Why Not Reformed Anabaptists?

One of the inexplicable aspects of contemporary Reformed Protestantism is the indifference if not ridicule that some Vossians show for two-kingdom theology. This is odd because if any of the current options for living in this world capture the Vossian eschatology than 2k — with a sharp rejection of any immanentization of the eschaton — I have yet to see it. Neo-Calvinists don’t (even if Geerhardus Vos himself leaned neo-Cal). Theonomists? Are you kidding me? Transformationalists of whatever stripe abuse Christianity all the time to add a holy and spiritual lift to any number of earthly and temporal activities.

Nevertheless, 2k continues to fall well short of Vossianism’s stringent standards. Hence, the recent review of David VanDrunen’s Natural Law and Two Kingdoms by William Dennison in the current issue of the Westminster Theological Journal (75: 349-70). I will leave readers to find the rhetoric that surely pushes the plausibility envelope. But Dennison’s conclusion is downright odd:

. . . a number of Reformed and evangelical Christians will champion VanDrunen’s thesis since they continue to loiter in a consciousness shaped by the Holy Roman Empire when the institutions of church and state defined the core of Western human existence as one of the most persistent problems. For them, such a paradigm provides justification for their daily captivation with politico-cultural issues without acknowledging how they may be jeopardizing or compromising their Christian identity. Sadly, in this condition they refuse to deal honestly with the full-orbed eschatological fabric of biblical revelation that has now reached the “fullness of time” . . . . Instead, these believers are paralyzed as they hold on to the “flesh” (in this case, a fixation upon the political nature of a State outside the doman of Christ as mediator of redemption) while trying to live out of the “Spirit.” In other words, VanDrunen’s NL2K model gives a rationale for having one foot solidly in place in the civil culture, and the ohter foot solidly in place in the kingdom of heaven. . . . (369)

Unless I am mistaken, the Augustinian construction of the heavenly and earthly cities is about the only option for Christians who want to avoid the Federal Vision error of imitating Eusebius’ man crush on Constantine, the Benedictine option of leaving civil society for the monastery, or the Anabaptist path of renouncing the magistrate, the sword, and self-defense even as worthy of Christians. As long as the Lord tarries, human beings (saved and unsaved) will live on planet earth and need the magistrate to supply a modicum of social order — that’s why Paul wrote about magistrates being ordained by God. If Dennison wants us to live in the full-orbed eschatology of Scripture, where exactly should we tell the movers to put our stuff or where should we cook our meals? Apparently, behind the pearly gates.

VanDrunen has essentially removed the weapons of spiritual warfare out of the hands of the church with a passion upon the temporal order of two governments and, thus, constructed for believers a provisional model as the dominant paradigm to transport them as a pilgrim people. After all, it is no small task to call the Reformed and broader Christian world to face up to the essential character of biblical eschatology, to ask that all ministers and person in the pew, surrender, think, and live in the christocentric eschatological nature of biblical revelation. So instead of living out the full-orbed conditions of biblical eschatology seated with Christ in the heavenly places, VanDrunen’s NL2K paradigm has surrendered the essential eternal character of the progressive post-fall revelation of God — the seed of the woman versus the seed of the serpent — to focus the believer’s attention upon living in the realm of “commonality” that exists in the civitas permixta. Following such a path, however will only mean that the obsessions with politics which has crippled much of the history of the church will never find resolution, and, even more impoprtant, that believers will ignore their true eschatological freedom from bondage in the present and eternal reign of Christ.

Reading this makes me think we need to talk less about Reformed Baptists and more about Reformed Anabaptists since Dennison sure sounds a lot like the peasants who interpreted the gospel freedom declared by Luther (via Paul) to mean they should be liberated from their social rank as serfs. Would Dennison tell a Christian civil magistrate he is being worldly to think about local laws or policy proposals, that he should as a follower of Christ leave his day job? Does he even suggest that Christian parents are guilty of fleshly concerns to think about sending their children to a Christian college? (The New Testament does seem to have some instruction about life in this world, but maybe I too force a 2k reading on Scripture.)

Still, when Dennison faults VanDrunen for constructing “believers a provisional model as the dominant paradigm to transport them as a pilgrim people” because it is “no small task” to call Christians to live in the light of biblical eschatology, can’t Dennison see that 2k does better than any other option — aside from Reformed Anabaptist — to encourage Christians to live as pilgrim people who know that the affairs of the state are inconsequential compared to those of the kingdom of Christ. My favorite example of this rearrangement of priorities is to try to convince Orthodox Presbyterians that the news in New Horizons is really way more important than what the New York Times’ reporters cover. Most people chuckle because the notion seems absurd. But it is true and that is one of the major points of 2k — the church matters more than politics. Dennison, however, refuses to give credit to 2kers. He only sees threat.

So to show the advantages of 2k and that 2kers themselves may be doing more along the lines of the eschatology that Dennison promotes, here is one example of the two-kingdom doctrine applied to St. Abe, that is, Abraham Lincoln, the president whom most U.S. Protestants regard as the embodiment of Christian and American ideals:

In 1967, sociologist Robert Bellah launched the modern career of “civil religion” as a concept, a way to examine how, on the one hand, the state adopts religious language, ritual, holidays, and symbolism to bind a nation together and how, on the other hand, it elevates its own values and ideas to the status of holy doctrine. Regarding the first type, University of Toronto political theorist Ronald Beiner recently defined civil religion as “the appropriation of religion by politics for its purposes.” Lincoln had been doing this to the Bible since at least 1838. He ended his Lyceum Address by applying Matthew 16:18 to American liberty: “the gates of hell shall not prevail against it.” More famously, in 1858 he quoted Matthew 12:25 to characterize the precarious state of the Union: “A house divided against itself shall not stand.”

Such an appropriation of Christianity for politics dominates the Gettysburg Address, from its opening “four score” to its closing “shall not perish.” In the 1970s, literary scholar M.E. Bradford, in his essay, “The Rhetoric for Continuing Revolution,” identified the Gettysburg Address’s “biblical language” as the speech’s “most important formal property.” That is undoubtedly so. Lincoln drew from the King James Version’s archaic words and cadences, as he opened with the biblical-sounding “four score,” an echo of the Psalmist’s “three score and ten” years allotted to man on this earth. He continued with “brought forth,” the words in the Gospel of Luke that describe Mary’s delivery of Jesus—the first instance of what turns out to be a repeated image of conception, birth, life, death, and new birth, culminating in the promise of eternal life in the words “shall not perish”—a startling echo of Jesus’ words to Nicodemus in John 3:16 (“whosoever believeth in Him shall not perish but have everlasting life”).

Lincoln’s speech also engages the other side of civil religion—not the appropriation of the sacred for the purposes of the state but the elevation of the secular into a political religion. Early in his career, Lincoln had explicitly promoted this kind of civil religion. Again in his 1838 Lyceum address, he called for fidelity to “the blood of the Revolution” and the Declaration, the Constitution, and the laws to serve as America’s sustaining “political religion” now that the founding generation was passing away. In 1863, Lincoln filled the Gettysburg Address with the words “dedicated,” “consecrated,” and “hallow.” The cumulative effect of this sacred language was to set the American Founding, the suffering of the Civil War, and the national mission apart from the mundane world and transport the war dead and their task into a transcendent realm.

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99 thoughts on “Why Not Reformed Anabaptists?

  1. I might point out that there is a body known as Reformed Mennonites, but they having nothing to do with the Reformed faith. More seriously, Anabaptists believed in the role of the magistrate, but believed that the magistrate was outside the perfection of Christ and thus not a proper role for Christians. They did not think this was inconsistent with Paul’s words in Romans 13. To combine the Anabaptists with the Schwermer is not fair to most of the Anabaptists who were not social iconoclasts.

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  2. Dennison’s point seems to be that whilst 2k may lead to the emphasis on the church being the kingdom of God on earth and that it is through the church we are saved (good), it also ends up- deliberately or undeliberately- neutralising or even condoning the world’s culture as is. Because 2k portrays the civil realm as “common” to believers and unbelievers- which in important ways it is- and the necessity of believers living in this common realm, it ends up legitimising a lot of what happens in this common realm. The fact is that nothing is neutral when it comes to Christ and our relationship with him. The world is not neutral: it is against Christ and his church. Christians should not and cannot retreat from the world, but should go out into it with their defences up. Everything we do either leads us to Christ or away from him.

