Loose Canons: The Trouble with Title IV

Read our previous pieces on the UMD Constitution and Canons.

Title IV: Ecclesiastical Discipline

Title IV of the proposed Canons deserves close attention, as it concerns church discipline and how the Diocese investigates and responds to misconduct. We’re analyzing this Title on its own because of the weight it carries for all future discipline, abuse investigation, and pursuit of justice among clergy and laity in the Diocese. The UMD’s failure to properly deal with Mark Rivera’s criminal behavior led to the creation of ACNAtoo, and we ask you to pay close attention to what these proposed Canons mean for the UMD’s future governance.

Canon 1: Church Discipline

This Canon reads, in its entirety:

“All Clergy canonically resident in this Diocese shall be subject to the disciplinary provisions of Title IV of the Canons of the Province and to the provisions of these Canons. Every member of the laity of this Diocese shall be subject to the disciplinary rubrics of the Book of Common Prayer authorized by the Bishop and in use in the layperson’s Congregation. The responsibility for investigating and disciplining members of the laity belongs to the Rector of the affected Congregation.” (Title IV Canon 1)

These three sentences dedicated to church discipline enact a state of affairs that breaks from established Anglican governance principles by inappropriately delegating responsibility for discipline away from the Bishop. It is a basic tenet of worldwide Anglican polity that the diocesan Bishop, as “the chief pastor” and “principal minister” of the diocese, has “primary responsibility to maintain ecclesiastical discipline in the diocese amongst clergy and laity” (The Principles of Canon Law Common to the Churches of the Anglican Communion, Principle 37).

In its recent memorandum on the UMD’s proposed Canons, the American Anglican Council (AAC) warned the UMD that “no ecclesial structure should give to an alternative or intermediate authority, such as… a Rector, the final say over a matter which is properly the purview of a bishop” (AAC Memorandum), and ACNAtoo agrees. By requiring Rectors to be solely responsible for “investigating and disciplining” the laity, the UMD departs from the above principle and creates a troubling set of possibilities.

For example, in usual Anglican systems, Rectors are charged with Eucharistic discipline, meaning that they can deny a lay person the Eucharist if they live a notoriously evil life and do not repent. If a Rector denies that person admittance to the Lord’s Table, the Rector must inform the Bishop (BCP 2019, 143). That is because Rectors do not act on their own authority, but as ecclesiastical extensions of the Bishop’s ministry; together they cooperate in the Bishop’s administration of discipline. The proposed Canon seems to contradict this basic principle—preventing “the buck” from ever rising to the Bishop—and depriving the wrongfully-disciplined lay person of any recourse with the Bishop.

Additionally, not all offenses committed by lay people are the same. Common violations of the rubrics of the Book of Common Prayer (such as refusing forgiveness to a person who truly aims to “make up for their faults,” BCP 2019, 143) may be handled well with a simple pastoral conversation, but allegations of extraordinary or even criminal conduct by a lay person must not be canonically encouraged to remain in the purview of the Rector alone. This Canon neglects to account for the gravity of abusive situations, which should be reported to outside authorities so they can make the proper investigation, and to the Bishop, so he can responsibly begin a pastoral, administrative, and/or disciplinary response to the situation that has arisen under his jurisdiction. 

How would/could this play out in the case of Cherin’s daughter’s abuse disclosure?

A single Rector was neither sufficiently competent nor equipped to handle the serious criminal accusation brought against Mark Rivera, a lay minister, by Cherin’s daughter. Rectors were not then and are not now, under these proposed Canons, designated as Mandated Reporters to the State – though they should be, given all that has transpired. 

No Rector should have to carry the burden of being solely responsible to “investigate and discipline” any and all offenses committed by lay people. Imprudent decisions the Rector makes during a crisis may have disastrous consequences, and there is no recourse possible if the Bishop has washed his hands of all responsibility. After Cherin’s daughter’s disclosure, the Rector called a meeting between Mark Rivera and Cherin. What transpired, as described in the Husch-Blackwell report, is a prime example of why church leaders should not attempt to intervene in abuse allegations with a “Matthew 18” methodology. Under this proposed Canon, Cherin would have no access to the Bishop if she wished to challenge the Rector’s attempt to put her face-to-face with her daughter’s molester.

