Summary of the Challenge to Missions Organizations

Missions organizations in today’s legal landscape are like a housing neighborhood built in a wooded Colorado canyon undergoing a drought. While all seems serene, the fire danger poses an extreme threat. If fire comes from lightning or arson it may sweep up the canyon, destroying everything in its path. This paper discusses these precarious legal conditions and proposes an approach to protect organizations from legal liability in a way that maintains their vision and testimony.

Introduction: The Lawsuits Missions Organizations Could Face

What could be the spark that starts the fire? Here are six possible scenarios for legal liability. While some of these situations may have led to the occasional lawsuit in the past, this paper argues that the climate has changed, the woods have dried out, and missions are in danger of more and more litigation.

1. A student goes on a short-term trip to Mexico and gets in a bad car accident in a van rented by the mission. The initial medical care is poor and the student’s spine is damaged further, causing her to be a quadriplegic. The student isn’t insured for such an accident, particularly outside the country. The family has some medical coverage, but nothing that would cover a lifetime of care. They sue the missions organization for millions of dollars.
2. A missionary wife follows her husband somewhat reluctantly to a remote and dangerous part of the world, along with several of their children, leaving a teenage son in high school in America. The State Department has issued warnings, but the husband feels a strong call to stay. The mission allows them to choose whether to stay or leave. They are first taken hostage and then killed by terrorists. The wife’s mother and the orphaned teenager sue because they have been deprived of their family. They allege negligence by the organization in permitting the family to go to that field and for how it handled the hostage situation.
3. A former and now middle-aged missionary kid had an unhappy time in boarding school. In recent years, she has heard that other students in the boarding school were sexually molested. After meeting with the other students and participating in an MK blog, she has recovered memories that she was molested as well. She joins other students in suing, saying that the mission had notice that the staff member might be abusing kids and did not take action.
4. A field leader in a dangerous area of the world has a laptop stolen. The laptop was not password-protected and the hard drive was not encrypted. The laptop contains information about team members who are in the country and not on missionary visas. The next week, explosives blow up three of the team members’ homes, killing several people. Lawsuits by the survivors allege not only negligence of the individual who lost the laptop, but also negligence in training by the organization on computer security protocol.
5. A missionary with a technical job has a mental breakdown and has to be asked to leave the field. He sues for wrongful termination and also for emotional damages because of his field placement. It turns out that he has a history of mental health instability that he did not reveal during orientation.
6. An MK grows up on the mission field and never learns the language. He is very poorly socialized in any culture. Although his parents have been concerned about him, there was never any extensive testing, and the mission has encouraged them to remain on the field doing very valuable work. Upon returning to America in late adolescence, he discovers that he has Asperger’s Syndrome. Because he has missed appropriate educational and therapeutic interventions, his life is significantly and perhaps permanently impacted. He sues for negligence in member care and extensive damages.

Many missions leaders could point out that they have faced similar scenarios in the past without an existential threat to the organization. What, if anything, has changed? Probably not the danger level, as missions has always been risky.

Danger and Responsibility for Danger: The Historical Setting

Missions work has been dangerous from the very beginning. For instance, the Apostle Paul’s world was dangerous, both from natural causes and hostile reactions to the Gospel. He tells us:

From the Jews five times I received forty stripes minus one. Three times I was beaten with rods; once I was stoned; three times I was shipwrecked; a night and a day I have been in the deep; in journeys often, in perils of waters, in perils of robbers, in perils of my own countrymen, in perils of the Gentiles, in perils in the city, in perils in the wilderness, in perils in the sea, in perils among false brethren; in weariness and toil, in sleeplessness often, in hunger and thirst, in fastings often, in cold and nakedness—

Paul did not have to worry about legal liability. In fact, he received warnings more accurate than the State Department’s, which he chose to ignore. When Paul’s team landed at Tyre, “[t]hey told Paul through the Spirit not to go up to Jerusalem.” A little later, in Caesarea, he was warned that he would be bound and delivered into the hands of the Gentiles. Paul said he was ready not only to be bound, but also to die.

Being a companion of Paul’s could lead to pain and danger. Though we know more details of Paul’s story than of anyone else’s, the other apostles must have taken similar risks, since most of them were martyred planting the Church.

This all began to change as tort liability developed into the form with which we are familiar.

Twentieth Century Changes in Legal Liability

In the West, a full-fledged litigation system was developing while modern communications came online. The rest of the world, however, lagged behind in communications. This delay may partly explain why litigation has come late to the missionary enterprise.

Today, it is unlikely any missions board would recommend that its missionaries stay and risk their lives in defiance of a State Department advisory of that magnitude. To understand this changing landscape, we should first understand how this type of litigation works.

Legal Liability and How It Works

There are many possible types of legal claims: torts, breach of contract, employment claims, intellectual property, and so forth. Because of the potential high value of the claim, and because it is a common type of lawsuit that can take many forms, we will focus on the tort of negligence resulting in a personal injury, with the mission organization as a defendant.

For liability to exist, several elements must be present:

• A duty of care
• Breach of duty
• Causation
• Harm or injury
• A source of cash

Mission organizations have only just begun to experience legal threats. Such threats will likely manifest with increasing frequency on a widespread basis. Danger and scandal may not have changed since the days of Paul. But the climate has changed.

Missions Organizations Are Likely a Target

In the past, missionaries died of illness and violence in great numbers. No one thought that was anyone’s fault, but just a risk accepted with the calling. Now, potential for organizational liability is much greater.