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  3. We’ll be ordaining a new URCNA minister in the heart of Pennsylvania Amish Country (to plant a church in Cincinnati) this Friday night, in New Holland, PA. …so that’s where all the Reformed Anabaptists should be in Lancaster County this week.

    Apropos of nothing, that’s the first thing I thought of when the cover photo from this story popped up on my Facebook.

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  4. This typo is killing me: “fabric of biblical revelation that has no reached the “fullness of time” . . . . ”

    So, is that supposed to be ‘now’ or ‘not’.

    If I had to guess I’d go with ‘now’.

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  5. a) Some current Vossians reject 2K

    b) Odd because Vos is close to 2K, and rejected the IOFE

    so this means Vos is a gnostic?

    (and yes…. a lot of us have read Voegelin as well, although Buckley was most likely to invoke the term in more common reading material…)

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  6. Alexander, don’t you wind up legitimizing most things, such as Old Life, by commenting here? If you’re going to live in full-orbed eschatological wholeness, what in heaven are you doing reading at 2k blog?

    You yourself concede that there is a common realm (as the Bible teaches). So what exactly is the beef? What’s in your wallet?

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  7. Vos, Voegelin, and 2K opposed gnosticism, right?

    (Vos being the least studied of the 3 in my life. so I’ll take your word he is against it. but i could have easily guessed.)

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  8. I come here because there is often interesting and helpful things written. Just because I disagree with aspects of 2k shouldn’t exclude me. Should it?

    Yes I “concede” (I don’t really consider it a concession) a common realm. Does that mean that I must fully subscribe 2k? My beef is that acknowledging a common realm does not necessitate acknowledging it is neutral, especially in spiritual matters. We spend a lot of time in the world, we should be concerned about the influence it has on us. It seems strange to me that those who emphasise the two kingdoms also ignore the fundamental dichotomy between the world and the believer. Too often 2kers are too at home in the world. Remember: pilgrims do not make a home of the land through which they travel. Transformationalists may conflate the church and the world but at least they recognise that there is something wrong with the world as is; that it is not hospitable to the Christian nor conducive to the life of grace.

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  9. Alexander, I don’t know what you’ve been reading, but where have 2kers ever said that the common is “neutral”? And where do they deny the dichotomy between the believer and the world? (If you haven’t noticed, it is the 2kers that have been the most consistent in defending the gospel (doctrine of justification) which is one of those truths that distinguish believers from unbelievers, as opposed to transformationalism that makes it hard to tell.

    But you still haven’t answered what life in this world is supposed to look like. Is it monasticism, Anabaptist? If not, how does life in this world not fall short of full-orbed eschatological truth?

    I do believe Dennison is upholding a standard that no one — short of ascending to heaven, physically — can meet, himself included.

    You’re free to come here and chime in all you want. I’m free to scratch my head and wonder what it has to do with your eschatological status.

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  10. Alexander,

    2k does not say the world is neutral, it speaks of a common realm, but never of a neutral realm. I’m not sure from whence you are getting that language .

    2k holds that the common realm is governed by natural law (nothing neutral there, just common to all people).

    2k rather recognizes that there is evil in the world and that Christians endure evil during their pilgrimage. 2k actually gives Christians (individual Christians) the tools to address the evil in the world (natural law, which is authoritative for all people).

    2k also acknowledges that Christians may legitimately address different evils and in different ways and not necessarily every evil in every way.

    You may disagree with 2k, but I’m not sure you are articulating it accurately with the “neutral” descriptor.

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  11. Alexander,

    It is a caricature of 2k that we equate common with neutral. We do not. People cannot be neutral. And sin taints everything in this world. Common has to do with what we share with the unbeliever in this age; such as culture, government, arts, etc…, and thus what is not inherently sinful for Christians to participate in, as well as what are not elements of God’s eternal kingdom; the kingdom of heaven. So government, the arts, etc…is common, and we can participate according to conscience, yet they can never be completely neutral as long as sinful people administer these things. What is not common, but holy and set apart, is God’s redeemed people. And we call the visible church holy, not common, in the sense that it is the only organization that God, in his word, has set apart from the rest to administer the kingdom of heaven on earth.

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  12. Alexander,

    I think you are relying on a caricature of 2k neutrality. Remember, if we were to use a Venn Diagram to depict where 2kers land in the theological/ecclesiastical spectrum you could have 2 nearly concentric circles – “Confessional” and “2k”, and that’s where most of us land. We affirm the Reformed confessional declarations on the pervasive effects of sin that are attributable to the world, the flesh, and the devil. So, our understanding of neutral or common is not meant to detract from these spiritual realities. Among the more important things that neutral or common designations do is to afford us the ability to make careful distinctions between what is inherently holy and properly belonging to the spiritual Kingdom, and what does not. This is mainly because such distinctions are often lost in other Reformed circles that want to subsume everything under the enterprise of Kingdom activity.

    Take the oft used example of plumbing in the 2k discussions to illustrate neutrality. Plumbing as a mechanical system assumes centuries of technical development in terms of theory and practice, and is neutral – in the sense that as a discipline it is neither inherently profane, nor is it holy, however useful it is to our modern way of life. Can plumbing be used in sinful, non-neutral ways? Sure, when someone doesn’t properly ground a septic system, and pumps raw sewage into their neighbor’s backyard as a cost-saving measure – but that is attributable to not implementing a plumbing system properly, which is wholly dependent on human decision or error, rather than an indictment on plumbing’s inherent non-neutrality. So it goes with a wide variety of vocational and avocational activities that comprise the common sphere – it is not that human sinfulness or goodness has no influence on how neutral things are used, as much as it is an insistence that there are things that are truly neutral. Depravity comes into play further down the chain of human enterprise when we examine how common and neutral things are used. I don’t know of a single 2ker who would argue that neutral things can be and are used to sinful ends, but that doesn’t rob them of their inherent neutrality.

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  13. Alexander, on top of the points made about neutrality, and in response to your suggestion that 2kers are too comfortable with this world, have you considered the way in which worldviewry is actually a way to be even more overly attached to the temporal? The whole project is way to Christianize all of life and in so doing is on a trajectory to completely obliterate the antithesis. Think about it: if the faith is brought to bear directly and immediately on everything in the here and now, what happens to notions of hope, pilgrimage and even persecution? Worldviewry is actually way too at ease with this world, way too transfixed on its condition and remedying things instead of looking for a better country whose architect is God alone.

    But could it be that the comfort you discern with 2kers of the world is simply a function of the old-fashioned doctrine of creation, as in it’s not just good but very good. It may not be our home, but this is our Father’s world. It’s good stuff, dig in and enjoy it.

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  14. Failing to find the full review online I am left perplexed by this quoted section from Dennison:

    “[DVD] has surrendered the essential eternal character of the progressive post-fall revelation of God – the seed of the woman versus the seed of the serpent- to focus the believer’s attention upon living in the realm of ‘commonality’ that exists in the civitas permixta.”
    Huh?
    Also: “[DVD has] removed the weapons of spiritual warfare out of the hands of the church…”
    What?
    Granted, my lack of access to the full article hampers the understanding of the context, but given everything else DVD has written and spoken on the subject, and given what most ordained 2K peeps have said on the subject, that makes no sense. 2K peeps tend to be the best in the taking of the seed vs. Seed conflict seriously arena.

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  15. Kent:a) Some current Vossians reject 2K

    b) Odd because Vos is close to 2K, and rejected the IOFE

    so this means Vos is a gnostic?

    Me: Several years ago someone put together a series of interviews with former students and colleagues of Voegelin during the years when he was visiting prof at Notre Dame for many years. The statement was made, unchallenged by anyone, that Voegelin considered all systematic theology Gnosticism.