Canon 2: The Ecclesiastical Court

This proposed Canon creates a diocesan Ecclesiastical Court, which will try priests or deacons brought up on disciplinary charges:

“The Ecclesiastical Court shall consist of two (2) Clergy and two (2) lay members, all nominated by the Standing Committee and elected by the Synod, at least one (1) of whom is a practicing attorney. Such members shall serve three-year terms. Within two (2) months of the appointment of the Court, the Court shall elect one (1) person among its members to serve as the presiding judge. The Bishop may appoint attorneys at law to advise the Court as to its procedures. The Court shall appoint a recorder of proceedings, which recorder shall be a court reporter not affiliated with the Diocese or shall make an audio recording (including a video recording if so desired) of all court proceedings.” (Title IV Canon 2)

The creation of this Court is long in coming. Since the founding of the Diocese in 2013, the UMD never established this Court, despite an ACNA provincial canonical requirement to do so (ACNA Provincial Canons, Title IV Canon 5.1), and instead seated the Bishop’s Council in its place (UMD Canons Title I Canon 3.2.e). The AAC has pointed out that to their knowledge, no other ACNA diocese failed to create this Court (AAC Memorandum); ACNAtoo corroborates their understanding.

While this new proposed Canon brings the UMD in line with other ACNA dioceses in regards to the bare minimum of creating the Ecclesiastical Court, it is essential to highlight the inordinate power the Standing Committee has to nominate Court members – a carryover from the Diocese’s previous practice of simply seating the Bishop’s Council as the diocesan Court. 

Compare this arrangement with the Canons of the Gulf-Atlantic Diocese, which clearly provide (Canon XXIII) that their Synod review and elect members of the Court, and that members of their Standing Committee cannot also serve on the Court. UMD’s proposed Canons leave the composition of the Court in the Standing Committee’s hands and do not stipulate what might happen if none of the slate of nominees is approved by the Synod. 

There are many other scenarios these proposed Canons do not account for, including whether temporary elections are held if a position is vacated, or whether the three-year terms are staggered, or whether a whole court is cycled in and out annually. As with the previous UMD Canons, not enough detail is specified in the proposed Canons to give UMD clergy any confidence in a fair trial or an impartial court.

Canon 4: Accusations and Investigations of Presbyters and Deacons

The proposed Canon on Accusations and Investigations of Presbyters (Priests) and Deacons merits sustained and close attention, as it is a focal point by which we can understand what the UMD has learned or not learned over the past few years.

All ACNA dioceses must follow the process for handling accusations provided by Title IV Canon 3.1 of the ACNA Provincial Canons, which includes an internal investigation, but dioceses are free to stipulate details in their diocesan canons that are not inconsistent with the Provincial Canons to adapt them for the local community. But instead of using their freedom in implementation details to make the intake of an accusation as simple as possible for vulnerable reporters while still conforming to the ACNA’s requirements, the UMD has chosen, with this proposed Canon, to place more barriers in front of them than the ACNA mandates.

This Canon structures how accusations of misbehavior are brought, and to whom, and further outlines the process by which accusations are processed. We examine the steps of that process below, setting in bold the provisions added by the UMD that are not required by the ACNA Provincial Canons.

“1. An accusation or accusations of conduct believed by an accuser(s) to be in violation of Provincial Canon IV.2 (as renumbered from time to time) may be brought against a Presbyter or Deacon. Whenever possible the Bishop, the Chair, or the Vice Chair of the Standing Committee (the “Initial Review Committee”) shall meet with the accuser(s) in person to assess their credibility and the credibility of the accusation(s). The Chancellor shall consult with the Initial Review Committee.” (Title IV Canon 4.1.1)

Here the UMD creates an Initial Review Committee, ostensibly to assist the Bishop in assessing the credibility of the accuser(s) and the accusation(s). However, since the non-Bishop members of this Committee come from the Standing Committee—which ACNAtoo has already identified as insufficiently independent from the Bishop—the independence of this Committee is also compromised.

“2. Any charges or accusations made against a Presbyter or Deacon must be in writing and indicate the date, time, and person(s) involved in the alleged act or omission. Such charges or accusations shall contain the facts supporting the allegations of wrongdoing and shall be signed and sworn to by the accuser(s) and delivered to the Bishop, the Chair, or the Vice Chair of the Standing Committee. Such charges or accusations must contain a written statement describing the steps undertaken to honor the provisions of Matthew 18:15-20 or the reasons why such steps are not appropriate under the circumstances. Any person against whom an investigation or disciplinary measures are initiated (an “Accused”) shall be presumed innocent until he or she has been determined guilty according to the provisions and procedures described herein. However, the Bishop may take whatever action he deems necessary to protect any vulnerable individual during the course of an investigation or further disciplinary action. All disciplinary procedures shall be undertaken speedily in a manner consistent with principles of fairness, due process, and natural justice.” (Title IV Canon 4.1.2)

Departing from the ACNA Provincial Canons, the UMD stipulates that written accusations may be delivered to members of the Initial Review Committee rather than to the Bishop. However, there is no provision ensuring that those members shall share those accusations with the Bishop. This loophole may prevent serious accusations from ever reaching the Bishop’s desk, which, when combined with the provision that the Bishop may (not shall) take actions to “protect any vulnerable individual during the course of an investigation or further disciplinary action,” serves to insulate the Bishop from his responsibility for ministers who have committed misconduct.

