Sweeping Revisions in Clergy Discipline Canons Prompt Mixed Reactions
Episcopal News Service. February 8, 1996 [96-1386]
David Skidmore, Communications Officer for the Diocese of Chicago
(ENS) The new year storms that belted the Eastern seaboard with record snows and monster floods also brought a different kind of weather change to send a chill through the ranks of Episcopal clergy.
Unmarked on any weather map, a climatic shift for the church known as the new "Title IV Ecclesiastical Discipline" canons blanketed the country coast to coast with little fanfare January 1 except in clergy journals and e-mail chat groups. Its presence barely noted by the average person in the pew, the Title IV front did capture the attention of those with the most to gain -- and lose -- if caught in its grip: the people in the pulpit.
For some clergy the new Title IV comes as a refreshing redraft of a clouded and awkward disciplinary process that did little to protect the rights of clergy or the victims of those wearing collars. Other clergy are regarding it with wary suspicion. And many victims still see themselves left on the outside looking in.
The offspring of four years' work by the General Convention's Standing Committee on the Constitution and Canons (SCCC), the revised Title IV canons amount to a clean sweep of clergy disciplinary procedures that have, except for minor tinkering, gone unchanged since they were first enacted in 1915. Created primarily to deal with heresy and doctrinal infractions -- matters of relatively rare occurrence -- the old Title IV canons were an unwieldy instrument, seeded with inconsistencies and compromised by the influence they allowed bishops to exert on disciplinary processes.
Their deficiencies became obvious with the increased exposure and response to clergy sexual misconduct during the mid-1980s. Victims and their advocates demanded more flexibility in filing charges and input in sentencing offenders; clergy campaigned for more due process rights and to remove bishops from acting as prosecutors; and diocesan chancellors labored for a more uniform and impartial process through standardized presentment procedures, standing ecclesiastical courts, and rules barring chancellors from having a role in presentments or trials.
The General Convention responded in 1991 by creating the Committee on Sexual Exploitation and directing the SCCC to take a long, hard look at reforming Title IV. The sexual exploitation committee drafted a preventive education curriculum around issues of sexual misconduct and a manual for bishops and standing committees outlining a process to use in responding to complaints. Many of their ideas later made their way into the Church Insurance Company's sexual misconduct liability coverage, among them rules requiring dioceses to conduct background checks on clergy, and mandating training in issues of sexual misconduct for all clergy and church workers.
The final act took place in Indianapolis in 1994 when both houses of General Convention overwhelmingly approved the Title IV overhaul, and designated January 1, 1996, as the date it would become effective.
What sends shivers down the spines of some clergy are changes that, in their eyes, tilt the canons toward the side of complainants. High on their worry list are provisions loosening the restrictions on filing charges; expanding the role of complainants in the presentment, trial and sentencing procedures; and narrowly circumscribing the rights of accused clergy.
One provision in particular -- allowing a 30-month window for filing retroactive charges on offenses for which the five-year statute of limitations has expired -- has inspired fear in many clergy circles of an avalanche of false accusations. This window, one of 100 amendments added by the SCCC to its Title IV resolution during General Convention, permits complainants to file charges up to June 1, 1998, on offenses that occurred prior to 1991.
For the Rev. Steve Brannon, chancellor for Province VIII, the 30-month window and the elimination of the statute of limitations for offenses involving sexual abuse, sexual exploitation or physical violence against minors, represents a blatant and dubious use of ex post facto legislation.
"I understand the reason for it," he said, acknowledging to the SCCC's concern that victims of sexual misconduct, particularly those who were minors when abused, have a reasonable time to come to terms with their experience and prepare their complaint. "But," he adds, "I still think it was a bad move. Witnesses and evidence after a certain period of time become less reliable." Reactivating a case long after the statute of limitations has expired, he contends, "directly flies in the face of American legal practice."
The fact that the window closes in 1998 is no guarantee that it can not be reopened, he adds. "If (the General Convention) can extend it to 1998, they can extend it forever," he said.
To Samuel Allen, chancellor of the Diocese of Southern Ohio and chair of the SCCC, the concerns expressed by Brannon and other clergy are overstated misreadings of what the Title IV reform is all about.
The impetus behind Title IV was not insurance liability concerns or the grievances of victims, said Allen, but an effort "to grant due process to clergy people within our church and to create a system that was in the 20th century rather than the 15th century."