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  16. After reading Verduin’s book, THE REFORMERS AND THEIR STEPCHILDREN, I am not sure if the Anabaptist position is being fairly represented in this post. There were many and varied factions among the Anabaptists and all did want to “renounce” the magistrate, they just did not want to ally with them and allow the sacralist and Constantinian social order to continue on. Luther, Calvin and Zwingli were sympathetic to a lot of the Anabaptists early on during the reformation but for a large variety of reasons decided to turn against them because they wanted to maintain the Christian social order, albeit from a Protestant rather than a Catholic position. The Reformers needed the magistrates to fight the Catholics and the Anabaptists got in their way. At least that is the way Verduin’s reads the history of that period. The Reformers then consistently slandered the Anabaptists with all sorts of nasty names and misrepresentations of their positions. They had to go underground or get killed. They were never given the chance to try to reconcile their positions.

    And what is wrong with peasants not wanting to stay peasants? They certainly did turn violent but the history is more complex than I think is implied here.

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  17. JohnnY, Schleitheim says that Christians may not serve as magistrates, as soldiers, or defend themselves. That’s why they call it the “radical” reformation. It’s hard to have a social order without magistrates, soldiers, or self-defense. Plus, the peasants confused the liberty of the gospel with liberal social conditions.

    I don’t see why that’s a misrepresentation. I’m not defending social hierarchies. But Luther and Calvin did.

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  18. In the world. (full stop) But not of it. That’s who believers are, right now.

    We aren’t in heaven yet, Bill.D. 2krs here, just coping with the sandstorms. Where are you living?

    (I’ve finally figured out that Bill.D., and maybe Vossians generally, are using “heavenly glossalia,” which explains their verbose opacity. Ordinary pilgrims have yet to learn the language of the Far Country.)

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  19. In other P&R news, Patrick Edouard’s conviction has been thrown out and I’m feeling rather good about it.

    http://literatecomments.com/2013/11/21/edouard-convictions-reversed/

    ” This may not be a bad thing. Do we want the Magistrate coming in and scrutinizing these sordid affairs or should this be the job of church officers? Short of rape or sexual abuse of a minor, I am thinking that officers should be sufficient to deal with it. Keep in mind that along with the criminal prosecution comes the civil suit from the deep-pocketed trial attorney, as has happened in the Edouard case with Roxanne Conlin. The Covenant elders and the URCNA were sued as well, although I think the URCNA has been rightly dropped from the suit. Not too long ago in the United States we had polygamous Mormons and groups like the Oneida Community that practiced strange sexual arrangements as part of their religion. These practices have faded, but as sexual arrangements in the country at large have gotten stranger, is it not odd to have the magistrate passing judgment on deviant, consenting, nonviolent sexual practices within the church? This isn’t to say that what has happened in the Edouard case is not disgraceful, but it is a church mess that the church should clean up, learn from, and hopefully not repeat.”

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  20. In our ongoing debates with the Papists we are constantly reminded that we are not them. P&R elders need to have a healthy skepticism about the pastor that they are called to oversee. Church members need to have a healthy skepticism about the pastor and the elders that they are called to submit to. Women in the church need to be prepared to kick a Christian man (including a pastor) who would make unwanted advances toward them you know where and not feel the need to submit (not only are we not Papists, we’re not Patriarchalists). These church leaders have no Roman Catholic “charism” that we need to be in awe of. No P&R person needs to have the wool pulled over their eyes by any charismatic cad in or out of the church — doctrinally or sexually. Our right standing before God is on account of Christ, not on account of another man or men.

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  21. The downside of freedom of religion is the freedom to get involved with some really weird people, practices, and beliefs, along with a strong cult of personality in too many churches and sects.

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  22. The (cheapskate?) Dutch Reformed model of the one pastor / 500 member church may need to be scrutinized for perhaps allowing these cults of personality to grow. If that’s the model, the elders had better be in the pastor’s business.

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  23. “Church counseling should not be subject to judicial review or secular oversight. The state should have the right to regulate secular counseling. It can’t possible have the right to oversee religious counseling without being effectively granted the right the right to regulate religions.”

    Sorry, when it comes to an allegation sexual assault, it is fully the law enforcement’s right to step in.

    Seen too many “wonderful deacons and elders” walk away blaming a woman 1/2 their age and then going on like nothing happened.

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  24. Erik, to get an atheistic perspective on liberal protestants, like Tillich or Bultmann, would probably be interesting. Tillich was accused of atheism, among many other things. The reason I say this, is I have found that atheists (at least some, anyway, who are more vocal about their beliefs) usually have thoughtful comments. With all the Catholics around here, it’s nice to hear another voice from the outside such as CD’s.

    But I’m off topic, and need to get back to reading DVD the shorter.

    Adios.

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  25. We need to be aware of the fact that there is a segment of our population that probably considers organized religion in general to be mentally “abusive”. All of that stuff about sin, punishment, the need for a savior, etc. Throw sex & power into the mix and there are probably a lot of people with law degrees, both in public prosecutors’ offices and in trial lawyers’ offices, who are just waiting to jump into these conflicts, either for political or financial gain. I don’t know that we want to be welcoming that unless the offense is CLEARLY a violation of CRIMINAL law.

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  26. That being said, within the church I do believe that elders need to always err on the side of the weaker party, especially women when sexual offenses are alleged. None of this:

    “A man with lots of testosterone is in a position to start a dynamic ministry that speaks to thousands, that fills conference halls, and that rivets people to their seats. Taking a hypothetical, that very same man is also in a much better position to succumb to the blandishments of a stripper with a stage name of Foxy Bubbles, and all in the settled conviction that his sin will not find him out. How could his sin find him out? He rivets people to their seats.

    Samson eventually had his eyes put out, but even before he lost his eyes he was not able to see what Delilah was doing with and to him. The thing that God was using against the Philistines, his strength, was also the thing that Delilah was using in a series of sexual jiu jitsu moves against Samson. It is an old trick, and it still works very, very well.”

    – Doug Wilson

    http://dougwils.com/s7-engaging-the-culture/patriarchy-vision-forum-and-all-the-rest-of-it.html#more-105712

    Even if the woman is the aggressor the pastor/elder needs to say “no” and attempt to shepherd that woman. That could be the first step in her getting her life straightened out.

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  27. “Even if the woman is the aggressor the pastor/elder needs to say “no” and attempt to shepherd that woman. That could be the first step in her getting her life straightened out.”

    Nothing is happening without the man’s consent…

    memorize and apply it…

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  28. DGH says: JohnnY, Schleitheim says that Christians may not serve as magistrates, as soldiers, or defend themselves. That’s why they call it the “radical” reformation. It’s hard to have a social order without magistrates, soldiers, or self-defense. Plus, the peasants confused the liberty of the gospel with liberal social conditions.

    I don’t see why that’s a misrepresentation. I’m not defending social hierarchies. But Luther and Calvin did.

    John Y: Schleitheim was not truly represetative of all Anabaptists, besides it was written up rather quickly and the Anabaptists were always so worried about getting arrested or tortured that it was difficult for the leadership to unify in any way. Was it the Waldesnsian’s who wrote up Schleitheim? I know Calvin wrote two tracts in rebuttal to what was written in that confession. What Calvin wrote was then taken by other reformers as what all Anabaptists thought, however, everything was not sliced that nicely.

    Here is what some other Anabaptists said:

    according to Verduin- here is how one report of how a torture of a Anabaptist went: “he was thrice stretched; he prays God to give him grace to bear the torture. He is told to confess in plain language why he has left the pure teachings as taught by Martin Luther and others…..Something more must lurk behind all this, namely, that you desire to destroy all government and have all things in common. And even though you say this community of goods is for you and your people only, yet your heart and ambition are far different, in actuality to have the goods of all men in common.” (p. 235 in Verduin’s book)

    Here is how the Anabaptist getting tortured responded:

    “God forbid that we should be against government or act contrary to it….; we must be obedient to them, whether they be good or bad….And as to community of goods, no one is forced among us to put his property in a common treasury and we have no intention of making in common by force. But he who possesses and then sees his brother or sister in need, he is duty bound in love and without constraint to help and to succor.”

