Convention to Consider Complex New Canons to Simplify Response to Sexual Misconduct
Episcopal News Service. June 15, 1994 [94125]
David Skidmore, Communications Officer in the Diocese of Chicago
Efforts in the Episcopal Church to prevent sexual misconduct have focused mainly on the mandates imposed by the church's liability carrier, the Church Insurance Company. Limits on pastoral counseling, training requirements on the nature and prevention of sexual misconduct and background checks on employees have many clergy bristling but others, including most laity, applauding.
With General Convention approaching, the church's attention is turning toward a proposed major overhaul of the Title IV canons dealing with clergy discipline. By direction of the last General Convention, the Standing Commission on Constitutions and Canons (SCCC) has spent the past three years revamping the language and provisions of the title's 18 canons to make them clearer, more uniform, and more balanced in the presentment and prosecution of charges and in the protection of due process rights of all parties.
The major changes include provisions for expanding or reducing the blanket five-year statute of limitations, depending on whether the offense is a crime or immorality or involves a minor; allowing bishops to temporarily inhibit clergy in their duties while a charge is being investigated; the appointment of an ombudsman as counsel for the victim, and a church advocate to serve as prosecutor, in lieu of the bishop or diocesan chancellor; opening up the presentment process to allow adult victims, victims' spouses, parents of minors, vestries, and five lay communicants or five clergy to file charges; and allowing victims to have input to sentencing of offenders. The statute change reduces the time for filing charges in a case not involving a crime of immorality to two years and expands the five year limit on cases involving crimes or immorality to ten years in special circumstances, namely where the victim does not discover the offense or realize their injury until after the offense has occurred. Where the victim is a minor, charges can be filed five years after the offense or until the victim turns 23.
Other changes include provisions for protecting the accused from self-incrimination, evidence acquired through coercion, and from double jeopardy; and the addition of a third option for sentencing -- "admonition" -- to the current choices of suspension or deposition.
The overriding motive for the changes, said Samuel Allen, chancellor of the Diocese of Southern Ohio and chair of SCCC subcommittee that drafted the revisions, was to create a standard framework throughout the church. In their current form, the canons leave presentment procedures up to the individual dioceses, resulting in a welter of rules, from overly simple to overly complex.
"Generally speaking, the implementation of the current Title IV is a mystery," said Allen. "We set out as best we could to demystify it." The SCCC's chair, Bishop Walter Dennis of the Diocese of New York, writing in the current issue of the Sewanee Theological Journal, noted how the revisions "will level the playing field among those dioceses that have no procedures and those whose procedures are vindictive."
A chief aspect of that leveling are changes to improve due process rights for clergy. They include removing the bishop from prosecuting a case by providing for the appointment of a church advocate, a person trained in law but not a chancellor or assistant chancellor, to that role; and allowing the accused to present mitigating evidence on his or her own behalf before a judgment is rendered.
The changes on the whole are reasonable and appropriate, said Bishop Harold Hopkins, who in his role as pastoral development officer for the church steps in when allegations of misconduct surface. The due process additions "make it clearer that a clergy person is innocent until proven guilty, and put some strictures on precipitous action on the part of a diocese, action that might make a clergy person look guilty before evidence is brought forward and reviewed."
Another improvement deals with the type of evidence required for an ecclesiastical court in reaching a conviction. Instead of "beyond a reasonable doubt" -- the test required in criminal courts and which many dioceses have adopted -- the standard being proposed is the less demanding "clear and convincing evidence." That's a crucial change, said Hopkins, because it improves the chances of ecclesiastical courts obtaining convictions.
Hopkins also favors the provision for temporary inhibition as it allows bishops to act in a way that is not prejudicial to a clergy person's guilt or innocence while an initial investigation is underway and prior to a standing committee issuing a presentment against the accused. "That has been difficult for bishops to do," noted Hopkins, and as a result they've had to resort to more prejudicial measures such as 30-day suspensions "because that's all they've had available."
Still, even a temporary inhibition, granted Hopkins, conveys a suspicion of guilt. "Let's face it. When a person is accused it's a very serious situation. But at least this is an attempt not to presume guilt."
Removing bishops from the role of prosecutor -- a duty that would be assigned to a church advocate appointed annually by an ecclesiastical court -- also gets high marks from Hopkins since it emphasizes bishops' primary function: pastoral direction.
This was also the view of the commission, said Allen. "We believe that placing the bishop in a prosecutorial role was not in keeping with the bishop's pastoral role to his or her clergy. In several cases there has been a denial of due process of law to several clergy."
By removing the bishop from a direct role in adjudicating cases, Allen expects dioceses to have a lower exposure to costly lawsuits. "It's only when the bishop gets personally involved," he said, citing the 1991 sexual exploitation case in the Diocese of Colorado, "that the damage comes."
In the Colorado case, Bishop William Frey chose to intervene by reassigning the offending rector to another parish and then assuming a counseling role with the victim, a married female parishioner, who later filed a $1.2 million lawsuit against both the diocese and Frey. "That reassignment was the stamp of approval that the victim was looking for to say that the diocese had ratified what had gone on," said Allen. While applauding the moves toward uniformity and giving victims a bigger role, many consultants on sexual misconduct believe they don't go far enough.
