Inappropriate pastoral conduct involving a child – a new ‘offence’ courtesy 2014 Synod?

Part 1

By Louise Greentree

Don’t let this happen if you do not want to be targeted by malicious and/or neurotic and/or incompetent parishioners and church workers

If ever we, the supporters and advisers of Drew and Pippa, ever needed confirmation that Lachlan Bryant, director of Sydney Anglican church Professional Standards Unit and his merry band of the PSU and Professional Standards Committee members were on the wrong track completely when they accepted and promoted a complaint by a man who had been successfully trained by Drew for Christian ministry – and they know it – it is upon reading the papers for the meeting of Synod 2014 to be held in mid-October 2014.

There, dear readers, you will find the way in which the diocesan staff, officers and senior clergy are going to try to hoodwink Synod members while moving the goalposts in Drew’s case that is presently before the Disciplinary Tribunal. It is an attempt to create another offence under the Discipline Ordinance 2006 by way of clause 6 of an amendment, to be called this:

“Inappropriate pastoral conduct involving a child and possession”

              Now what is this? Reading further down we come to an explanation of what this is supposed to be:

8. On occasions a complaint may allege conduct that is inappropriate but there is insufficient evidence of intent to establish grooming. In order to ensure such complaints can be addressed, it is proposed to include the new category of “inappropriate pastoral conduct involving a child”. It is proposed that this be defined as: “engaging in a pattern of conduct involving a child or a group of children that is inconsistent with the standards and guidelines of Faithfulness in Service”. It is not intended that this capture one-off mistakes or errors of judgment but patterns of behaviour that are inappropriate by reference to the standards and guidelines in FIS that are expected of church workers.

Note that the explanation does not add the words ‘and possession’ to the title of the new offence which is given in clause 6, and we probably can conclude that the former is an editing error in the drafting. Which is a relief, as otherwise it seems to create some specific offence of demonic activity involving a child (not that all child abuse is not demonic activity, but that is for another discussion).

That said, there are still some concerning aspects to this attempt to create a new offence under the Discipline Ordinance 2006: some of these relate to the imprecision of the concept and the terminology; others I discuss in relation to the case of Drew and Pippa which presently is before the Disciplinary Tribunal. In this article I will discuss the first: the imprecision of concept and terminology which will lead, inevitably, to false complaints and the persecution of innocent people.

In the rest of the series I will revisit the actual recommendations and guidelines that I first visited in my series ‘Is buying a lost child an ice cream child abuse?’ and commented there on their vagueness and lack of legislative character. I will look at how applying these amendments in Drew and Pippa’s case by moving the goalposts, changing the offence, and applying retrospectivity to the ‘charges’ he has promoted against Drew on the complaint of a man who was befriended, mentored trained and groomed (in its’ ordinary and best sense) for Christian ministry, Mr. Bryant is at risk of doing nothing more or less than blatant injustice, and acting with deviousness and deception at the same level as the cover-ups and warnings that were given to real child abusers by clergy in the past to allow those criminals to escape justice and to re-victimise their real victims.

What is ‘conduct that is inappropriate’?

It has to be inappropriate as judged by reference to ‘the standards and guidelines of Faithfulness in Service’.

It is not sexual behaviour. There is not a whiff of child sex abuse, because it has to be ‘inappropriate but there is insufficient evidence of intent to establish grooming’. Readers will recall from my discussions in the three-part series ‘Is buying a lost child an ice cream child abuse?’ the definitions of grooming that are available in diocesan material require the prosecution to prove an intention to initiate or hide child sex abuse.[1]

First issue: Faithfulness in Service: what is its’ purpose?

This is an important question because if it was not drafted as a series of prescriptive, comprehensive, unambiguous and clearly described standards and guidelines, then it is not capable of serving the new purpose of underpinning a new offence under the Discipline Ordinance 2006 of Sydney diocese.

Consider this: the Purpose of Faithfulness in Service

‘Purpose

This Code is intended to identify the personal behaviour and practices of pastoral ministry that will enable clergy and church workers to serve faithfully those among whom they minister. If the behaviour and practices it outlines are followed, our communities will be safer places for everyone, where integrity is honoured, accountability is practised and forgiveness encourages healing and does not conceal misconduct.’

What does this tell us who are inquiring about how we are going to use Faithfulness in Service so that we avoid committing the new offence of inappropriate pastoral conduct involving a child’?

Well, very little. This is a motherhood statement that does not identify anything in particular.  It is in no way prescriptive: it does not say, ‘you MUST do this’. It does not talk about behaviours and practices of the individual so much as behaviours and practices of an insubstantial entity called ‘pastoral ministry’, and so it does not say ‘YOU must do this.’ It says that the reason for identifying these behaviours and practices is to enable faithful service by clergy and church workers.

