While church disciplinary proceedings will generally be beyond judicial review because of the Ecclesiastical Abstention Doctrine based on the First Amendment, the bright line of yesteryear has blurred.  The point at which the conduct of a church disciplinary hearing becomes a tort, a wrongful act, because of its harshness may be elusive to determine.

In Williams v Kingdom Hall of Jehovah’s Witnesses, 2021 UT 18 (Utah 2021), a church disciplinary hearing was held to determine whether the member brought before the hearing was guilty of “porneia.”  The member brought to hearing was fourteen years of age at the time she may have engaged in a sexual encounter with another member.  The age of the other member was not in the opinion.  However, there was an audio recording of the sexual encounter.  Who recorded the sexual event was not disclosed.  The Court characterized the sexual encounter as “rape” but did not explain if that was because of her age or because the sexual encounter was somehow violent.  The hearing board interrogated the member and then played the recording stopping it frequently to ask questions of the member.  The member “voluntarily” attended the hearing with her parents.  The plaintiff member alleged the hearing was a traumatic intentional infliction of emotional distress and she sued.  The trial court dismissed the case but the Utah Supreme Court reversed, ordering the trial court to develop standards based on “our history, tradition, and precedent to identify core Establishment Clause principles that may be applied to the facts of the case.”  The Supreme Court of Utah did not hold that the Ecclesiastical Abstention Doctrine would not apply but that factual and legal inquiry was required to determine if it did under the “standard” quoted.

In many states, the hearing board might have been subject to prosecution for failing to report child sexual abuse of a minor of this age.  Indeed, if the audio recording was rather a video recording, child pornography charges might have been appropriate.  While there may be some religious orders that feel compelled by their beliefs to do so, a church that conducts a church disciplinary hearing regarding a minor, even with parental consent, may be treading near or into tort territory.  Church leaders that conduct such hearings in many states risk a lot more than money if the child abuse mandatory reporting statute does not contain a safe harbor.

• church discipline