Burden of Proof

Church Oversight Must Understand the Law of God and General Equity

On June 22, 2022, the Presbyterian Church in America (PCA) gathered in Birmingham, Alabama for their annual General Assembly. The Ad Interim Study Committee presented their much-anticipated report on Domestic Abuse and Sexual Assault in the Church (DASA). The report received a standing ovation. As a PCA teaching elder, I joined in the applause, recognizing the report’s importance for our church and the watching world.

Back home in Annapolis, Maryland, I gave the report a thorough re-read. In section 4, one paragraph jumped out:

Deuteronomy 22:25-27 makes it clear that a victim of sexual assault, though no witnesses were present, should be trusted and action taken to bring accountability to the offending individual. False reports are rare. Identifying a false report is best determined by a qualified investigator.

The phrase “False reports are rare” was footnoted, leading to Attachment 7’s list of 15 myths about abuse. According to the DASA Report, myth 6, “It’s his word against hers,” was pertinent. They asserted, “False reports of abuse are rare. Most abuse happens in secret. Witnesses are also rare. It is not unreasonable to believe one party over the other. In Deuteronomy 22:25-27, the case law explains that a victim of rape (where there are no witnesses) should be believed and the accused held accountable…”

I put the report on the table in front of me and thought, “I’m glad I applauded—it has many merits. Yet, their understanding of the burden of proof is not built on a biblical foundation. In the pursuit of justice, the DASA report might be bypassing the very foundations of biblical law.”

This seems like an odd thing to say given that they quote a case law from Deuteronomy 22:25-27. Since you probably don’t have it memorized, here is the text: 

But if a man finds a betrothed young woman in the countryside, and the man forces her and lies with her, then only the man who lay with her shall die. But you shall do nothing to the young woman; there is in the young woman no sin deserving of death, for just as when a man rises against his neighbor and kills him, even so is this matter. For he found her in the countryside, and the betrothed young woman cried out, but there was no one to save her.

Working within the PCA’s own understanding of law, surely the church may gather some general equity from that case law. We can know, however, with great certainty that the church will never gather from this text that a single testimony meets the burden of proof to take action, “…to bring accountability to the offending individual.” 

How can we be sure? We can be sure that Deuteronomy 22:25-27 does not teach that only one testimony is necessary to prove guilt, because that would contradict the witness of several clear passages from the Old and New Testament. 

Picture this as a courtroom scene. An attorney rises to settle the matter of the moral law concerning witnesses and burden of proof. The first witness is Moses. The lawyer asks Moses, “How many witnesses are required to establish guilt?” Moses replies, “Whoever is deserving of death shall be put to death on the testimony of two or three witnesses; he shall not be put to death on the testimony of one witness” (Deuteronomy 17:6). The attorney responds, “Yes, but what about other cases wherein the offense is not capital?” Moses answers, “One witness shall not rise against a man concerning any iniquity or any sin that he commits; by the mouth of two or three witnesses the matter shall be established” (Deuteronomy 19:15). The attorney asks one more question. “Moses is this true even given ‘power’ dynamics in society?” Moses replies, “You shall do no injustice in judgment. You shall not be partial to the poor, nor honor the person of the mighty. In righteousness you shall judge your neighbor.” (Leviticus 19:15)

Now, this is just the beginning for the attorney. Surely he will call Jesus to the stand. When he does we will hear him say, “…by the mouth of two or three witnesses every word may be established.” (Matthew 18:16) Surely, the attorney will call the apostle Paul, and again we will hear the same testimony, “…By the mouth of two or three witnesses every word shall be established.” (2 Corinthians 13:1).

We can be certain that Deuteronomy 22:25-27 does not contradict the clear teaching of the rest of the canon of Scripture. 

One more observation about the report should be made. The DASA authors grounded their policy on a 2010 study by David Lisak entitled, “False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases.” Statistical analysis has a place, but given the weakness of the Deuteronomy argument, it is important to ask if the authors of the report have been overly influenced by statistical studies as a basis for human action. 

