OUTLINE OF PROTOCOL FOR INVESTIGATING COMPLAINTS CONCERNING MATTERS OF A SEXUAL NATURE

Drafted by R.S.Ward, 12/4/2002

The nature of sexual abuse is such that while great care needs to be exercise in judging the credibility of accusers, yet special rules are appropriate because of the peculiarities of the offence. Therefore, in the case of allegation of sexual harassment or abuse against a minister the procedure in the Handbook 7.29-7.42 is varied and takes the following form.

1. Some principles

1. Ministers are expected to be examples and models of Christian faith and conduct. This protocol seeks to apply to the ministerial relationship the standards God expects of all people. It also aims to express justice to those who have been victimised. It is the unambiguous duty of any person in ministry not to use the influence and authority of that position for personal gain, whether financial gain or in terms of sexual gratification or otherwise. It is also recognised that allegations against a minister are not to be rashly entertained, and the possibility of false accusation is recognised.

2. The principles of natural justice, including ‘innocence until proven guilty’, lie at the basis of the complaint procedure. Nevertheless, where initial investigation suggests there is a case to answer, the accused shall be stood down from active ministry on paid leave pending the outcome even before a libel (formal charge) is served on him. Where resignation is tendered the resignation may be accepted so far as the functions of the ministry are concerned but otherwise the provisions of Handbook 7.41 apply and thus procedure to establish the truth or otherwise of the allegation/s continues. [See also G. 2 (c) below.]

3. When listening to an accused those listening must be aware of the difference between remorse and repentance. Normally remorse is the initial expression of regret or sorrow in response to the matter being discovered. Repentance involves an often slow and deeply personal process of accepting responsibility for the consequences of one’s actions.

4. Those dealing with allegation of sexual abuse and harassment need to recognise that sometimes reconciliation appears improbable and may be impossible or unwise.

5. Applications from those desiring admission to the ministry of the church must subscribe a declaration in specified form related to past history of abusive conduct or allegations of it. They must also accept the principles of this protocol and lawful amendments of it, pledge their co-operation with any investigation under it, and their readiness to attend any education process sponsored by the church to promote ministry free from abuse.

6. No Presbytery certificate as to a minister’s status or service is to be issued which does not disclose the existence of all past allegations of sexual offences and the result.

2. Sexual harassment or abuse described

1. Sexual harassment and abuse contravenes God’s word and is unethical and unacceptable behaviour. It may also be unlawful according to the laws of the land.

2. Sexual harassment and abuse covers a range of unwelcome, unsolicited, manipulative and unreciprocated behaviour that constitutes deliberate or unintended verbal or physical contact. It includes gestures, display of offensive material, comments and suggestive remarks through to physical contact such as pinching, touching, caressing, inappropriate kissing, sexual intercourse and more hostile conduct. It may be perpetrated by an individual or a group towards a person of the same or the other sex, or by an adult toward a child.

C. Initial complaint

It is anticipated that allegation of sexual abuse may be verbal in the first instance. In any event, allegations however made known, are not competently dealt with by Session but must in every case be reported to the Clerk of the Presbytery of the bounds forthwith. The Presbytery Clerk is to advise the Law & Advisory Committee of Synod forthwith in writing, and he is also to assure the complainant that a proper examination of the complaint will be made.

D. Intervention Team – preliminary investigation

1. An Intervention Team (IT) consisting of three persons from outside the membership of the PCEA is formed without delay (at least one being the same gender as the complainant); one of these persons must be trained or experienced in issues associated with boundary violations and misconduct and the other a professional eligible for membership of the Australian Psychological Society or the Australian Association of Social Workers or equivalent body. If there is no standing arrangement in the presbytery the Intervention Team must be formed within 2 weeks of receiving the complaint.

2. The Intervention Team meets with the complainant, to hear the story, provide guidance and support, including copies of this protocol, and to determine if the complaint warrants further investigation.

3. The Intervention Team will advise the accused of the substance of the complaint and hear his response as soon as practicably possible. The IT will direct that the accused not conduct his own investigation or approach the complainant. If he does he will be disciplined by the Presbytery for contumacy. Support and guidance may be supplied to the accused from a list of Advisers supplied by the Presbytery and/or the Law and Advisory Committee.

4. The report and recommendations of the IT are sent to the Presbytery in every case, including as to whether the accused should be stood down without prejudice.

E. Report to Presbytery

1. The presbytery receives the IT report.

2. If the complaint is deemed not to warrant further investigation the IT may recommend to the complainant an appropriate helping professional to provide support and counselling, but at the complainant’s expense unless otherwise determined by the Presbytery. The complainant has the right to refuse such a recommendation, and may appeal the decision of the Intervention Committee to the Presbytery having jurisdiction over the accused.

