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.
Typically, as long as the dispute among church members about church matters stays within the congregation the words said will not be actionable defamation. Courts are barred from considering doctrinal issues by the Ecclesiastical Abstention Doctrine inspired by the First Amendment. Thus, in order to avoid doctrinal issues lurking in ill chosen words among church members, courts refuse to hear internal defamation claims. After all, while accusing someone of “lying” might be defamatory, it might be doctrinal if the claim is that they are lying about Scriptures in order to mislead the flock.
In Lippard v Holleman, Slip Op. (NC App 2020), the North Carolina Court of Appeals had to render the first decision in that state about whether statements made between members in a church regarding a church dispute were actionable defamation. The church pianist and the Minister of Music began a dispute over assignment of church service solos that escalated into an intractable conflict. Several, if not numerous, sessions to achieve “reconciliation” were attempted to no avail. Finally, the Senior Pastor recommended termination to the Board of Deacons. Eventually, the Board of Deacons recommended termination to the Personnel Committee. Eventually, the Personnel Committee recommended termination to the congregation. However, the congregational vote did not produce votes exceeding three-quarters of the voting membership in favor of termination. As a result, the pianist remained employed and the dispute wore on until finally the pianist resigned and sued the pastor and music minister for defamation.
Defamation is almost impossible to win, truth is a defense, and wrongdoers rarely have the resources to respond in damages. Nevertheless, oral statements and written statements should be temperate and truthful. Oral and written statements should remain among the church membership. If the constitution and bylaws of a church require a laborious termination procedure like that set forth in the case reported, they should be amended. Laborious termination procedures will prolong an internal dispute to the detriment of everyone. Fair and reasonable severance, even overly generous severance, is better than laborious termination processes. Laborious termination procedures turn the process into a popularity contest based on a prolonged internal political campaign.
If a church through its local governing documents and denominational, if any, governing documents requires that disputes between members, especially church leadership, must be resolved pursuant to a particular procedure or process, then courts are likely to hold that defamation claims by the disparaged member or leader are barred by the Ecclesiastical Abstention Doctrine. This may be true even if the disparagement “leaks” out into the community and is not solely confined to the church.
The case of In Re Alief Vietnamese Alliance Church and Phan Phung Hung, Slip Op. (Tex. Civ. App. 1st 2019) was a request by a church for a writ sought from the appellate level to preclude the trial court from proceeding with a defamation lawsuit. The trial court overruled a plea to the jurisdiction. The appellate court ordered the trial court to dismiss the case on jurisdictional grounds or the appellate court would issue a writ of mandamus ordering the trial court to do so. In Texas, the Ecclesiastical Abstention Doctrine is a bar to exercise of jurisdiction by a court in most instances. However, the facts recited by the appellate court, and that the appellate court was not itself unanimous, demonstrated the factual uncertainty that might have led the trial court to decide it should proceed. The allegations of the disparaged person seemed from the appellate majority opinion more certain regarding internal church disciplinary disparagement but less so with regard to intentional or reckless dispersal beyond the confines of the church. Mere slight “leakage,” my words for brevity and not the court’s, did not seem sufficient to the majority to mutate the internal disparagement inherent in disciplinary matters, true or not and with or without malice, to defamation outside the shield of the First Amendment.
Discipline is inherently disparaging, at least to certain hearers. It is always based on an alleged violation of church procedure, church law, or morality endorsed by the church in some manner. Thus, church leadership should carefully keep such matters confidential even as to members that do not need to be informed. Greater still should be the confidentiality maintained with regard to non-members. The only exception to either should be in those rare instances when a governmental law enforcement agency must be involved, e.g., child abuse, child pornography, child neglect and offenses requiring registration as a sex offender. Even then, a church should engage legal counsel to determine what is safe to report or shield from the public and or the membership. The test is legal; it is no longer based on a belief or lack thereof in “guilt.”