THE DEFAMATION FORTRESS

Clergy accused of molestation or child sexual abuse may be subject to criminal prosecution, civil lawsuits, and church disciplinary actions.  In the latter category, the church, all of them, had to face the grim reality that failure to publicly reveal a finding of credibility in such an investigation will no longer be tolerated by church members, especially those otherwise loyal to the offering basket.  The church found that the instinctive response of a church to rehabilitate, forgive, and to reinstate was no longer viable for clergy.  The church came to this realization late because the church did not soon enough see the need to treat clergy with seemingly less compassion than laity.

In Foley v McElroy, Slip. Op. (Cal. App. 2021) the state appellate court affirmed dismissal of the Plaintiff’s defamation claim by the trial court.  The Plaintiff sued because the church listed Plaintiff as “”credibly accused” of child molestation.”  The church disclosed Plaintiff based on two allegations even after a church canonical trial as to one of the allegations “found him “not guilty.””  The appellate court noted by analogy that “[a] basic tenet of American criminal justice is that a not guilty verdict is not a determination of factual innocence.”  To make a defamation claim, the Court held the Plaintiff would have to prove actual innocence and not merely that in a prior adjudication the “prosecution” did not make their case.  In any event, only one prior allegation was adjudicated and not the other.  Therefore, the Plaintiff failed to state a claim for defamation under California law.

While the criminal justice system has the nearly impossible task of determining the truth and punishing the guilty, the church should not undertake such efforts for clergy.  The church that engages in such tasks will find itself not only ill-equipped but accused of aiding and abetting.  The accusation will not come in the criminal justice system, except in rare cases, but rather in the court of public opinion.  The church will find itself even less well equipped to defend itself in the court of public opinion.  Indeed, the church will seem to have lost its way and to have abandoned its true mission.  Meanwhile, clergy defamation claims are rarely tenable and less often successful because the claims cannot bypass the fortress defenses.

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