Given its mandate by the 1991 General Convention, the SCCC set out to correct a "helter-skelter" approach to ecclesiastical discipline that allowed dioceses to establish their own procedures for presentments and trial courts, he said. A major concern, he said, was the undue influence the old canons permitted diocesan bishops and chancellors to exercise, which in some cases led to ecclesiastical trial courts being run like "kangaroo courts or star chambers."
"The purpose," insisted Allen, "is to provide due process of law for the people who are sought to be disciplined in the church."
As for Brannon's shots at the ex post facto nature of the statute of limitations extension, Allen claims he is misusing the term.
"An ex post facto law is aptly defined as one which would render an act punishable in a manner in which it was not punishable when it was committed," he said. The new canons are not going to change or redefine the charges, he said.
Criticisms like Brannon's, said Allen, frankly leave him perplexed. Rather than clergy surrendering constitutional rights en masse, "they have gained rights tremendously under this new Title IV that they never had before," he said. Key examples he cites are the provision against self-incrimination, the presumption of innocence for the accused, the prohibition against bishops having a part in presentments or trials, and the double jeopardy protection.
His view is echoed by Bishop Harold Hopkins, director of the national church's Office of Pastoral Development. "A lot of the concerns are coming from people who don't really understand it. They don't realize that while the new Title IV gives more ways to respond for complainants, it does give more due process protection to clergy," Hopkins said. "Clergy won't be more vulnerable under the new canon than they were under the old canon." In some ways, he adds, "they will be more protected under the new canon."
That assessment is cold comfort to those who have suffered at the hands of clergy. While acknowledging the many provisions benefiting complainants, Patricia Klindienst of Guilford, Connecticut, for example, still sees the church giving short shrift to victims' interests. Herself a victim of clergy misconduct, Klindienst said she is encouraged by some of the changes -- those allowing complainants input to sentencing, and barring clergy from appealing ecclesiastical sentences in secular courts -- but finds troubling "the sense I have that victims are pretty much left out in the cold on their own."
That has been her experience since November, 1994, when she joined 16 other women of her former parish, Grace Church in Amherst, Massachusetts, in bringing charges against their former rector, the Rev. James Clark, for an 18-year pattern of sexual exploitation and harassment against parishioners and parish staff. Last June, Clark, 62, was deposed after voluntarily submitting himself for discipline to the Diocese of Western Massachusetts' standing committee.
But that final resolution came too late and cost too much for the complainants, Klindienst maintains. The first complaint to a bishop about Clark occurred in 1982, she said, but it wasn't until 12 years later, when the women brought their combined complaint, that Clark was dealt with definitively.
The fact that diocesan authorities apparently put more stock in the veracity of Clark's denials than the complaints of victims underscores the church's clerical bias and reluctance to deal responsibly with sexual misconduct, Klindienst claimed.
Klindienst, who has since left the parish and the Episcopal Church, said she and the other victims also wanted someone who could really represent their interests: someone versed in the disciplinary process and administrative procedures of the diocese. Instead they were assigned the diocesan deployment officer, raising, Klindienst said, questions of conflict of interest given that three of the complainants were ordained or postulants when the charges were filed.
The complainants' wish list also includes reimbursement for lost wages, travel and daycare costs incurred in attending hearings, as well as help in paying for therapy. Another demand is for a diocesan-wide educational forum on issues of sexual misconduct.
"We've been the activists and we've had the courage," Klindienst asserts. "At some point we need the acknowledgement of the fact we did something for the church that the church couldn't do for itself."
Her goal, she said, isn't retribution, but improved accountability for clergy and the church. "It's time the 'old-boy network' was dismantled," she said. "I want people to stop winking at this and thinking of it as about sex and not about power."
The Rev. Margo Maris, co-chair of the General Convention's Sexual Exploitation Committee (SEC) and former canon to the ordinary for the Diocese of Minnesota, has been reciting that message to bishops, chancellors, diocesan standing committees, and just about anyone else touched by the issue of clergy misconduct since 1988 when she worked with the Office of Pastoral Development in drafting the first comprehensive response strategy to sexual misconduct.
Results, in her eyes, have been a mixed bag. Out of fear of losing their liability coverage, most dioceses have launched education programs and enrolled clergy and lay employees in mandatory training courses on issues of sexual misconduct. A few have formed response teams to handle misconduct complaints. Because of the Title IV revision, dioceses have changed their own canons in order to provide for standing ecclesiastical courts. But overall, she said, action has been limited to the minimum mandated by legislation or the insurance industry.