This is not an allegation. It is, however, a call to take seriously a major temptation for myself and everyone else in this age. “Social constructs” are the fad of the day. Using statistical analysis and other observations about society as a basis for law is a primary mark of a humanistic system.  Though the first humanist manifesto was published in 1933 and the second manifesto in 1973, humanism is still the air we breathe in 2024. Humanism has not weakened, but gained strength as they seek to work out their total vision for humanity with rigorous consistency. 

We should, therefore, remember the prophetic words of Francis Schaeffer, “Law is to be seen not as floating on a sociological set of statistics, but on a solid foundation.” He wrote that in his Christian Manifesto in 1981 and it is still as relevant today. 

Speaking of Schaeffer, his Manifesto ends with the discussion of a painting by Paul Robert, a Swiss artist in the 1900s. It is entitled, Justice Instructing the Judges. Schaeffer comments saying, 

In the foreground are different forms of litigation—the wife against the husband, the architect against the builder, etc. Above them stand the Swiss judges with their little white dickeys. How are these people with their little white dickeys going to judge the litigation? A whole sociological theory is involved here. Robert’s answer is this: justice (no longer blindfolded with her sword vertical, as is common) is unblindfolded with her sword pointing downward to a book on which is written “The Word of God.” Here is Lex Rex, because justice is not merely statistical averages. Here is something to build on.”

As I reflect on these issues from my home in Annapolis, Maryland, I am reminded of the responsibility we bear as leaders and members of the church. I am also reminded of the great task of future generations of Christians.  My oldest daughter recently graduated from high school and declared her intention to major in political science and minor in theology. My hope for her, and for her entire generation, is that they would pursue justice with unwavering dedication while never bypassing the foundational principles of biblical law. May their actions reflect both the love and righteousness that Scripture commands, ensuring a solid foundation for their efforts to bring true justice to our world under the lordship of Jesus Christ.

Image Credit: Unsplash

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Jesse Crutchley

Jesse Crutchley

4 thoughts on “Burden of Proof

  1. Even if the idea that false allegations are rare, can it not be taken that they are rare BECAUSE we as a society place a very high emphasis on the burden of proof for prosecution?

    If the burden of proof was significantly less, would that not cause a corresponding increase in the amount of false allegations?

    1. Interesting point. I imagine our societies default criteria for burden of proof could be at least a cause for the rarity of false allegations. At this point, I am not even willing to concede that the statistics establish that point. They are questioning, btw, a vital of church governance.

  2. It seems likely that there’s a significant degree of equivocation baked into the “false reports are rare” assertion.
    On one hand, it does seem to be the case that deliberately fabricated reports are indeed rare. This shouldn’t come as too much of a surprise, as manufacturing a plausible incident out of whole cloth is quite difficult, to the point that most people don’t bother trying.
    But on the other hand, a report need not be deliberately fabricated to be “false.” There are way more possibilities than that.
    Most of them have to do with the fact that just because something happened that someone isn’t happy about doesn’t mean that anyone did anything wrong. A report can be completely accurate with respect to the bare facts of what occurred, while substantially false with respect to the legal and/or moral implications of those facts. There are plenty of things that are morally questionable, even outright morally wrong, that–for good or ill–are not legally actionable. There are plenty of things that are legally actionable that are, at least arguably, morally fine. And particularly when it comes to notions of “abuse,” there are a lot more gray areas than clear black-and-white lines. Even where those lines exist they can be drawn in arbitrary, counter-intuitive, or even seemingly nonsensical ways. So it can easily be the case that an alleged victim claims, correctly, that someone did such-and-such to them, but the claimed actions are neither legally actionable nor morally objectionable. I think it fair to call such a claim “false.”
    This is not at all helped by the fact that in today’s world of “mandatory reporting,” many, many reports are made by people other than alleged victims. Such can easily be a game of whisper-down-the-lane/telephone in which something that the alleged “victim” perceived as innocuous is turned into a report of “abuse” by a well-meaning intermediary with reporting obligations (legal, self-imposed, or otherwise). Mandatory reporters have an independent incentive (CYA) to pass along anything that might remotely sort of seem like “abuse” if you squint hard enough. It’s actually gotten to the point that police and social services personnel in certain jurisdictions sometimes tend to view allegations from mandatory reporters as presumptively nothing-burgers, because there are so many reports and so few of them turn out to amount to anything.
    If nothing else, it’s almost impossible for anyone to convey the entirety of the facts and evidence of any given situation, even when one does spend months investigating, compiling evidence, and writing an exhaustive analysis. Which isn’t what happens anyway. Any report, especially an initial report, alleging abuse is going to necessarily be incomplete. That incompleteness can easily lead to a seemingly plausible report falling apart under scrutiny.
    All of which to say that while the assertion that “false reports are rare” may be technically true in one sense, that sense is such a narrow situation that on the whole, the assertion is misleading at the very least.

