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	Criminalize Clergy Sexual Misconduct? By Darryl Stephens General Board of Church and Society, The United Methodist Church October 26, 2010 http://www.umc-gbcs.org/site/apps/nlnet/content2.aspx?c=frLJK2PKLqF&b=4909851&ct=8799947 Should The United Methodist Church (UMC) support the National Organization for Women (NOW) call to make clergy sexual misconduct a crime? NOW urges state legislatures to make it illegal for a pastor to have sex with a congregant, just as a physician, psychiatrist or licensed counselor may be held criminally liable for “unlawful sexual relations” with those in their care. Sexual misconduct is an immoral act, a violation of the sacred trust of ministry. And religious institutions have been notoriously slow to hold their own clergy accountable for sexual misconduct. Regrettably, we need to admit that the UMC is not exempt from this situation. The Church is in a much better position to respond to sexual misconduct among its clergy than the state, though. The state has a problem in regulating “clergy” because it is difficult to legally define the term. The UMC definition includes local pastors (2008 Book of Discipline ¶141). In a denomination that takes seriously the ministry of all Christians, defining the scope of church policies pertaining to ministerial relationships is complicated. Consider, for example, who is clergy? Our Book of Discipline includes as clergy persons who are not ordained, such as a licensed local pastor (¶141). Not all clergy are pastors for that matter: Ordained deacons are not pastors, as defined in ¶339. Ambiguities exist with regard to ordained persons. Is a deacon serving in a secular setting also functioning as clergy? Certified Lay Ministers who provide “a care ministry to the congregation” (¶271) are not clergy. But should they be included in rules pertaining to ministerial misconduct? What about the ministry of all baptized Christians (¶128)? The UMC includes all these categories of leadership and more in its definition of misconduct and abuse. Abuse of power Sexual misconduct is not an “affair.” Rather, it is a violation of the sacred trust of ministry. The clergyperson has a duty to act in the best interests of the parishioner, to maintain professional boundaries, and to refrain from using that relationship to personal advantage. The UMC defines sexual abuse in ministry as “a form of sexual misconduct [that] occurs when a person within a ministerial role of leadership … engages in sexual contact or sexualized behavior with a congregant, client, employee, student, staff member, coworker, or volunteer)” (2008 Book of Resolutions). The authority of the pastoral office creates a context in which meaningful consent by the parishioner is often impossible. Because of the parishioner’s emotional vulnerability, sexual contact within a ministerial relationship lacks true consent even if the parishioner agrees to it. The Bible is replete with messages about misconduct and justice. King David exemplified the leader who misuses power for personal gratification (2 Samuel 11 and 12). Ezekiel brought sharp condemnation on so-called shepherds who would prey on their own flock (34:1-10). Paul counsels those in ministry, “Do not seek your own advantage, but that of the other” (1 Corinthians 10:24). The Old Testament’s predominant justice theme is protection of the vulnerable, those without power. The United Methodist General Commission on the Status & Role of Women shares NOW’s concern about clergy sexual misconduct. It is a matter of justice for the vulnerable, the vast majority of whom are adult women. Confession of Sin Historically, faith communities have been slow to respond to abuses by clergy. Twenty years ago, the UMC was silent on this issue. Predatory clergy routinely were given “geographic therapy” by being reappointed somewhere else in the hope that their misconduct would be kept quiet. It has only been within the past 15 years that the UMC has explicitly addressed clergy sexual misconduct. General Conference, this denomination’s highest policy-making body, passed its first resolution addressing sexual abuse within pastoral relationships in 1996. The same year, “sexual misconduct” entered the UMC lexicon of chargeable clergy offenses. Sexual misconduct remains a problem, nonetheless. Three percent of women attending church in the past month reported being sexually harassed or abused by a clergyperson at some point in their adult lives, according to a nationwide study. Ongoing news reports about clergy sexual misconduct should provide a sobering reminder to United Methodists to confront our own abuse crisis before it blows up in our faces. The UMC averages between 140 and 500 known cases of clergy sexual misconduct annually in the United States alone. An accurate count of clergy misconduct involving adults is impossible to obtain in the UMC because no central reporting mechanism exists. Furthermore, many cases are still handled informally. “Law enforcement authorities need to step up their investigations of sexual abuse in religious organizations,” asserts NOW President Terry O'Neill, “because it is apparent that many church officials will not act in a prompt and responsible manner.” Government NOW’s resolution would add clergy to existing state laws covering other counseling relationships. Nearly every state criminalizes sexual contact between secular counselors or “mental health professionals” and their clients. Only 13 states include clergy in these laws, which are based on legal concepts of fiduciary duty and professional standard of care. Only two states criminalize sexual contact between clergy and congregant outside of a formal counseling relationship. From a legal standpoint, though, NOW’s approach may not be as effective as taking a different tack to avoid unnecessary entanglements between church and state. A statutory focus on lack of meaningful consent rather than fiduciary duty may provide the legal traction necessary for states to criminalize clergy misconduct. Courts are hesitant to intervene in cases involving adult-to-adult relationships in religious institutions. The U.S. criminal justice system is constitutionally limited in its ability to address clergy misconduct due to separation of church and state. As a consequence, secular courts cannot rule on the standard of care appropriate to a pastoral counseling relationship. Identifying the lack of consent within a relationship based on power and authority is within the court’s purview, though. This approach will protect the vulnerable party. It is similar to laws protecting minors, the mentally impaired, intoxicated persons or others whose consent might be easily coerced. It does not ask courts to rule on religious questions. The Church does need to be called to accountability by the state. Intervention through state law has recent precedent. The UMC did not begin to address sexual harassment within its ranks until the 1980s, prompted by the Equal Employment Opportunity Commission (EEOC) and a U.S. Supreme Court case upholding EEOC guidelines and reporting mechanisms. Only after secular law forced a cultural change did the UMC first take a stand against the sin of sexual harassment in 1988. Criminalization of clergy misconduct may have the positive effect of deterring would-be clergy sexual predators, protecting potential victims and promoting clarity about sexual activity as an abuse of power. The Church While state laws may provide some degree of public accountability, the church is much better situated than the state to protect the integrity of the ministerial relationship. Churches must clearly communicate appropriate boundaries, the differential in power inherent in a pastoral relationship and expectations of ministerial responsibilities. Churches must also hold all persons in a ministerial role of leadership accountable to these standards. Lack of clarity about the nature of the pastoral relationship and lack of moral will to address the problem of clergy misconduct are at the root of the Church’s failure to provide justice for the vulnerable. Perhaps state laws will catalyze the collective Christian conscience and prompt a more pro-active response by the UMC and other religious institutions. The Church cannot delegate responsibility to the state for determining ethical standards for clergy, however. Where a clear professional relationship exists that restricts freedom of consent by a parishioner, abuse of pastoral power should be against the law. Clergy and other leaders in the UMC engage in Christian conferencing with one another about healthy professional boundaries, including appropriateness of dating congregants. Protecting the vulnerable and maintaining the integrity of the ministerial relationship requires that the UMC clarify expectations for all ministerial leaders and the people they serve.
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