Church Discipline: UNVEILED

 

LDS Disciplinary Council: Kangaroo Court? 

A few weeks ago, I heard a Mormon Stories podcast that interviewed D. Michael Quinn (a notable Mormon historian excommunicated as part of the September Six shortly after the publication of his work on post-Manifesto polygamy).  Dr. Quinn spoke with conviction of his refusal to participate in what he characterized as a "kangaroo court."  He also wrote:

"I vowed I would never again participate in a process which was designed to punish me for being the messenger of unwanted historical evidence and to intimidate me from further work in Mormon history."

Wikipedia: A kangaroo court is "a mock court in which the principles of law and justice are disregarded or perverted" [Merriam-Webster]. 

Over the past few months, I have counseled with three men, each shortly before his own disciplinary council.  I reviewed in detail with them Chapter 6, "Church Discipline and Name Removal," which outlines all the details of the disciplinary council procedure, what triggers a DC, etc.  This experience has caused me to reflect on the justice of LDS disciplinary councils, especially with regard to the fact that the accused does not have access to the information found in Chapter 6. 

Is an LDS disciplinary council a kangaroo court?  Below, I address that question:

1.  Basics of a disciplinary council
2.  Rights of the accused in a disciplinary council
3.  Anectdotes regarding disciplinary councils
4.  Scorecard: kangaroo court or not?
5.  Conclusions

1.  Basics of a disciplinary council

Handbook 1: Stake Presidents and Bishops 2010 details the process by which a member receives formal church discipline, such as disfellowshipment or excommunication.  This book is available only to high church leaders, such as stake and mission presidents. Chapter 6, the "Church Discipline and Name Removal" chapter, has 16 sections:
1.  Definition and Purposes of Church Discipline
2.  Responsibility for Church Discipline
3.  Information about a Possible Serious Transgression
4.  Interviews and Investigation
5.  Confidentiality
6.  Seeking Forgiveness and Disclosing Information
7.  Determining Whether a Disciplinary Council is Necessary
8.  Informal Church Discipline
9.  Formal Church Discipline
10. Disciplinary Councils
11. Fellowshipping after Discipline
12. Ending Formal Probation, Disfellowshipment, or Excommunication
13. Membership Records and Church Discipline
14. Removing Names from Church Membership Records
15. Restoration of Blessings (ask Don Bradley for details about this lesser-known Church ordinance- interesting story)
16. Retention of Records

An excellent, plain English summary of a disciplinary council (DC) is found in Wikipedia's Disciplinary Council article.  Much of the article parallels the structure found in Chapter 6, and the lists are concise and informative.  I was glad my research produced this article, as it is about what I had envisioned writing here.  That article alone would take out a lot of the uncertainty surrounding a DC. Check it out!


Elder Ballard also gives a brief (6-paragraph) treatment in the section entitled "The How of Disciplinary Councils" of his 1990 address, A Chance to Start Over: Church Disciplinary Councils and the Restoration of Blessings.  Affirmation spells out the "what to expect" fairly well in its LDS Discipline and  Excommunication: A New Guide for Gay and Lesbian Mormons.  (see especially The Mechanics of the Excommunication Process section).  True to the Faith dedicates three paragraphs in Church Disciplinary Councils.  I also provide some analysis in my blog post, Differences Between "Handbook 1: Stake Presidents and Bishops 2010" and "Handbook 2: Administering the Church."   James Backman compiled quotes by scriptures and church leaders about different aspects of Church discipline in an "LDS Perspectives on the Law" piece entitled Church Disciplinary Councils.  Backman includes sections on "Special Procedures Protecting the Member, " Appellate Procedures and Policies," and "Disciplinary Councils
Compared with Canonical Courts in Other Churches."  Sidenote: Professor Backman is a very nice man who built the externship program I participated in during law school.


 The 170-page Handbook 1: Stake Presidents and Bishops

2.  Rights of the accused in a disciplinary council

The Handbook states that "A Church disciplinary council is not organized as a criminal trial and does not follow the procedures of such a trial" (6.10.4).  Nonetheless, people are accused of "crimes," and a verdict is rendered that often includes a punitive element.  The presiding officer "rules on the procedures that are followed and the evidence that is presented" (6.10.4).  There are also many parallels in the rights of the accused:

