[Episcopal News Service] Episcopal Church canons have expressed concern about clergy behavior since the General Convention in 1789 made it wrong for clergy — except “for their honest necessities” — to “resort to taverns, or other places most liable to be abused to licentiousness.”
That original Canon 13 also warned that clergy who “[gave] themselves to base or servile labor, or to drinking or riot, or to spending their time idly” would face a range of disciplinary actions.
The church ever since has been refining its answer to the question of how best to discipline errant clergy. The tradition continued at the recent 77th meeting of General Convention when bishops and deputies tweaked the current version of the Title IV disciplinary canons that have been in use for just more than a year. And there could well be more changes to come.
The 2012 adjustments, accomplished via Resolution A033, primarily involved clarification of certain definitions, as well refining and clarifying parts of the process.
However, the bishops and deputies meeting in July 5-12 in Indianapolis also told the church’s Standing Commission on Constitution and Canons to undertake a comprehensive review over the next three years of Title IV’s implementation. Resolution C049, proposed by the Diocese of Albany, directs the standing commission to determine “the extent to which the elements of safety, truth-telling, healing, and reconciliation are being effected” as first intended by the 2006 resolution (2006-A153), which authorized the work that resulted in the current iteration.
Convention also agreed with the Diocese of Central Florida’s request (in Resolution C116) to have Constitution and Canons review the constitutionality of two provisions of Title IV. One gives the presiding bishop authority to restrict the ministry of a diocesan bishop for an alleged offense without the consent of the diocese’s standing committee or, in the case of alleged abandonment, without the consent of the church’s three senior bishops as was required in the prior version of Title IV.
The other involves Title IV’s perceived violation of Article IX in the church’s Constitution, which says priests and deacons “shall be tried by a Court instituted by the Convention of the Diocese.” Some dioceses, including Central Florida, have questioned whether General Convention can prescribe a church-wide system for disciplining diocesan clergy because they contend Article IX allocates that authority to the dioceses. Such a church-wide system has existed since at least 1994.
The drafters of the current version of Title IV, which went into effect July 1, 2011, always anticipated the need for changes.
“You can’t institute the scope of the changes to the new Title IV without tweaks that need to be worked out,” Diane Sammons, chancellor of the Diocese of Newark, who just completed a six-year term on the Constitution and Canons commission (the last three as chair), said during a recent interview with ENS. “Everybody on the [commission] understood that and everybody that’s worked with Title IV understands that there’s not going to be perfection in the first draft of it and that we’re going to have to continue to live and breathe it and make changes while staying, hopefully, loyal to the concepts of it and the theology behind it.”
Steve Hutchinson, Diocese of Utah chancellor who chaired of the House of Deputies’ legislative committee on canons during convention, agreed, adding that “we know we probably didn’t get them all and there’ll be a few more, and maybe some that nobody’s thought yet” — that refinements, but “not big sweeping changes of direction or philosophy,” were anticipated.
Sammons added that maintaining a balance between perfecting the canons while remaining true to their new spirit is “going to be the challenge.”
Part of the challenge comes because at least some Episcopalians dislike the revised Title IV.
Some objections to the revised Title IV
“Procedurally it’s a disaster. In terms of what it’s done to clergy rights it’s more than a disaster,” Diocese of Newark Alternate Deputy Michael Rehill told ENS. “It needed basic total revision. It was adopted hastily without anybody apparently having any thought about how it was actually going to work in some respects.”
In other ways, Rehill, insists, the drafters knew exactly what they were doing. He says their intent was to take away “all the rights of clergy” and give “incredible power to bishops to get rid of priests.”
Rehill, a former Diocese of Newark chancellor, is the chief operating officer of Canon Lawyer, which defends Episcopal clergy in disciplinary matters.
And, the Rev. Canon Christopher Seitz, the Rev. Dr. Philip Turner, the Rev. Dr. Ephraim Radner and attorney Mark McCall, writing for the Anglican Communion Institute, have consistently opposed the revised Title IV and some of its applications. In October 2011 they called Title IV “a bad canon being implemented badly.” They called for its repeal and a return the previous version, which they said “provides adequate due process for those charged, does not expand unconstitutionally the powers of the Presiding Bishop, and not least is understood by those charged with administering it.”
