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Thursday, July 19, 2018

See for Yourself: My Critique of Title IV

In July of 2017, I wrote a piece for Episcopal Cafe about challenges in the current implementation of Title IV. Below is the text of the original article; it and related comments can be found online at https://www.episcopalcafe.com/title-iv-the-maginot-line-of-clergy-discipline/

Remember the Maginot Line? History buffs may recall that it was a massive series of fortifications along the French border, put in place after WWI, intended to repel potential future German attacks.

Unfortunately, the Maginot line had several fatal flaws. First, it did not extend to the Low Countries, allowing German troops to bypass French defenses. Second, the Maginot Line’s weaponry only pointed towards Germany, meaning that military forces that attacked from the rear could easily overwhelm these massive but now defenseless fortifications.

And so it is with Title IV. At first glance, Title IV appears to be a tightly crafted piece of canon law that provides an effective framework to address clergy misconduct. In reality, however, there are several fatal flaws that can, in certain circumstances, render Title IV’s protections largely illusory.

To be sure, the 2011 changes to Title IV were largely positive. By providing for multiple levels of conversation and discernment, the current version of Title IV affords greater opportunity for healing, justice, restitution and reconciliation. This, I believe, is consistent with our call as Christians.

Moreover, the Standing Commission on Constitution and Canons (SCCC) appears well informed and responsive to the issues with the current Title IV. Prefacing its recent report with the accurate observation that a poorly handled Title IV case often cases irreparable harm to the reputation of all parties involved, the SCCC went on to note that there is a church-wide lack of clarity about roles and responsibilities in the Title IV process. This in turn causes delay, uncertainty, and unnecessary expense.

In response, the most recent General Convention funded the development of Title IV training materials, eventually to be translated into multiple languages. The status of this project is unclear to me, but with the next General Convention now roughly a year away, one hopes that these materials will soon be in widespread circulation.

Meanwhile, there are a number of serious challenges that remain unaddressed. These include:
  • Lack of clarity over what constitutes “conduct unbecoming.” Of course, that’s hardly surprising when dealing with a “catch-all” phrase such as this. But some dioceses basically treat “conduct unbecoming” as comprising only major illicit activities, such as rape, murder, and mayhem, while ignoring issues like workplace harassment, bullying, misuse of funds, abuse of office, and other serious matters. In dioceses where the “no blood, no foul” rule seemingly pertains, clergy misconduct is ignored that, were it to occur in most other employment settings, would result in immediate disciplinary action, including termination of employment. Thus, in these cases, clergy are held to an embarrassingly low standard of behavior—one that hasn’t been acceptable in much of the corporate world for decades. 
Meanwhile, an adjudicatory who simply doesn’t wish to be bothered leaves complainants with little recourse other than filing a complaint against the bishop diocesan—hardly an appetizing option for most complainants.

