Decision Number 736
SUBJECT TO FINAL EDITING
Review of Policies and Procedures for Dealing with Sexual Harassment, Sexual Misconduct, and Sexual Abuse Such as Adopted by the 1994 Detroit Annual Conference.
Digest
The procedures for dealing with sexual harassment, sexual misconduct, and sexual abuse of the Detroit Annual Conference are referred back to the Detroit Annual Conference for revision to conform to the Constitution, Discipline, and Decisions of the Judicial Council.
Statement of Facts
The June 1994 session of the Detroit Annual Conference adopted certain policies and procedures known as "Policies and Procedures for Dealing with Clergy Sexual Misconduct." Upon the adoption the conference petitioned the Judicial Council for a declaratory decision as to whether the policies and procedures were in compliance with the Discipline. The document known as "Policies and Procedures for Dealing with Clergy Sexual Misconduct" was forwarded to the Judicial Council for review.
Jurisdiction
The Judicial Council has jurisdiction under Par. 2616 of the 1992 Discipline.
Analysis and Rationale
As a result of the 1988 General Conference resolution encouraging Annual Conferences to enact sexual harassment policies and procedures, numerous plans and policies have come before the Judicial Council as requests for declaratory decisions and on review of bishops' decisions of law. While the Judicial Council has approved the adoption by Annual Conferences of policies addressing the areas of sexual harassment, sexual misconduct, and sexual abuse, such policies must meet constitutional and disciplinary requirements.
The "policies" dealing with sexual harassment and sexual misconduct which have come before the Council from the various Annual Conferences generally are overbroad in their nature and scope and violate provisions of the Constitution and the Discipline.
In reviewing such "policies" it is necessary to note that our Constitution, in order to establish uniformity and consistency throughout our denomination, has imposed the duty and responsibility of establishing a judicial system, and a method of judicial procedure for the church.
The Constitution, Par. 15 states:
The General Conference shall have full legislative power over all matters distinctively connectional, and in the exercise of this power shall have authority as follows... :
7. To provide a judicial system and a method of judicial procedure for the Church,....
The General Conference cannot delegate its constitutional responsibility to the Annual Conferences or any other body in the church, as such would be an unauthorized delegation of authority. In that regard, an Annual Conference may not adopt a "policy" which infringes on this constitutional provision or the principles of fair process; nor can the General Conference disregard Par. 18 of the Restrictive Rules which states:
The General Conference shall not do away with the privileges of our ministers of right to trial by a committee and of appeal: neither shall it do away with the privileges of our members of right to trial before the church, or by a committee, and of an appeal.
While the authority and responsibility lie with General Conference to provide for a judicial system and procedure, it is in the sole constitutional authority of the Annual Conference under Par. 36 to vote on all matters relating to the character and conference relations of its ministerial members. (Lay members of an Annual Conference may not vote on ordination, character, and conference relations of ministers.)
In developing sexual harassment, sexual misconduct, or sexual abuse "policies" Annual Conferences may not adopt provisions which:
1) Enlarge or expand chargeable offenses as set forth in Par. 2623 of the Discipline;
2) Violate or conflict with fair process as set forth in Par. 2622 or the Decisions of the Judicial Council, which include presumption of innocence and prohibit double jeopardy;
3) Establish new committees or bodies which have authority to act administratively or judicially on grievances or complaints. (Policy may establish a third party mediator or mediation team which shall be neutral and may assist the parties in reaching a settlement or agreement which is satisfactory to all parties, Par. 454.1(a));
4) Mandate or direct action by constitutional or disciplinary officers or bodies in discharge of their duties;
5) Enlarge or shorten required notice time periods as set forth in the Discipline or Constitution;
6) Permit the establishment, changes or modifications of policies by any board, agency or sub-unit thereof. All policies must be approved in their final form by conference action in full session (Judicial Council Memorandum 699);
7) Violate provisions of 706.6 and 706.9 or guidelines generated by GCFA pursuant thereto or the confidentiality provisions of Par. 2626.2(e) and .3(e) of the Discipline;
8) Violate provisions of the statute of limitation and provisions as set forth in Judicial Council Decision 691;
9) Do not provide that reconciliation and resolution shall be a continuing goal of the process;
10) Paraphrase and/or summarize provisions of the Discipline;
11) Impose duties or requirements on constitutional or disciplinary officers or bodies;
12) Misquote or misuse words and phrases in processes clearly set out and defined in the Constitution and Discipline.
The above list is not exhaustive as there may be other provisions included which could be in violation of the Constitution, Discipline, and Decisions of the Judicial Council. The list does set forth the more common invalid provisions contained in "policies" which have come before the Council.
While it is not in the purview of the Council to dictate the contents of such "policies," the following items would be appropriate for inclusion in such a "policy":
1) Education of persons to the nature and scope of sexual harassment and sexual abuse;
2) Providing guidelines and procedures for reporting incidents of sexual harassment, sexual misconduct, and sexual abuse, including persons to whom such reports should be made;
3) Setting up and training of support persons;
4) Setting up and training neutral mediators who may be used by persons in fulfilling supervisory roles for reconciliation and resolution.
For the reasons set forth above, we find the Detroit Annual Conference Policy in violation of the provisions of the Constitution, Discipline, and Decisions of the Judicial Council, and therefore invalid.
Decision
The "Policies and Procedures for Dealing with the Clergy Sexual Misconduct" is referred back to the Detroit Annual Conference for revision to conform to the Constitution, Discipline, and Decisions of the Judicial Council.
Concurring Opinion
I concur with my colleagues that an Annual Conference can adopt a policy for sexual harassment, as well as policies for clergy sexual abuse, clergy sexual ethics, and clergy sexual misconduct, and I concur that these policies must meet the general guidelines listed in our decision. However, I believe it is necessary to point out the differences and distinguish between these types of policies so that Annual Conferences can determine how each of the guidelines apply to the various types of policies.
A comprehensive sexual harassment policy addresses laity and clergy and church employees both as victims and as perpetrators. In contrast, sexual ethics and sexual misconduct policies, such as the policy reviewed in this decision, narrow the focus by limiting the perpetrator to only the clergy and also broaden the scope of prohibited conduct to situations beyond harassment.
Par. 704 gives the Annual Conference the authority to "adopt rules and regulations not in conflict with the Discipline of The United Methodist Church." It must be noted that there is no Disciplinary procedural equivalent of Par. 454 for diaconal ministers or lay members. For these people, the Disciplinary judicial process begins with a formal charge and the Committee on Investigation. In addition, the Discipline does not address in any way, a grievance procedure or church judicial process for non-member church employees, nor does the Discipline contain any pre-grievance processes for anyone. Also, the Discipline does not address in any depth, the care and consideration which must be given victims, especially victims of clergy misconduct, be it sexual or non-sexual misconduct. Further, the "fair process" of Par. 2622 is written for the respondent not the victim and there is no equivalent "fair process" section for the victim. In my opinion, all the foregoing should be addressed in any comprehensive sexual harassment policy and policies dealing uniquely with clergy misconduct.
Evelynn S. Caterson