    Verduin concludes:

    “Nothing helped. These Stepchildren (not “Radicals”- a word which Verduin thinks wrongly represents the Anabaptists; Stepchildren, who were treated that way, is more accurate- my addition) posed a threat to sacral society; and that, to a person of sacralist thought habits, made them nihilists. Only so we understand the advice, given by a committee of clergyman in Bavaria, in 1528, touching the Anabaptists:

    “That they have their goods in common and bring them together, each member voluntarily, without constraining any to bring all or even a specified portion of it, this we do not consider an intolerable thing or worthy of punishment. Nor are we able to quote Scripture that militates against it.”

    Verduin continues: “But these clergymen, nevertheless, were certain that there was something very sinister about the whole movement–the book said so. And so they continued:

    “And yet it is to be feared that where such a small befinning is allowed to go on, permitted and tolerated, then it might with the passing of time increase and attain to greater and more inclusive evil. Therefore our opinion is that also such a confessedly trivial and not very culpable plan should be met and obviated with suitable counter-measures, in view of what is likely to develop out of it.”

    Verduin again: “Against such logic it is futile to argue– as the Stepchildren found out to their dismay.”

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  29. Erik & Kent:

    IMO that state should stay far away from the content of pastoral counseling. Moreover the constitution forbids them from doing so. But it is legitimate for the state to enforce certain kinds of laws equally to the religious and non-religious. Sexual coercion is an obvious example. But I think the state also acts within its authority to punish the abuse of authority and trust inherent in a counselor having sexual relations with a counselee. There’s no infringement upon religious freedom in such a law. The issue in the Edouard case – in light of Iowa Court of Appeals decision – is whether the counselor exploitation statute properly applies to the kind of relationship Edouard had with the women. That’s not a matter of religious freedom but one of statutory interpretation applied to that situation. http://presbyterianblues.wordpress.com/2013/11/20/edouard-convictions-reversed/

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  30. @kent

    Sorry, when it comes to an allegation sexual assault, it is fully the law enforcement’s right to step in.

    Of course it is. In this case the controversy is not over sexual assault but over whether a parishioner can engage in a voluntary consensual sexual relationship with a minister providing counseling. That’s not up to the state to regulate.

    Seen too many “wonderful deacons and elders” walk away blaming a woman 1/2 their age and then going on like nothing happened.

    Blaming them for rape or blaming them for an affair?

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  31. @mikelmen

    IMO that state should stay far away from the content of pastoral counseling. Moreover the constitution forbids them from doing so. But it is legitimate for the state to enforce certain kinds of laws equally to the religious and non-religious. Sexual coercion is an obvious example. But I think the state also acts within its authority to punish the abuse of authority and trust inherent in a counselor having sexual relations with a counselee.

    I don’t think the state can do that. To set standards for counseling requires notions about proper means and goals of counseling. Let’s take a classic example in secular psychology: is the purpose of psychological counseling to help a person best fit into their culture and society or to best self actualize their own internal goals and aspirations? Those two are frequently in conflict. Because that’s a fundamentally theological distinction (even for seculars) the state doesn’t rule on it. If they did, that’s establishing a state church.

    Is the goal of a religious counselor to bring a soul into conformity with God so that the passions are properly directed; or is religious counselor to bring souls towards a state where the passions are extinguished so they can achieve enlightenment? How can the state possibly determine what constitutes successful religious counseling if they can’t even rule out opposite goals?

    Similarly getting into means not ends the idea that a counselor and patient should have a cool professional relationship driven by the patient with the counselor held to objective criteria would make Christian counseling illegal. Nouthetic counseling believes that counselor and patient are in a relationship of church covenant the patient can be subject to church discipline. Scientology/Est/Landmark style counseling the professional guides the patients in counseling one another. They come to terms with their own emotions proxying them through other people. Yoga style counseling frequently sees counselor and patient both on a mutual journey of exploration where the counselor does experience the patient’s emotions. So even the notion of professionalism is dropped in many religious counseling.

    I think the state is absolutely right not to get into this snake pit which inevitably leads to theology. If a church wants to assert that Christian counselors should boff their patients to help them get in touch with God that’s far less harmful than the state having to make fundamentally religious choices.

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  32. CDH, consider an example:

    a “counselor or therapist” commits sexual exploitation if it is found that, within one year of the termination of the provision of “mental health services,” the counselor or therapist had sexual conduct with a patient or client, including former patients or clients, “for the purpose of arousing or satisfying the sexual desires of the counselor or therapist.”

    If such a law includes pastors there is no harm done to the church. No doctrine is affected and no behavior that is within the bounds of any church must be changed to accomodate the law. One can debate whether it is a good or bad law, certainly. IMO it is sound to provide legal protection for vulnerable counselees who could be subject to counselor-predators, including pastor-predators.

    The only way such a low interferes with religion is if a religion has some kind of perverse ritualistic sex practice. Well, so much the worse for that religion – there is a limit to religious accomodation and that is beyond it.

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  33. @Mike —

    I’ll take your law. Now here comes the problem what constitutes a relationship of counseling within the church?

    a) A pastor with a parishioner who start to date?
    b) A minister (regardless of responsibility) with a parishioner who start to date?
    c) An elder with a parishioner who start to date?
    d) Two parishioners that had a relationship of discipleship. Is the mentor counseling?
    e) Two parishioners that never had a formal relationship of discipleship but where one “held the other accountable”?
    f) What if the spread is small say a college student youth group paired off with HS students?

    That law you mentioned cannot be enforced without the courts having to constantly rule as to what constitutes a counseling and where counseling is occurring in a church. Which means an entire body of common law regulations will need to be written and from there clarified with explicit civil law. Moreover counseling creates liability issues, this isn’t simply just sex. If what’s going on in a church is counseling then standards of malpractice kick in. So say for example you want the state to prohibit sex in case (d). If the advice is bad that happened in case (d) do you want the mentor to be liable for damages? And do you really want the secular courts deciding what advice is advice so bad as to constitute negligence and thus be a tort?

    I think far better is the way most courts have ruled:

    a) If you have a secular degree from a recognized university, call yourself a counselor and enter into a for pay counseling relationship then regardless of the religious relationship you are a counselor.

    b) If any of the criteria in (a) don’t hold you aren’t doing counseling in the legal sense. You are legally just that person’s friend and friends are free to date.

    That makes it clear to people in a church. Your minister is not legally a counselor. The rules governing your relationship are from the church not the state. The state offers no protections, , no certification of qualifications, and no oversight on practices or any of the other services the state provides in a counseling relationship. You enter into it, you enter into it because you trust the church and the church provides the protections, certifications of qualifications and oversight of practices. Under that system churches preach, and they are no more engaging in counseling then when Lucy sets up her psychiatrist for a $.05 stand in Peanuts.

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  34. CDH, there are always hobgoblins that can be imagined as lurking within a statute. And your point about malpractice is quite fanciful in this context, since that issue isn’t remotely related to this criminal law.

    It may be illustrative to consider what is happening with the case currently being litigated. There the appeals court decided that, upon retrial, the trial court must use a fairly rigorous and narrow definition of “counseling” as it considers whether the pastor is guilty of counselor exploitation. If I had to bet the house on it, I would bet that these relationships weren’t “counseling” relationships in that sense. Of course I don’t have all the facts so we’ll see.

    Can you name one legitimate church practice or one doctrine that churches must change to comply with this statute? I don’t think you can.

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  35. @mikelmann —

    That’s how courts have ruled in other cases. That what churches do isn’t counseling and thus not subject to secular law. What would change if it were? Narrowly I’ve told you what would change. The courts would have to subject churches to complex rules to differentiate between friendships and counseling. In some relationship sex is perfectly legal and in other’s criminal the state would have to determine which was which. Because our legal system is designed to prevent people from accidentally incurring contractual obligations churches might be obligated via. torts or explicit law to restructure based on what were or were not counseling relationships.

    Going further, I’m not a shrink but…

    1) Churches would have to maintain proper medical records capable of being exported and manipulated via. HL7 interfaces as per the HIPAA.

    2) People who performed counseling would have to be credentialed, have their credential kept up to date and verified by governmental or quasi-governmental agencies

    3) Christian colleges which provide certifications for counseling would be subject to heavy government oversight.