(1) You can object to the participation of a particular counselor in the bishopric or stake presidency.  The presiding officer decides whether the objection is reasonable and, if so, excludes that person. 
(2) You can object to the participation of the bishop.  The DC then becomes a stake, rather than ward, DC.
(3) You are entitled to written notice of your DC.  This notice should have the time and place, the general charges against you (no details or evidence- just something like "apostasy" or "conduct unbecoming a member").  The written notice should be personally served on you: privately, courteously, and with dignity.  If personal service isn't feasible, registered mail with a return receipt is acceptable (sounds like California Civil Procedure).
(4) If you're in jail when served, the only difference is that you're not invited to the DC, and may instead send evidence, including your written testimony.
(5) If you've confessed to the presiding officer, he must still ask for consent to use that confession as evidence in the DC.  The presiding officer is limited to informal discipline if his only evidence against you is your own unconsented confession.  If he has other evidence against you, the DC can proceed on the other evidence.
(6) You can refuse to confess, and you can refuse to allow a previous confession to be used in the DC.  God bless this equivalent of the Fifth Amendment!
(7) You must be allowed to admit or deny the misconduct- this is step 2 in the DC, after the misconduct is identified.
(8) Questions are to be asked of the accused and witnesses in "an orderly, polite manner, avoiding argument." "Questions are to be brief and limited to the essentail facts of the case."
(9) Informal probation is not announced; formal probation is, to whoever the presiding officer decides has a need to know. The presiding officer can also override the presumption that an announcement should not be made if the decision is appealed.
(10) You have the right to appeal to one level above the DC (i.e. to stake presidency if it was a ward DC, to First Presidency if it was a stake DC, etc.).  You must appeal in writing, specifying the unfairness or errors in procedure and decision, within 30 days, to (somewhat ironically) the presiding officer who decided.  The appeal must be forwarded up one level.  The appellate court either (A) affirms the lower court, (B) modifies the initial judgment, or (C) directs a rehearing (it is unclear whether B is broad enough to include reversal).  The First Presidency may refer your appeal to another priesthood officer or body for review, with or without additional evidence, and resubmittal to the First Presidency with a recommendation.
(11) I think I neglected to mention an obvious right: to attend your own DC.
(12) You may present your own witnesses- however, the presiding officer may exclude your non-member witnesses unless (A) the presiding officer was informed you'd bring them previous to the DC and (B) the presiding officer determines that the nonmember will respect the DC proceeding.
(13) You may question any witnesses who give evidence against you (unless they are unable to attend, in which case their written statement can be used as evidence.  6.10.12 says you can question such a witness in writing or orally, but I have no clue what that would look like if they're not in attendance- perhaps real-time chat or via phone?)
(14) You can comment on evidence and make other statements when presenting your defense
(15) You're entitled to "prompt written notice of the decision and its effects, even if he has been advised
orally" (6.12.11)

 

3.  Anecdotes regarding disciplinary councils
 
Is there a large record somewhere of excommunicated members, and what they were excommunicated for?  I know of some of the prominent ones (gaysandthegospel.org author Clay Essig, Chad Harding, and the September Six).  My Dad has sat on many DC's, and said that returned missionary fornicators (overwhelmingly men) are a frequently represented demographic.  I would love to see a chart detailing the number of church courts per year over the last century, the outcomes (nothing vs. formal probation vs. disfellowshipment vs. excommunication), the number or blessing restorations, the percentage of accused that attend their own DC, etc.  Some of those statistics are charted (at least in recent decades, per Handbook protocol and the "Report of Church Disciplinary Action Form"), but as far as I know the numbers are not disclosed.

Without question, many members fear formal church discipline.  The writings and blog posts of many Mormon intellectuals (example here) show that there is a widespread, acute (and probably exaggerated) fear of excommunication based on apostasy. Joanna Brooks speaks sometimes of the exaggerated fear of formal discipline by many Mormon feminists.  I remember being concerned myself about formal church discipline when I wrote a book last year on same-sex marriage and homosexuality (my Bishop called me in twice); I also battled some anxiety when I decided to publish this post. 

Backman wrote:
"When compared to canonical courts of other faiths, LDS disciplinary councils are unique in several ways.  Most canonical courts of other churches rely heavily upon precedents when passing judgment.  [In] LDS disciplinary councils...  decisions in former cases are not considered when approaching a verdict.  Furthermore, two transgressions of equal magnitude may receive very different judgments in an LDS disciplinary council.  While the objective facts of the transgression and the transgressor’s state of mind during the act are certainly considered, they are of lesser importance than his or her level of repentance."

