Thursday, August 5, 2010

Court of Review Dismisses Charges Against +Bennison

The Court of Review for the Trial of a Bishop has issued a decision dismissing the charges of "conduct unbecoming a member of the clergy" against the Rt. Rev. Charles E. Bennison, Jr. on the ground that, the acts in question having occurred more than 35 years ago, the charges are barred by the ten-year-statute of limitations in Canon IV.14.4.

The 38-page decision of the Court of Review (caution -- .pdf download), dated July 28, 2010, is signed by eight of the nine bishops serving on the panel when the appeal was filed in March 2009. (The ninth member, the Rt. Rev. Wayne Wright of Delaware, recused himself for personal reasons.) The Rt. Rev. Clifton Daniel III, the Bishop of Eastern Carolina, served as Chair; the other members of the panel were the Rt. Rev. Chilton Knudsen, resigned (formerly diocesan of Maine); the Rt. Rev. D. Bruce MacPherson, Bishop of Western Louisiana; the Rt. Rev. Michael B. Curry, of North Carolina; the Rt. Rev. Duncan M. Gray III, of Mississippi; the Rt. Rev. Don E. Johnson, of West Tennessee; the Rt. Rev. S. Todd Ousley, of Eastern Michigan; and the Rt. Rev. Mary Gray-Reeves, of the Diocese of El Camino Real. None of the panel members has any formal legal training; however, the Court is advised by up to three Lay Assessors, who are attorneys knowledgeable in canon law.

The Court of Review's opinion begins by reciting in full the tortured procedural history of the trial and post-trial proceedings in Bishop Bennison's case. Bishop Bennison was never charged with sexual abuse toward the minor whom his brother sexually abused while he was her youth pastor; instead the charges were that Bishop Bennison had, while a rector supervising his younger brother, concealed the latter's unlawful conduct and failed properly to minister to the girl and to her parents, who were members of his congregation. That concealment, and failure to minister, along with subsequent charges that Bishop Bennison had failed to communicate his knowledge of his brother's conduct to Church authorities when the latter was reinstated to the clergy, constituted the bulk of the two counts in the presentment for "conduct unbecoming a member of the clergy."

Since his brother's conduct occurred in the late 1970's, and Bishop Bennison found out about it soon afterward, the acts with which he was charged were all outside of the ten-year statute of limitations in Canon IV.14.4 (a) (1). The Court for the Trial of a Bishop, however, had found that the exception in section 14.4 (a) (2) applied, which provides:
The time limits of this Section shall not apply to Offenses the specifications of which include physical violence, sexual abuse or sexual exploitation, if the acts occurred when the alleged Victim was a Minor.
The Court of Review held that there was no question that this language would have enabled the presentment and trial of John Bennison (the younger brother) for the acts of abuse against the minor in his pastoral care, but held that "sexual abuse" formed no part of the "specifications" of the charges for conduct unbecoming a clergy actually brought against Charles Bennison. Here are the key paragraphs from the end of the decision:
The actions and the objects of those actions are enumerated in paragraph 48 of the Presentment: (a) failure to fire or suspend his brother immediately, (b) failure to investigate his brother's conduct, (c) and failure to discharge his pastoral obligations to (i) a 14 year old parishioner, (ii) the members of her family, and (iii) the members of the parish youth group. Those actions having consequences for the members of the victim's family and the parish youth group are not actions of which the minor female was the object. While they may be sufficient to be conduct unbecoming a member of the clergy, they are not actions that constitute sexual abuse of a victim as is defined in Canon iv. 15. To the extent the Trial Court relied upon those findings to apply the sexual abuse exception and allow a guilty verdict against Appellant, the Trial Court was clearly erroneous.

There remains only the issue of whether Appellant's inaction with regard to John Bennison's conduct - even when he had only suspicions about the conduct - constitutes sexual abuse of the minor female by Appellant. We canot engage in any speculation to conclude that, had Appellant - even without actual knowledge - only confronted John Bennison in 1973 or even in 1975, or had investigated or had taken steps to separate the minor female and John Bennison the sexual abuse by John Bennison would have stopped or would have been less adverse to the minor female. Any adverse effect upon the minor female by Appellant's inaction would not involve the direct, physical action by Appellant upon the minor female that is required to apply the sexual abuse exception of the statute of limitations.

For that reason, while we agree with the Trial Court that Appellant was guilty of conduct unbecoming a member of the clergy, those actions do not constitute sexual abuse and, therefore, a Presentment for that offense cannot be made because it is bared by the applicable statute of limtations. The Trial Court was clearly erroneous in failng to apply the statute of limitations and, therefore, its judgment againt Appellant on the First Offense is hereby reversed.
The judgment of reversal also reverses the sentence of deposition pronounced upon Bishop Bennison by the Presiding Bishop following his trial, and brings to an end the period of inhibition to which he became subject when the Presentment issued. Bennison, who is 66, has not yet reached the age of mandatory retirement. The reversal of his deposition and the ending of his inhibition will effectively reinstate him in his position as Bishop of the Diocese of Pennsylvania, where he has been in a long-standing feud with the Standing Committee. As a Bishop with jurisdiction, he may be removed only by voluntary retirement or resignation, or by action of his colleagues after trial and presentment, or by a vote of the full House of Bishops in the case of "abandonment of communion."

The decision by the Court of Review also calls into question the lengthy proceeding to which the witnesses most affected by John Bennison's abuse were subjected, in order to present evidence against his brother on charges that should have been barred by the statute of limitations. The applicability of the statute was repeatedly raised by Bishop Bennison's attorneys at the trial, and again in the convoluted post-trial proceedings.

