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

Part 4

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

In Part 1 of this series I wrote the following:

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.’

That new ‘offence’ is called ‘inappropriate pastoral conduct involving a child’. It has some disturbing features: firstly, the explanatory notes say that this offence has been conceived of to provide grounds for a charge in a case of grooming where there is insufficient evidence of sexual intent[1]; and, secondly, that the inappropriateness of the conduct will be assessed against the ‘standards and guidelines’ of Faithfulness in Service, the code of conduct for clergy and church workers that came into existence in October 2004.

Then I examined the stated Purpose of Faithfulness in Service (FIS), Part 1 containing the Preamble and Part 3 ’Putting this Code into Practice’, which contains a general description of standards and guidelines.

In Part 2 I looked at the provisions of FIS in Part 4 dealing with pastoral relationships.

In Part 3 I looked at the provisions of FIS in Part 5 dealing with Children

In this Part I present a summary of my conclusions.

Now read on:

After reviewing in some detail the provisions of FIS part 5 in relation to children I have found the same objections to the use of these standards and guidelines as the basis for determining whether (non-sexual) conduct with children is ‘inappropriate’ to satisfy evidence for a new ‘offence’ that I had when reviewing the introductory clauses of the Preamble, Standards and guidelines in part 1 of this series and reviewing part 3 in relation to pastoral ministry in Part 2 of this series. These objections can be summarised in the following way:

The document is not designed to form the basis for an ‘offence’

As a reminder, this is what FIS says at 3.1

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.

FIS is designed as a set of standards and guidelines to assist clergy and church workers, whether working with children or not, to know the standards expected of them through the content of FIS and other sources including the Bible and all of the Anglican Church documents including the Book of Common Prayer.

It is designed to give them assistance through the guidelines to be aware of their need to behave with utmost care and propriety towards those to whom they minister, towards their own families and as a good citizen. Some of this is a working out of examples of the general ordination vows that clergy would have made.

The language of FIS is of advice that is not binding

              As a reminder, this is what FIS says at 3.5

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)

The language is one of advice, including such advice as to tell another church worker or adult what is proposed if it is not possible to follow a particular guideline (such as washing and toileting a child – presumably a very young one). Other guidelines use language that does not impose an outright obligation to abide by that guideline. As I said in the commentary: too many of them provide ‘defence points’ to excuse ‘you’ from following the guideline. Cases brought on the basis of these guidelines may fail because of the lack of clarity of the basis for the new ‘offence, let alone opening the door to a claim against the person with overall authority, as discussed below.

The language of FIS is that of risk management

Being language of advice that is not binding, giving warnings (such as the risks of technological communication and the need to exercise utmost care in physical contact with children), providing ‘defence points’ with the use of phrases such as ‘if possible’, ‘if impractical’, and providing ways of overcoming the risk of a complaint by making sure there is an adult witness: all this is the language of risk management. Then there are the requirements for the preparation of risk management plans and for record-keeping and so forth discussed in the next paragraph.

The person who has over authority in the parish or church organisation is the person who is made responsible for the maintenance of appropriate conduct by employed church workers

Coupled with these issues of the non-proscriptive language of FIS is the fact that the only prescriptive language in FIS applies to the person with overall authority for the parish or church organisation: that person has to prepare risk management plans; ensure that all OH&S and civil and criminal law requirements are met; has to set up systems of maintaining certain records, including those of children and their activities and such-like; and he or she has to make sure that all the ‘employees’ of the parish or church organisation are aware of the provisions of FIS (which would involve, at the least, both distributing copies to each one at the commencement of their employment and funding them to attend original FIS training and periodic updates).

This person is the one who must ensure that employees who are church workers comply with FIS, among the many other civil and criminal law obligations that apply to a parish and church organisation. If the employed church workers do not comply without reasonable excuse then this is a matter of a breach of their conditions of employment, not a matter of charging the employee within the church discipline system. It is a matter of breach of employment contract to which the remedy of dismissal applies and the aggrieved employee can take the issue of unfair dismissal to the Fair Work Commission for a decision by an independent tribunal. If it is also a breach of civil or criminal law then that can be pursued by the appropriate secular authorities.