    4) Presbyteries now appoint counselors which means they become professional licensing agencies would be subject to incredibly levels of direct government control. Also they meet the definition of “counseling supervisors” and thus have all sorts of additional compliance criteria. They have legal obligations to ensure each counselor for example is properly licensed.

    5) Counselors have to meet ethical standards which can conflict with church doctrine. For example OPC counselors would likely fail in areas of gender sensitivity given their belief in fixed and defined gender roles so they would have mandatory workshops from groups like the Clinical Social Work Association to make sure they weren’t improperly advising families in ways that were detrimental (i.e. introducing biblical gender roles).

    etc… (literally thousands)

    And all that so ministers can’t legally have sex with their their adult church members?

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  36. CDH, that’s just fanciful. A criminal law proscribing counselor/counselee relationships simply does not trigger all those other requirements. You’re a bright guy but don’t practice law without a license.

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  37. mikelmann

    Yes it does. One of the things a court has to do is determine if a crime occurred. One of the elements of misconduct in a counseling relationship is determining that a counseling relationship is in effect. You can’t get around that.

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  38. One criminal statute does not cause ripple effects to all other areas of the law so that there is some kind of broad-based logical consistency as if we had a Hegelian law system. You’re making up stuff, CDH.

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  39. If your theory were correct then why do prosecutors keep losing these cases?

    In my theory they are losing because prosecutors can’t prove that a counseling relationship is occurring. What do you think is happening?

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  40. As churchmen our focus should probably not be on what the State is doing or not doing but on the question of how we improve our theological education practices, our ordination practices, and our elder monitoring practices to police our churches ourselves.

    One idea is to demand that elders know who the pastor is meeting with individually and to always follow-up those meetings with a call to the parishioner to see that everything went o.k. If the person is dishonest at that point then that is on them. Being a good elder probably requires being much more blunt than most of us are willing to be.

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  41. In the retrial (if there is one) it will be fascinating to see how the prosecution establishes that a “counseling” relationship occurred. If the women talked to Edouard about marital problems is that “marital counseling” or just listening? How far did the church go in holding Edouard out as a “counselor”? Keep in mind that this was a big church with one full-time pastor (I believe). How often is a pastor in that kind of arrangement seriously doing counseling? If it was counseling, was the church consenting to the pastor counseling women alone?

    Another issue will come up again is “grooming”. If a minister is seeking to establish trust with a woman in order to later initiate an affair is that counseling? At some point the line needs to be drawn between being a cad and breaking the law.

    The pastor/parishioner relationship may be more akin to the teacher/student relationship than counselor/counselee. A university professor can have an affair with an adult student and it is not a violation of the law to my knowledge. The professor may lose their job, as Edouard lost his, but will presumably not face criminal prosecution.

    Sins and crimes are two different things.

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  42. And the church and its officers are in a tough spot because a finding that no law has been violated presumably lessens the chance that they lose the potentially costly civil lawsuit. Do you root for your former pastor to be acquitted so you don’t lose your lawsuit or do you root for him to be convicted so that the state punishes him for the lasting damage that he has done to your church?

    Notice that the civil suit was not filed until after the criminal conviction. They appear to go hand-in-hand.

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  43. CDH:

    First, a statute is passed. Then there is prosecution. Some of those prosecutions will be appealed to test the proper scope of the statute. As those appeals are disposed, it becomes clearer what ought to be prosecuted under the statute. If the legislature reads an appeal decision and doesn’t like it, the legislature can clarify the statute by amending it.

    Here there was a previous test. Does the statute apply to a psychiatric nursing assistant? Looking to Webster’s Dictionary for help, that previous decision held that the assistant was not covered by the statute. The legislature didn’t twitch when that decision came out, so that precedent was used in the present case to reverse the convictions.

    Does the statute apply to pastors? The answer is “maybe.” It seems that brief, casual advice will not create the requisite relationship but a very formal and structured counseling arrangement will be covered under the statute.

    This was very damaging to the civil case. No coercive counts were established, only counselor/counselee counts. Now the defense is in a much better position to establish the lack of that formal relationship.

    Erik, look again at the earlier court’s quote from Webster’s. That will be the test, and it is pretty demanding.

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  44. “’a practice or professional service designed to guide an individual to a better understanding of his problems and potentialities by utilizing modern psychological principles and methods esp. in collecting case history data, using various techniques of the personal interview, and testing interests and aptitudes.’” Id. (quoting Webster’s Third New Int’l Dictionary 518 (unabr. ed. 2002)).”

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  45. This is fascinating (and sad) stuff and I value the input of both of you guys.

    I fear that the hush-hush attitude and quick disposition of the matter by our churches may prevent us from learning the lessons that need to be learned from it. Maybe that’s just the Dutch way, but I’m an outsider.

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  46. The only policy is the board asking “is this true?”

    and if so, we’ve already packed your bags for you

    no matter what your excuse is

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  47. @mike —

    Try and write the statue. Take your example of a minister

    1) B is a minister, he does a series of Christian counseling sessions with C. C decides she wants to have sex with B and they do.

    2) D is a guy who goes to church with E. They chat about E’s problems she likes D and then they have sex.

    Try and differentiate even (1) from (2) in a way compatible with the first amendment. You think it is easy because you haven’t actually thought through how to phrase this given the first amendment.

    Under your statute B gets yanked into court. The prosecutor argues B & C were engaged in Christian counseling. B denies it. The court under the first amendment cannot have a finding of fact as to what constitutes Christian counseling which means a crucial element of the case cannot be proven. There isn’t a legal problem here that the statutes don’t exist, they already exist.

    And even if you can could construct such a statute (which I think you should try if you think it is easy) what is the compelling state interest in preventing ministers from diddling their church membership? For secular counseling they state’s interest is maintaining the integrity of the field. The state doesn’t and cannot have interest in maintaining the integrity of the field of ministry.

    A minister is nothing more than the women’s friend and what you are objecting to is seduction not counseling abuse.

    Does the statute apply to a psychiatric nursing assistant? Looking to Webster’s Dictionary for help

    I haven’t dealt with psychiatric nursing. I did deal with a similar case professionally of a nurse (non-psychiatric) who had sex with a patient’s son (in his late 40s not a kid) during her dying process. Obviously the son was emotionally distressed, the feeling was that preying on him during this process… that he might not have started an affair if he were in a normal state of mind, etc… I didn’t see how she had a professional relationship at all with the son of the person she was treating and spoke in her defense.

    The federal government and the states define nursing relationships. The situation is not at all analogous to a minister where there is no relationship which can be subject to statute. Psychiatric nurses are in a paid psychological therapeutic relationship. People regularly exposed to psychiatric nurses have diminished capacity well beyond what people who are engaged in church counseling have. I’d tend to side yes sexual relations should be prohibited by disciplinary boards. I could see how one could criminalize this behavior easily.

    Not the same thing at all. Seriously. Try and write a statue.

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  48. @Eric

    In the retrial (if there is one) it will be fascinating to see how the prosecution establishes that a “counseling” relationship occurred. If the women talked to Edouard about marital problems is that “marital counseling” or just listening? How far did the church go in holding Edouard out as a “counselor”?

    Unless the church said that he was a legal counselor approved by various state boards they didn’t go far enough. He was just listening, that’s the point. This isn’t a borderline case.

    The interesting case was the Peggy Penley / Buddy Westbrook case I cited above. In that case Westbrook did have a counseling degree and was subject to the Texas Licensed Professional Counselor Act. He still won because Penley in having a both a church relationship with him and not paying him had waived her protections.

    And BTW Eric the church would easily win the lawsuit. People have tried suing churches for this behavior, they lose. It isn’t a tort for ministers to diddle church members either. Courts cannot determine what is the proper bounds of a ministerial relationship. The woman did nothing more than have an affair with her friend which she has come to regret. Who doesn’t have regrets about their past love life?

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  49. CDH, I have written a statute. I’ve also written a chapter of administrative rules ex nihilo. I’m having a hard time seeing substantial legal arguments in what you are saying. The form is there but not the substance.

