The Methodist Church Provides a Rare Example of a Religious Institution that Takes Clergy Sexual Abuse Seriously: Its Recently-Announced Position
By MARCI A. HAMILTON
|Thursday, October 28, 2010|
Three cheers for the Methodist Church! A recent statement from the Rev. Darryl Stephens, who is the Church's assistant general secretary for advocacy and sexual ethics for the General Commission on the Status & Role of Women, supports the National Organization of Women's 2009 Resolution that would include clergy in the list of professionals who can be charged with a crime for having "unlawful sexual relations" with those they are advising.
The notion that professionals may not take sexual advantage of their patients and clients is not new. The Resolution simply would extend the same principle to clergy. Much to the Methodist Church's credit, Rev. Stephens endorses the Resolution and urges his own Church to be more active in preventing and stopping such conduct. He deserves praise for his leadership in an area where other religious institutions have shirked responsibility, as has his own church, which he acknowledges.
A Recent Case Illustrates the Gravity of the Problem -- and the NOW Resolution Provides a Strong Response
No one questions the point that ministers, priests, and rabbis preying on emotionally-disabled persons are engaging in despicable behavior. Clergy have taken advantage of congregants who come to them for counseling when the congregant is going through a divorce, has recently suffered the loss of a spouse or child, or is having marital difficulties.
The most recent case to bring these issues to the forefront is Ramani, which is pending at the Nevada Supreme Court. That case involves a tort claim, as opposed to a criminal prosecution, but the facts are sufficient to make the case for criminalizing the conduct. In that case, a woman alleged that she was sexually assaulted by her synagogue's cantor. When she reported the assault to her rabbi, the rabbi threatened to remove her from the congregation if she did not have sex with him.
The NOW Resolution would make it possible for prosecutors to charge with a crime a clergy member who uses such a relationship to obtain sex. As Assistant General Secretary Stephens points out, NOW's focus on "clergy misconduct" may present some constitutional hurdles, and the better approach may well be focusing on the lack of meaningful consent instead. But at least the proposal is on the table and every state should consider how best to protect the vulnerable in these situations.
Stephens continues as follows, in what is a remarkable and laudable statement coming from a high-ranking person in a religious organization:
"The Church does need to be called to accountability by the state. Intervention through state law has recent precedent. The UMC did not begin to address sexual harassment within its ranks until the 1980s, prompted by the Equal Employment Opportunity Commission (EEOC) and a U.S. Supreme Court case upholding EEOC guidelines and reporting mechanisms. Only after secular law forced a cultural change did the UMC first take a stand against the sin of sexual harassment in 1988. Criminalization of clergy misconduct may have the positive effect of deterring would-be clergy sexual predators, protecting potential victims and promoting clarity about sexual activity as an abuse of power."
It's very instructive to compare this striking willingness to accept nudging from the legal system to protect the vulnerable to the position taken in amicus briefs filed in the Ramani case by Catholic bishops and the Church of Jesus Christ of Latter-Day Saints: There, the Mormon and Catholic leadership argued that the Constitution requires the courts to stay out of cases involving the sexual exploitation of emotionally-disabled congregants by clergy. (The Mormon Church's amicus brief can be found here.) Will they never cease their quest to keep secret the sexual misbehavior of their clergy, and the perpetual cycle of abuse those policies trigger?
As Stephens Notes, Church/State Separation Provides No Good Reason for Leaving the Vulnerable Defenseless
Stephens points out correctly that the courts have been reluctant to find criminal or tort liability in such circumstances, because they are leery of making a determination of who, within a religious organization, counts as "clergy," and deferential to the principle of the separation of church and state. But while courts have been reluctant to expand liability or accountability to churches and ministers for sex with adults, they have been operating under a misunderstanding of the First Amendment. Under the Constitution, conduct can be regulated even when it is religiously-motivated, as the Supreme Court has made clear in Employment Div. v. Smith and Jones v. Wolf.
The argument against applying the laws that protect the vulnerable in these circumstances is even weaker than the courts have acknowledged. In fact, the First Amendment's free-exercise guarantees were never intended to apply to what the framing generation called "licentiousness," or illicit sex acts. Religious liberty was never intended to be a haven for sexual predators who are using clergy garb to further their goals. A number of state constitutions explicitly exclude "licentious" acts from their free exercise protection, but the history makes it quite clear that sexual abuse and assault were never thought to belong in the sphere of constitutionally-protected activity. I explain these principles at greater length in a recent article.
Accordingly, in clergy-sex-abuse cases, the First Amendment defense should be set aside by the courts from the very start, and the courts should be focusing on the alleged illegal conduct, not to mention justice for the vulnerable.
I also believe that too many state court judges in these cases consciously or unconsciously follow two factual misconceptions: First, they presume that clergy act in the best interests of their congregants more often then not, so they tend to discount victim statements. Second, they retain the outdated view that a congregant in such a "relationship" caused it to happen by tempting the clergyperson, so that somehow the clergy member is the real victim.
Both views are misguided and unjust, and it is nice to see NOW and the Rev. Stephens putting the lie to such misconceptions.
Why Reverend Stephens's View Should Be Especially Lauded
Stephens's view on behalf of the Methodist Church is particularly welcome in that he accepts and endorses the dual roles of the state and the Church in ending the disgraceful history of child and adult sexual misconduct. He writes as follows:
"While state laws may provide some degree of public accountability, the church is much better situated than the state to protect the integrity of the ministerial relationship. Churches must clearly communicate appropriate boundaries, the differential in power inherent in a pastoral relationship and expectations of ministerial responsibilities.
Churches must also hold all persons in a ministerial role of leadership accountable to these standards. Lack of clarity about the nature of the pastoral relationship and lack of moral will to address the problem of clergy misconduct are at the root of the Church's failure to provide justice for the vulnerable ."
He is so right.
Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is firstname.lastname@example.org .
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