Committee Fine Tunes Revisions to Clergy Discipline Canons
Episcopal News Service. February 8, 1996 [96-1387]
David Skidmore, Communications Officer for the Diocese of Chicago
(ENS) The sweeping revision of the "Title IV Ecclesiastical Discipline" canons by the 1994 General Convention apparently will be revisited when the General Convention next meets in Philadelphia in 1997.
The script for this sequel will be written this April when the Standing Committee on the Constitution and Canons (SCCC) meets to consider further Title IV amendments, including a revamping of the disciplinary process for bishops, and further changes to the provisions added in 1994 dealing with suspension of clergy and appeals to secular courts.
For discipline involving bishops, "We're thinking of having a bifurcated trial system" that distinguishes between charges made on doctrinal issues and those made for other forms of misconduct, said Samuel Allen, chair of the SCCC. Instead of a bishops-only trial court, the panel of judges hearing a case on clergy misconduct would include lay people and priests as well, he said. Cases that deal with doctrine, though, such as the current trial involving retired Bishop Walter Righter of New Hampshire, would retain an all-bishop panel.
The addition of lay people and priests to the panel will strengthen the impartiality of a trial in which the accused is a bishop, said Allen. It will mean a less daunting prospect for lay complainants.
Currently, misconduct charges against a bishop can only be brought by at least three bishops or 10 adult communicants. A subcommittee of the SCCC headed by Sally Johnson, chancellor of the Diocese of Minnesota, is considering allowing victims and their parents or the presiding bishop to file charges. The subcommittee may also recommend requiring fewer adult communicants to bring charges and her subcommittee is also considering whether the board of inquiry, the first panel to review charges in a disciplinary process, should include lay people and priests or whether it should be eliminated altogether.
"Why should a victim be required to go and convince three bishops to start a process?" said Johnson. That suggests "that we don't believe that when victims bring charges that it is a legitimate complaint."
The addition of the presiding bishop to the list of complainants is one way of settling the question of accountability regarding bishops, she said.
The present canons, said Johnson, do not grant the presiding bishop ecclesiastical authority over other bishops. Outside the function as chief executive officer of the church, the presiding bishop is confined to pastoral intervention. And there is a strong faction in the House of Bishops, she admits, that would like to see it stay that way.
The issue, she said, is that "right now there isn't anybody charged with making sure bishops are accountable."
Though the proposals on bishops are still a matter of debate within the SCCC, two others appear to be on the slate for 1997. According to Allen, the SCCC will be presenting amendments to General Convention restricting the conditions under which a clergy person under suspension can continue his or her pastoral functions, and expanding the prohibition against clergy involving secular courts in ecclesiastical discipline.
Under the new title, a sentence of suspension does not automatically disqualify clergy from carrying out their pastoral duties in a congregation. The suspension can be lifted if the vestry by a two-thirds vote requests it within 30 days of the sentencing. The SCCC's amendment alters that condition slightly by also requiring the approval of the ecclesiastical authority following the vestry's vote.
As for the issue of clergy appeals to secular courts, the SCCC is expanding the present clause "to better reflect what we meant," said Allen. That clause, prohibiting clergy from turning to secular courts "for the purpose of delaying, hindering or reviewing any proceeding under this title," has been a sore point for clergy who interpret it as depriving them of their constitutional rights.
Their anxiety isn't likely to be eased when they read the revised clause which now makes the ban comprehensive. Not only are clergy barred from using a civil court to delay an ecclesiastical proceeding, they are also prevented from turning to civil courts "for the purpose of interpreting the canons, doctrine or discipline of the church or for the purpose of resolving any dispute arising thereunder."
Allen is aware that the Title IV revision and the additional changes under study are not proving popular in clergy circles. The National Network of Episcopal Clergy Associations (NNECA) has shown concern over the lack of a public defender for accused clergy, and the bar against seeking redress in secular courts. But Allen points out clergy could have fared much worse if the commission had held off its revision and allowed other interests to steer the process more toward the complainants' interests.
If the commission hadn't held its ground, said Allen, the Committee on Sexual Exploitation (CSE) -- which he labels as the primary voice representing victims' interests -- would have stripped the title of all due process protections for clergy. "We had to steer a chart through troubled waters in trying to get Title IV through convention," he said, "and the charges that were made, many of which are objectionable by NNECA, were forced by the Committee on Sexual Exploitation."
When he met with the CSE before the last General Convention, he said he was shocked at how little regard its members had for due process rights. They assumed that if a charge was leveled then it must be true, said Allen. "They were out to emasculate any clergy who was even thought of having harassed (anyone)."
Adds Allen: "You can almost say that this Title IV is in place just in the nick of time, before the forces behind the Committee on Sexual Exploitation have their day."
Allen's colleague Sally Johnson has a different take on the canons committee's work and the contributions of the CSE. Even though she was responsible for drafting many of the revisions in the new Title IV, she thinks the committee missed the mark by putting too much energy into clergy due process concerns.
"I'm not sure the church intended to choose a system that so favors accused clergy," she said. "I'm not sure everyone was thinking through the options."
While praising the effort at standardizing procedures and giving victims a larger role in presentment and trial processes, Johnson laments the "legalistic" approach. She would have preferred a more open process, one more akin to an administrative hearing, in which a judicial panel had greater subpoena powers to collect evidence and compel testimony.
"It's a very difficult thing to get a conviction under Title IV," points out Johnson. "As a result it is very difficult to meet 'clear and convincing evidence' which is the new burden of proof."
The other players in this process, the church's clergy, are not convinced either committee is acting in their best interests, or that of the victims of misconduct. According to the Rev. Barbara Schlachter, president of NNECA, the perception is that Title IV is more about institutional damage control than it is about justice.
Her constituents perceive it to be "a response to the sexual-legal warfare that has ensued between the diocese and the insurance company over sexual abuse," she said. The title is mainly seen as a shield for bishops and dioceses, and only secondarily as tool for protecting victims and clergy. In fact, the revised title appears to be concerned with clergy "only as they may be guilty," she added.
NNECA, which will be addressing the revised Title IV at its annual meeting Feb. 10-12, is not out to conceal or condone acts of sexual misconduct, stresses Schlachter. "I think that because we raised some concerns about Title IV, we're therefore perceived as wanting to provide a haven for people who have been predatory. And that's not true. Absolutely not true."
Their interest, she emphasizes, is only in making sure "that all clergy, innocent or guilty," are treated fairly in a disciplinary process and not driven into bankruptcy.