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  50. @Mike —

    I may lack the languages skills here but all I can do is repeat.
    a) Counseling is a critical element of the crime you are proposing
    b) The prosecution is not going to be able to prove counseling occurred.

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  51. I’m going to try to summarize this without getting into a lot of legal analysis.
    – the state has a legitimate role in punishing sexual exploitation of vulnerable citizens.
    – a formal counseling relationship between a pastor and a church member has similar dynamics to the psychotherapist/patient relationship.
    – pastors, and the church, are not above the law.
    – the church has no legitimate interest in shielding this kind of activity. In other words, it isn’t a doctrinally-infused or approved practice within the church
    – the idea that churches will change their practices so that pastors will not be convicted of a crime if they have sexual relations with a counselee is far-fetched.
    – if a pastor feels compelled to have such relations with a non-spousal church member he (or she) should resign from the office.

    Bogeymen aside, I don’t think this is that complicated.

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  52. CDH: Yes, I think that in light of the appellate decision they won’t be able to convict Edouard. Of course, I’m not privy to the relevant facts but I doubt these were highly formal counseling arrangements if they were counseling at all. And that’s fine as a matter of due process, since convictions should be based on what the law is as opposed to what it might be.

    There’s another interesting angle that came up in a recent Des Moines Register article. There is at least one legislator who doesn’t like the appellate decision, so they could tweak the law a bit. Whether that tweak, if it comes, creates first amendment constitutional problems remains to be seen.

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  53. @Mike

    without getting into a lot of legal analysis

    I’m not asking for a lot of legal analysis. I’m asking for a simple statute, because the claim was before this was simple. If you see why this isn’t simple you are starting to see the problem.

    Just start with a definition of counseling they way you intend it when you can’t talk about: certification boards (because you want these ministers uncertified), no money / no contracts (i.e. trigger event), and likely no clear definition of ministers (courts can’t determine facts based on religious truth)..

    the idea that churches will change their practices so that pastors will not be convicted of a crime if they have sexual relations with a counselee is far-fetched.

    No, but pastors who are intending to enter into sexual relationships may change their behaviors so as to avoid triggering formal processes. Totally artificial triggers are likely going to be very easy to avoid. In this discussion you keep assuming the pastor is a moron who isn’t going to be actively constructing his defense during the seduction. In real life the pastor is going to go to “PastorsWhoWantToDiddleTheirMembers.com” and get a list of what not to say. So for example if the word “counseling” triggers the statute they make sure they never ever ever say counseling. Or even better first day or so they have the woman sign an agreement she’s engaging in something other than counseling. So somewhere in the agreement paperwork, “I understand my meeting with this pastor are Nouthetic Steering and are not to be considered counseling. XYZ church does not engage in counseling and for secular counseling I should contact an appropriate health professional”

    a formal counseling relationship between a pastor and a church member has similar dynamics to the psychotherapist/patient relationship.

    This has been the point of disagreement. There is no money changing hands. There no contracts being signed. There are no state oversights. These relationships don’t have any structure. I don’t see much similarity.

    They aren’t remotely similar relationships. And that’s the problem for the state. This is precisely why these women keep losing these cases. A pastor / church member relationship is nothing like psychologist / patient so prosecutors or plaintiff attorneys can’t prove counseling. Heck I haven’t read the case but it sounds like what happened here. The court can’t make a determination that there was counseling and not just chatting.

    There are few natural similarities, any similarities would have to be artificial and constructed and thus easily avoidable.

    if a pastor feels compelled to have such relations with a non-spousal church member he (or she) should resign from the office.

    That’s a religious determination and/or a law with clearly religious discriminatory intent. You want to write something like that into the law you lose. In plenty of religious traditions sex is part of the religious expression. Remember whatever law you write applies equally to the Wiccan Coven leader whom regularly practices sex magick with her coven and advises them on stuff going on in their lives. I have a friend who did Tantra (branch of Buddhism) therapy. Engaging in sexual activities with the couples was part of the therapy. The law has to apply to him.

    The state can say that tantra or sex magick is not an approved secular treatment. They can’t argue it is not an approved religious practice.

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  54. The first amendment is not a blank check for churches to do everything and anything with impunity. For example, there is no constitutional right to use peyote as a sacrament – that’s been litigated. (Scalia: ““We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,”) To pick some other obvious examples, the magistrate can also punish statutory rape and child molestation whether or not such would be infused with religious significance by a sect.

    You are promoting a certain point of view, not describing the state of the law.

    I don’t understand how you can not comprehend the position of power a counselor has over a presumptively vulnerable counselee. It’s a similar dynamic to child molestation. Do you believe in objective morality or natural law?

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  55. Another interesting wrinkle is that fact that a lot of churches (I know of one in Ames) declare as many staff members as possible to be “ministers” so they can get the tax-free housing allowance. I wonder if they realize the potential exposure to criminal prosecution they are creating in doing this, should that “minister” have an affair with a church member.

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  56. Law firms often refer to themselves as “attorneys and counselors”. Someone who has an attorney is “represented by counsel”. Attorneys have relationships with clients who are often vulnerable, especially in cases involving family law. Should attorneys be subject to these laws if they have sex with their clients?

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  57. The intent of the law is to protect vulnerable people, which is admirable. I keep coming back to what elders should be doing to protect vulnerable members of the congregation. This has to include checks-and-balances on people in power (pastors & other elders, primarily). We all want to just trust each other, but as Calvinists we believe in total depravity, which means it should not shock us when even seemingly pious people go astray. Elders, know what your pastor is doing. A pastor should welcome the oversight and accountability.

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  58. How about some props for lawyers policing themselves, Erik. But think about it – lawyers and clients are more like, ahem, accountants and clients than like therapists and counselees. Counselees are vulnerable almost by definition. Lawyers’ clients are diverse and often more powerful than the attorney

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  59. Accountants police themselves to the highest standards of the professional world, 2nd place isn’t remotely as close.

    Doctors and lawyers are reluctant to admonish or expel their own.

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  60. Eh, accountants just have Low-T.

    The Iowa Bar actually does a pretty good job of administering discipline. And, really, cordiality and professionalism are the norm in the Iowa bar. I’m guessing things change a lot when you cross the border into Illinois.

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  61. @mike

    I haven’t made much use of compelling state interest. Peyote was found (IMHO wrongly) to have a compelling state interest. I don’t think you can even get to that hurdle. If you mean religions don’t have the right to use sex in their therapy i.e. you want to ban practices like tantra and sex magick:

    You would have genuine political opposition from the left. Those people would challenge the law in court. They would make a very strong case against the law. And I think the courts would find that the legislature needs a compelling state interest in constructing the statute so broadly. What possible compelling state interest is there in banning tantra other than you don’t like it.

    You are promoting a certain point of view, not describing the state of the law.

    I’m describing what happens in courts when these cases go to trial. What happens at trial is the state of the law. What you are arguing there is some easy formula to alter the state of the law though you refuse to give any indication about how you would do this.

    I don’t understand how you can not comprehend the position of power a counselor has over a presumptively vulnerable counselee. It’s a similar dynamic to child molestation.

    First off let me point the issue of is such a law possible without serious negative repercussions to other areas of religious freedom is a total distinct issue from whether a law is desirable. Let’s keep those separate.

    Second, since we are now getting into my opinions, no it isn’t anything like child molesting. The” vulnerable counselee” is an adult in full control of their faculties capable of rational choice and legally responsible for their actions. They are under stress and pressure and are likely experiencing strong emotions.
    a) Is unhappy with her life and often sexually bored with her husband
    b) Chooses to do “counseling” with a pastor who wants her sexually
    c) Reciprocates with flirting when the two are sending signals back and forth
    d) Let’s thing progress past flirting.

    is doing something no different than the ten million+ women who make the same choice that year. She wasn’t vulnerable she was horny or needy and can’t admit that’s she’s doing what lots of other women do because her own self image is caught up in her moral superiority. She’s not a victim she’s just someone engaged in a moral copout because she can’t bring herself to take responsibility for their own actions and her own hypocrisy on issues related to sex.

