A Response to Today's Star Tribune Article: “archdiocese LED Lobby to Stop Abuse Law Change”

St. Paul Area Synod
November 5, 2013

http://www.spas-elca.org/mutual-conversation/MRCresponse

[Archdiocese led lobby to stop abuse law change - Star Tribune]

Today’s Star Tribune carried an article about the Minnesota Religious Council and the Archdiocese of Saint Paul and Minneapolis, in which it identified the six ELCA synods in Minnesota as members of the Minnesota Religious Council (MRC). The article described the MRC’s lobbying effort against recent legislation that changed the statute of limitations on claims of child sexual abuse. Tony Kennedy, the reporter, spoke with me last week, and I sought to provide accurate information about our involvement.

I think it could be helpful for me to provide you with some perspective so that you are better able to interpret these matters to parishioners and others and to remind you of how we in the ELCA view and respond to matters of misconduct.

I will focus on three arenas: the Minnesota Religious Council; the concerns we had about the proposed legislation; and how the ELCA responds to misconduct and abuse issues.

The Minnesota Religious Council

While records are sketchy and the origin of the MRC pre-dates me and the current ELCA bishops, it is my understanding that the MRC was originally formed when leadership of several church bodies came together in the early 1990s to discuss the concern of sexual abuse and clergy misconduct and how church bodies can properly respond to and seek to prevent such misconduct. The initial group included Roman Catholics, Lutherans (both ELCA and LC-MS), Presbyterians, Episcopalians, Methodists, and maybe others. Later, faced with lobbying by attorneys and others hoping to change state laws, the MRC became a forum for discussing and responding to proposed legislation aimed at the statutes of limitations for bringing suit against perpetrators and institutions. (See next section.)

At the occasional meetings of the MRC, the Lutherans were consistently represented by the Rev. Karen Bockelman, who served for eleven years as assistant to the bishop of the Northeastern Minnesota Synod until her retirement in 2007. She has continued to represent us, occasionally with another Lutheran representative. She was not paid for this work, though we (synods) paid her mileage and expenses for meetings. She has been helpful in keeping us apprised of proposed legislation over the years. For the past several years, she has served as chair of the group.

The MRC sought to influence certain legislation which included some proposed laws that concerned not only churches, but also other institutions that deal with children. These were significant concerns that needed to be addressed properly and fairly for all affected. As the news article pointed out, however, the cost of the lobbying carried out over those years was an expenditure of which we Lutherans were unaware. In recent months, we were surprised by a request that we help pay for costs which we had neither authorized nor budgeted, and therefore have not paid.

Legislative Concerns

It is unfair and simplistic to characterize these matters as a battle between those who sought to protect children and those who sought to protect institutions. Rather, particular elements of the legislation posed difficulties that, in my judgment, could have been fixed, and may indeed still be addressed in corrective legislative action in the future. An editorial earlier this year in the Pioneer Press noted Pastor Bockelman’s comment about MRC’s willingness to compromise and negotiate on the particular points of concern. While I’m not an attorney, I think I can shed some light on what concerns arose around the legislation.

Eliminating the statute of limitations Eliminating the statute of limitations on liability for claims of sexual abuse was at the heart of the proposed legislation in the Child Victims Act. A legitimate case can be made here. I have experience with individuals who have come forward with stories of abuse by clergy many years after the abuse occurred, sometimes after having worked through issues of guilt, shame, and fear of consequences. It is a healthy thing for victims to be able to come forward and name abuse, name the abuser, and seek to right wrongs. While I have had little experience with cases of child abuse (nearly all clergy misconduct with which I’ve dealt has been adult-to-adult), these factors are real and deserve response and support whenever a victim comes forward. I know of no opposition to lifting the statute of limitations in order to facilitate bringing the actual perpetrators of abuse to justice.

Vague definition of liability The primary concern with some of the legislative proposals has to do with the vagueness of the claims allowed against the institutions (schools, churches, daycare centers, etc.). These legal definitions of “liability” on the part of such institutions become exceedingly troublesome with very old cases. The legal principle of “vicarious liability” uses the language that an institution may be held liable “if it knew or should have known” of the abuse danger posed by an employee. If a case is made in court that an institution “should have known,” the institution is left to prove a negative—in other words, to prove that there was no way for the institution to have known. This is virtually impossible when witnesses have died or disappeared, no records exist revealing what took place decades ago, and no one today has any knowledge of the alleged misconduct. What is not at issue is the case to be made for liability when it can be shown that the institution did in fact know of prior misconduct and could have done something about it, but left the abuser in a position to have access to future victims. The legislative proposals, however, went far beyond that and opened the door to claims against institutions that had no way of knowing of previous misconduct and yet are being held liable today for unknown perpetrators from the past.

