I am trying to wrap my head around the proposed change to BCO 34-1, as approved by the 53rd General Assembly and sent to the Presbyteries for consent of two-thirds of the Presbyteries.1 While I understand the attempt to correct a broken portion of the BCO, I am not sure this amendment does not raise additional concerns that need to be addressed before ratifying it into our BCO. We might be fixing one portion of the BCO while creating more problems, particularly today. I am not immutable, nor infallible. I welcome people’s thoughts and counterpoints.

I see the concern behind the proposal. A Presbytery may fail to act, and the Church needs some constitutional recourse when that happens. My concern is that this proposed remedy may work better for public false teaching than for certain matters of Christian character, especially heinous sins by Teaching Elders that may not be broadly public. In those cases, the proposed amendment may unintentionally push sensitive matters into the public sphere in order to make the process work.

Disclaimer: Please do not think I am merely upset about my overture being changed. If I took things personally, I would be a very bitter person. However, I do believe the amended overture creates several concerns.

I have five concerns with the proposal as written, some more major than others, but all valid concerns on their own right:

1. The term public scandal (currently in our BCO but written in a different time)

2. Inclusion of BCO 31-2 Language

3. The term ‘decline’

4. Twenty- Percent

5. Shall (in this instance)

1. Vague Definition of Public Scandal

Ramsay defines scandal as “any flagrant public offence or practice bringing disgrace on the Church.”2 This definition has been used several times in SJC cases.

In Case 2019-08, a concurring opinion states: “For an offense to be a ‘case of scandal’ it would need to be an offense that is known to the broader public and, unless adjudicated promptly, would bring public disgrace on the Church. And thanks to technology, an offense could become a case of broad, public scandal much more quickly in 2020 than in 1879.”3

In Case 2020-14, the SJC uses the same reasoning: “For an offense to be a ‘case of scandal’ it would need to be an offense that is known to the broader public and, unless adjudicated promptly, would bring public disgrace on the Church.”4

In Case 2022-04, a dissenting opinion states: “For matter to be a ‘case of scandal’ it would need to be something known to the public and, unless adjudicated promptly, would continue to bring public disgrace (scandal) on the Church. A case of scandal involves something ‘causing general public outrage.’” The dissent also adds, “And while a case of scandal often involves shameful behavior, shameful behavior does not always become a case of scandal. Frequently there is alleged behavior unknown to the broader public.”5

Ramsay does provide the adjective “flagrant” before “public offence,” but this does not solve the problem entirely, as “public offenses are those which are notorious” (BCO 29-4). Public scandal, therefore, requires more than the gravity of the sin itself. It also involves public notoriety and public disgrace upon the Church.

This is my concern. Public scandal has much to do with the public nature and public reception of the matter. It is not merely the weight of the accusation against the accused. The public response then becomes one of the factors that could require the GA to take up a case. That may make sense in certain instances, especially with public false teaching, but it becomes more difficult when we are dealing with private heinous sins, particularly sins involving vulnerable people.

A private sin may be heinous according to Westminster Larger Catechism 151, and yet not be a “public scandal” in the technical sense. On the other hand, something may be publicly scandalous because partial or even false information spreads quickly. Public outrage does not itself establish guilt, nor should it be the mechanism for elevating something to a higher court.

2. Inclusion of BCO 31-2

My understanding is that this portion of the BCO is intended to apply when an insulated Presbytery errs and fails to act appropriately. This is especially understandable in the case of false teaching. False teaching, by its nature, is often public, and therefore, a 20% threshold may be more achievable because many people could have access to the details of the public teaching.

However, when dealing with Christian character (BCO 31-2), the evidence is often not public. In some cases, the allegations may involve private offenses and vulnerable people. Several concerns arise from including this kind of matter within the proposed mechanism.

First, people may begin to think this is the next step, when filing charges may actually be the more appropriate next step. In a judicial case, both parties can present evidence, witnesses can be examined, and the court can properly adjudicate the matter.