But surely clergy and church workers serve ‘faithfully those among whom they minister’ by faithfully and fearlessly preaching the gospel; encouraging and, if necessary, rebuking members of their flock to live the Christian life walking in the sandals of Jesus; providing prayer and counselling for conduct that separates them from Christ; and praying for healing of the sick, ministering to the dying and comforting the bereaved. This would not have much to do with clergy taking one’s annual holidays even if the clergy children are affected detrimentally (Daddy, you promised!).

The use of motherhood words ‘safer place’, ‘integrity’, ‘accountability’, ‘forgiveness’, ‘healing’ do not encourage one to think this is anything but a lightweight document of little substance, and for all the earnest goodwill and effort that went into its’ drafting there are parts of it which are not worth the paper they are written on. As I progress through an examination of this document you the reader will soon see what I mean.

So this is not a good start to using the document as a foundation for an ‘offence’ under the Discipline Ordinance 2006.

It gets worse from the point of view of using this document as a basis for charging someone with an ‘offence’:

In ‘Section 3. Putting this Code into Practice’ in the ‘Preamble’ there are statements that make it abundantly clear that this document is NOT suitable to be used as a basis for the creation of an ‘offence’.

The First statement is this:

3.1 This Code will only be effective if it is widely known and available throughout the Church, practised consistently and implemented justly. Clergy and church workers will protect the safety of others and themselves by observing its standards and following its guidelines.

Relevant concepts that can be extrapolated from this are these:

Firstly: the Code needs to be implemented justly in order to be effective.

Therefore, clearly it is envisaged by those who drafted it that if its’ implementation is not just then it will fail to achieve the purpose for which it was designed. Now what was in the minds of the designers is a bit uncertain, but surely this is an acknowledgment that there would be instances where it would be ineffective and, I would contend, unenforceable as a matter of justice if an ‘offence’ was created in respect of its ‘standards’ and ‘guidelines’.

Secondly: it refers to its’ contents as ‘standards’ and ‘guidelines’.

I will discuss later how vague these standards are, and here concentrate on the use of the word ‘guidelines’. The use of this word underscores the fact that the document was never designed to be the basis of a proscriptive course of conduct but rather to present some ideas on how to conduct Christian work safely and effectively. Safely: that is, safely on both sides of the relationship, both clergy/church worker and parishioner or other recipient of ministry.

The Second statement is this:

3.2 The absence of any reference to particular conduct in this Code does not imply that it is acceptable for clergy and church workers

 As I said earlier, to base an ‘offence’ of not following the standards and guidelines in Faithfulness in Service would be unwise where these are not comprehensive, unambiguous and clearly described. Here is an acknowledgment that the Code is not comprehensive. A person should not be at risk of a charge which is constructed out of nothing, out of some new interpretation that is not identified, clearly described and proscribed at the time. This is a fundamental principle of justice.

The Third (two) statements are these:

3.3 All clergy and church workers have a responsibility to ensure that personal behaviour and practices of pastoral ministry that are inconsistent with this Code are neither tolerated nor covered up.

3.4 Failure to meet the standards of this Code will indicate an area where clergy and church workers require guidance and specialised help. Such failures may result in formal disciplinary action if the conduct infringes an applicable disciplinary rule of the Church or is a breach of an employment contract.

This is an interesting pair of clauses because of their inconsistency, internally and with each other, and with other clauses in this same section, particularly 3.5 discussed below. There is a tension between a perceived need to provide ‘guidance and specialised help’ to a person who fails to meet the standards of the Code with parts that seem to be encouraging reporting (‘neither tolerated nor covered up’) and warning against ‘disciplinary action’ where some (not all, by implication) of the matters covered in the Code that are already the subject of the jurisdiction of the PSU and disciplinary process.

The problem with going further than this is that no distinction is made between those parts of the Code that concern criminal behaviour (child sex abuse, child abuse, grooming or family violence) and major sin that is not criminal (adultery) on the one hand and those parts has nothing to do with such serious issues on the other hand. The reporting part surely cannot apply to the clauses of the Code talking about taking one’s holiday and other clauses that can only be regarded as recommendations to assist church workers to maintain balance in their life, between marriage and family with their work.

The ‘disciplinary action’ is restricted to breaches of an applicable disciplinary rule or breach of employment contract. And surely this can and should only apply to actual criminal activity or major sin (such as that which is ‘disgraceful’ and which has ‘caused or, if known, would cause scandal and evil report’, to quote existing provisions of the Disciplinary Ordinance 2006) as opposed to unwise because of the possibility of misunderstanding or false complaint by the neurotic or malicious person.

Finally: clause 3.4 envisages a separation between the ‘standards’ and ‘guidelines’ of the Code and the disciplinary rules of the church or contractual obligations. It envisages a separate step whereby there is a proper comprehensive enunciation of the behaviour that is proscribed as opposed to recommended. This step the proposers of the amendment to the Discipline Ordinance 2006 have failed to take, whether from haste to try to have the amendments passed before Drew’s case comes to hearing or just laziness or both.

