A searchable, downloadable PDF of the original article appears below. David Jennings is a lawyer in Vancouver and an elder at Fairview Presbyterian Church there.
We have been told many times that the Law without love is a repudiation of the gospel. But the corollary is true also: a rejection of the Law is a rejection of Christ’s ministry (e.g., Mt. 5:17). As the Presbyterian Church in Canada (PCC) tries to address legitimate modern secular concerns and situations, it risks sacrificing the Law (for which our society often has little regard) to display its love to the secular world. Nowhere in the PCC is the risk more obvious today than in the PCC’s well-intentioned Sexual Abuse and Harassment Policy (Policy) adopted in 1993 (printed in the 1993 Acts and Proceedings [pp. 314-326]) and the clarification statements for the Policy adopted at the 1995 General Assembly (printed in the 1995 Acts and Proceedings [pp. 310-312]).
The Policy nobly deals with the horrible issue of sexual abuse and harassment in the PCC. The PCC has, instead of ignoring the problem, developed a procedure by which victims can seek justice for wrongs done to them. Unfortunately, the Policy in its present form also contravenes the Law of God while attempting to provide compassion to victims.
What does the “Law of God” have to do with the internal procedural workings of PCC? Plenty. In January, 1994 The Presbyterian Record printed an article by Professor Margaret Ogilvie entitled “Church Discipline: Doing What Comes Naturally.’’ That article explained the traditional position of the church and the legal profession that the rules governing the operation of PCC courts (referred to by lawyers as due process or natural justice) were not invented by lawyers but rather are rooted in the law of God. Those procedures are based on “those unalterable and fundamental moral principles which are discernible by the exercise of right reason” which God gives to each one of us. What is unfortunate about the courts of the PCC (and any other grouping of fallen humans) is that natural justice is not something that comes about by “doing what comes naturally” but requires constant vigilance and practice. If PCC courts do not accept that obligation of natural justice, secular courts will soon impose that responsibility on it.
Many people are under the mistaken assumption that the activities of the PCC cannot be challenged by any secular body, because of a simplistic view of the separation of Church and State. Canadian courts are under no such misapprehension of their role. Secular courts have always been respectful of the Church’s right to internally discipline its members. But, those secular courts also treat churches like any other voluntary association. If the church acts in a capricious manner or shows a disregard for natural justice, the secular courts will intervene. And they have.
If PCC courts do not accept that obligation of natural justice, secular courts will soon impose that responsibility on it.
There are several Canadian legal cases involving ministers being disciplined by their denominations (although this author is unaware of any Presbyterian example) with little or no heed to natural justice, only to be subsequently reversed by secular courts. Many church members may feel that it is wrong to call on secular courts to review the internal matters of a church. Some proponents of using secular courts find scriptural support for such action in Acts 25:11, in which Paul appeals to Caesar because of the procedural unfairness of the religious courts. Margaret Ogilvie has noted that “much of the work of the Reformation was accomplished not by theologians and elders, but by the laity of Western Europe acting through town councils, courts and parliaments to impose beneficial reforms on a church which had successfully resisted internal reformation for several centuries.” But regardless whether resort to secular courts is justified scripturally or historically, secular court challenges of church court findings are happening in increasing numbers. Some readers will argue that paragraph 321 of The Book of Forms forbids members to find recourse to civil courts against any decision of the church courts with respect to discipline. But while the courts will not judge the findings of a church court directly, the courts are quite willing to question the process by which a decision relating to discipline is reached to determine if natural justice has been given to the accused.
The principles of natural justice require, at a minimum, that during a disciplinary hearing of any body (including the church) an accused person has the right: a) to know precisely what the allegations against the accused are and have time to prepare a defence before being required to speak; b) to confront an accuser at a hearing; c) to legal counsel; d) to the presumption of innocence; e) to the burden of proof being placed on the accuser, with that burden increasing as the severity of the punishment increases; f) to the ruling of the case being made impartially by an adjudicator operating free of bias; g) to call witnesses; and h) to consistency in procedure throughout a hearing.
While the goals of the Policy are laudable, there are three fundamental problems with the Policy that not only seriously deny natural justice to the accused but also, more practically, may result in a secular court overturning any decision reached on the basis of the Policy, however proper the result. The first problem is based on the improper mixing of the investigation, prosecution and adjudicating functions. Second, the standard of proof needed to prove guilt is both too low and poorly explained. The third problem arises from the Life and Mission Agency’s admission of bias in the Policy in favour of the accuser. Let’s examine each of these problems more closely.
In our society there are three different branches of justice involved in dealing with a crime: the police who investigate the crime, the prosecuting lawyer who attempts to prove the guilt of the person committing the crime, and the judge who determines whether the accused is guilty. Those three branches are kept separate to ensure that natural justice is provided to the accused. Improper evidence obtained by the police (whether because it was obtained illegally or based on unsubstantiated rumour) cannot be used by the prosecuting lawyer to establish guilt. The impartiality of the judge ensures that the prosecuting lawyer’s advocacy does not drown out the accused’s defence. Unfortunately, the Policy effectively melds those three, separate functions into one standing committee or session.
