Churches and parachurch organization often struggle with representations regarding the funding needs of the moment followed by spending which might not exactly match the representations after the crisis has passed. Also, using funds for “ministry” might mean one thing to a member and something different to the leader of a church or parachurch organization in the best of times much less in a crisis. The level of disclosure regarding the use of donated funds might lack clarity because the purchase of a box of paper clips, much less salaries and benefits, might be viewed as a cost of “ministry” by some but not others.
In Dux v Bugarin, Slip. Op. (Mich. App. 2021), the trial court dismissed the lawsuit by a group of parishioners disgruntled because the denomination determined that a forty-year-old allegation of sexual misconduct by the church pastor was “credible,” removed the pastor, and published the allegation. The allegation of sexual misconduct was investigated by law enforcement at the request of the church. The Plaintiffs claimed the publication of the sexual misconduct claim was a tort of outrage. The court held the Ecclesiastical Abstention Doctrine precluded the court from reviewing the denomination’s methodology in investigating and evaluation of the claim. The court likewise held that the publication that the denomination found the allegation “credible” was also an ecclesiastical matter because the weight to give to the allegation, as well as the evaluation of the conduct in question, was as ecclesiastical as the choice of method to communicate with members. The allegation that representations by the denomination’s parachurch organization that it would not use donations to pay settlements in sexual misconduct cases were false could not be evaluated by the court. Some funds, and not necessarily those donated by the Plaintiffs, were used to pay for treatment of the alleged victim and to pay for the investigation. The court held that only the church and its parachurch arm could determine whether the expenditures were “ministry” or some other similar use of funds.
Fraudulent donation claims will be effective against embezzlers and thieves. However, such claims will not likely be useful to redirect the flow of funds from one seemingly legitimate use to another. Only incredibly precise representations of the contemplated use of donated funds will make an inquiry possible but even then there will always be some reasonable discretion to use the funds otherwise.
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.
In the era of transparency, churches and denominations are publicly revealing sexual misconduct claims that in prior generations would not have been made public. Youthful indiscretions of non-clergy lay members in prior generations would not have been considered a matter of church transparency. That is no longer the case. Those churches or denominations that have been forced into bankruptcy law protection by similar claims may publicly reveal sexual misconduct claims. The question may then arise, for the non-clergy lay person that was a youth leader, can they get their name off such a public disclosure.
In the bankruptcy of the Roman Catholic Church of the Archdiocese of Santa Fe, Opinion (Bankr. D. NM 2021), the federal bankruptcy court in New Mexico had to decide whether to lift the bankruptcy stay in order to permit the state court Plaintiff’s defamation case to proceed. The state court Plaintiff alleged he was defamed by being listed by the church in its public disclosure regarding sexual misconduct of “Priests, Deacons, and Religious Accused of Sexual Abuse of Children.” The victim’s complaint was that the Plaintiff, a 19-year-old youth leader in 1970 was accused by the then 17-year-old victim of rape and molestation in a complaint filed in 1995 by the now deceased victim. The Plaintiff alleged the sexual encounter was consensual. The church listed the then 19-year-old Plaintiff as a “Benedictine brother” but Plaintiff denied he was ever such, nor was he ever a church employee. Plaintiff attended seminary for a couple of years but was never ordained in any capacity. Plaintiff served as a “lay minister” for 39 years (but the Court’s understanding of the role of a “lay minister” in the church in question was not explained). After being listed, Plaintiff was no longer allowed by the church to serve in any capacity. Plaintiff wrote a $5,000 check in 1997 and gave it to his lawyer but could not say how the money was used. However, the victim’s lawsuit was settled, apparently by the church and its insurer, and the Court did not know whether part of the money came from Plaintiff. The federal bankruptcy court refused to lift the stay because Plaintiff could not disprove that the victim made a complaint in 1995. The Court held that the settlement precluded any finding the allegations were untrue. The Court held the Plaintiff should have “appealed the decision through the church’s appellate channels.” The Court cited no church authority or governing document regarding the availability of such a process.
The facts in the reported case are so odd that extrapolating principles from the case involve a degree of risk. Also, the Court’s “findings” seemed to involve several inferential leaps. In any event, publicly disclosing sexual misconduct allegations regarding a non-clergy, non-employee, 19-year-old seems to be risky and probably should not be done without an excruciatingly careful review of the facts and claims. The first claim that could have been more carefully examined was whether in New Mexico in 1970 a 19-year-old could be a “Benedictine brother.”
In our report immediately prior to this one, the allegation in the case reported was that breach of the policies of the denomination or church by the church was a tort compensable in damages. Generally, tort claims are “wrongful acts” that are committed negligently. Intentional torts are generally those wrongful acts that are intentionally undertaken with the intent to injure, financially or physically, the damaged claimant.
In John Doe v Roman Catholic Diocese of Dallas, Slip Op. (Tex. Civ. App. 2021) the Plaintiff’s claim was that the Defendant committed “fraud by not following its internal policies for responding to sexual abuse after he reported he was sexually abused… .” The trial court held that the internal policies for responding to sexual abuse were “so integrally related to …dogma that it comprises part of the … religious representations, beliefs and teachings.” Therefore, the trial court dismissed the claim pursuant to the Ecclesiastical Abstention Doctrine. The appellate court affirmed the trial court. The appellate court held that an inquiry into whether the church violated its own policies “necessarily [required a] reach behind the ecclesiastical curtain.” The appellate court held that an allegation that the church violated its own policy by mishandling its internal investigation of the allegation was such an inquiry. The appellate court held that the allegation that the church violated its own policy by misinforming congregants of the investigation or its outcome was such a claim.
Internal church governance, its practices and procedures, are often of late the subject of claims. The damages claimed range from defamation to failure to protect from a sexual predator. There is no credible doubt that policies, practices and procedures of churches and denominations are driven by or drafted in conformity with religious beliefs. Therefore, interpretation and compliance by a church or denomination with its policies or procedures will be driven by the same religious beliefs. Nevertheless, churches and denominations should not consider the ecclesiastical barrier impenetrable. Mandatory child sexual abuse reporting statutes in most states, for example, may not tolerate contrary church policies and procedures. In any event, major decisions by leadership that are driven by church policies and procedures, especially those derived from religious beliefs, should be documented and the applicable policy or procedure annotated in the documentation.