Episcopal Church Adopts New Church Laws Standardizing Rules on Clergy Misconduct
Episcopal News Service. September 7, 1994 [94137]
David Skidmore, Communications Officer for the Diocese of Chicago
Although the Episcopal Church may be deadlocked over who may be ordained, it is agreed on procedures for handling clergy misconduct. After three years of painstaking work by the Standing Commission on Constitution and Canons (SCCC) and an hour of painful testimony at a General Convention open hearing, bishops and deputies overwhelmingly approved a massive overhaul of the Title IV clergy disciplinary canons.
The new church laws, which go into effect January 1, 1996, provide more uniform and balanced procedures for bringing charges against clergy accused of misconduct, in prosecuting charges, and in protecting the due process rights of both complainants and the accused.
Despite forceful arguments over statutes of limitation on alleged abuse and a controversial provision grandfathering victims who are ineligible to file charges under current canons, bishops and deputies agreed with the majority of revisions proposed in the resolution (A-019/a). The only change was a minor "friendly" amendment by the bishops allowing a vestry to retain a suspended clergy person who is seeking treatment.
In the bishops' debate, Bishop David Joslin of Central New York proposed an amendment that would allow a vestry, by two-thirds vote, to ask the ecclesiastical authority to retain their pastoral relationship with a suspended rector.
"What we were concerned about was if someone's going into rehab, the person might continue and come back as the rector, in other cases they would not," explained Bishop Robert Rowley of Northwestern Pennsylvania, a lawyer who was chair of the bishops' canons committee. He accepted the revision as a friendly amendment.
The bishops spent considerable time on an amendment proposed by Bishop William Wantland of Eau Claire (Wisconsin) to delete three paragraphs extending the statute of limitations indefinitely in cases where the victim was a minor at the time of an offense involving sexual abuse, sexual exploitation or physical violence.
"We do have statutes of limitations on everything except capital, criminal offenses," said Wantland. "I think if you do this you open up the possibility of charges being filed against clergy for events alleged to have occurred years and years ago. All you have to allege is that 'it happened when I was a kid,"' warned Wantland, who is an attorney. "To eliminate statues of limitation on this kind of situation is conducive to coercion and fraud." "I've seen the other side of the story," countered Bishop Ronald Haines of Washington, whose son Jeffrey has accused a priest in the Diocese of Western North Carolina of sexually abusing him as a child. "The church has a chance to be the church at this point, and I have a new concept of how Title IV might work to be much more of an opportunity for healing."
Wantland's proposal eventually failed, and the bishops added only the single amendment.
The Title IV revisions, covering 68 pages in the General Convention Blue Book, revise 18 canons dealing with the type of offenses subject to presentment, the parties allowed to file misconduct charges, the trial of bishops, the role of bishops in presentments, due process rights for complainants and the accused, statutes of limitations, and rules of evidence.
Modeled on the U.S. Armed Forces Uniform Code of Military Conduct, the new canons give clarity and uniformity to a process that in large part was left up to individual dioceses. The old canons, unchanged since their creation in 1915, were intended to deal primarily with issues of heresy and doctrine. Until the 1970s, cases of clergy misconduct "were usually handled privately by the bishops and clergy guilty of misconduct," explained Robert Royce, former chancellor of the Diocese of Long Island and the principal author of the SCCC's resolution.
"We had so much local option that the same set of facts in two different dioceses gave no guidance to either, and we felt that was not appropriate," said Royce. "So we have truly drawn this thing kicking and screaming into the modern era."
What they were looking for, said Bishop Rowley was "a balanced set of canons in which clergy's rights are protected, the interests of the church as a whole are served," and in which victims feel secure in making complaints. The revised canons assure that both victims and alleged abusers will have the right to be present, heard and assisted by an advocate or attorney throughout the process of an ecclesiastical trial. The revision makes it clear that procedures are for use in church trials and not civil or criminal litigation. Members of the committee said they believe the proposed document clarifies the role of a bishop in dealing with sexual-misconduct cases, while maintaining a pastoral role. "As a bishop," Rowley said, "I am very comfortable with the provisions."
The SCCC, in consultation with the Executive Council's Committee on Sexual Exploitation, was able to repair most of weaknesses in its resolution. But the cognate committee on canons further refined the measure with 100 amendments focusing principally on statute of limitations, confidentiality provisions, and the rights of victims to select their own counsel.
"It's now a very balanced document," said Sally Johnson, chancellor for the Diocese of Minnesota and the principal author of the cognate committees' amendments. It goes further, she said, in addressing the needs of the congregations, the clergy and the victims.
