Who Can Be a Witness, Biblically Speaking?
This article deals with abuse and how the church handles it. It contains descriptions of abusive situations. If that troubles you, you might not want to read this.
Imagine a situation where someone claims they were sexually abused by a church leader over 20 years ago. For various reasons, they did not make the claim until long after it happened. One of the reasons is that, when it happened, they were a child. In this situation, like in most sexual abuse cases, there are no witnesses besides the alleged perpetrator and victim. Around the time it was happening, however, the child did speak about the abuse with both a close friend and a family member. The church leader denies the allegation.
In some jurisdictions, there is a statute of limitations in criminal law on these matters. In other places, like here in Australia, there are no such limitations. In places that do have a statute of limitations, litigation can still be an option and thus the matter can still be heard in court.
Should a case like this proceed to court, either criminally or civilly, many jurisdictions (including here in Australia) allow for what is called “hearsay evidence” in sexual abuse cases (as well as in cases of rape/sexual assault and domestic violence). In the case above, the hearsay evidence exception would allow the close friend and the family member to serve as witnesses. They could testify that the complainant mentioned and described the abuse to them however many years ago. Of course, they can be cross-examined by the defence. Moreover, where hearsay evidence is accepted for the complainant, it is also accepted for the accused. So this can be a double-edged sword.
That is the way the world often works out there in the courts. What about in the church? Can the close friend and family member from our example serve as witnesses before the elders? Let us just limit our discussion here to Reformed churches. We maintain that the faithful practice of church discipline is a mark of a true church. Discipline is undoubtedly important to our churches, but the “faithful” part of it may need more attention, particularly in abuse cases like the one above.
Article 66 of the Church Order of the Canadian Reformed Churches is about the nature and purpose of church discipline. In it the churches agree that the rule given by Christ in Matthew 18:15-17 must be “followed in obedience.” Matthew 18:16 mentions establishing every charge “by the evidence of two or three witnesses.” Were these witnesses to the original offence or witnesses to the admonition(s) of the complainant? In his commentary, William Hendriksen understood this to refer to the latter, “the person who claims to have been wronged plus the witness(es) whom he has with him.” That seems to be a common understanding of the passage.
However, W.W.J. Van Oene in his With Common Consent took a different approach. Commenting on Church Order article 66, he wrote:
The first witness is also the accuser, the one who, together with another or others, witnessed the sin being committed. If he is the only one who witnessed the sin, there is little else he can do but admonish the sinner. No one may be convicted on the testimony of one witness. There must be at least two, and the second one must be just as much witness of the sin as the first one. (p.304)
To support this, Van Oene appealed to Deuteronomy 17:2-8. In Old Testament Israel, no one was to be put to death on the testimony of only one witness. There must be at least two or three. This is the background of Matthew 18:16. And, according to Van Oene, “A witness is someone who can testify firsthand that something was said or done” (p.303). He argues that by way of Deuteronomy 4:26 where Moses calls heaven and earth to witness against the Israelites. Heaven and earth heard Moses speak and thus can serve as witnesses.
So, as far as the church is concerned, in the sexual abuse case mentioned at the beginning, the whole case is a non-starter. The sexual abuse took place behind closed doors, there were no witnesses, therefore there can be no further investigation by the elders, let alone a judgment in the matter. According to Van Oene, we simply have to leave it to God who alone knows the heart. The church leader can continue to serve and everyone must simply live with it. Note well that this kind of approach could even be argued in cases where there are multiple complainants. You could have ten people coming forward alleging that this church leader sexually abused them, but because there were no eyewitnesses to the abuse, the elders could say that their hands are tied. This kind of approach could be argued even in cases where DNA evidence has been accepted as beyond-a-reasonable-doubt evidence of guilt in a criminal court.[1]
Van Oene attempted to state his position with biblical support. However, he missed a key passage from the Old Testament which speaks to the question of who can be a witness. It says in Leviticus 5:1, “If anyone sins in that he hears a public adjuration to testify, and though he is a witness, whether he has seen or come to know the matter, yet does not speak, he shall bear his iniquity…” A witness is not only someone who has observed a matter first-hand; he or she can also be someone who has “come to know the matter.” This is the only place in Scripture I am aware of that defines the parameters of what it means to be a witness.
There is, of course, a history of interpretation of this passage. Ancient Jewish commentator Rabbi Yossi HaGlili commented in the Mishnah, “It applies only to testimony that consists in seeing without knowing or in knowing without seeing, and this only obtains with a monetary claim” (Vayikra Dibbura DeChovah 12.1). I am not sure what “seeing without knowing” means (he doesn’t explain), but I am sure that the context of Leviticus 5:1 has nothing to do with monetary claims. More plausible is what Puritan Matthew Poole wrote in his commentary, “Whether he hath seen; being present when it was said. Or known; by sufficient information from others.” Similarly, Keil and Delitzsch remarked, “…was a witness, i.e. was in a condition to give evidence, whether he had seen what took place or had learned it, that is to say, had come to the knowledge of it in some other way.” George Bush (not the president!) likewise commented, “That is, whether it be a matter which has come under his own personal knowledge, or which he has learnt from the information of others.”
I posit that, if we add what Leviticus 5:1 says to our discussion of witnesses, we get a different process, one that is far more just. This process takes into account the extremely private nature of certain grievous sins – not only sexual abuse of minors, but also rape/sexual assault and domestic violence. If we go back to the original scenario, the elders should, at the very least, speak with the close friend and family member and treat them as witnesses. Better would be to have someone from outside investigate who understands the dynamics of abuse, the nature of trauma, and the weight of various types of evidence. These are often difficult matters to untangle and elders can soon find themselves out of their depth. Outside investigators can bring their conclusions and recommendations, but the final call on church discipline is, of course, in the hands of the elders.
While researching this topic, I considered the possibility that the hearsay evidence exception in criminal law was based on Leviticus 5:1. Since that exception seems to have developed relatively recently, it is dubious. Nevertheless, I can say that it is consistent with Leviticus 5:1. I pray that the practice of our churches would likewise be consistent with this neglected part of God’s Word.
[1] I would argue that DNA evidence can function as the equivalent of a witness in such cases, somewhat analogous to Judah’s signet, cord, and staff in Genesis 38. Churches should take the available forensic evidence into account in these cases, though different types of evidence are to be weighted differently.