(b) If the complaint is deemed worthy of further investigation the matter is taken up by the Presbytery at the earliest opportunity and the following procedure applies:

(c) If the complaint falls under the jurisdiction of the criminal law, the Presbytery encourage and assist the complainant to report the matter to the Police. If criminal proceedings are instituted the Presbytery monitors them, and if a conviction is recorded the Presbytery dissolves the pastoral tie and removes the minister from office.

(d) If the complainant does not report the matter to the Police or if it is not a matter recognised in the criminal law, or the police decline to proceed, or if proceedings are not timely or occur but no conviction is recorded, the presbytery proceeds to investigate the complaint, framing a libel in the usual manner. Complaints or appeals to Synod on technical issues should be disregarded until after the judgement is reached by the Presbytery so that if there is an appeal against the sentence also, all outstanding matters may be dealt with by the Synod at the one time.

(e) It may appear in the course of the case that an appropriate outcome would be mediation. However, the complainant cannot be forced to enter into mediation, nor may it be appropriate for certain kinds of abuse.

F. Finding in a Case

1. (a) The finding in a case of sexual misconduct, if mediation has not resolved the matter, is either not-guilty or guilty.

(b) A not-guilty verdict means that the complaint is held to be unfounded and no action against the accused is required. The finding is made known as far as practicable as widely as was the original allegation. (c) A guilty verdict is based on the balance of probabilities, not the criminal standard of ‘beyond reasonable doubt’. The presbytery must therefore decide whether it is more probable or not that the conduct complained of took place. If the evidence duly considered appears inconclusive, the Presbytery shall so resolve and then take previous history and or records into account. If the accused has had complaints about him previously it may be reasonable to point to a pattern of behaviour and so make a finding on that basis. However, this situation should be approached with extreme caution, so that the accused is not denied natural justice.

(d) The presbytery will document its finding in its ordinary minutes, providing a copy to both parties and to others interested. The complete record, kept in a record apart, will be sealed, and retained in secure form by the Presbytery Clerk with a summary abstract furnished to the Clerk of Synod and the Law and Advisory Committee to be held in perpetuity.

(e) When the complaint is upheld the penalty must take into account the nature of the offence and the impact on the victim/s involved. A minister shall be deposed from the ministry or a licentiate deprived of his licence and prohibited from pastoral duties or eldership for inter alia, sexual intercourse outside of marriage by a married minister/licentiate, or physical sexual activity with more than one person, or with a minor or a person of the opposite sex.

G. Relationship with Parties

1. (a) All contact with the victim must be pastoral in intent. The complainant must be affirmed in his or her right and freedom to make the allegations, and has the right to be kept informed of both the process being entered into and the possible outcomes, and to make a submission on the outcome.

(b) The Presbytery may suggest that the complainant enter into appropriate therapeutic counselling that is confidential to the complainant and his or her choice of therapist. Costs for counselling may be borne by the guilty party. Support and assistance for the complainant and or his or her spouse and family may be made by the church.

2. (a) Confronting an accused should be carried out pastorally. Genuine confession should be heard and honoured. Those ministering to the accused must remind him, and be reminded themselves, of the depth of God’s grace and the cost of God’s forgiveness in Christ. Confession is a vital first step, but it is important to recognise that confession and forgiveness does not imply restoration to pastoral ministry. The nature of pastoral responsibility and perceived authority, combined with the intimate access of the minister to vulnerable people facing emotional, mental and spiritual struggles, requires a high level of maturity and emotional health, especially in sexual matters.

(b) The Presbytery may suggest that the guilty party enter into appropriate therapeutic counselling that is confidential to the guilty and his choice of therapist. Costs for counselling may be borne by the guilty party, Support and assistance for the guilty party and or his or her spouse and family may be made by the church. The willingness of the guilty person to make such restitution as may be recommended by the Presbytery will be taken into account.

(c) The resignation of a minister for any cause cannot be accepted without the presbytery appointing one or more of its number to preside at a congregational meeting to discuss the proposed resignation and meeting also with the elders to inter alia ensure that no there is no known suggestion of impropriety or scandal in regard to the minister whose resignation has been submitted, and specific report on this aspect must be entered in the Presbytery minutes.

(d) Restoration to the ministry after deposition or restoration of licence after being found guilty for the offences noted in F. 1 (e) is not generally to be contemplated. Any proposal for restoration must be made through the Presbytery having jurisdiction at the time of deposition and must be approved by a minimum 75% vote of the Synod.

3. All contact with the congregation involved should be carried out pastorally. The complainant must be affirmed in his or her right and freedom to make the allegations. An announcement of the results of the finding should be made to the congregation. The fact that a perpetrator of sexual abuse has confessed his wrong-doing must not be used as a means of silencing those who want to express anger, pain or confusion as a result of being victimised.

This is a draft derived largely from the Protocol of the Australian Churches of Christ (1999), which is regarded by the Managing Director of EIG-Ansvar as the best Protocol he has seen, and has been modified to suit our Presbyterian polity.