Recommendations by SEC for a fund to help train diocesan response teams, to train and compensate church advocates, and set up a nation-wide, toll-free crisis line for victims have fallen on deaf ears, she said. "No one has put a dime into it. People were asked for a fund to be set up and it's not happening."
For its part, the SEC has published two educational booklets -- "A Diocesan Guide to Understanding Title IV" and "For Persons with Complaints" -- and is drafting two others addressing the issue from the standpoint of congregations and clergy. The committee has done a good job of building an educational framework around the Title IV changes, she said, but the follow-up at the diocesan and congregational levels has been insufficient, particularly in educating lay people.
Those that have offered seminars, have focused on clergy. "No one has sat down and written a curriculum for laity about this change," Maris said.
As pastoral care officer for the Diocese of Chicago, the Rev. Chilton Knudsen has been fielding mostly "appropriate, reasoned questions" from local clergy on Title IV, probably because the diocese is among the first in the church to draft a sexual misconduct policy and form response teams, she said. But elsewhere, she acknowledges, clergy suspicion and resistance remain strong to the Title IV changes.
"There is anxiety. There is concern. There are people who are saying mythological things out there in the church," she said.
The myth, said Knudsen, is that Title IV strips clergy of their civil rights. "Well, we never had those civil rights. We haven't given anything up," she said. The new Title IV, she added, "is simply an adjustment of what's already been there."
One myth that Knudsen and her colleagues take pains to put to rest is the charge that the 30-month window and liberalized statute of limitations will lead to a rash of false accusations.
Hopkins acknowledges the controversy over eliminating the "time bar," but he discounts the idea that it will translate to frivolous complaints.
"I think people are wondering whether this is going to turn into false accusations against somebody. I don't think that is going to happen. I just don't think false accusations happen that much," he said.
Like Hopkins, Maris sees false accusations as the rare exception, noting that barely one percent of charges are proven false. "The highest percentage I've had is two percent," she said.
Victims, she points out, do not make accusations lightly. For a woman or man to go public with charges against their pastor "takes tremendous courage," she said. And even though a priest may refute the charges, that does not put the lie in the victim's lap. "What my experience has been is that the clergy person who is being accused doesn't necessarily know that what he is doing is wrong," she said.
Another who puts little credence in the fear of false accusations is Sally Johnson, chancellor of the Diocese of Minnesota and a member of the SCCC. As one who drafted many of the Title IV changes, she said the greater openness given to the disciplinary process once a presentment has been issued will mitigate against people filing false or unsubstantiated charges. Clergy complainants, in particular, have reason to be careful in making complaints, said Johnson. "If a clergy person brought a false accusation, an argument could be made that it is a canonical offense," she said.
As for the number of complaints likely to surface as a result of the changes, neither Maris nor Johnson are predicting a tidal wave. Johnson expects to see old cases resurrected, "but I don't think I'm expecting the flood gates to open."
Maris said she doesn't envision legions of lay people descending on standing committees, but is aware of a dozen or more women intending to bring old cases to light. "It's bubbling below the surface," she said. For an average diocese that might mean up to 10 new complaints during the two-and-a-half-year window, she said, where under the earlier canons that same diocese might see only two or three complaints during a three-year stretch.
From Knudsen's perspective the outcry centers on two concerns: the chance that evidence developed in an ecclesiastical trial will be used against an accused clergy person in a civil proceeding, and the 30-month window. There is no way to prevent a determined complainant from subpoenaing documents and other evidence gathered in an ecclesiastical trial to bolster a civil lawsuit, she points out. In civil proceedings, she said, "Everything is discoverable. It's scorched-earth time." The only exceptions are the communications between an attorney and client or a priest and penitent.
"In other words," said Knudsen, "none of us have immunity from civil action-ever." As for the 30-month window, Knudsen understands clergy anxiety over seeing their careers cut short by incidents dating back a decade or more. This is particularly true now when competition is so intense for jobs. "People are afraid of anything that puts their sense of security and their position at risk," she said. But they need to also understand "that the process has lots of opportunity for checks and balances." The standing committee, she notes, has the option of recommending a non-canonical response to a complaint, meaning a monetary settlement and pastoral counseling for the victim.
Fears that innocent contact will lead to immediate presentment under Title IV demonstrate the level of misunderstanding about ecclesiastical discipline, said Knudsen. In her experience in the Diocese of Chicago, Title IV is a tool of last resort. "We have enough machinery here in the middle, between the complaint and adjudication, that we've always been able to reach a settlement that didn't involve an ecclesiastical trial, which we think of as expensive and painful for everybody. If anything, because of the concern for fairness and due process, this is more cumbersome than what we had before," she said.