Instead of setting the barrier to receiving accusations as low as possible and using the full power of the Bishop’s office to administer discipline, this Canon waters down the Bishop’s responsibility for clergy under his jurisdiction and complicates the intimidating process of bringing an accusation. The ACNA Provincial Canons require the Bishop to be central to that process, but the UMD goes beyond this by involving two hardly-impartial members of the Standing Committee (including its Chair, whom the Bishop appoints and who could be a fellow member of the clergy) to even assess whether an accusation should be heard. The UMD has gone out of its way to further concentrate the entire process at the apex of diocesan power. 

Most egregiously, that power comes mightily to bear on anyone who brings an accusation, because they will first be pressed by their spiritual authorities into a diocesan interpretation of a “Matthew 18” confrontation/reconciliation process. Nowhere in any ACNA Provincial Canon, nor in the canon law of the Anglican churches writ large, is such a “Matthew 18 process” prescribed. ACNAtoo has written about why applying such a process when allegations of abuse emerge is entirely inappropriate. The UMD has specifically put this made-up process in place before any written accusations can be presented as a way for the Bishop or other authority figures to pressure survivors to “reconcile” and not press further charges. ACNAtoo believes on this point alone the whole canonical revision process has essentially come to nothing because it leaves the Bishop with a most powerful weapon: his spiritual coercive power.

In his address to the Diocesan Assembly in October 2023, Bp. Ruch lauded the inclusion of this “Matthew 18 process” as an “expression…of our scriptural commitments.” Anticipating criticism, he highlighted the provision stating that accusers may, in lieu of an account of their attempt to follow Matthew 18, bring “the reasons why such steps are not appropriate under the circumstances”:

“... we understand, for example, in the case of alleged abuse, it would not be appropriate to ask that person to meet one-on-one with the person that they're alleging has abused them. We're not asking for that. So we're saying there may be cases where it would be very appropriate for somebody to meet with, uh, the person that they're concerned about or to do so in the Matthew 18 process that we're following. We wanna know if it's been followed, but we also understand there'll be times where that would not be appropriate. And that case can be made with great clarity when this is going forward.”

But this simply moves the problem. Under the proposed Canon, someone must judge whether it was right for an accuser to deem attempting a “Matthew 18 process” inappropriate. This still places undue burden on a person reporting abuse to interpret a passage that has been demonstrably mishandled repeatedly in church communities in a moment of distress. It also gives both the Bishop and others a way to subjectively dismiss reporting parties out-of-hand as not credible, citing failure to pursue a “Matthew 18 process” as a reason.

“3. If the Initial Review Committee deems the accuser(s) or the accusation(s) to be credible, it shall cause an investigation to be made by a canonical investigator. If the Initial Review Committee deems the accuser(s) not to be credible or the accusation(s) to be without any merit, the Initial Review Committee shall inform the accuser(s) of its determination and the accuser(s) shall have 30 days after such determination to appeal the decision to the Standing Committee. The Standing Committee shall then have 30 days to determine whether the accuser(s) and the accusation(s) are credible, or to affirm the Initial Review Committee’s decision. If the Standing Committee reverses the Initial Review Committee’s determination, in whole or in part, the Standing Committee shall cause an investigation to be made by a canonical investigator.” (Title IV Canon 4.1.3)

No explanation whatsoever is offered regarding the process by which the Initial Review Committee determines the credibility of a person bringing abuse allegations. Is it by a two-thirds vote? May the Bishop, as the primary administrator of discipline, issue a veto? Leaving these key matters undetailed nearly guarantees an ambiguous procedural crisis at a key moment when a vulnerable person most needs swift aid.

What recourse do abuse victims have if their accusations are not found credible by the Initial Review Committee? They can appeal that judgment to the Standing Committee, but the Bishop and the Chair and Vice-Chair of the Standing Committee already sit on the Initial Review Committee. Soliciting their opinion twice on the same case, particularly when the second body consulted is supposed to hear an appeal of the first body’s decision, is a clear conflict of interest. 

