Private internal investigations and hearings held by churches in governance of the conduct of their members that are not made public, although the outcome in some limited respect might be made public, have historically been shielded by the Ecclesiastical Abstention Doctrine. State law tort claims and state and federal employment laws have been restricted from intrusion in church governance. The manner in which the hearing or investigation is conducted, as long as its internal, is usually unknown by anyone other than the participants.

In Williams v Kingdom Hall of Jehovah’s Witnesses, Slip Op., (Utah App. 2019), the alleged victim of sexual misconduct sued the church alleging that the hearing conducted about her conduct was tortious because of the manner in which it was conducted. The hearing was conducted to determine if she was a consenting participant in the sexual event. At the time of the event she was a minor. She attended the hearing with her parents. She alleged a recording (apparently audio only) of several hours duration, surreptitiously made and then produced to the church leadership by the alleged wrongdoer, was played at the hearing. During the church hearing, though she admitted she was free to leave, the Plaintiff alleged she cried and protested the playing of the recording. She claimed she could not leave the hearing because she feared she would be summarily “disfellowshipped.” At various points in the recording, playback was paused so she could be questioned about her consent. She claimed during the church hearing she was “crying and physically quivering.” The trial court dismissed the lawsuit and the appellate court affirmed.

The Utah appellate court seemed to rely on the Lemon test. Lemon v Kurtzman, 403 US 602, 612 (1971). “This test requires the government action “(1) must have a secular legislative purpose, (2) must neither advance nor inhibit religion, and (3) must not foster an excessive government entanglement with religion.” Id. (quotation simplified).” The third element of the test was dispositive to the Utah appellate court. The Utah appellate court characterized the Plaintiff’s claim as asking “the factfinder to interpret the “outrageousness” of the Church’s conduct in investigating her alleged sins.”

If the Plaintiff was required to be a witness against the alleged wrongdoer in a criminal or civil proceeding, the Plaintiff would have been cross–examined. The recording would probably have been made part of the public record even if the Plaintiff was not directly confronted with the contents of the recording. In a civil tort proceeding, there is less doubt about whether the victim would have been cross–examined using the recording. The recording was reportedly several hours in length. Thus, while the conduct of the internal church hearing might seem harsh, it might be no different than either a criminal court or civil court proceeding had there been either or both.

Internal church investigations will not typically be reviewed by courts under any theory as long as there is no public revelation of the hearing or investigation. The outcome should be carefully reported to congregations. Church leaders are typically unpaid non-professionals that need to be educated about such matters in advance. This may include their spouses. A church may wish to engage counsel to help make decisions about public disclosures. Public disclosures are those made available to non-members. Churches that do not have non-public worship services, for example, should not be reporting such things at worship services.

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