There are movements afoot, that may or may not be successful, to make criminal convictions non-public and to ban employers from considering convictions, much less allegations that did not lead to convictions.  The concerns behind these movements is that persons convicted of crimes, especially felonies, are permanently “marked” and find employment problematic.  Meanwhile, there are movements afoot, that have had marked temporal success demanding transparency regarding allegations of sexual misconduct against those in power and especially in the clergy.  Those targeted by such allegations, even though the allegations are no longer actionable or prosecutable are often similarly “marked” and their future employment impaired.  Persons against which allegations were made but for which no conviction resulted may resort to civil lawsuits to try to clear their name or suppress continued reporting of pending or unresolved allegations.

In Kaucheck v Detroit Free Press, Slip Op. (Mich. App. 2020), a priest was suspended from public ministry in 2009 regarding allegations of sexual misconduct after an “independent investigation” determined the allegations were “deemed substantive.”  The church process regarding the allegations remained in the “Congregation for Clergy at the Vatican.”  The priest founded in 2016 a ministry to teenage pregnant females at which he served as an ex-officio board of directors member and “director of development.”  The ministry was not officially affiliated with the church.  A public outcry ensued which found its way onto the internet and finally into the news media.  The Plaintiff sued the news media and the individuals and organizations complaining about the Plaintiff’s involvement in the ministry to teenage pregnant females.  The trial court granted summary judgment to the defendants.  The appellate court affirmed holding that the statements made were not defamatory because they were true and because public reporting of the allegations and the outcry was protected non-actionable First Amendment speech.

The structural flaw in the Catholic church is that the final decision to defrock or exonerate a priest, bishop or cardinal cannot be completed in a timely manner.  In the case reported the case remained unresolved after eleven years.  Thus, the Plaintiff was left before the public as a priest.  The announcement of the church that the Plaintiff was “banned from public ministry” was not emblazoned on Moses’ tablets and was prone to being lost in the mists of time.  The Catholic church could restructure such decisions so that national level determinations are made by a “jury” of the leadership.  Appeal to a Vatican level review could be by application for certiorari, much like the United States Supreme Court.

Evangelical denominations move more quickly but then must require their local churches not to allow defrocked clergy into local church leadership positions.  Verification should be practiced by an annual review of the names of local church leaders and employees.  In the age of computers, this is not an insurmountable task.  Non-denominational churches should actually call church leaders at prior employers, rather than only conduct inexpensive criminal conviction background checks (which have their own problems in the age of identity theft and identity obscuring).  Personnel file waivers can be signed by candidates for employment that allow personnel files to be retrieved from prior employers to verify that there have been no sexual misconduct complaints.

• Sexual Misconduct