Their assurances, though, haven't settled the nerves of clergy serving in parochial ministry. For many of them, the title has taken a definite tilt toward the interests of the institution and the complainant.
This bias, they say, is evident in the provisions calling for an advocate to guide complainants through the disciplinary process and for the court's appointment of a prosecutor, known as the church attorney. As for accused clergy, they are left to fend for themselves.
"Everybody has an attorney appointed and paid for except for the clergy person accused," said the Rev. Barbara Schlachter, of Troy, Ohio, president of the National Network of Episcopal Clergy Associations (NNECA).
That is "an incredible justice issue," she said, for clergy who, unlike doctors or other professionals, have neither the means nor the orientation to set aside funds for a legal defense. "We're talking about an unprotected and underpaid group of people who are in the position to be falsely accused as well as rightly accused," she said. "It seems to me that everybody, whether they are guilty or innocent, has the right to have good legal representation."
Short on money and facing a bishop and insurance carrier eager to reach an out-of-court settlement, "some clergy who may be innocent may feel constrained to plead out something," said Brannon.
His diocese of Northern California has taken a step to remedy this discrepancy by adopting an amendment to its disciplinary canons. Initiated by a priest, and overwhelmingly approved by diocesan delegates last November, the measure states that the diocese is responsible for providing an attorney to represent accused clergy, though it does not mandate the diocese pay the attorney's fees. But it's a step in the right direction, said Brannon.
Like Schlacter, Brannon has qualms about wording in the canons that appears to erode clergy's constitutional rights. One, in particular, is the provision stating that by virtue of having accepted ordination in the church, clergy "may not claim in proceedings under this title constitutional guarantees afforded to citizens in other contexts."
That same section also proscribes attempts by clergy to seek redress in secular courts and bars secular courts from intervening in a disciplinary process.
This has unnerved many clergy who contend they did not surrender their constitutional rights as citizens when they took their ordination vows, said Brannon. While granting the new title extends some protections of due process to clergy -- notably by requiring an accused clergy to be informed of the charges and their rights prior to questioning, protecting the accused against self-incrimination, and allowing the accused to be represented by their own counsel -- it does not go far enough to ensure a balanced process.
Allen admits that the new provisions subordinating constitutional rights of clergy and blocking clergy from responding through civil courts to ecclesiastical charges have become a red flag, particularly in eastern dioceses with high clergy populations. But that is in keeping with the polity of the church, he said.
"The church is a hierarchical system. It is its own jurisprudential system," he asserts.
Justice may have been served with the passage of the Title IV revisions, but not the health of the church, according to Maris and other members of the Committee on Sexual Exploitation. The church may be a political institution, but first and foremost it is a sanctuary, a truth that has apparently escaped the executive offices of the Church Insurance Company (CIC) and the canons committee, they argue.
Most of the energy and resources the church has applied to clergy misconduct have focused on protecting the institution and punishing the offender, and not on healing the victim, charges Maris. In fact, the rights granted victims in the SCCC's original Title IV draft were minimal, bearing little resemblance to what eventually emerged at General Convention, she said. "In terms of what they proposed and what happened, there is a radical difference," she said.
Key changes, including the "clear and convincing evidence" standard and the elimination of the statute of limitations in cases involving abuse of minors, came only after prodding from the CSE and a week of open hearings at General Convention, maintains Maris.
Coming into convention, most SCCC members were opposed to further changes, but after hearing victims' testimony they changed their minds, voting unanimously for the 100 additional amendments.
Terming it "the greatest transformation I've witnessed," Maris gives credit to the compelling accounts given by victims of their struggles to be heard and see justice served. "We had a name, and a face, and a person to attach the change to," she said. "It wasn't theory. It was a human being."
She acknowledges the CSE is perceived as a victim's advocacy group but said that is a misreading. The fact that victims' interests have been the central concern initially of the committee merely reflects an attempt to redress the church's longstanding disinterest in supporting complainants. Restoring the health of the entire church, including clergy offenders, is their ultimate goal. And except for the Office of Pastoral Development, and a handful of enlightened bishops, the CSE, she said, appears to be the only one taking that approach.
"This originally began as a healing process. It did not begin as an insurance issue or a canonical issue," said Maris. "It began as an issue of faith and honesty and truth. What has happened is it is easier to adjust the canons than it is to deal with the truth. I think the church has lost track of that."
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