The issue of how the relationship between Bishop Bennison and the diocesan Standing Committee will be resolved could also affect pending litigation which the Standing Committee instituted against the Church of the Good Shepherd in Bishop Bennison's absence. There remains a possibility of other charges being brought against Bishop Bennison, for conduct in his office as a bishop.

Before it knew of the decision by the Court of Review, the Standing Committee of the Diocese of Pennsylvania issued a letter to the Diocese, in which it indicated that they were mapping out plans for whichever way the decision went. Prayer is needed for all those in the Diocese of Pennsylvania, and for those outside of it, who are most affected by this result.


  1. Here's a link

  2. Pardon me, but I wonder where "Eastern South Carolina" is.
    There is "DuSC", and DoSC" but no "eastern" diocese.. Perhaps it should be NC or some other liberal wilderness?

  3. I have posted your link, Father Wilson -- thanks.

    Grandmother, I got a little too finger-happy on the keyboard when I typed that. Bishop Daniel is the Bishop of the Diocese of Eastern Carolina, which comprises the eastern half of only North Carolina. I have fixed the reference -- thank you.

  4. Mudge? I'm not a canon lawyer, I just pretend to be one on the Internet. But here's the problem I have. I searched the Canons just now looking for a definition of exactly what constitutes "sexual abuse and exploitation" and I couldn't find one.

    So could this court have found that Bennison's knowledge of but refusal to do anything about, never mind prevent, his brother's sexual abuse was in itself a form of sexual abuse? That seems to me to be just as logically solid as the ground they're choosing to hold. After all, the Episcopalians have, in the past, been a whole lot more canonically creative for a whole lot less of a reason.

  5. Christopher Johnson, the Court of Review was bothered by the refusal of the trial court to state, in so many words, its factual findings with respect to just what actions on Charles Bennison's part (as opposed to the actions of his younger brother) constituted "sexual abuse" or "sexual exploitation". Such findings were required in order to invoke the exception to the ten-year statute of limitations.

    As the opinion analyzes, each of the trial court's four separate rulings upholding its conviction of +Bennison studiously avoids making any such explicit findings. (See pages 7-10 of the opinion.) So the Court of Review made its own detailed findings, based on the record.

    It found specifically that the only time +Bennison might have learned what was going on at the time it was actually going on (as opposed to finding out after the abuse by his brother had ceased) consisted of two occasions when he nearly walked in on them, but refused to believe what his eyes could have told him, and another occasion when he confronted his brother with accusations he had heard from a parishioner. (See opinion, pp. 12-13.) Then it concludes: "During the two or three months following Appellant's receipt of the information about John Bennison and the minor female, Appellant failed to separate them, failed to investigate the truth of that which he had been told, and failed to make any contact with the minor female or her parents about this issue."

    So it is all about failing to act, failing to investigate, and failing to make any contact with the minor or her parents to get to the bottom of the matter. And the Court of Review cannot find in any such failures a positive, affirmative act of abuse or exploitation -- because to "abuse" or "exploit" means to gain an advantage through intentional, knowing behavior, as opposed to negligent failure to act.

    What I find reprehensible is that Chancellor Beers and the Presiding Bishop saw fit to approve a presentment for just "conduct unbecoming a member of the clergy", and then tried it as though it were a molestation case. This raised a lot of expectations among the victim, her family and other witnesses that justice would finally be done, when the charges were all wrong: I mean, if in order to establish the offense of "conduct unbecoming" after 35 years you have to prove "sexual abuse" or "sexual exploitation" anyway, then forget the lesser charge of "conduct unbecoming" and go for the whole shebang. By proving the former without also proving the latter, all they did was show that they never should have brought the case in the first place -- if that was all the evidence they had.

    So Beers and +Schori were as "canonically creative" as ever in this case, but they failed to persuade even one of the eight bishops on the panel.

  6. A postscript to the last comment:

    Think of it this way. If I am walking down a street in East St. Louis and hear sounds of you getting mugged in broad daylight -- but cannot see you from where I am walking -- and I choose to turn and walk away in the other direction, rather than investigate further, I take it you would agree I have not committed either a crime against the public generally, or a civil wrong against you specifically.

    And now, if I am a policeman on the beat and act the same way, I have done something wrong to you -- I have failed in my duty as a policeman (or if you will, I have engaged in "conduct unbecoming an officer of the law"). But I cannot be charged with being an accessory to your mugging -- the law does not yet go quite that far.

  7. I was thinking was something along these lines. If a friend or relative of mine shoots you and I don't tell the police what I saw or claim that I don't know something that I do know and the authorities find out about it, I'm going to jail. I didn't kill you but I did contribute to your murder.

    In the same way, Bennison's failure to act against his brother contributed to the abuse of that poor girl. And since what actually constitutes "sexual abuse" or "sexual exploitation" doesn't seem to be explicitly defined anywhere in the canons, this court could have defined both much more broadly than it did and still remained on solid, canonically-valid ground.

    But it didn't so the question is an academic one. I rather suspect that in the wake of this debacle, Episcopalians will give "sexual abuse" a much more explicit and much broader meaning than the canons currently do. I also think that the statute of limitations will be eliminated from any cases merely involving sexual abuse whether the offending bishop actually committed the act or not.

    As always, thanks very much for your insights.

  8. Dear Mr. Haley,

    Given that failure to act is not a positive act, it would suggest that what is needed might be an additional canon that would parallel the UCMJ article on "misprision," but in this case not necessarily the specific "misprision of a felony."

    Pax et bonum,
    Keith Töpfer
    Currently at sea in the Gulf of Mexico responding to the Deep Water Horizon situation.