Johnson admitted that the interests of victims were a primary concern in her changes. Besides expanding the list of persons who can bring charges, by including the spouse and dependent elderly relatives of victims, Johnson also removed time limits on filing sexual abuse, sexual exploitation and physical violence charges if the victim was a minor at the time of the offense. The point was to give more flexibility to a rigid standard based on outmoded understanding of the psychological effects of sexual abuse.
The old canon, she explained, "had an absolute five-year statute of limitations such that if an act had happened five years and one day ago, be it to a four-year old or a 40-year old, no charges could be brought on it." Victims of sexual abuse usually require years of healing "before they have the ego strength or the spiritual strength" to endure a grueling legal process, Johnson said.
The committee learned firsthand how difficult that process can be from several witnesses at its open hearing during convention. Some of the most powerful testimony came from Jeffrey Haines, who related how he had been sexually abused starting at age 8 and continuing until age 20. The alleged offender -- the Rev. J. Faulton Hodge of the Diocese of Western North Carolina -- was described by Haines as a friend of the family.
An angry Haines, who last month filed a civil suit against Hodge and the Diocese of Western North Carolina, told the committee that all statutes of limitations should be eliminated regarding sexual misconduct charges, and that any priest convicted or admitting to sexual misconduct should be automatically deposed.
"It's unrealistic to believe a child would be able to come forward to say 'I was abused by a priest,'" said Haines. The fact that it has taken Haines until age 32 to be able to address his experience was a major factor in the committee's decision to eliminate the time limits for victims filing charges on offenses that occurred when they were minors, said Rowley. "That is just not satisfactory in our mind. That's not the way for a church," he said.
Royce pointed out that the committee also addressed the due process rights of clergy. "We wanted to build some protection into the situations so that clergy also have a clear opportunity to understand what we tried to do for their rights and to make sure that they are not abused because of the stress or drama of any particular moment."
Both Johnson and Royce stressed that the changes are not a remedy for misconduct. Johnson described the new canons as "a very important middle step" of a wider process built around clergy wellness efforts like the Church Pension Fund's Cornerstone Project. "This process is designed to help the church respond appropriately to prevent church insurance from ever having to be involved."
Whether or not the convention chose to adopt the new canons, the church would still experience sexual misconduct, said Royce. Eliminating misconduct will require pairing penalties with prevention programs. "What we need is continuing education," he said. "We need continuing clergy wellness to ensure that people are not victimized initially so that these canons don't have to be used. And that is the key for me."
The proposed changes to Title IV canons include the following provisions:
- eliminating the statute of limitations for charges involving sexual abuse, sexual exploitation, or physical violence if the victim was a minor at the time of the offense, and stating that charges may be filed any time prior to the victim reaching age 25 for other offenses;
- increasing the existing five-year statute of limitations for general misconduct charges to 10 years;
- allowing charges to be filed anytime within three years after a conviction of the accused in a civil or criminal court when the alleged misconduct doesn't involve sexual abuse or exploitation, or physical violence;
- if the victim doesn't realize or discover the effects of the offense at the time of its occurrence (if offense is not sexual abuse or exploitation, or physical violence) then charges can be filed within 10 years following the offense and within two years of its discovery;
- permitting charges to be filed during a two-and-a-half-year window -- running from the enactment of the enabling resolution to Jan. 1, 1996 when the changes take effect -- by complainants whose cases would not meet the filing deadlines in the old canons;
- limiting the authority to issue presentments to standing committees, thereby removing the bishop from this process;
- creating specific guidelines on who may file charges -- previously left up to the dioceses to determine -- permitting charges to be filed by the victim, parents of the victim, or the victim's spouse or "adult child" [meaning a dependent elderly person]; the vestry of the accused's church; any three priests in the diocese where the accused is canonically resident; any three adult communicants in the accused's diocese; standing committees; or the ecclesiastical authority of a diocese;
- creating the new position of a church advocate, an attorney appointed to assist the victim in understanding the church's disciplinary process, and in preparing a charge, and in pastoral care;
- entitling victims to retain their own counsel or advocate;
- the appointment of an independent prosecutor, or "church attorney," by the ecclesiastical court in each diocese;
- allowing victims to have input during the sentencing of offenders;
- protecting the accused from self-incrimination;
- adding admonition -- a less extreme reprimand -- as a third option to an ecclesiastical court's sentencing choices, which are currently limited to suspension or deposition;
- setting "clear and convincing evidence" as the test for an ecclesiastical court to reach a conviction, which is a less demanding standard that the current "beyond a reasonable doubt";
- barring chancellors or vice chancellors of a diocese from serving as church advocates or counsels for the complainants; and
- mandating confidentiality during the investigation phase prior to the issue of a presentment.