The four men’s summary of objections points to the crux of the Title IV dispute. Their first concern is related to the theological shift in the revision, the second deals speaks to the change in discipline of bishops and the latter might be credited to the fact that the church is still learning how to implement the new Title IV.
Shortly after the four first voiced their objections, Hutchinson joined Duncan Bayne, Diocese of Olympia vice chancellor, and Joseph Delafield, Diocese of Maine chancellor, to publish a paper they said “conclusively establishes the constitutionality” of Title IV.
How the church got to the new Title IV
The concern about due process expressed by the institute writers, Rehill and others is the fruit of major changes in philosophy and approach reflected in the revised Title IV. The seed for change dates to at least 2000 when General Convention called for a task force to assess the way the church disciplined clergy via Title IV and other methods.
At that time the then-current version of Title IV had been in use for just four years, General Convention having approved in 1994, and implemented two years later, a system based on the U.S. Armed Forces’ code of military justice (current version here). The 1994-96 version of Title IV stemmed from a wave of Episcopal clergy sexual misconduct cases that dated to at least 1986.
That version of Title IV aimed to give clarity and uniformity (including a uniform court system) to disciplinary processes that in large part had been left up to individual dioceses, ENS reported in a Sept. 1994 press release. The churchwide canons, unchanged since their creation in 1915, were intended to deal primarily with issues of heresy and doctrine, ENS reported.
Until the 1970s, cases of clergy misconduct were usually handled privately by the bishops and those clergy accused of misconduct, Robert Royce, former chancellor of the Diocese of Long Island and the principal author of the SCCC’s resolution, told ENS at the time.
Sammons noted during her interview with ENS that the Episcopal Church was applauded in 1994 “because it came up with a disciplinary system that was no-nonsense. And that was a critical thing at that time. That gave us credibility. It gave us a system that supported victims, especially women, coming forward in a way that other churches and institutions still haven’t done” for either women or children.
However, by 2000, Title IV was being criticized because it was perceived as “overly militaristic and rigid in its application” and that it “lacked a theological foundation.” Thus, convention called for a review of Title IV.
Paying attention to the theology of discipline
In the Task Force on Disciplinary Policy and Procedure’s report to the 2003 meeting of convention, the members wondered how the church’s mission of the reconciliation of people to God and each other in Christ could be interpreted in the canons to “include that essential note and still hold offenders accountable in meaningful ways.” The task force concluded that the church needed to “begin anew with Title IV” because it would “not be possible to accomplish what we hope for ourselves by making even major adjustments to Title IV as it presently exists.”
It commissioned an essay, “Some Thoughts Toward Canon Revision: Canons as Gift of Grace and Dance of Love” (found in the task force’s 2003 Blue Book report) by the Rev. Pamela Cooper-White. The task force called it a “catalyst for further conversation in the church on the theology of discipline.” Cooper-White, an Episcopal priest who now teaches at Columbia Theological Seminary in Decatur, Georgia, suggested that canon law is “a God-given expression of care for the ordering of the church that is grounded not merely in restraint of evil (as often is the case in secular law), but focused on creating a community in which every member is supported in living a life grounded in desire for God, and the joy of being in harmony with the original goodness of God’s creation.”
The task force asked for, and received, the authority to continue its work in the 2003-2006 triennium, but warned that it might not be able to accomplish the sweeping changes it was contemplating within those three years.
In fact, the task force proposed to the 2006 convention a completely revised Title IV which its chair, Diocese of Indianapolis Bishop Catherine Waynick, said at the time “reclaim[ed] the broader meaning of discipline as the developing of habits which can form all members of the Church in healthy and responsible ministries and which can produce reconciliation and healing when failures occur.”
The proposed revision turned Title IV away from the criminal-justice model and towards one that was based on disciplinary systems used in other professions, such as doctors, lawyers and licensed social workers. The latter models are characterized by an obligation on the part of the professional to cooperate with investigations. Thus, for instance, they cannot refuse to testify in disciplinary proceedings by attempting to invoke the secular law right against self-incrimination.
General Convention balked at the task force’s proposal to make certain lay leaders subject to Title IV. Others thought the new processes were too complicated, especially for smaller dioceses.