The standing committee investigates a complainant by meeting the complainant and the accused separately and submitting recommendations to Presbytery (or, if Presbytery has no jurisdiction over the accused, a session acts as both investigator and judge). While the accused person is supposed to be assured of “due process,” the procedure for an investigation, prosecution and judgment denies many of the basic rights properly provided to an accused of a serious offence: the accused is not provided with the allegations before the “interview” so that a proper defence can be prepared; the accused has no opportunity to confront directly the complainant; the accused may not be provided with the complainant’s detailed allegations; the accused is not permitted legal counsel to be present during the “interview”; the accused has no right to cross examination of the complainant or other witnesses; the accused has no right to hear the testimony of others; the accused has no right to call his or her own witnesses; there is no right against self-incrimination; and there is no right to the stricter burden of proof required by civil courts. Given the reality of most Presbyteries, the recommendation of the standing committee will almost certainly be also the Presbytery’s judgment on the assumption that the standing committee has done its work properly. The fact is, however, that regardless how good the standing committee does its work, the accused has not been given due process. If the matter does not fall within the jurisdiction of a Presbytery but rather remains with a session the problem is exacerbated as the session is explicitly required to act as the investigator, prosecutor and the judge. Lastly, the Policy states that the accused has a right to appeal to the disciplinary body (whether session or the Presbytery) with respect to the subject of the discipline administered but not on the finding of guilt itself. All in all, little natural justice is provided to the accused with respect to serious allegations.
The second fundamental problem arises out of the standard of proof required to find the accused guilty. In the Policy, it is stated that a person is innocent until proven guilty, but the proof of guilt is only on a balance of probabilities. As well, if the sexual abuse allegations are tried in a secular court and the accused is not convicted of the offence, the PCC courts reserve the right to judge the person again on lower standard of proof. On page 200 of Ecclesiastical Minefields, a book written by Ian Outerbridge Q.C. (who has acted as defence counsel to ministers being charged with sexual abuse), it states that the secular courts have held that the simple “balance of probabilities” standard of proof is inadequate and inappropriate for sexual abuse allegations. While an allegation may be contested in a church court, if the allegation is of a criminal or quasicriminal act (which probably includes almost all sexual abuse or harassment allegations), the secular courts require the church courts to presume that the act did not occur and place the onus on the accuser to establish that guilt by satisfying a much higher degree of probability that is consistent with the gravity of the consequence of the court’s decision. In a leading British case the court wrote that “in every allegation of professional misconduct involving an element of moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.”
The Life and Mission Agency apparently disagrees. In a report to 1995 General Assembly, the Life and Mission Agency recommended, and Commissioners adopted, the following clarification statement about the necessary burden of proof:
“The Policy deliberately uses terminology from the civil court (balance of probability) rather than the criminal court (guilty or not guilty)… The standard does not require that every doubt be explained away, but it does require that the evidence shows the event occurred as alleged… If the committee or court cannot conclude that the evidence demonstrates the actions did occur as alleged, then they must decide in favour of the person accused.”
With respect, the above statement does not contain an accurate description of the evidential standard “balance of probabilities,” but rather seems to contain three standards of proof: balance of probabilities, beyond a reasonable doubt, and beyond any doubt. The explanation of the standard used in the Policy only confuses what is already a muddied area of the Policy. Lay people adjudicating a hearing about sexual abuse allegations will have a difficult time using the above statement as an effective guide. The Life and Mission Agency, if it wishes to persist with using the “balance of probabilities” as the standard of proof, should at least provide an accurate description of the standard. Lay people appointed as adjudicators may wish to consider the usual explanation provided by secular court judges to juries on this matter: proof on the balance of probabilities means that the thing which must be proved is more likely than the other possibility whereas proof beyond a reasonable doubt means proof beyond a doubt based on reason, a doubt that is not imaginary, and a doubt that can be articulated. Explained in these terms, it is difficult to understand why the higher standard of proof was not adopted by the PCC for such a serious allegation.
Institutional bias helps no real victim of abuse, whether the victim is the accused, the accuser or the PCC itself.
The third problem arises from the astonishingly candid (if not self-defeating) admission by the Life and Mission Agency in its clarification statements. It states:
“The Policy has a recognized bias [emphasis added] towards the person laying the complaint. The policy uses a civil standard of proof rather than a criminal one. The standard is biased in favour of the complainant in that it is not necessary to prove the allegation beyond a reasonable doubt. We used this standard to ensure that the Church will be a place of safety, where people experience the love of God and the communion of the Holy Spirit.”
It appears that the PCC has agreed to forsake natural justice for a heartfelt concern for alleged victims. But what if the victim is the accused? Or even if the allegations are in fact true, the admission of institutional bias will almost certainly result in a secular court overturning any determination of guilt made by a PCC court. Institutional bias helps no real victim of abuse, whether the victim is the accused, the accuser or the PCC itself.
In the foreword to Ecclesiastical Minefields Rev. Dr. Victor A. Shepherd wrote “other denominations now watching from the wings have been given the opportunity to put their house in order before they’re immersed in the costly legal disputes that now plague the United Church.” We should not ignore this opportunity. Procedural rules are not put in place to frustrate justice but to effect the law of God. We can be proud of the goals of the Policy, but the present form of the Policy denies that the procedures will be followed (in those often repeated words of the PCC) decently and in good order. We ignore the warning at our eternal and temporal peril.