If, after jumping through this series of hoops, an accuser is found credible, a canonical investigator must open an investigation. No timelines or markers for the internal or external status of this investigation are provided. The ACNA Provincial Canons require “[e]ach Diocese [to] appoint a canonical investigator” (ACNA Provincial Canons, Title IV Canon 3.3.1), but the UMD’s proposed canons nowhere stipulate anything about this office or the qualifications of those who may fill it. 

Consider the Diocese of Pittsburgh’s Canons, which state that the canonical investigator must be a duly licensed attorney, need not be a member of the Diocese, and must not be the diocesan Chancellor or Vice-Chancellor (Diocese of Pittsburgh Canons, Canon XXII.3.a). By contrast, as written, the UMD’s canonical investigator could even be someone as close to diocesan interests as the Chancellor himself. This underspecification on the UMD’s part is no different than their failure to create an Ecclesiastical Court for over ten years despite canonical requirements to do so. It demonstrates a lack of foresight and failure to prioritize care for vulnerable people who need reliable, clearly defined reporting procedures.

“4. Whenever the Bishop believes he cannot fairly assess the credibility of the accuser(s), the accusation(s), or the accused, or fairly impose sentence, he shall recuse himself and delegate the investigation, presentment, and/or sentencing to another bishop having Jurisdiction.” (Title IV Canon 4.1.4)

This section closely mirrors the Province’s Canons in Title IV, but what is written broadly at the provincial level requires clarification at the diocesan level, because other diocesan Canons contextualize this section differently without specific adaptation. Given Bp. Ruch’s past apologies for his lack of good judgment in handling accusations and his subsequent insertion of his ecclesial power in inappropriate ways, ACNAtoo questions whether canonically and uncritically allowing the bishop to judge his own fairness in hearing accusations, with no additional diocesan mechanism to challenge that judgment, is prudent or in keeping with good governance.

“5. During the pendency of the investigation, the details of the accusation(s) and the investigation shall be maintained in confidence by the elected members of the Standing Committee and the canonical investigator. The accusation(s) and the pendency of an investigation shall be made known to the Accused.” (Title IV Canon 4.1.5)

Here the Standing Committee and the canonical investigator (again, there are no details stipulated regarding this person’s qualifications or status or expertise) are directed to hold the sensitive details of the accusation(s). The subject of maintaining confidentiality lacks critical detail. Since the canonical investigator could be anyone—including the Chancellor—the proposed Canons as written cannot guarantee that the parties involved can both do their job and maintain confidentiality without conflicts of interest. The canonical investigator could theoretically even be the Bishop, in which case conflicts of interest abound. Note also that those bringing an accusation are not required to be told of the enactment of an investigation into their claims.

How would/could this play out in the case of Cherin’s daughter’s abuse disclosure?

The ACNA Provincial Canons require that the Bishop determine the credibility of accusations brought before him before causing a canonical investigation to be opened (ACNA Provincial Canons, Title IV Canon 3.1-3). While this duty is placed on him by the Province, it would be a grave mistake for a Bishop to assume that it also confers on him and/or his inner circle special discernment capabilities in making those determinations of credibility. These proposed Canons do nothing to militate against this kind of serious misapprehension – one whose consequences were previously demonstrated when UMD’s leadership deemed the sexual abuse disclosure of a nine-year-old girl not credible. 

Involving two extra members of the Standing Committee (who are not independent from the Bishop) does not structurally guard against the possibility of an inflated episcopal ego, and may reinforce the idea that even allegations of serious abuse are to be kept within the Diocese. Allegations of child sexual abuse should always be reported, first, to the police – regardless of the opinions of various diocesan officials about those allegations. 

Mark Rivera (left) and Rev. York (right)

In some regards, the process outlined here would not apply to Mark Rivera’s case, as that situation is envisioned by these proposed Canons to be entirely under the authority of a Rector. If, however, Mark had simply been ordained as a Deacon (since much of the Lay Catechist role functioned as an unordained Deacon), the proposed Canons would have first required that the Initial Response Committee—Bishop, Chair, and Vice Chair—all meet with Cherin and her daughter to determine her credibility. The Husch-Blackwell report made clear that current UMD leadership’s ability to assess the credibility of a nine-year-old girl is gravely in doubt. Given Mark’s history within key Rez ministries and the close relationships he had within the UMD, Cherin and her daughter would still face an uphill battle to be believed under the new proposed Canons.