But convention decided to keep trying. It passed Resolution A153 to create a new task force, and gave it a list of “critical goals, concerns, and values,” including moving Title IV “towards a reconciliation model for all appropriate circumstances,” encouraging early resolution of conflicts and reconciliation of the persons “at the earliest appropriate time and the lowest appropriate level of the church.” Any new proposal was meant to also “maintain the historic pastoral role and canonical authority of bishops” and respect the “roles, rights, and integrity” of people subject to Title IV and of “injured persons, communities, parishes, missions, congregations, and the church.”
In 2009, convention adopted the current version of Title IV, which bases itself, according to its first canon, on the premise that “the Church and each Diocese shall support their members in their life in Christ and seek to resolve conflicts by promoting healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation among all involved or affected.”
The laity is not subject to the disciplinary process it outlines, but the revision codified the 2006 plan to take clergy discipline out of a criminal-justice model.
Rehill told ENS that in 2009, “the clergy at General Convention could not have possibly understood what they were actually doing.” He said that the revision was quickly approved “when the convention’s attention was focused on the Anglican Communion and the issues of human sexuality.”
The revision “just raced through being marketed as taking ‘legalism’ out of the disciplinary process and making it pastoral rather than legalistic,” he said, adding that “there’s nothing pastoral at all in the new Title IV.”
Others, including Hutchinson and Sammons, say that the nine-year process of revising Title IV included soliciting input from laity and clergy. Hutchinson said that, especially since 2008, the constitution and canons committee, and other groups, “have provided numerous opportunities and request for input, criticisms, suggestions and so forth all across the church for people to weigh in on anything they thought could be improved or was wrong, or anything about Title IV, and we never heard from [Rehill].”
A change in approach
Hutchinson, who has been involved in Title IV revisions since at least 1994 and who is “admittedly pretty invested in the pursuit of something that we think would better serve the legitimate interests of the church,” says the current version speaks “ultimately what are we about as an enterprise, what do we stand for and what kind of systems, processes and theological constructs do we have that reflect those interests.”
Sammons said the current version balances aspects of a professional-conduct model “with a heavy dose of trying to administer at every step of the process a sense of pastoral care and theology.”
She told ENS that, despite objections about a loss of due process, clergy will benefit from the new procedures. While they no longer have the “criminal rights” afforded them under the old Title IV, they and the people they may have injured also are not subjected to an adversarial process from the very beginning.
“You do not want to discourage people who are really victims from having a prompt and just resolution of their problem,” she said. “But it’s really designed to see if there’s a way to work it out first through communication without a punitive process, and that’s the benefit to the clergy.”
And the complaint that clergy have lost rights, Hutchinson notes, is based on a series of privileges afforded to clergy only for the last 16 years since the 1994 revision went into effect in 1996. Yet, Sammons acknowledged, “if you have a right, you want to be able to stand on it, and you want more rights. You don’t want them taken away. It’s just not intuitively natural for people to want to give up rights, even if they are receiving something perhaps more beneficial in return.”
The basis of the efforts to revise the church’s approach to clergy discipline that began in 2000, Sammons said, was “that notion that we live in community and therefore we’re all responsible to each other, and part of our Christian responsibility is to be reconciled at the same time.”
The current Title IV, she said, carries with it assumption that reconciliation and healing “should be always a part of our disciplinary code.”
“So it shouldn’t just be uncovering the harm,” she said. “It should also be restoring people back to community, and that includes the clergy, and our system had never focused on that.”
Living into new Title IV has had some bumps, both Hutchinson and Sammons acknowledge.
“There have been unfortunately a small number of cases that have gotten out of control because [of] respondents or counsel for respondents in particular not wanting to play by the new rules and the people in the disciplinary system not realizing that they have the authority to control and manage the timing and expense elements of the process more than they have been doing,” Hutchinson said.
And, because the focus has not been on reconciliation and restoration, he said Title IV is “still going to be a work in progress as we go forward and we continue to understand relationships within the church and discipline, but also what does it mean to be a reconciling forum for people who have had some very serious problems or hurt some people in very serious ways.”
— The Rev. Mary Frances Schjonberg is an editor/reporter for the Episcopal News Service.