    Lots of women experiencing a rough time in life and decides to get a little sex on the side with a man who is giving her emotional support. And lots of middle aged people decide to step out their spouses. This isn’t rape or abuse this is just plain old run of the mill adultery. This women’s problem isn’t unfortunate circumstance it is total lack of the moral character needed to own her actions.

    That kind of moral cowardice and confusion is acceptable in a juvenile which is why there are rules against adults having sex with juveniles. But it isn’t acceptable in a middle aged women. She needs to own her actions and come to terms with who she really is and decide who she really wants to be. “He was nice to me and listened to my problems so I couldn’t possible stop myself for spreading my legs for him” is ridiculous. She a conservative Christian so what would it mean if she came to terms with the truth about herself, “he was nice to me and I wanted to spend a lot more time and more intense time with him so I decided to have sex”. It would mean she’s not part of the elect…. But that doesn’t change what really happened.

    If she isn’t in control of her behaviors, if she is no longer capable of acting in her own best interests then it would be abuse. But in those situations she is no longer fit to pick her treatment path and should be under the care of a psychiatrist not a minister. I see no reason what-so-ever to treat a middle aged women who is going through a tough time in life and decides to have an affair as anything remotely similar to child abuse.

    Do you believe in objective morality or natural law?

    Yes.

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  62. Erik, it is cause for sanctions against one’s license to practice law.

    An attorney deciding to start an affair with a client is perfectly legal and not subject to sanctions. However, once the affair starts the attorney has to transfer the client’s legal work to someone else:

    a) Sex may make a client unwilling to properly oversee the fiduciary aspects of the relationship because of the impact to the personal relationship
    b) Information given to the attorney can be compromised since it becomes unclear if it was given in a legal context or not

    The law makes an exception for attorneys that have a pre-existing sexual relationship (like a lawyer defending her husband) which IMHO it likely shouldn’t since (a) and (b) are good reasons. But lets be clear it is legal effects of the sex not the sex that the law is regulating.

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  63. CD,

    I would think that Tantra and Sex Magick would be enough to bring even you back to organized religion.

    And evangelicals and Presbyterian hipsters think they are being relevant…

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  64. Butting in…

    1. The legislature in Iowa is clearly concerned with the idea of emotionally dependent counselees engaging in consensual sex with counselors. The Iowa statute specifically references members of the clergy along with counselors and psychiatrists, etc.

    The issue in the Edouard case is the definition of “counseling” and does not challenge the above legislation. I would not be surprised if the statutory language is updated following this case.

    2. In the Edouard case there were allegations of rape/sexual assault that were not sustained in trial. It should be interesting to see if the civil case comes to a different conclusion.

    3. I’m not necessarily a fan of Scalia’s ruling in Employment Division v. Smith (and the passing of RFRA suggests that Congress didn’t like it either). But I certainly think that victims deserve protection from and remedy for forcible and non-consensual abuse (as was alleged in Edouard), as well a manipulative abuse of power such as found in an abuse of the counselor-counselee relationship, broadly construed.

    I don’t see how this can affect a church’s doctrine or practice except to improve it by holding its counselors to a high ethical standard. Perhaps this would be a good reason for churches to get out of the counseling business and back to church business.

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  65. Yo, CDH, did you consult with a law review article by Charles Manson? Because Antonin lurks here all the time and he’s sending me emails with everything but smiley emoticons. Plus Edouard’s defense lawyer is quite competent but I’ve never seen anything to suggest she raised a free exercise defense.

    Of course, each free exercise case has its own set of facts that might make the case go one way or another. Thus there’s one religious sect that can use eagle feathers because the state’s interest was not compelling. Then twenty years ago California certainly could have cracked down on religious use of marijuana but I’m not so sure they would prevail today.

    More Mad Hungarian! Less Manson!

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  66. Plus Edouard’s defense lawyer is quite competent but I’ve never seen anything to suggest she raised a free exercise defense.

    She wouldn’t have to. She did what more or less always works. She argued the state can’t prove counseling.

    A free exercise defense would be used after the revised statute you are imaging were written.

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  67. @Mad —

    Rape is already illegal. Even the prosecutor doesn’t buy the rape allegations. For the purpose of argument let’s assume the sex were consensual because if it wasn’t who cares about the counseling issue, this would have become a simple rape case.

    What is a broadly construed counselor-counselee relationship? How is that different than a friendship?

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  68. @CDH

    The appellate court defined “counselor” narrowly because of precedent. The legislation could broaden the definition of counselor to include counseling done by as pastor — which likely was within their original intent as the statute explicitly references members of the clergy.

    A broader definition could include factors such as: the presence of a structured counseling environment, calling whatever it is you are doing “counseling,” the purpose of the counseling session, the pastor’s certification, licensing, or training, and so on.

    I would imagine that the basic difference between counseling and friendship is that the counselor-counselee relationship is a formal relationship for a specific purpose. You might be friendly with your counselor, but it is not a friendship.

    If a counselor wants to start a consensual sexual relationship with a counselee, then the counselor needs to first end the counseling relationship. A minister should not be exempt from this if the minister is acting as a counselor.

    I really don’t think that this is a difficult issue to address; the legislature just needs to adjust the definition of counselor to include what they already intended the definition to include.

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  69. cd you’re still making it up as you go along. the statute I’m imagining? what are you talking about?

    anyway, I guess I’ll just provide it. hope it doesn’t change the blog’s current pg rating.

    709.15 Sexual exploitation by a counselor, therapist, or school employee.
    1. As used in this section:
    a. “Counselor or therapist” means a physician, psychologist, nurse, professional counselor, social worker, marriage or family therapist, alcohol or drug counselor, member of the clergy, or any other person, whether or not licensed or registered by the state, who provides or purports to provide mental health services.
    b. “Emotionally dependent” means that the nature of the patient’s or client’s or former patient’s or client’s emotional condition or the nature of the treatment provided by the counselor or therapist is such that the counselor or therapist knows or has reason to know that the patient or client or former patient or client is significantly impaired in the ability to withhold consent to sexual conduct, as described in subsection 2, by the counselor or therapist.
    For the purposes of subsection 2, a former patient or client is presumed to be emotionally dependent for one year following the termination of the provision of mental health services.
    c. “Former patient or client” means a person who received mental health services from the counselor or therapist.
    d. “Mental health service” means the treatment, assessment, or counseling of another person for a cognitive, behavioral, emotional, mental, or social dysfunction, including an intrapersonal or interpersonal dysfunction.
    e. “Patient or client” means a person who receives mental health services from the counselor or therapist.
    f. “School employee” means a practitioner as defined in section 272.1.
    g. “Student” means a person who is currently enrolled in or attending a public or nonpublic elementary or secondary school, or who was a student enrolled in or who attended a public or nonpublic elementary or secondary school within thirty days of any violation of subsection 3.
    2. Sexual exploitation by a counselor or therapist occurs when any of the following are found:
    a. A pattern or practice or scheme of conduct to engage in any of the conduct described in paragraph “b” or “c”.
    b. Any sexual conduct, with an emotionally dependent patient or client or emotionally dependent former patient or client for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the emotionally dependent patient or client or emotionally dependent former patient or client, which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.17.
    c. Any sexual conduct with a patient or client or former patient or client within one year of the termination of the provision of mental health services by the counselor or therapist for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the patient or client or former patient or client which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.17.
    Sexual exploitation by a counselor or therapist does not include touching which is part of a necessary examination or treatment provided a patient or client by a counselor or therapist acting within the scope of the practice or employment in which the counselor or therapist is engaged.
    3. Sexual exploitation by a school employee occurs when any of the following are found:
    a. A pattern or practice or scheme of conduct to engage in any of the conduct described in paragraph “b”.
    b. Any sexual conduct with a student for the purpose of arousing or satisfying the sexual desires of the school employee or the student. Sexual conduct includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.17.
    Sexual exploitation by a school employee does not include touching that is necessary in the performance of the school employee’s duties while acting within the scope of employment.
    4. a. A counselor or therapist who commits sexual exploitation in violation of subsection 2, paragraph “a”, commits a class “D” felony.
    b. A counselor or therapist who commits sexual exploitation in violation of subsection 2, paragraph “b”, commits an aggravated misdemeanor.
    c. A counselor or therapist who commits sexual exploitation in violation of subsection 2, paragraph “c”, commits a serious misdemeanor. In lieu of the sentence provided for under section 903.1, subsection 1, paragraph “b”, the offender may be required to attend a sexual abuser treatment program.
    5. a. A school employee who commits sexual exploitation in violation of subsection 3, paragraph “a”, commits a class “D” felony.
    b. A school employee who commits sexual exploitation in violation of subsection 3, paragraph “b”, commits an aggravated misdemeanor.