Second, people may see a Presbytery failing to find a strong presumption of guilt as a way of erring. But “strong presumption of guilt” is a weighty term, and the failure to find it does not automatically mean the Presbytery erred. The Presbytery may have carried out its duties under BCO 31-2. This does not mean the accused is innocent in every possible sense.6 Additional evidence might later be provided in a trial that the Presbytery did not have access to during its investigation. But the failure to find a strong presumption of guilt is not, by itself, proof that the Presbytery has refused to act or erred.

Third, if people seek to apply this proposed provision to cases of private heinous sin, the only way to bring the matter to the level of public scandal may be to force it into the public sphere. Deliberately changing it from a private offense to a public offense. This does not necessarily require bad actors. But to get 20% of Presbyteries to vote on such a request would require many Presbyterians to hear enough of the story to believe they can cast an informed vote.

We are not in the same world we once were. The twenty-first century has brought many complex issues into the church. Even at the most recent General Assembly, one speech dissuaded many commissioners who had originally voted in favor of an overture regarding minority reports from the SJC. The concern raised was real, but the issue is still present in our BCO: sending the whole record of the case to every clerk of Session. The proposed amendment only sought to move the transmission to a digital format. Nevertheless, we are now more alert to and aware of privacy concerns, including those affecting victims. The problem was that the overture sought to fix one issue in the BCO, but in doing so might have created another, possibly a bigger one.

Major Concern

I see this provision as being aimed at two kinds of matters: first, false teaching; and second, heinous sins of Teaching Elders. Often, heinous sins by Teaching Elders are personal offenses involving vulnerable people. In those cases, the practical recourse under this proposed amendment may be to make the matter public.

BCO 40-5 is not a good recourse in many of these cases because it deals with the court rather than directly with the man. Also, reviewing such matters under BCO 40-5 is difficult unless the court errs in a grossly unconstitutional manner. That method is neither especially helpful nor expedient in many cases. While I think it might be possible, serving on CRPR has made clear to me that we are not an investigative body; we review records and reports. Presbyteries often do not record that they are deliberately erring or insulating a Teaching Elder. BCO 40-5 addresses the erring process, not the sinful person. There would need to be a clear error by the lower court for the matter to be referred to the SJC (BCO 39-3.3).

If BCO 34-1 becomes the mechanism for dealing with these matters, then heinous sins may be forced into the public sphere because the GA must act.

3. Declines to Indict

The new proposal also includes the phrase “declines to indict.” This word is significant. In ordinary usage, and I think also in legal usage, “declines” generally implies an active choice not to do something after the matter has been presented for action. In other words, the court has considered the matter and has officially decided not to indict. This appears to be the reading in the other two instances where “decline” is used in our BCO (BCO 20-10 and 24-7): a court may, by a formal vote of the court, decline to carry out a particular action.

This seems to limit the provision to cases where a Presbytery has formally declined to exercise its jurisdiction by officially voting not to indict. That is different from “failure to indict,” which could include action, inaction, inability, delay, neglect, or avoidance.

Therefore, I could see a possible argument that the proposed language does not reach the very problem it is attempting to address, shifting the absurdity from the definition of action to the definition of decline. A Presbytery may not have “declined to indict” at all. It may simply have failed to take any action to that effect.

4. Twenty-Percent

As mentioned, 20% may seem like a reasonable threshold for public false teaching, but I am afraid it has several problems. Currently, 20% would require 18 Presbyteries, but if the PCA continues at its current growth rate, by 2073, it would require about 34 Presbyteries. Why should the denomination’s size matter when a Presbytery has failed to act? Why should it become more difficult for the General Assembly to take up original jurisdiction in important matters? Once again, public consensus seems to be the guiding factor rather than the Presbytery’s failure to indict a man.