Western culture has developed a strong value that injury and death are preventable and compensable. That deferential feeling towards religious organizations has eroded for three likely reasons:

1. Attitudes towards religion have changed in the culture.
2. Significant flaws in religious organizations have shaken faith in those institutions.
3. Missionary family attitudes have shifted tremendously.

Because of these factors, much more litigation is likely to come, both in the abuse arena and around other allegations of negligence. If the organization is already in a lawsuit, it needs a litigation defense team familiar with missions and the type of negligence being alleged.

Three Possible Approaches for Litigation Prevention

One approach: try to guarantee safety.

In this model, you take every possible precaution. Truly eliminating the risk is not a good solution. Missions leaders must assume that when Jesus talked about laying down our lives and picking up the Cross, it wasn’t purely metaphorical. Attempting to guarantee safety is the approach of paralysis.

A second approach: ignore liability issues and trust in God.

This approach would advise following the model of early missions and trusting God to take care of the situation. Ignoring potential liability is the approach of negligence.

A third approach involves preparation that maintains the nature of the home.

This approach recognizes that accepting danger is part of the vision. Paul receives the information and makes a conscious determination to suffer for his spiritual vision. Then he moves forward on his mission with an extensive team supporting him.

Consent to the Vision and Supporting Principles

The model I recommend is that of the body of Christ working as a team to fulfill the vision. The following four legal and spiritual principles take HR and legal support further into vision and testimony.

First: the principle of consent.

Consent to a particular activity can be a complete defense to allegations of negligence. While consent, as expressed in documents like waivers, isn’t foolproof, courts take consent seriously. The more clearly a person expresses understanding of the risks and intent to accept them, the better.

Second: the principle of negligence.

When member care is done properly, when the mission reasonably takes care of its MKs, when it screens and trains, and when crisis management policies are in place and are implemented, bad things can and still will occasionally happen. But if the mission has fulfilled its duty of care and has not been negligent, it is not responsible for the injuries.

Third: the principle of the body of Christ.

Missions is very tough work, and is not intended to be a solo enterprise. Member care and crisis management should be embraced as a component of Christian community and the love that marks Christians.

Fourth: the principle of what one will die for.

Not only should missionaries understand the risks, but they should openly and publicly embrace them. If they are not prepared to do this, it is not their calling.

These four principles should drive the mission’s plan. Foundational mission documents should articulate the vision, and training and preparation candidly acknowledge the risks and prepare personnel in detail.

Once personnel have been trained and understand the risks, they should formally accept that risk. Waivers of liability should be extensive and cover a variety of situations, but need not be solely a legal statement of release. Instead, they can also acknowledge the vision and calling.

Once it is clear that a missionary has been well trained, understood the risks, deliberately accepted the risks for the sake of the vision, and has released others from liability, the sending organization should be as protected as an extreme sports provider.

Conclusion

The modern cultural approach to legal liability presents missions organizations with a different context for the challenges that missionaries historically faced. Our response to this, as to every cultural challenge, is to show the spirit of Christ in the context of the culture.

While legal problems may be an existential threat to missions, there is no need for a fractured approach where one hand trusts God and the other hand drafts waivers and buys insurance. Instead, a mission can be consistent in stating its vision, caring for personnel, and protecting the organization.

Once we have prepared, let us hope and pray for each organization that I am wrong and that there will be no firestorm sweeping up the canyon. Being prepared along the lines I have suggested is both good stewardship and can lead to spiritual growth and more effective ministry.

Appendix: Crisis Management Checklist

The following list is not exhaustive, but will provide areas to consider in evaluating standards of reasonable care. It may not always be desirable to have a formal policy, but there should be at least a decision-making process that is documented.

Waivers/releases

• Medical release
• Media release to use stories, photos, or testimonials
• Release related to terrorists, kidnapping
• General release of liability against organization
• Specific release of liability for particularly dangerous fields
• Release of private psychological information for appropriate personnel
• Sign off on burial policy
• Attesting truth of personal statements, such as psychological history

Policies

• Child protection policies
• Behavior protocols surrounding appropriate, moral, and acceptable behavior
• Kidnapping and hostage-taking response and ransom policies
• Policies on where families with children will be permitted to serve
• Mental health policies
• Medical and immunizations requirements
• Computer security protocols
• Security policies and contingency plans within country
• Evacuation policies
• Medical airlift protocols
• Burial policies for death overseas
• Documentation of mission investigations and decisions
• Document retention and confidentiality policies
• Policies for trauma response and counseling
• Member care policies
• Disciplinary policies for moral lapses
• Debriefing policies
• Secondment policies

Background information

• Medical screening
• Psychological screening and testing
• Child protection background screening
• Ethical and moral counsel and screening regarding the missions call
• Analysis of children’s needs
• Careful match of personnel with a suitable target culture

Training

• Medical and other safety conditions in country
• Emergency medical training
• Child abuse prevention training
• Cross-cultural training
• Crisis situation and evacuation training
• Personal security training

Investigation and response

• Protocol for child abuse investigation
• Legal reporting procedures locally and at home
• Procedure for investigating other allegations
• Crisis management team in place
• Protocol for investigation of psychological or moral emergencies

Media management and public relations

• Designated single spokesperson for media inquiries
• Media crisis response team defined and trained in advance

Legal team

• Review of policies and documents
• Advisory or investigative role with investigatory situations and personnel problems
• Advisory role when a lawsuit is threatened
• Assistance on confidentiality and privileged information standards

Insurance

• Medical and emergency evacuation insurance
• Life insurance
• Short-term missions insurance
• Travel insurance
• International auto insurance
• Kidnapping and ransom insurance
• Liability insurance for organization with sexual abuse rider
• Property insurance