Title IV Must Be Revised

Years ago, I was discussing retirement with a bishop who had retired after a 25-year episcopate. “I got out just in time,” he said. “In time for what?” I asked. “In time to miss the new Title IV.”

Title IV is the disciplinary process for members of the clergy, including bishops. Its failings have been much in church news recently, especially concerning bishops. At the House of Bishops meeting on September 20, 2023, we discussed at length what these cases meant for bishops in general. There is in some quarters the impression that compared to priests and deacons, bishops get off lightly. We bishops issued a statement that acknowledged “disappointment, pain, and grief” across the church that these cases have caused.

The most publicized of these recent cases is that of former Bishop of Oklahoma Ed Konieczny. The President of the House of Deputies, Julia Ayala Harris, filed a complaint against him alleging that he made “unwanted and non-consensual physical contact and statements” on the day she was elected President by the House of Deputies at last year’s General Convention. After a year, the disciplinary process concluded that a “pastoral response,” not disciplinary action, was required. President Harris made the matter public in a letter to the deputies, asking, “If there is no discipline for well-documented violations, then under what circumstances would discipline be imposed?”

The Living Church, to its credit, has given extensive coverage to the issue. In one article, it presented a chronology of Bishop Konieczny’s process, which shows the lengthy and convoluted steps it takes from the reception of a complaint to its adjudication, not to mention this one’s specific oddities. Kirk Petersen concludes, “The church would be better served by a clearer understanding of the facts.”

One can perhaps better understand my retired colleague’s statement.

My own experience of Title IV began in 2001 when I became the first elected Bishop in charge of the Convocation of Episcopal (then American) Churches in Europe. I was immediately confronted with a disciplinary case, which I was able to resolve by turning the priest over to his bishop, as the accused was not part of Europe’s clergy. However, I realized then that the convocation had no way to administer discipline to clergy that was fair and open, because the canon we operate under (I.15) had no provision then for a process. After long and difficult negotiations, we finally got the canon revised by General Convention, and the convocation now has its own disciplinary board.

I am not trained as a lawyer, but the responsibility as bishop and my experience of getting a system set up does give me enough insight to claim that we need to revise Title IV completely. I voted against the proposed revision at the conventions of 2003 and 2006, and finally decided not to vote against it in 2009 because the process of revision had already been so long.

It has to be said that Episcopalians do not much like discipline. A seminary professor told me about a senior seminarian who, after a lesson on canon law, angrily exclaimed that he would never have sought ordination if he’d known that the rubrics of the Book of Common Prayer were canonically enforceable. For the longest time, diocesan conventions created their own courts, and attempts to create canons for the whole church were stoutly resisted in the name of local rights. To (over)simplify a complex history, a number of lawsuits starting in 1991 led to the Church Insurance Company demanding a better system. A new Title IV was created following the model of the Uniform Code of Military Justice, and it became effective in 1996. Almost immediately, people wanted something less bluntly adversarial, and so the model of discipline for lawyers and doctors was selected for what was finally adopted in 2009.

Today’s Title IV has two underlying concerns. The first and second appear in IV.1: “The Church and each Diocese shall support their members in their life in Christ and seek to resolve conflicts by promoting healing, repentance, forgiveness, restitution, justice, amendment of life and reconciliation among all involved or affected.” Essentially, justice and reconciliation.

The quandary is how to create a system of discipline for bishops, priests, and deacons that gives justice to those who have been harmed, restrains clergy from violating our oaths of ordination “to conform to the doctrine, discipline, and worship” of the church, and that also effects reconciliation. To do this, following the American Bar Association model (as I understand it), an inquisitorial system was created.

American courts are adversarial. The prosecution accuses, the defense defends, and the judge (and jury) decide who has won. In an inquisitorial system, such as France’s, there is first an official who takes in a complaint, investigates, and decides whether it has merit, building a dossier along the way, which may or may not be presented to a prosecutor. In Title IV this is the Intake Officer. This officer can accept or dismiss the complaint. There are several steps and “panels” to go through before a court (“hearing panel”) adjudicates the complaint, should it get that far. It must be said that Americans’ lack of familiarity with inquisitorial legal systems is an immediate barrier to understanding the process and therefore the outcome of a Title IV complaint.

I do not think this process encourages reconciliation, despite everyone’s best efforts. Disciplinary processes of any kind, if they are effective, discipline. Where we are now with the presenting case is that both the President of the House of Deputies and the Presiding Bishop have referred the issue to the Standing Commission on Structure, Governance, Constitution, and Canons to examine ways to improve Title IV.

The focus is on the discipline of bishops, because of the perception that bishops get off more lightly than priests or deacons — a perception I firmly believe is false (though it certainly used to be true). But the whole system is at fault. While the canons remain the same, penalties vary for identical offenses. What constitutes “conduct unbecoming a member of the clergy,” unless specified, is vague. In one diocese, a priest may be deposed for an affair with a parishioner; in another, the priest might be suspended or fired and given a severance package.

A much simpler system of clergy discipline is necessary, restoring the bishop’s role with appropriate guardrails for transparency and fairness. At the same time, a “pastoral response team” should become a fixture in every diocese, created by canon, whose task would be to work separately toward reconciliation and healing of all concerned. In light of today’s financial crisis, moreover, many dioceses are hard-pressed to follow through with the myriad steps of Title IV.

Finally, the whole term of “ecclesiastical authority” needs rethinking. It is vague. When there is a diocesan bishop, or coadjutor or suffragan in charge (if there is no diocesan), that person is “the ecclesiastical authority.” When there is no bishop, the canons prescribe the diocese’s standing committee to fulfill that function “for all purposes declared by the General Convention.”[1] But at least once, a General Convention appointed a committee to arrive at a definition of those purposes, without result.[2]

I am absolutely in favor of the tradition of diocesan standing committees as a check upon the bishop’s powers, as opposed to practices in other provinces of the Anglican Communion. However, standing committees are inherently unable to function in place of a bishop, though the very title “ecclesiastical authority” would seem to grant those powers, apart from a sacramental role.

The total lack of any canonical accountability for the work of standing committees when there is no bishop exercising authority has led to serious situations, the current case of the standing committee of the Diocese of Haiti being the most egregious. There are other examples of overstepping boundaries besides that one.

At General Convention 2003, a proposed revision of Title IV suggested that lay officers be held accountable along with clergy. If I recall correctly, the potential for lawsuits led the House of Bishops to delete that section. However, standing committees should be accountable for their conduct, not only as a potential “ecclesiastical authority,” but also for the authority that they routinely exercise. In Canon III.12.13, “Dissolution of the Pastoral Relation between a Bishop and a Diocese,” while there is the possibility of terminating a Bishop’s ministry, no provision addresses the standing committee’s possible responsibility for the failure of the relationship.

The canon is the result of the unwillingness of a former diocesan bishop of the Diocese of Pennsylvania to resign, despite a unanimous vote in 2010 of the House of Bishops that he do so. A provision in the House of Bishops Rules of Order for such action could replace Canon III.12.13, if for some reason holding standing committees to account be deemed unfeasible. But that issue would still be very much in need of a remedy.

I submit that the present moment is propitious for revising Title IV completely, and competently holding accountable all those called to exercise “ecclesiastical authority.”

The Rt. Rev. Pierre W. Whalon served as Bishop in charge of the Convocation of Episcopal Churches in Europe from 2001 to 2019.

[1] Article IV, Constitution & Canons of the General Convention 2022.

[2] See Journal of the General Convention of 1841, page 13. According to White & Dykman, nothing came of it.