First, 20% creates a very high jurisdictional threshold. I do not want to confuse the evidentiary standard for charges with the jurisdictional mechanism for GA original jurisdiction. Nevertheless, the Apostle Paul says he would not allow a charge against an elder except on the evidence of two or three witnesses. If three Presbyteries contact the Presbytery of a Teaching Elder regarding false teaching or heinous sin and can provide witnesses or evidence, that Presbytery should begin the process and, when appropriate, appoint a prosecutor. If three Presbyteries cannot provide sufficient witnesses or evidence, then there may be no need for a trial. But 20% is a much broader mechanism, and it may require far more public discussion than is wise or necessary.

Second, 20% may muddy the waters in higher review and control, and before the SJC. One in five Presbyteries would need to have some meaningful details of the case in order to be informed and able to vote. This may also raise practical questions about SJC eligibility or participation, given that many Presbyteries have already debated and voted on the request. I do not want to overstate this point, but it should be clarified before adoption.

Third, a 20% threshold risks turning a judicial remedy into a denominational campaign. Instead of keeping the matter principally within the courts of the Church, it requires broad public agitation among the Presbyteries. Little good can come from many people discussing events and details they do not know well. This may be somewhat more defensible in cases of public false teaching, where the teaching itself is already before the Church. But in matters of Christian character, the process can easily become governed by sound bites, public pressure, and partial narratives rather than by careful judicial consideration. Getting 20% of the Church concerned about a matter is not especially difficult; one needs only look at X on any given day. Even when men act in good faith, the process can become more like a caucus than a court. Worse, even a failed attempt could bring disunity into the denomination. If fifteen Presbyteries discuss the matter and vote to ask the General Assembly to assume original jurisdiction, but the request fails to reach the 20% threshold, the effort has still forced a matter into public view that should have remained within a more limited judicial process. Thus, the very mechanism intended to address the scandal may end up creating or amplifying the scandal without ever producing judicial action.

Fourth, briefly, a 20% threshold may appear to be a safeguard, but it can also communicate institutional distrust. It assumes that a smaller number of Presbyteries cannot be trusted to recognize a serious failure to act, and that the courts of the Church cannot be trusted to distinguish between legitimate judicial concern and factional agitation. Ordained officers are called and vowed to be zealous and faithful in maintaining the truths of the Gospel and the purity, peace, and unity of the Church. Yet this proposal may unintentionally make public consensus, rather than ordered trust in the courts of the Church and her ordained officers, the controlling principle.

5. General Assembly Shall

The “shall” is significant. It is a must, and that is dangerous in this instance. If the qualifications of the provision are fulfilled, then the General Assembly has to assume original jurisdiction. It cannot simply say the request is out of order if all the stated conditions have been met.

The proposed amendment is simple. BCO 34-1 would read:

“Process against a minister shall be entered before the Presbytery of which he is a member. However, if the Presbytery finds no strong presumption of guilt or otherwise declines to indict in doctrinal cases or cases of public scandal and twenty percent (20%) of the other Presbyteries request the General Assembly to assume original jurisdiction (to first receive and initially hear and determine), the General Assembly shall do so.”

The structure seems to be:

1. Presbytery does one of two things:
   a. Presbytery finds no strong presumption of guilt; or
   b. Presbytery otherwise declines to indict.

2. The matter concerns:
   a. doctrinal cases; or
   b. cases of public scandal.

3. Twenty percent of the other Presbyteries request the GA to assume original jurisdiction.

4. The General Assembly shall do so.

That is a strong mechanism. My concern is not merely that it allows GA to act, but that it appears to require GA to act once the conditions are met.

Hypothetical Situation 1

A Teaching Elder is accused of a sin, and a well-meaning observer requests a BCO 31-2 investigation. The Presbytery performs its due diligence and investigates the man with great discretion. They demand a satisfactory explanation from him regarding the report affecting his Christian character. The Presbytery finds no strong presumption of guilt.

However, on the internet, there is a group of people who have heard of this initial accusation and are horrified to learn that the Presbytery did not find a strong presumption of guilt. Many people may not know what this term means or understand the other avenues available within the BCO, but a group has begun using this newly revised section. They do not have all the information, but they have enough to know what he was accused of. They get 18 Presbyteries to request original jurisdiction. Now the SJC has to take this matter up.

