Successfully defence of clergyman charged with conduct unbecoming by forming sexual relationship with man 22 years his junior

On 3 May, the Bishop’s Disciplinary Tribunal for the Diocese of Exeter handed down the reasons for its decision (“the Reasons”) in the matter of the Complainant: The Reverend “C” and the Respondent: The Reverend “R”. The Complaint which was referred to the Tribunal for determination was:

“That the conduct of the respondent, the Reverend “R” was unbecoming or inappropriate to the office and work of a clerk in Holy Orders within Section 8(1)(d) of the Clergy Discipline Measure 2003 in that, having befriended the Complainant (“C”) in 1995, who was then 17 years old, and formed a relationship with the Complainant so that he and his parents trusted the respondent to help him achieve his aim of being ordained into the Church:

(i) the respondent had an intimate sexual relationship with the Complainant which started shortly after C’s 2 18th birthday in 1996 and continued until about 2000;

(ii) the respondent invited or allowed C to live with him in the vicarage whilst engaged in a sexual relationship;

(iii) through forming a sexual relationship with C, who was over 20 years his junior, the respondent failed to observe and maintain appropriate professional boundaries;

(iv) in all the circumstances the respondent led C into a sexual relationship using to his advantage the power imbalance between the respondent and C.”

The hearing took place on 12 to 14 March 2018, and on 15 March, the Tribunal communicated in writing its unanimous decision to dismiss the Complaint; the written Reasons constitute a summary of the most pertinent matters and of its reasoning [2].

The Complaint related to matters dating back more than 20 years and was therefore made well outside the normal limitation period under the Clergy Discipline Measure 2003 (“CDM”). The Deputy President of Tribunals gave permission for the Complaint to proceed, although the Tribunal noted [3]: “that decision did not, of course, amount to a finding of guilt. Nor can such a procedural decision erase the difficulties for all concerned in bringing, responding to and determining such an old Complaint”.

In view of the serious nature of the complaint, the Tribunal of five, chaired by Morag Ellis QC, considered the terms and particulars of the Complaint very carefully. It noted:

“[4]. …The Complaint was framed and the case presented on the basis that the Respondent had ‘befriended’ the Complainant and his family so that he gained their trust, while the Complainant was still a minor; that, having done so, the Respondent then developed a sexual relationship after the Complainant’s eighteenth birthday, using his influence and position to do so. The Designated Officer pointed to the 22 year age difference between the Complainant and the Respondent and the difference in status between the aspiring ordinand and the experienced priest.

[5]. …Paragraphs (ii), (iii) and (iv) [of the Complaint, supra] all hinged on the existence of a ‘sexual relationship’ and paragraphs (iii) and (iv) clearly alleged that the Respondent had ‘formed’ the relationship and ‘led’ the Complainant into it in ways which were unprofessional and amounted to an abuse of power.”

The Designated Officer submitted that there were two forms which such a relationship might have taken, as a matter of law; at the Chairman’s invitation he made submissions on the hypothesis that the Panel might not be satisfied that certain of the acts involving either Complainant or Respondent, or both of them, had been established [7]. He brought to the Tribunal’s attention Practice Direction 2 (2008): Clergy Discipline Measure 2003: Amendments to Allegations of Misconduct that have been referred to a Tribunal (“PD2”), and suggested that the Tribunal might, of its own motion, amend the complaint if not satisfied that a sexual relationship had existed, to allege some different form of conduct unbecoming within s.8 of the Measure [11].

Counsel for the Respondent robustly objected to such a course being suggested and, following his request for a ruling on the point [12] and after consideration of the suggestion [13], the Chairman ruled:

“[13] (vii). Although I recognise that PD2, issued pursuant to s.4 of the Measure, provides for the amendment of the particulars of allegations in certain circumstances, I do not consider that amendment would be appropriate in this case at this stage or any later stage for the following [six] reasons…”

The hearing proceeded on the basis of the Complaint as originally framed and as set out in Paragraph [1]. The evidence is summarized in Paragraphs [17 to 19] in relation to the Complainant’s case, and in Paragraphs [20 to 37] in relation to the Respondent’s case, for which four witnesses were called; this also included a written statement from The Revd Canon Witness 5 and a letter from former diocesan Bishop A [22].

In presenting its findings [38 to 49,] the Tribunal stated:

“[46]. We therefore found the direct evidence of sexual relations and some other important and relevant parts of the Complainant’s evidence unconvincing. Although we bear in mind the difficulty of recollection after so long, on the Complainant’s case, these were his first sexual encounters and he had had plenty of time to think about them since making the Complaint. He had also kept mementos of this period of his life in the form of the letters and cards from the Respondent. We therefore found the lack of detail surprising, making allowances for the natural embarrassment in speaking about such matters. Coupled with the clear instances of embellishment that we have recorded we find ourselves with real concerns about the reliability of the Complainant’s evidence on these key matters”.

“[48]. We turned to consider the circumstantial evidence of the letters and cards. There is no doubt that the language used and some of the pictures on the cards were extravagant and unwise. They indicate closeness, whether reciprocated or not, bordering on infatuation, for a period of some five months. On the balance of probabilities, however, we do not feel able to infer that they establish the existence of a sexual relationship. We are not called upon to make a ruling on the appropriateness of the Respondent’s actions in sending them. They are only relevant to the Complaint insofar as they are probative of a sexual relationship, and we are not satisfied that they are”.

“[49]. We find that the Complainant was resident at the Vicarage from January to September 1997 and thereafter for the majority of his vacations from University and Theological College, but, in view of our finding on the sexual relationship question, we do not find paragraph (ii) of the Complaint proved”.

The Tribunal concluded:

“50. Accordingly, we do not find the Complaint to be made out and we dismiss it.

51. Finally, in view of the conclusion we have reached, we have directed under Rule 49 (a) for the protection of the private life of the Complainant and the Respondent that no identifying material may be put into the public domain either by official bodies in the Church of England, or by journalists and commentators, or by any other conventional or social media”.

Comment

The Tribunal assessed the Complaint on the basis that a sexual relationship was alleged; it stated [emphasis added]:

“[43]. We endorse the Respondent’s statements to the effect that, with the benefit of hindsight and in today’s church culture which is much more alive to the issue of safeguarding, he would not write in such extravagant terms or engage in displays of physical affection towards a young person for whom he had assumed a measure of pastoral responsibility, whether or not he was, at the time, his parish priest. We also consider it ill-judged and unfortunate that he was in company with the Complainant alone, in particular the trip to the B&B in Brixton. The terms of the Complaint, however, are clear. A sexual relationship is alleged.”

The instant case follows the CDM Tribunal’s consideration of the complaints against The Reverend Timothy Davis, Vicar of Christ Church Abingdon, (TD), reviewed in our January post, Clerical abuse of spiritual power and authority. TD was found guilty of abuse of spiritual power and authority, whereas the instant case concerned the allegation of a sexual relationship [43]. However, there are therefore important differences between the two cases. In the former: the Tribunal stressed that “no suggestion of any sexual touching by TD, nor [did it] find that any sexual touching took place”; the complaint related to the abuse of clerical power and authority; the events referred to the Tribunal concerned the mentoring he provided to a 15/16 year old schoolboy whose family were members of his congregation; the events took place relatively recently, i.e. from the end of 2011/beginning of 2012, rather than over 20 years ago.

With acknowledgement to Pump Court Chambers for highlighting the Tribunal Decision.