Cherin and her daughter would face up to three levels of scrutiny from intimidating spiritual authority figures before an investigation could be opened: a Matthew 18 intervention (or scrutiny over whether the omission of this step was “appropriate”), an Initial Response Committee review, and a review by the entire Standing Committee on appeal. This process could take up to two months, likely longer. Any intervention to stop the abuse and sequester Mark would be entirely up to the Bishop. If their accusation passed those reviews, it would still require review by the canonical investigator, whose competency, expertise, or background is nowhere stipulated by the Canons. This investigator could be another Deacon, Priest, or member of the Standing Committee, all of whom could have flagrant conflicts of interest. 

Matthew 18, if followed mechanically, would have been highly inappropriate, unwise, and cruel to implement following Cherin’s daughter’s disclosure. Requiring Cherin or her young daughter to meet with Mark Rivera one-on-one about her daughter’s abuse would be (and was) traumatizing. If undergoing that trauma—or having to justify, absurdly, why undergoing it would not be appropriate—is the first canonically required step to hold an abuser accountable, it is highly unlikely that anyone would bring serious allegations forward into the light. One wonders if that is not entirely the point in the “Matthew 18” process conceived by these proposed Canons. 

The revisions proposed to Title IV show an incredible lack of moral and legal consideration of what went wrong in the response to allegations against Mark Rivera. Rather than learning from those errors and prioritizing a process that would safeguard against repeating them, the Canons as proposed seem deliberately designed to codify this misguided and traumatizing “Matthew 18” process.

Conclusion

When ACNAtoo brought concerns about the UMD Constitution and Canons to the Province’s attention in 2021, we identified ways that UMD structure and policy didn’t meet basic Anglican canonical standards and instead prevented any checks and balances on the Bishop’s power. At that time we were met with promises that the provincial Governance Task Force would review them. When Bp. Ruch was placed on leave, the Province allowed his most trusted lieutenants and underlings to maintain UMD’s culture of centralized power and personality worship of Bp. Ruch, as evidenced by dissenting Bishop’s Council members’ resignations and Bp. Ruch’s continued intervention in the concurrent Josh Moon scandal.

A community’s priorities will always displace weak canons. In fact, in a community like the UMD, where everything from insular ordination processes to private Family Meetings to high-control Unity Pledges ensures a culture of loyalty, culture eats canons for breakfast. ACNAtoo, from the beginning, has asked for an independent, third-party investigation into the leadership culture of the UMD, to better address the structures, relationships, and leadership models in which abuse can fester and metastasize. That cultural investigation has been the primary thing both the UMD and the Province have sought to avoid. 

The Province knows that the Greenhouse Network, the deanery that housed Mark Rivera’s lay ministry, was neither healthy nor responsible and that its Dean William Beasley was a negligent leader. Is it acceptable that Greenhouse gets quietly dissolved? Are people of the UMD and the broader ACNA served by things like this being swept under the rug? When entities like the AAC have independently concluded that the UMD may need reconstitution under a new Constitution and Canons that adhere, in a good-faith manner, to basic Anglican norms, why doesn’t it happen?

Two-and-a-half years of close observation, and most recently a dissection of these proposed governing documents, show us that those in the seats of abnormal power in the UMD are unwilling to loosen their grip on it even a fraction, regardless of institutional health considerations. What these proposed Constitutions and Canons still provide Bp. Ruch is control. The control is now structured differently than before, but the Canons still grant the Bishop just as much of it, with legally codified additional immunity from responsibility as a bonus.

Rectors in the UMD: these Canons place you in a completely untenable position. You are going to be Bp. Ruch’s firewall against scandal reaching his office. You are now being required to obey as-yet-unknown standards to maintain your active status in the diocese. Your church can be expelled from the UMD without any due process. If you want to leave, good luck, it’s going to be very difficult. On the other hand: if you do abuse someone, your victim has to walk through several retraumatizing processes to get any attention or aid from the Diocese. Clericalism, that thin black line, is still on your side, as long as you’re on the Bishop’s side.

Vestry members and concerned lay people in the UMD, take heed. You too have your role to play according to these proposed Canons, not in protecting your fellow parishioners, but in protecting the Bishop. If your church plants a church, its Vestry members seem to be given the sacred duty – so special that it is usually reserved for Bishops only – of “exclusive[ly]” overseeing that church and everything that goes on in it. Recall that Vestries are the boards of directors of Congregational corporations. If litigation comes, you are potentially liable. The buck is supposed to stop with the Bishop, but he has passed it to you. 

UMD, we’ve told you. The AAC has told you. Now it is time for your own people to tell you. People of the UMD, you can still speak out against these Canons: talk to your Synod representative and urge them to vote down these proposed changes until they enact normative, safe, and basic Anglican polity. Until you do, you’ll be stuck inside a cult of personality, not attending a church.