SBC), they would vote to waive attorney-client privilege, approve the funds for the investigation, and empower the Task Force (appointed by the President of the SBC, elected by the messengers at the SBC, who is also a voting member of the Executive Committee) to do the investigation.

Many onlookers were disappointed when the Executive Committee failed to waive attorney-client privilege and approve the third-party investigation as directed, when they met in Nashville on the 21st of September. Although the Sex Abuse Task Force had been named, had identified a reputable group to do the investigation (whom the Executive Committee had tried to hire to do a private investigation without a public report prior to the annual meeting of the SBC), and had the contract prepared for approval, the investigation was stalled. A significant faction within the SBC had worked with some leaders within the Executive Committee to argue against waiving attorney-client privilege, which threatened to put the brakes on the contract and the investigative process.

Though the full reasons for the issue may never be known, much of the information the members of the Executive Committee needed to make their decision was not presented until shortly before the meeting, with insufficient time to review it. Additionally, members of the staff of the Executive Committee had contracted with legal firms to attempt to convince the Executive Committee members not to fulfill the direction of the messengers of the Southern Baptist Convention by refusing to waive attorney-client privilege. However, a motion was made and approved to meet again in seven days to discuss it again.

At the second meeting, on September 14, the motion to waive attorney-client privilege was again defeated. Another motion was made to allow another 7 days to negotiate. The key to the negotiation for the Executive Committee was maintaining control of the investigation, having veto power over the material made available to the investigation, and the ability to control the content of the final report.

The Real Risks of Waiving Attorney-Client Privilege

There are some significant risks associated with waiving attorney-client privilege, especially from a purely financial and legal angle. If the investigation uncovers illegal behavior by members of the Executive Committee in communications that were made regarding legal advice between those EC members and their attorney, then that information would be admissible as evidence in court. Legal advice and surrounding conversations involving an attorney acting in his or her legal capacity can generally be hidden behind attorney-client privilege. The individuals responsible would lose that protection with this waiver. Additionally, in civil lawsuits, potentially compromising communications would no longer be protected legally.

Compounding this legal and financial risk, institutions typically carry robust liability insurance policies to protect them from lawsuits. Waiving attorney-client privilege for a case can become grounds for the insurance company refusing to pay out for damages awarded, because the insured institution failed to defend against lawsuit with full vigor.

The biggest risks here are that the SBC Executive Committee could be open to lawsuits that, if the evidence supports, they will have pay for out of pocket. The current budget does not support those sorts of expenditures and it might bankrupt the Executive Committee or cause funds to be diverted from the Cooperative Program (i.e., away from actual missions and ministry) to keep the Executive Committee afloat.

We should note that these risks are conditional upon (a) there being evidence of wrongdoing, (b) victims of wrongdoing bringing civil suits, and (c) the insurance company electing not to cover the damages. Our best hope—and the one I really want to be true—is that there is no evidence of wrongdoing beyond what has already been settled.

Advantages of Waiving Attorney-Client Privilege

A 2019 Houston Chronicle article about widespread, serial abuse within SBC-affiliated church changed the perception of the SBC inside and out. Since that issue was revealed, I have had people who were otherwise unconcerned about Baptists (or Christianity) make the connection between the SBC and abuse when they found out my connections to the SBC. There have concerns raised by laypeople within local churches (mine included) about why we should remain affiliated with the SBC based on the perception that abuse is widespread and pervasive.

Until we begin to take steps that are appropriate within our context and polity to curb sexual abuse, we will never be able to shake the accusations. The fact is that the abuse happened, we have not taken action to mitigate it, and no complaints about political motivations of #metoo, social justice, or polity will ever change that. Failing to take action makes the offensiveness of being an SBC church something other than the gospel. It sets up barriers to evangelism. Especially outside of the Bible Belt, it makes ministering as an SBC-affiliated congregation more challenging.

The first step in addressing an issue is figuring out the extent of the issue. But we have to be willing to really explore. Waiving Attorney-Client Privilege and publishing a public report are important steps in determining the nature of the problem. “Ripping the Band-Aid off” is painful, but likely the best way to move beyond the issue.

We may also find evidence of ungodly behavior among some leaders in the SBC which, if not illegal, is disqualifying from leadership. In any large organization there will always be shenanigans and insider trading, but there is already public evidence of behavior that does not belong in an organization devoted to getting the good news of the gospel to the nations. This investigation may help reveal that problem, as well, as it relates to the handling of sexual abuse.

Another advantage of having an open investigation with clear access to privileged communications is that it will functionally close the door on spurious lawsuits. If an independent, respected firm has full access to all pertinent records are determines the bounds of the issue (if any exists), then other accusations and lawsuits that may not be defensible will be much harder for accuser to pursue. If we expose some wrong doing, but the process and the final report remain behind a veil, then people who may feel wronged (and may have been wronged, if not by the SBC Executive Committee) but who do not actually have standing (because, perhaps, they had never contacted anyone) would have opportunity to sue the SBC and the SBC would have to defend afresh each individual suit. The open investigation provides both a present vulnerability (if any wrong doing is discovered) and a future defense (we’ve ruled out evidence of certain claims). So, while it may make present lawsuits more damaging, it may reduce risks from future ones.

Finally, we need to remember the reason the SBC exists. It’s not to be a self-sustaining club of Baptists, kept sacred in perpetuity and handed down to future generations. The SBC is a funding mechanism for cooperative ministry—education, disaster relief, political engagement, international missions, and church planting. As such, if the SBC ceases to live up to its calling as a Christian organization, it’s time to disband and find another better way. I believe we will come through this, but it’s always good to remember that if the SBC does not exist after this, then God will raise up another means of getting the gospel to the nations. The SBC can be effective, but it is not essential to God’s mission.

The Waiver

As one of the thousands of messengers that affirmed the call for an open, independent investigation, including the directive to the Executive Committee to waive attorney-client privilege, I am grateful that on October 5th the Executive Committee voted to do so. The margin of the vote was narrower than it should have been, but it is a step in the right direction.

A note of caution is in order here, though. Obviously, I am in favor of having waived attorney-client privilege. There are some members of the Executive Committee who voted no, but did so because they honestly believed it was their duty to do so. There are risks associated with the waiver. The EC members are tasked with protecting the interests of the Southern Baptist Convention and the Executive Committee of the SBC in particular. There are good reasons for having voted no, though I believe the reasons to vote yes outweigh them. I fear that some supporters of the waiver will harass well-meaning, conscience-bound individuals for doing what they believed to be right. That should not be.

We will see how the investigation plays out. It is a sad thing that the investigation is necessary, but, in my view, it is a good thing that both the process and the final product will shine light in some dark places and help the SBC move forward into the future with better practices or reallocate resources to do the mission God has called all Christians to more effectively.