Descriptions of conduct that is called inappropriate (not being child abuse) are examples only and not exhaustive and not capable of being defined in the Discipline Ordinance 2006

In the information box concerning children and physical contact there are a few only instances of what are called inappropriate physical contact, and it is clear from the language that more instances could be envisaged, but what they might be is left to the ‘workers at the coalface’ to work out and to anticipate. It is a fundamental rule of justice that a person should not be charged with any offence the details of which are not described in clear and unequivocal terms so that people know what to do and what not to do. And the offence must provide that the failure has to be proved to be a knowingly wilful or reckless breach of the terms of the offence.

A decision about what constitutes ‘inappropriate conduct’ will be in the hands first of the director PSU and then the PSC in deciding to lay charges

Apart from not being able to know in advance what conduct this might be in order to be able to avoid it, the fact that the decision to ruin one’s life and ministry will be in the hands of someone like the director PSU is very concerning. Both the present and past directors have been involved in cases which caused great concern and which have, or may still, expose the diocese to civil court proceedings for damages. The present director is the one who has brought charges against Drew which do not allege any sexual misconduct, after telling Drew that his actions constituted child sex abuse and grooming and were criminal offences for which Drew could be reported to the Police. Either this was deliberate misrepresentation or sheer incompetence. What it did was to precipitate a crisis in Drew that was going to lead him to take his own life but for the intervention of his brave wife.

In doing this the director failed to apply the section of the Discipline Ordinance 2006 which requires him to give an accused person written details of the complaint with the advice that he has 21 days to make a response and to take legal advice before making admissions. The Director has admitted that he should have applied the provisions of the Discipline Ordinance 2006 to that first meeting.[2]

We Anglicans are dismayed and disgusted by, and tired of reading in the newspapers and seeing on TV, stories about undeniable incompetence, malice and criminal activity on the part of some, mercifully few, of our clergy and church workers in horrendous cases. We do not wish to ever read or see that a person in the position of the director PSU has hounded a person who is innocent of his accusations to death.

What we need is, first, properly drafted legislation, able to be properly understood by everyone likely to be affected by it and especially by the person in the position of director PSU; and, second, as director PSU a person independent from all church politics and independent from the interference in cases by persons of wealth and influence in the diocese.

The Discipline Ordinance 2006 can be applied retrospectively and without any limitation period: this is unjust.

As a reminder: we are not talking about actions that are wrong in themselves. It is no use pleading ignorance that grooming a child for sex is a criminal offence – it is wrong in itself. We are talking about actions that are not wrong in themselves. For example, it is not wrong to drive a child home after a church activity even though alone in your car. It may save the child being exposed to danger from having to take public transport at night.

It is a fundamental rule of justice that a person should not be charged with any offence which was not an offence at the time that the conduct occurred.

It is another fundamental rule of justice that apart from a very few exceptions (murder and child sex abuse are two examples) there is a limitation period during which a complaint and prosecution can be brought but not later unless there are extraordinary circumstances and a Judge permits an extension of the limitation period.

The Discipline Ordinance 2006 breaches these two fundamental rules of justice. It will be even more disgraceful to have a new ‘offence’ brought in where a person faces charges brought many years later in relation to conduct that was not an offence at the time. As I said bringing charges ruins people’s lives and ministries even if the charges are eventually dismissed.

So why are Anglican parishioners being asked to fund more and more ‘power’ to the PSU?

The PSU is seeking to extend jurisdiction over persons who are not paid and to extend power in relation to a new ‘offence’ that does not involve child sex abuse, child abuse, or abuse (all of which are crimes) concerning inadequately described conduct which can be better dealt with as a matter of breach of contract between church workers and the parishes and church organisations for which they work.

This approach would at least ensure that once the person had left their employment, there would be no retrospective charges laid in respect of complaints of a trivial or technical nature about conduct that was admittedly non-sexual and which caused no harm.

Clearly, the use of non-proscriptive language and the provision of ‘defence points’ in the description of conduct in FIS means that it is more likely that charges brought by the PSU in relation to the new ‘offence’ would be dismissed. Failed cases against clergy and church workers, where the diocese pays for its’ own prosecution costs and the defence costs at least in part, is NOT what we Anglicans want for the hard-earned contributions from the parishes to the diocesan organisation and which are applied to the running of the PSU, PSC and the Disciplinary and Diocesan tribunals to be spent on.

Nor do we want dedicated Christian work over a lifetime of Christian service trashed by prosecutions brought in terms of this ill-considered and inappropriate ‘offence’.

 

In Part 5 I will look at what would be the situation if such a ‘new’ offence was applied to the facts of the charges presently brought against Drew and what further injustices would be wrought.

 

 

Post filed under Anglican Church, Drew & Pippa.