Removing the cap on liability As the legislation was being formed this year, various provisions about a cap on liability were proposed, and the versions that emerged from the House and Senate varied. One version included a cap for municipalities, schools, day care centers, etc., but not for churches. In the closing days of the session, Bishop Jon Anderson and I met with an aide to Governor Dayton to seek to have that corrected; that is, to have churches included in the liability cap pertaining to others. Unfortunately, what emerged did correct the unequal treatment, but it did so by removing the liability cap for everyone. The reason this is troublesome is that it opens the door to large awards on very old cases, threatening the very existence of the child-serving agencies that now do the vital work of care, support, prevention, and education. This is an ever-increasing threat as insurance companies from earlier decades are going out of business at a rapid pace.

In summary As noted above, claims based on allegations going back 30 or 40 years pose particular difficulties since the evidence on which to base a judgment can be difficult or impossible to obtain. Given the combination of the vague definition of liability, the absence of a cap on damages, and the lack of clear and timely evidence, the possibility of damage to current agencies and members, who had no part in past misconduct, looms large. Legislation that could have empowered victims and punished perpetrators, while protecting beneficial and wholly innocent organizations and agencies could have been adopted and improved. This all may be far more legally complex than you care to follow. The point is that, as this complex legislation moved forward, there were legitimate concerns in seeking to have language that balanced the right of victims to seek redress for past abuse with the ability to base fair judgments on accessible evidence.

Abuse, Misconduct, and ELCA Policy

My primary reason for this e-letter is to clarify how the ELCA cares for its members and responds to complaints of misconduct. When synod bishops are elected, the early orientation sessions include discussion about preventing sexual misconduct, because protecting the members of our congregations and making sure all ministries and ministers are safe places is of utmost importance. ELCA General Counsel Phil Harris has said on many occasions that we are a zero tolerance church. When we receive complaints of abuse or misconduct, we investigate. We support and care for victims. When clergy misconduct is substantiated, there are consequences. We do remove ministers from the roster. We tell the truth about what happened to all affected, and in those cases involving allegations of child abuse, we report and cooperate with the authorities.

Our Lutheran polity regards the office of ministry as an office that exists to proclaim the Gospel. Individuals are called into the public office of ministry—both clergy and lay rosters—to serve the gospel and serve the church. It is a public office the church must be able to trust, and so we hold individuals in this office to high standards of trust. Misconduct betrays the public trust. No one is perfect, of course, and we all have faults. However, our understanding of the church and the public office of ministry leads us to believe that, while any behaviors can be forgiven by a gracious Lord, some behaviors have as a consequence the removal from the public office of ministry.

As a result of this position, our procedures include:

A constitutionally-defined discipline process for addressing clergy sexual misconduct, including removal or resignation from the roster of ordained ministers;

No statute of limitations for church discipline against perpetrators of sexual abuse;

Disclosure of the misconduct to those affected, including the congregations where the guilty pastor served;

Disclosure of any questionable behavioral matters not rising to the level of removal from the roster, but nevertheless important for the awareness of any congregation or employer considering the minister;

Periodic training for our rostered ministers on appropriate boundaries and healthy behavior (the next one in our synod is January 14, 2014).

There is a pervading sadness around all these issues, of course. Primarily it is sadness for the terrible harm done to victims—children and adults—whose trust in those whom they know as the church’s ministers has been betrayed. In addition, I am sad for the congregations, denominations, agencies, and institutions that suffer a body blow to the public trust of their staff and mission. I am sad for congregational members for whom the presumption of trust of clergy and other ministers is weakened. I am sad for the 99 percent of people in ministry who give themselves to compassionate care of their congregants, who tend carefully to appropriate boundaries, and who find themselves tainted by the misconduct of a few. I am sad even for the perpetrators, who for whatever weaknesses led them to such behavior, now bear the burden of broken relationships with families and friends and congregations and lose their vocation in the process.

But I am encouraged by the commitment I find around me in this church that I serve, to tend these matters head-on and with care—so that the message of the loving God we are called to proclaim is not clouded by questions of the abuse of that office of proclamation. It has been both a burden and a privilege to carry the responsibility for maintaining this church’s trust of the office of ministry. I trust that recognition will not be lost on the people of this synod as they call someone new to this office of oversight next year.