"They are trying to solve a serious problem," said the Rev. Chilton Knudsen, consultant to the Episcopal Church's Office of Pastoral Development and the pastoral care officer for the Diocese of Chicago. "I'm not sure they've got it absolutely nailed down."
The revisions allow victims to file charges and have a voice in the sentencing, Knudsen acknowledged, but access to the disciplinary process is still centered around the bishop. An example, she pointed out, is the new provision for appointing an ombudsman as counsel for the victim, a responsibility left to the bishop.
However, Allen downplayed the potential for bias in a bishop's appointment of an ombudsman, or the ecclesiastical court's appointment of a church advocate. The appointments, he argued, are not for a particular case, but for a set period. The chance of a bishop influencing the disposition of a case through the selection of an ombudsman is not that high, Allen contended, since the appointment is made well in advance of a charge being filed. In addition, he said, the ombudsman's role is to advise victims on procedures to file charges, not to engineer the substance or thrust of the charges.
Allen's explanation fits as far as the church advocate (a position appointed for the period between meetings of the diocesan convention) but doesn't jibe with the actual language of the Title IV revision regarding appointment of the ombudsman. Title IV's new Canon 3, Section 4 reads that after consulting the victim, or the victim's spouse or parents, the bishop "may appoint an ombudsman to assist those persons in understanding the disciplinary processes of the church, formulating and submitting an appropriate charge and to assist those persons in spiritual matters" if they desire.
In the commission's explanatory notes accompanying the revision, the connection between bishop and victim's counsel appears closer than Allen's description: "The ombudsman," it reads "can be a conduit of information to the bishop without forcing a bishop to choose prematurely between the cause of the victim and pastoral concern for the member of the clergy."
Along with more checks and balances, Knudsen would like to see more attention given to assisting the victim, such as establishing legal defense funds for victims supported by the restitutions paid by offenders. "I also believe when we ask clergy to make restitution, that we should have a fund available to pay for victims' treatment. Nobody is paying for the victims right now, unless it's a voluntary thing, or unless they are awarded damages in a legal action."
Knudsen stressed the issue of sexual misconduct cannot assumed to be solved merely by a reworking of canons or the conditions for insurability. She would prefer a less legalistic approach, one that supports a holistic view of episcopal ministry and that doesn't set up artificial boundaries between discipline and pastoral care.
The Rev. Canon Margo Maris of Minneapolis and co-chair of the General Convention's Committee on Sexual Exploitation, pointed out that victims' rights would be even more underrepresented in the SCCC's revisions if her committee hadn't lobbied for the extension of the statute of limitations and giving victims a part in the sentencing process.
Allen admitted that the sentencing revision was a concession on the part of the SCCC, but that the commission resisted pressure by Maris' committee to drop all time limits. "They were out to have no limit whatsoever," Allen said. "My response was that this is an ecclesiastical discipline and the longer these things drag out the less likely we will get a true factual presentation of what happened."
It's important to remember, Allen said, that criminal proceedings in this country, and by extension the church, still operate under the presumption an accused is innocent until proven guilty.
"One of the great problems we have is whenever anyone is accused of sexual harassment or molesting a child, everyone believes it. And sometimes it just doesn't happen," Allen insisted. He also noted that critics overlook the broader role of Title IV. In evaluating the changes the commission "had to be alert to the fact that the disciplinary canons were there for more than sexual misconduct."
Allen believes General Convention deputies and most bishops will react favorably to the commission's proposals, though he did admit that some bishops are not keen about the church advocate provision, seeing it as "an unwarranted interference in their canonical authority."
As for the rank and file clergy, Allen said he has briefed the president of the National Network of Episcopal Clergy Associations (NNECA), the Rev. Wayne Wright, on the commission's work and received his verbal endorsement.
However, Wright is more circumspect: "We neither endorse it or condemn it. At this point we are evaluating it. We hope the rest of the church will do the same."
Realizing that canonical changes are necessary, NNECA wants any revisions to be guided by six principles its board adopted in March, said Wright. They state that any changes should be rooted in theology, since "it is easy to confuse church canons with secular law;" that changes not be simply a reaction to the pain of misconduct claims but that "the accused are treated fairly, that offenders are held accountable, and that victims are treated with understanding and compassion;" that fear of liability should not be allowed to undermine the pastoral relationships between bishops, clergy and laity; that disciplinary canons should be written to be easily understood and administered; that there should be equal access, participation, and accountability by all orders in the disciplinary process; and that canons alone are not enough to ensure "right relationships in ministry."
Wright said that NNECA understands the devastating force of sexual misconduct and the need to protect those abused, but given the fact that some accusations have been baseless "we want to ensure that the procedures are fair for people who have been accused so there is justice available for all sides." Though Maris would prefer more protection for the interests of victims, she still sees the Title IV changes as a major step toward making justice and spiritual health -- not financial welfare-the church's priority in stopping sexual misconduct. Ten years ago if she had been told the church would be at this point, she said she would have dismissed the idea. Now she sees the odds worth wagering on.
"This is a hopeful sign that we are willing to deal with some of the tough issues. I am hopeful," Maris concluded.