  3. Thank you for reading our report and making comment. Here are some responses to what you wrote. Here are some quotations from the report regarding false reports:
    The perniciousness of false reports is included in the discussion of WLC 145 below. While false reports are rare, the best way to protect against them is to undertake an investigation to discover the truth. The question below also warns against prejudicing the truth. The best way to avoid prejudging a matter is to engage a competent third party to perform an unbiased investigation. The question below further warns against passing unjust sentence. The best way to avoid passing unjust sentence is to perform a competent and thorough investigation.

    This is the first discussion of false reports in the DASA report. It is clear that false reports do happen and they are pernicious.

    Here is the entire section that you referenced for context and clarity:
    “Raising false rumours, receiving and countenancing evil reports, and stopping our ears against just defence”

    ● Exodus 23:1 ‒ You shall not spread a false report. You shall not join hands with a wicked man to be a malicious witness.

    (Additional Scriptures cited: Prov. 29:12; Acts 7:56-57; Job 31:13-14.)

    These passages affirm that false reports happen. False reporting is pernicious and evil, as the accompanying Scripture shows. Falsely reporting abuses, however, is rare. Scripture narrates one instance of a woman falsely accusing a man of abuse (Gen. 39:14-15), yet multiple instances of men misusing women. The Bible also tells us God will not be mocked (Gal. 6:7) and He will reveal this darkness (Job 12:13-25; Dan. 2:22; 1 Cor. 4:5).

    “Believe victims” is a common slogan today because of #metoo. To believe those who report abuse does not negate exploration of the claims. For leaders in the church, “believe victims” means taking necessary actions to protect first. After physical safety is ensured, church courts can then discern the truth in the allegations.

    Deuteronomy 22:25-27 states:

    But if in the open country a man meets a young woman who is betrothed, and the man seizes her and lies with her, then only the man who lay with her shall die. But you shall do nothing to the young woman; she has committed no offense punishable by death. For this case is like that of a man attacking and murdering his neighbor, because he met her in the open country, and though the betrothed young woman cried for help there was no one to rescue her.

    This passage articulates that a woman should be believed when there are no witnesses or evidence (“out in the country”). Abuse rarely happens in the presence of a witness. In this situation, the man is to die and “you shall do nothing to the young woman.” This passage implies false reports of abuse are rare. As mentioned above, the best way to fulfill the duty to defend against false reports is to engage a qualified third party to investigate.

    Note these specific sentences:
    “For leaders in the church, “believe victims” means taking necessary actions to protect first. After physical safety is ensured, church courts can then discern the truth in the allegations.” Here you see that the passage is being applied to getting a person to safety. Then the church courts can discern truth. The passage encourages church courts to perform a thorough third party investigation in order to substantiate claims.

    The report had multiple authors, and perhaps there is some inconsistency. However, I wrote the section on theology and I was clear there that the statistics and “believe victims” notion should lead to first protect and then to perform a thorough third party investigation. I no way was I or any author suggesting that the BCO requirement of one eyewitness plus one corroborating witness should be jettisoned (BCO 35-4). That would be in direct conflict with other parts of scripture, as you rightly state. So do not expect any overtures amending BCO 35-4 to only require one witness.

    One further clarification: when I cite the statistics for false reports, that applies only to sexual assault, not other kinds of abuse. We don’t have statistics on other kinds of abuse.

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