Church Civics: TEC vs. ACNA Polity #5.1
Title IV Pre-1994: The road to discipline is long!
In this edition of our series on TEC vs. ACNA polity, we’ll be beginning a subseries on disciplinary processes, historically contained in Title IV of both churches’ canons. This is an important subtopic with very real-world applications: when a member of the clergy commits misconduct, what happens? What is supposed to happen? What strengths and weaknesses exist in a given disciplinary system, and how do they directly affect those who have been hurt by the cleric’s misconduct? To begin forming an opinion on these questions, one first has to know what the system even is.
I admit that I hesitated regarding how to construct this subseries, because the face of TEC’s disciplinary process has changed massively in the past half-century. Do we really need to go through that historical-legal saga to understand the disciplinary processes in each church today?
Then I decided, yes, we do. There is no way to understand why today’s systems are the way they are otherwise — ACNA’s system in particular is rooted directly in some of the TEC systems we’ll see below. It’s also an important exercise to see why these systems changed over time.
So today we’ll treat TEC’s disciplinary system before 1994. Thanks for hanging on, and hopefully you stick around for what comes next!
NB: I am not a lawyer. Some of you reading might be! Mea culpa in advance for ill-advised or incomplete uses of terms of art. Feel free to comment if you are so moved!
The shape of the justice system
(With apologies to Dix.)
Before jumping into the pre-1994 disciplinary canons of TEC, it’s helpful to think about the general steps that are used by most of the systems we’ll look at. The “shape” of this system might already be familiar to you through the criminal justice system or other institutions with trial courts, like the military.
The main steps we may see are five:
The charge. Someone makes an accusation or complaint, alleging misbehavior on the part of an official (like a cleric).
The formalization. Some group, upon hearing the complaint, must decide whether the contents of the complaint match up with something that is illegal, and perhaps must decide whether there is a reasonable basis for believing that it may have happened. If so, the complaint is formalized.
The trial. The formalized complaint moves forward, and someone must prove, to some higher standard than that used when merely formalizing the complaint, that it happened. Someone else must judge whether the efforts at proving are adequate.
The response. If the complaint is proved, someone must issue some kind of judgment, sentence, response, or discipline. If it is not proved, some other response may be necessary.
(Optional) The appeal. If the response is disciplinary, the party receiving discipline may be able to appeal the decision on the response.
Now let’s see these main five steps in action in the disciplinary system in TEC before 1994.
Discipline for bishops
Let’s start with the big fish. If you’re living in 1993, how do you get a misbehaving Episcopal bishop disciplined?
Charges and formalizations
There are two ways to begin, because there are two main categories of offenses a bishop can commit: an offense of erroneous doctrine (especially grave for a bishop), or any other offense Title IV lists. These offenses boil down to crime/immorality, violation of Prayer Book rubrics or national or diocesan Constitution or Canons, violation of ordination vows, habitual neglect of office, or conduct unbecoming of a member of the clergy; we will simply call this misconduct for short.1
To charge a bishop with erroneous doctrine, you need ten bishops with jurisdiction to agree with you: only bishops can charge other bishops with “holding and teaching publicly or privately, and advisedly, any doctrine contrary to that held by this Church.”2 If this happens, then the matter passes to the House of Bishops. If a quarter of them consent, the matter continues; if not, it is closed. In this arrangement, the bishops function as the chargers and as a sort of grand jury — they determine whether the charge of erroneous doctrine will go forward to trial. If the matter is deemed worthy of trial, the document that formalizes this is called a presentment. It’s a term we will see a lot in these discussions, and can be compared to an indictment in the secular system.
There are a few ways to charge a bishop with misconduct. You need to assemble one of the following groups:
Three bishops; or
Ten confirmed adult communicants in good standing, including two priests; one priest and six laypeople must be from the diocese of the charged bishop.
Either way, all must sign the charges, and two must swear to them.3
The charges are then sent to the Presiding Bishop, who assembles between three and seven bishops to assess whether the charges, if true, would constitute an offense under Title IV. (They do not assess whether the claim is credible or true.) If a majority of them agree, they then assemble a Board of Inquiry consisting of five priests and five laypeople who undertake investigation of the charges.4
If a majority of the Board of Inquiry determines that there is sufficient evidence to put the charged bishop on trial after having investigated, they get the Church Advocate — essentially the Episcopal Church prosecutor — to prepare a presentment.5
Trial
After a presentment is prepared, the bishop goes to trial.