Hypothetical Situation 2

A Teaching Elder acts in a heinous manner toward a member in the church he serves. It does not rise to the level of a criminal offense, but even if it did, a criminal offense would not stop the church court from acting appropriately in its sphere. There are only a few people who know about it. The member speaks to another member of Presbytery, and no one takes any action. A request for an investigation is made. On the books, the Presbytery appears to have handled the matter appropriately. The injured member may have limited or uncertain procedural remedies, especially if the relevant action was taken by Presbytery rather than by the member’s own Session. Maybe charges could be brought.

The men who should be protecting the souls of the sheep are failing to act. They are neglecting their duty. The recourse available to this member may then be to use BCO 34-1, which would require the member to tell the story, or allow the story to be told, to 18 groups of men so that they might have an informed vote to hold this Teaching Elder to account for his sin.

In both hypotheticals, the errors become clear. While these examples may be extreme, they are not impossible. BCO 34-1 exists because a Presbytery has failed to do what it should have done. In my opinion, the proposed changes do not provide a sufficient solution for our age. They may help with public false teaching, but they do not adequately address other cases.

This provision either needs to be limited to cases of public false teaching, or it needs to be reconsidered to account for heinous sins by a Teaching Elder without making public opinion or public exposure the necessary mechanism.

Conclusion

The concern addressed by this amendment is real. A Presbytery may fail to act, and the Church must have a constitutional remedy when doctrine or scandal threatens the peace and purity of the whole Church. But the present proposal does not adequately distinguish public doctrinal error from private heinous sin, nor does it protect sensitive matters from being pushed into the public sphere.

For that reason, I believe Presbyteries should decline to consent to this amendment and seek a clearer, safer, and more carefully tailored solution.

Postscript

Many people have one instance in mind when we think about BCO 34-1: the issue that arose after the Revoice Conference. While this is important to consider, we also need to consider other scenarios that could arise.

Three suggested amendments:

I. “Process against a minister shall be entered before the Presbytery of which he is a member. However, if the Presbytery fails to indict in doctrinal cases or cases of public scandal and twenty percent (20%) of the other Presbyteries request the General Assembly to assume original jurisdiction (to first receive and initially hear and determine), the General Assembly shall do so.”7

II. “Process against a minister shall be initiated before the Presbytery of which he is a member. However, if a Presbytery receives a report from another Presbytery concerning the false teaching or heinous sin (WLC 151) of a teaching elder under its jurisdiction and fails to indict, the Presbytery that submitted the report may request the General Assembly to assume original jurisdiction; that is, to initially receive, hear, and determine the matter. The General Assembly shall do one of the following, upon the request of five (5) Presbyteries concerning the same matter: 1) assume original jurisdiction; or 2) require the original Presbytery to indict the teaching elder and submit a record of the case to the General Assembly for review.”8

III. (Produced with the assistance of AI)

“Process against a minister shall ordinarily be entered before the Presbytery of which he is a member. However, when allegations have been duly presented to that Presbytery and the Presbytery fails to indict, the General Assembly may be requested to act as follows:

a. In doctrinal cases, or in cases of public scandal, if fifteen (15) Presbyteries request the General Assembly to assume original jurisdiction, the General Assembly shall do so.

b. In cases alleging private but heinous offenses which, if proven, would render a minister liable to suspension or deposition, if five (5) Presbyteries request the General Assembly to take cognizance of the matter, the General Assembly may assume original jurisdiction, remand the matter to the Presbytery with instructions, or decline further action.

c. In all cases under subsection b, the General Assembly shall ordinarily defer to the Presbytery of jurisdiction unless it finds that the Presbytery is unwilling or unable to act, materially conflicted, or that such deference would likely prejudice the cause of truth, justice, or the peace and purity of the Church.