Without tracking, it is difficult to discern how just disciplinary councils are as a whole (plus, if compliance with the repentance of the individual or restoration is considered baseline justice, there is no discernible target to compare outcomes to).  It is likely that many more transgressors go unpunished than otherwise (similar to the picture of crime in America); similarly, it is likely that there are cases where the innocent are punished or the guilty over-punished.  No doubt some convictions occur on the "wrong" ground: e.g. Quinn was convicted of not complying with his stake president's procedural instructions (not an excommunicateable offense), and if anything Quinn should have been properly prosecuted with an apostasy charge.  That is one motif I've discerned from the stories of the accused: often a leader was frustrated with a member for some reason not directly related to the offense, and that frustration drove the prosecution rather than evidence of guilt or likelihood of helping the accused to repent.  A large amount of local discretion can be positive; however, it also leaves some room for abuse. 

4.  Scorecard: kangaroo court or not?

I begin by soliciting a link to a more formal analysis: has someone else already done a comparison between a church court and a conventional American court, say, a criminal court in the State of New Mexico?  If so, please direct me to it so I can be embarrassed about what I've done here (both in lack of depth, and in reinventing the wheel).  I'm certain there are due process experts out there that could produce a much better analysis.  Maybe there's a Dialogue or Sunstone article, or a high-caliber ex-Mormon site or something?   

With that solicitation complete, I complete my kangaroo court analysis in 14 points (A-N).  My model comes from the premise that, "Typically, a kangaroo court will deliberately abuse one or more of the following rights of the accused:"

   A. right to be presumed innocent until proven guilty
I think DC's do somewhat well here.  DC's are mandatory for formal discipline, and “If a man is accused, we do not expect him to prove his innocence in the Church any more than he would be expected to prove his innocence under the laws of the land. We expect the evidence to be brought to prove his guilt beyond all question" -Joseph F. Smith, September 13, 1917, quoted in James R. Clark’s Messages of the First Presidency of the Church of Jesus Christ of Latter-day Saints, p. 85, 1971.  On the other hand, since the same person both initiates the trial (typically the role of a prosecutor) and adjudicates (typically the role of an impartial judge), there is a danger that the guilt will already be established in the mind of the presiding officer, before the trial process is complete. 

    B. right to control one's own defense e.g. selecting one's own defense counsel
DC's do not to as well here, though they are not wholly lacking. High councilors are "responsible to see that the evidence is examined in its true light before the council.  Each is to speak 'according to equity and justice.' One-half of those appointed to speak are responsible 'to stand up in behalf of the accused, and prevent insult and injustice.'" (6.10.4).  Though "The high council is not a jury" and cannot veto the stake president's decision, they do get to affect the presentation of evidence by asking questions, speaking, etc.  That some are charged with protecting the accused is a good safeguard.  However, the accused does not choose these defenders- the stake president does.  Also, there is no one assigned to tell the accused in advance about what will occur or to apprise him in detail of his rights.  Someone with the equivalent of "courtroom experience" should be available to advocate and counsel privately with the accused, who is likely far less familiar with the procedure than the high councilors and stake presidency.  An accused needs a personal defender as well to counter the intimidation she is likely to experience when facing what is justly perceived as a adverse, unified bloc (over 15 men who work closely together, are powerfully united and subservient to the stake president, and who hold the power to bring upon you the serious consequences incident to an excommunication, which is a likely outcome given the fact of the DC).  Last, the high councilmen have far too many conflicts of interest (they work with and live nearby other high councilors and are subordinate to, rather than independent of, both the prosecution and the judge, i.e. the presiding officer) to be able to adequately fulfill the role of defending the accused. 

    C. right to hear a full and precise statement of the charges made against the accused
DC's do pretty well- step 2 of 11 of the DC requires that the presiding officer "state the misconduct, or designate someone else to state it." (6.10.4)

    D. right to have adequate time and resources to prepare a defense against the charges
The presiding officer is not to schedule a disciplinary council until "he and the transgressor and the aggrieved parties have had adequate time to give unhurried consideration to the consequences of the transgression" (6.10.2). This suggests an adequacy of time, though no time interval is specified between the written notice and the DC.  As to resources, I imagine that even a poor person could assemble the needed witnesses and evidence to defend herself (with the above-noted, important exception of defense counsel). 

    E. right not to incriminate oneself
There is no procedure listed if the accused refuses to either admit or deny misconduct (6.10.4).  However, the accused can deny misconduct, and he can refuse to consent to the use of his previous confessions as evidence.  Pretty good here.

    F.  right to summon witnesses
Definitely- though the presiding officer can exclude nonmember witnesses.  There is some room for abuse here, but the exclusion is appropriately limited to witnesses who are unlikely to respect the purposes and procedures of a disciplinary council (6.10.4).

    G.  right of cross-examination
Heck yes!  "The member must be given an opportunity to question any witnesses who give evidence against him."