The Court for the Trial of a Bishop hears the case, and is made up of nine bishops. Three bishops are elected by the House of Bishops to serve on the court at each General Convention (every three years), so that only a third of the judges rotate on and off at once.6
The Church Advocate prosecutes the case before the Court, and the accused bishop makes his or her defense. The bishop’s rights to be present, produce testimony, and make a defense are protected.7 Witnesses may be heard and cross-examined.8
Once both parties are heard, each member of the Court issues an opinion on each charge. If a majority of the members of the Court find the bishop not guilty of a charge, he or she is deemed not guilty on that charge.9
Judgment, appeal, and sentence
Once the court issues its decision, the accused bishop may appeal it within sixty days to the Court of Review of the Trial of a Bishop.10 This is a separate court from the Court for the Trial of a Bishop that heard the case. This court of review also consists of nine (different) bishops, also elected three at a time at each General Convention by the House of Bishops.11 The court of review may affirm or reverse the “guilty” judgment of the trial court, and gain the power to impose sentence if they continue to find the bishop guilty.12 If the bishop does not pursue an appeal, sentencing rests with the trial court.13
There are three possible sentences that can be imposed:14
Suspension. The cleric is temporarily suspended from duties. This sentence must come with specification “on what terms and on what conditions and at what time” the suspension may be lifted.15
Removal. The cleric is removed from ministry. This mainly concerns matters like renunciation of orders or resignation for reasons that do not affect the moral character of the cleric or have them subject to discipline already.
Deposition. This is popularly known as “defrocking.” A deposed cleric has been dishonorably kicked out of the Episcopal Church, being “deprived of the right to exercise the gifts and spiritual authority of God’s word and sacraments conferred at ordination.”16
The House of Bishops retains the power to remit or lessen a sentence pronounced on a bishop if any five bishops agree to call a meeting for that purpose. If a majority of that House agree, the sentence is modified.17
Discipline for priests and deacons
Now let’s move to other non-bishop clerics. How does the pre-1994 system treat them and those charging them?
Priests and deacons are subject to all the same offenses that a bishop may commit under Title IV. Here is what the canons say regarding who may bring a charge, and how a charge may become a formalized presentment:
The mode of presentment of a Presbyter or Deacon shall be that provided by the Canons of the Diocese wherein the accused is canonically resident.
IV.4.1.
In other words, it is up to the diocese to maintain procedures for how to receive allegations, draw them up into charges that correspond with Title IV, and to formalize them into an indictment of the cleric in question.
Well, how about once you have a formal presentment in-hand and you know the matter is going to trial? The national canons stipulate that each diocese must maintain a Court for the Trial of a Presbyter or Deacon to try such cases, but again leave it up to the diocese to establish canons regulating the composition of the court and its manner of conducting trials.18
The national canons have more to say about appeal, because to appeal the decision of a diocesan court, you have to go a level higher than the diocese. In each Province of TEC (a geographic group of dioceses; this kind of province is not to be confused with the use of the term “province” to mean the Anglican church in a given country), the national canons construct a Court of Review of the Trial of a Presbyter or Deacon. These courts of review are composed of a bishop, three priests, and three legally-trained laypeople from the province. Members of these courts are elected by the synods of the Provinces, and two-thirds of this court is necessary to overturn a diocesan court’s judgment.19
Priests and deacons are subject to the same possible sentences as bishops — suspension, removal, or deposition — and always have sentence pronounced by the bishop diocesan, even if appealed. The bishop may pronounce a lesser sentence than what the diocesan trial court recommends.20
Conclusion
Though several complexities and special cases have been omitted from this overview, this is the core of the disciplinary system in the Episcopal Church through 1994. What do you think its strengths are? Its weaknesses? What would you change or want more information on if you were a layperson concerned about misconduct? What if you were a member of the clergy?
Calls for reform were in the air for some time before coming to full fruition in 1997. We’ll discuss those next time and you can see if your sensibilities matched those of Episcopalians near the turn of the millennium. For now, thanks for reading!
IV.1.1. Citations throughout are from TEC’s 1994 Constitution and Canons, given in short form.
IV.4.2.
IV.4.3.
IV.4.5.
IV.4.6.
IV.3.14.a.
IV.5.2.b.
IV.5.3.
IV.5.4.
IV.6.2.
IV.3.15.
IV.6.5-6.
IV.5.6.
IV.12.1.
IV.12.2, 15.1.
IV.15.1.
IV.13.1.
IV.3.1.
IV.3.3-12.
IV.12.4.a.