Of particular note is that Title IV never defines or references bullying. While one would assume that clergy who bully fall within the purview of the “conduct unbecoming,” clause, my experience is that intake officers either don’t recognize bullying when they see it, or are unwilling to address it. This ignores the excellent work done by the Diocese of Newark, and specifically addressing these gaps in the upcoming revisions to Title IV would be useful.
  • Lack of clarity about what constitutes conduct that is “weighty and material” to the ministry of the church. Often, intake officers who don’t wish to deal with a complaint will cite the “weighty and material” clause of Title IV. But how do you define “weighty and material?” In my experience, intake officers typically don’t recognize spiritual, financial or emotional abuse as meeting this threshold. Yet any mental health professional will tell you that these forms of abuse can be every bit as damaging as physical abuse. Or, as one complainant told me, “My intake officer was stuck in a 1950’s definition of misconduct. If it didn’t involve rape or physical violence, it just didn’t count.” 
  • Lack of a mechanism to address substantive or procedural errors during a Title IV proceeding. For example, if an intake officer interviews respondent clergy without the latter having access to an advisor, this is a violation of Title IV. Yet there is no meaningful mechanism to address issues such as this. Granted, the most recent revisions provide for a Title IV procedural officer, but with a poorly defined role and no real enforcement powers, this does not go nearly far enough. Similarly, if the reference or hearing panels violate the canons in their handling of a case, there often is no way to address the matter other than an appeal to the good graces of the bishop diocesan. 
  • Lack of recourse in cases of improper dismissal. In cases in which an intake officer improperly dismisses a complaint, the president of the diocesan disciplinary board may overturn the dismissal. But since the reference panel comprises the intake officer, the bishop diocesan, and the president of the disciplinary board, a bishop diocesan may be all too easily swayed by an intake officer with whom she or he already has a close professional relationship. Since there is no right of appeal from a dismissal that is upheld at this level, an intake officer has an almost unchecked ability to impede a complaint if they so choose. True, a dismissal has no preemptive effect against a future complaint, but as long as the complainant must deal with the same intake officer and same adjudicatory, chances of a successful outcome are slim. 
  • Lack of clarity over what constitutes a “pastoral response.” Title IV mandates a pastoral response whenever a complaint is made to an intake officer; that is the case even if the complaint is dismissed. But I have learned of numerous cases in which adjudicatories have used a pastoral response as an excuse to avoid dealing with serious clergy misconduct, including sexual relations with parishioners. Yes, there should always be pastoral care and concern for those affected by clergy misconduct, but when this provision is used to allow clergy to avoid accountability, a serious injustice is done. Additionally, I have heard anecdotes that suggest some adjudicatories define a pastoral response so loosely as to render it meaningless. For example, one bishop allegedly wrote to a sexual abuse survivor to say that he deeply regretted the situation and would pray for her and her family. Yes, I believe in the power of prayer, but not as a be-all-and-end-all solution for serious issues like sexual misconduct.
In short, the pastoral response provision is too often the exception that swallows the rule.
  • Lack of recourse against respondents who engage in misconduct during the early phases of a Title IV proceeding. To its credit, the most recent General Convention amended Title IV to include the possibility of sanctions against parties who engage in misconduct. But this really only applies at the hearing panel stage of proceedings. Thus, clergy who, for example, lie during the intake process or during conciliation may well face no penalty for their actions. Yes, the church attorney can, if she or he chooses to do so, amend the complaint, but this appears to happen rarely. Thus, Title IV cases that don’t reach the hearing panel stage of proceedings may have few disincentives for respondent clergy to engage in misconduct that undercuts the Title IV process. 
  • Lack of protection for complainants. As things stand, there is no specific protection against clergy respondents retaliating against complainants. For instance, in one case with which I am familiar, the respondent clergyperson retaliated for the filing of a Title IV complaint by organizing a multi-year campaign of shunning and harassment against the complainants, and did so using church resources. The diocese and intake officer received multiple complaints about this behavior, but ignored it. While the matter was eventually resolved, the relational, reputational, and other damage caused by the clergyperson’s retaliation is largely irreparable.
In fairness, the SCCC appears poised to recommend the addition of whistleblower protection to Title IV at the 2018 General Convention. In the meantime, though, Title IV complainants and witnesses participate in the process at their own risk—hardly conducive to the healing and reconciliation envisioned in the 2011 changes to Title IV. Yes, one would assume that retaliation, which is illegal in publicly traded companies would constitute conduct unbecoming under Title IV, but the uncertainty over individual roles and responsibilities in this context makes this an uncertain proposition, at best.

Speaking of whistleblower protection, we have learned in cases of sexual misconduct of the importance of having one person who is ultimately responsible for follow-through. This prevents cases from falling through the cracks, or being dismissed out of hand. In most cases, the bishop diocesan is the person responsible for ensuring an appropriate response and follow-through. Yet the national church’s whistleblower hotline only covers church headquarters employees, and we have no single point of contact as a denomination to deal with misconduct. We therefore should give consideration to a churchwide ethics hotline that can be used at all levels to bring potential misconduct to light, as minors, third-party advocates and others otherwise may have difficulty knowing whom to contact in case of a problem. At the same time, there must be assurances that complaints will be listened to, treated with respect, addressed appropriately, and that retaliation will not be tolerated.
  • Lack of implementing regulations. In the case of most civil statutes, the details are implemented via administrative regulation. There is some precedent in church canon law for this, including the “Manual of Business Methods in Church Affairs,” and the sexual misconduct prevention manuals developed by most dioceses. Yet the lack of definitive policies on the day-to-day handling of Title IV matters leads to lack of clarity and some very poor outcomes. Even guidance such as recommending that intake officers meet face to face with a complainant whenever possible would be most helpful, yet there is too little effort in this space. Similarly, a formal certification process for Title IV officials, such as that often required for diocesan sexual misconduct prevention trainers, might be useful. 
We also should do a better job of defining what is within the purview of Title IV. All too often, Title IV is postured as a means of addressing sexual misconduct, since references to Title IV are incorporated into diocesan sexual misconduct prevention materials. This creates the impression – often even among diocesan staff – that Title IV’s main purpose is to address sexual misconduct. As a result, adjudicatories often will jump all over claims that a clergyperson had an affair, all the while ignoring the clergyperson who engages in other, equally troubling behavior, including workplace harassment, bullying, emotional abuse or relational abuse. It is also worth noting that at least one diocese has no reference to Title IV at all on its website—hardly helpful for someone struggling to deal with clergy misconduct.

In conclusion, my belief is that the analogy to the Maginot Line is valuable. At first glance, Title IV appears to be a formidable defense against clergy misconduct, but the reality is that clergy and adjudicatories alike can, with great ease, sidestep Title IV when it so suits them. Thus, like the Maginot Line, Title IV all too often is illusory in the protections it offers.