    H.  right to introduce evidence which supports acquittal of the accused
Yes.  "invite [the accused] to bring in witnesses one at a time, submit other relevant evidence, comment on the evidence, and make any other statements he desires."  This evidence could support the outcome of "do nothing," though this isn't exactly the equivalent of acquittal (theoretically, the accused could be tried again for the same offense, and "do nothing" is not equal to an acquittal, which suggests an insufficiency of evidence for guilt).

    I.  right to exclude evidence that is improperly obtained, irrelevant or inherently inadmissible, e.g., hearsay
It's difficult to say.  The accused can refuse to confess, and can refuse to consent to the use of previous confessions- good here.  However, it is unclear what an "essential witness is unable to attend" means (i.e. how hard did they try?), and those witnesses are allowed to submit a written statement, which may be considered as evidence.  Though "the party or witness may be questioned further, in writing or orally" (6.10.12), it is unclear what that would look like in a DC.  Is the witness deposed before the trial, or put on the phone during the trial, or what?  

    J.  right not to be tried on secret evidence
Yes.  "present evidence of [the misconduct] or allow someone else to do so." 

    K.  right to exclude judges or jurors on the grounds of partiality, prejudice or conflict of interest
Dicey.  The accused may object to the participation of a counselor in either the bishopric or stake presidency.  However, the presiding officer determines whether the request is reasonable (the presiding officer is hardly neutral, since he initiates the DC).  Objecting to the bishop results in mandatory transferal to the stake DC, so that's good.  Objecting to the stake president results in consulting the Office of the First Presidency. 


    L.  right to have a verbatim stenographic record of the trial proceedings created
FAIL.  "Video or audio recordings of disciplinary councils should not be made."  The only record is made by the clerk, who "records as a basis for completing the Report of Church Disciplinary Action form."  That form, from what I can tell, is submitted to and retained at Church Headquarters: my guess is that it is not publicly available. 


    M.  right to have no interference or undue influence made by external agencies e.g. political or military leaders
As far as I can discern from Chapter 6, attempted influence by political or military leaders would be inappropriate- "decisions on Church discipline are within the discretion and authority of local presiding officers as they prayerfully seek guidance from the Lord" (6.10.12).  However, it is my understanding that the Strengthening Church Members Committee Committee often plays a role in initiating proceedings: "[SCMC] is a committee of general authorities of The Church of Jesus Christ of Latter-day Saints (LDS Church) who monitor the publications of church members for possible criticism of local and general leaders of the church. If criticism is found, the committee may forward information to local church authorities, who may bring charges of apostasy, which can result in excommunication."  Also, "The First Presidency has ultimate authority of all Church discipline," and some reports (such as by Quinn, as well as examples such as Stan Albrecht and Grant Palmer) indicate that local proceedings are often triggered, if not driven, by higher authorities.


    N.  right of appeal against conviction
Yes, convicted members may appeal.  However, many (if not most) appeals in criminal courts are based on procedural, rather than substantive error.  Since the accused is not given Chapter 6, she cannot know what the proper procedure is!  How, then, is she to know of procedural errors?  Also, it is unclear how sympathetic the appellate courts are to errors- if they almost uniformly uphold the lower courts, it may be that the right of appeal is fairly empty.  What are the appellate review criteria, if any?

On the other hand, an appellate process does exist- though it has to be filed by the prosecutor/adjudicator (presiding officer).  The presiding officer could easily modify, delay, or refuse to forward the case to the appellate body.  Also, the sparse recording doesn't provide much of a Clerk's record to review- so how is the body reviewing the appeal to know what happened in order to discern error?  Last, the Clerk, since he is subservient to the presiding officer, may submit a biased report of what transpired- especially since the presiding officer himself is most likely to commit a procedural error.  

5.  Conclusions

I'll give DC's 10/14 on the kangaroo court scorecard, though I hope you kept your own score.  Whether the court is a kangaroo seems to turn on the integrity of the presiding officer in my view- he wields immense power (he initiates the DC, adjudicates, controls the trial, and handles the appeal).  Since structural reform can correct this imbalance of power, I would give the DC system a D on the Kangaroo Court report card.


Possible reforms:
(1) Assign or make available the equivalent of independent defense counsel- even at the judgment bar of God (who we tend to trust), we are assigned an advocate (thank you Jesus)
(2) Separate the role of prosecution and judge
(3) Have the appeals process independent of the presiding officer
(4) Record the proceedings, and make them available to the accused so she can make a proper appeal
(5) Consider publicizing proceedings (perhaps with "John Doe" to obscure the names and localities), or at least statistics of them, to provide some basis for predictability and transparency
(6) Make acquittal a possible outcome
(7) Publicize Chapter 6