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  70. @Mad —

    I talked about a statute that just defines it based on using the word counselor / counseling…. That effectively makes it very easy for pastors to continue to claim to not have a counseling relationship. So while I don’t have 1st amendment problems with that approach I don’t think it fixes the problem people are aiming for.

    As for a formal counseling relationship we know that didn’t exist in this case. Money didn’t change hands. He doesn’t have a counseling degree. He’s not certified. He never created any clinical notes…. So what I assume you are looking for is a way to include pastors who engage in an very informal counseling relationship. Formal and the problem I’ve been talking about goes away.

    Just imagine more or less the same set of facts but Edouard defines their relationship as the woman used to drop by his office, whine to him about her life and then they would have sex in exchange for him listening to her BS. Millions of men have to listen to their girlfriends and mistress complain about their life and that doesn’t make them counselors. How do you prove counseling even with minor changes to the statute if this becomes a disputed fact?

    If a counselor wants to start a consensual sexual relationship with a counselee, then the counselor needs to first end the counseling relationship. A minister should not be exempt from this if the minister is acting as a counselor.

    To be honest, I don’t think a minister in a conservative Christian church should ever be acting as a counselor regardless of sex. I believe the ethics of the two are inherently in conflict, that is I agree with Jay Adams.

    a) A counselor should be committed to increasing scientific and professional knowledge a minister in a conservative church often needs to be opposed to scientific and professional knowledge since it conflicts with their religious ideology.

    b) Counselors have an obligation of secrecy. Ministers in conservative congregations have obligations towards confrontation and biblical accountability.

    c) Counselors are obligated bill as part of an upfront fee arrangement systems. They aren’t permitted to be unclear about how they are paid. Ministers solicit donations generally for membership and not specifically for counseling.

    etc…

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  71. “Mental health service” means the treatment, assessment, or counseling of another person for a cognitive, behavioral, emotional, mental, or social dysfunction, including an intrapersonal or interpersonal dysfunction.

    Thank you for finally providing a definition.

    A minister can easily (and I should add rightly) argue they aren’t qualified to treat cognitive, mental, social dysfunction and weren’t doing that. They are only capable of treating spiritual dysfunction….. How do you prevent that?

    I have other problems with the statute like 1.b I think is going to be shocking difficult to prove. How does one establish an adult women (or man getting treatment from a female minister) was, “significantly impaired in the ability to withhold consent to sexual conduct” beyond a reasonable doubt? That statute as written a psychiatrist having sex with a patient on drugs I might still have doubts about whether they were only moderately impaired. A minister doesn’t come remotely close.

    I don’t have any problem on 1st amendment grounds with that statute but it seems so narrow that it doesn’t accomplish the goal.

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  72. CDH, Many rape / sexual assault cases are very difficult to prove, but that does not mean they should not be on the books or not prosecuted.

    This case contained sexual assault allegations as well and although they were not proven at trial, I’m not so sure that Edouard will escape unscathed from the civil case.

    As you can see from the statutory language, ministers were intended to be included. I believed that the Edouard case was exactly what the legislatures intended, the authors just didn’t define some terms well.

    I would not be at all surprise if the statute is updated and clarified so that the next Edouard case can be prosecuted.

    Regarding your point about spiritual dysfunction, if that developed emotional dependence upon the “counselor” (call it what you will) to the extent that the “counselee’s” ability to consent to sex was impaired resulting in non-consensual sex then I am all for prosecution. The court does not have to consider the content of the spiritual advice, it only has to determine if there was an inability or absence of consent.

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  73. CD – a minister in a conservative church often needs to be opposed to scientific and professional knowledge since it conflicts with their religious ideology.

    Erik – Nice…

    Who are you, Clarence Darrow?

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  74. Churches need to have some wise women in the congregation who are capable of counseling other women and this becomes a moot point. No need for any male pastor to be counseling any women.

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  75. @mad —

    An inability to consent is going to be almost impossible to prove. I agree with you the Edouard case was what the legislature intended. And as it turns out Edouard got off, and that’s a minister who didn’t protect himself well before the fact. Which is yet another piece of evidence about how difficult this is.

    I would not be at all surprise if the statute is updated and clarified so that the next Edouard case can be prosecuted.

    I would. Proving counseling is not an easy thing to do. Most ministers who intend to diddle their congregants are going to protect themselves better than Edouard and establish positive evidence they weren’t engaging in counseling.
    ___

    Anyway everyone is for prosecution in the case of non consensual sex. Like I said that’s a red herring in this case. Here we have a women who (at least according to all the evidence) had a fully consensual affair with her minister and doesn’t want to admit to herself that this is what happened. And we have a prosecutor who still wanted to go after him, and other Christians who confuse their anger about a minister engaging in misconduct as a minister with criminal acts… There is no rape. If there were a rape the complexity goes away.

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  76. @Erik —

    Churches need to have some wise women in the congregation who are capable of counseling other women and this becomes a moot point. No need for any male pastor to be counseling any women.

    That was my pastor’s policy. Male staff should never be alone with women staff or congregants. On the other hand he also believed in a strict separation between psychological counseling which the church didn’t involve itself in and spiritual counseling which a women would get from her small group leadership.

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  77. The more I look at the Edouard situation the less I am convinced that it mandates much change for other churches. I have earlier addressed the prudence of keeping disciplinary matters in-house (http://presbyterianblues.wordpress.com/2013/03/19/a-lesson-for-churches-in-the-edouard-litigation/) and yes, pastors should have another woman present when counseling a woman.

    Pastors do need to be accountable but that accountability can’t be micromanagement and it must not diminish the honor and respect to which pastors are entitled. If you consider by analogy all the various workplaces and employees, it is simply impossible to supervise stringently enough to keep two adults from having an affair, and an attempt at that level of supervision is overkill. Consider the character of your pastor when calling him – not just his charisma and skill set – and be attentive to what’s happening in your congregation. And, while giving full credit to his wisdom and training, don’t be mere “yes men” lest you foster of sense that he is above accountability.

    Anything much beyond this strikes me as an over-reaction.

    Perhaps there will be more to learn based on in-court testimony. Maybe Erik and I should do a road trip if there is another trial.

    BTW, none of this should be read as an indictment of Edouard’s elders. I wasn’t there so I can’t say much about it.

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  78. Thank you so much for this post! I have just finished reading the Dennison article, having previously just finished DVD’s book. DVD made so much sense, and presented quite a compelling case for his position; Dennison left me utterly baffled. Apart from his catty comments (e.g. “at best, VanDrunen’s study serves as a minor footnote to any sincere historical study of the subject”) and ad hominem attacks (e.g. 2K led to apathy regarding the Nazis (neatly avoiding the potential retort that transformationism/whatever-it’s-called-that-wants-to-ultimatize-culture-ism led to the Crusades)), Dennison seems simply to have not actually read DVD’s book.

    For instance, one of his big criticisms is that DVD almost entirely fails to account for the radical effects of sin upon human ability to appropriate natural law; yet, one of the things I appreciated having finished DVD’s book was the way in which he had wrestled with the issue of common grace, and the (historically prevalent) question of earthly/heavenly things when distinguishing what one is talking about when one thinks of the unbeliever’s ability to do something good and true. Furthermore, Dennison encourages the reader to go to the primary source documents and see what they say; I have done, and saw that they say pretty much what DVD reports.

    For my money, as yet I fail to understand how, if one is prepared to accept anything less than absolute theocracy (which the NT does not recognise until the terrifying picture of Rev.19), one does not permit (at least to a degree) some measure of temporal commonality and working function of natural law when it comes to the world outside the church.

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