The Fourth statement is this:

3.5 Clergy and church workers are encouraged to follow the guidelines of this Code. Where this is impractical, the exercise of judgement will be required to ensure the safety of those to whom they minister and themselves. Wilful disregard of the guidelines may indicate an area where clergy and church workers require guidance and specialised help. (My emphasis).

This clause also makes it clear that attaching anything in the nature of an ‘offence’ to the ‘standards’ and ‘guidelines’ of the code raises even more difficulties.

There is no proscriptive element:

Firstly, again, there is no proscriptive element; on the contrary there is merely a desire to encourage but to allow a let-out where following the guidelines would not be practical. The acknowledgment that the guidelines themselves could be faulty because impractical makes it all the more dangerous to construct a new ‘offence’ based on them.

It raises prosecution and defence issues:

Also, in effect this raises some problems with prosecution of the new ‘offence’ and some defences. On the prosecution side there has to be ‘wilful disregard’ on the part of the respondent and on the part of the diocese a reason for failure to provide guidance and specialised help as the first step before a prosecution is launched.

On the defence side there is a two-pronged defence: first that it was in the particular instance impractical AND that an exercise of judgment was required to ensure safety. If the exercise of judgment proves to have been flawed at the time or merely on recollection[2] (remember there is no time limit on bringing charges under the Discipline Ordinance 2006 and the Ordinance provisions operate retrospectively so that what was not known to be an offence at the time can be designated an offence later, many, many years later if so desired by the diocesan personnel) then there may be a defence that no-one else had had this unfortunate outcome at the time and in the absence of using a crystal ball (surely a breach of standards – remember King Saul and the Witch of Endor) how was any reasonable person to know that that would be an outcome for a particular person.

There may also be issues of the particular personality of the complainant, such as lack of relational skills, lack of empathy, neurosis, false memory syndrome, Obsessive Compulsive Disorder to a debilitating degree, other psychological or psychiatric conditions, malice, greed (a desire to claim financial compensation), or compulsive lying, to mention some of the more usual. All of these could cause the ‘failure’ of an otherwise impeccable exercise of judgment.[3]

Conclusion: a message to Lachlan Bryant and others involved in making this recommendation to Synod

The current proposal to create an ‘offence’ which is merely described as ‘inappropriate pastoral conduct’ is sheer laziness on the part of the PSU and others recommending it. Have the courage to make clear what it is that you are prohibiting to the point that a person could be put out of ministry and their life and the lives of their families ruined. Because this is the result of disciplinary proceedings, make no mistake about that.

You have a responsibility to make sure that any offence is described not in terms of applicable ‘only if practical’, subject to variation on the basis of ‘wise judgment’ and of such a minor character that it does not fit into the existing categories of offences that are crimes or major sins.

If you are intending to make otherwise unremarkable activities as giving therapeutic massages before or after teenagers of the youth group have competed in a fun run or gone spear-fishing, responding in a practical fashion to the accommodation arrangements that exist beyond one’s control, to taking  a shower among other men in public changing rooms at the beach, giving a present of a swimming costume then say so: don’t try to smuggle this is under the radar to try to cover-up what was done to Drew and Pippa by Mr. Bryant.

If you are intending to stop the remarkable activities of Drew and people like him (they are few and far between) in providing wise counsel and prayerful mentoring to young men struggling with sexuality and addictions, particularly in relation to that most Satanic addiction of our age – addiction to watching internet pornography; to young men struggling to have healthy Christian relationships leading to marriage and family, not to fornication, homosexuality and promiscuity; to young people wanting to see what it is like to live like a Christian: then say so. Do not try to pretend that these remarkable activities of Drew did not produce people who acknowledge a debt of gratitude to Drew for their strong faith and healthy attitudes.  Only the neurotic and immature Christian could find anything to fault with this result of the years that Drew and others like him have devoted to their ministry.

Part 2: In the next Part of this series I will look more closely at the ‘standards’ and ‘guidelines’ of faithfulness in Service with which the conduct described by this new ‘offence’ has to be judged inconsistent.  I have already reviewed some of these in Parts 2 and 3 of my series ‘Is buying a lost child an ice cream child abuse?’ first in relation to the Code of Conduct for Clergy 1996 that preceded Faithfulness in Service (which was not introduced until October 2004, which was after Drew’s complainant 1 turned 18 in June 2004). This further review will serve to underline how inappropriate it is for these men and women who are proposing this amendment to the offences under the Discipline Ordinance 2006 to do so.

 

 

 

 

 

 

 

 

 

 

Post filed under Anglican Church, Drew & Pippa.