Still Questioning the Model Code of Pastoral Conduct

April 20, 2014. By Frank Kardasz

The National Catholic Risk Retention Group's Model Code of Pastoral Conduct has served as a guideline for over ten years. Some parts of this outdated code are in need of revision.  Below are some of the troubling standards written into The Code, followed by comments.

Preface

The Church must be exemplary. Clergy, staff, and volunteers should and will be held accountable for their behavior. In order to maintain the highest level of accountability, there must be a clear and unambiguous blueprint of appropriate and inappropriate behavior (p.1).

• Comment:  Note the curious wording in the preface: "...should and will be held accountable..."   What is wrong with removing "should" and just saying; ...shall be held accountable...?

Pastoral Standard

1.3  Pastoral Counselors and Spiritual Directors should not audiotape or videotape sessions (p.2).

• Comment:  The standard permissively states "... should not audiotape or videotape..."  What is wrong with shall not?  Simply prohibit audio and video taping.   Counselors can still take in-session or after session handwritten notes if needed.

1.5  Pastoral Counselors and Spiritual Directors shall not engage in sexual intimacies with individuals who are close to the client — such as relatives or friends of the client — when there is a risk of exploitation or potential harm to the client. Pastoral Counselors and Spiritual Directors should presume that the potential for exploitation or harm exists in such intimate relationships (p.2).

• Comment:  Curiously the standard as written permits sexual intimacies with individuals who are close to the client; when the counselor or spiritual director decides that there is no risk of exploitation or potential harm to the client.

1.7  Physical contact of any kind (i.e., touching, hugging, holding) between Pastoral Counselors or Spiritual Directors and the persons they counsel can be misconstrued and should be avoided (p.2).

• Comment:  According to the standard, touching, hugging, and holding are permitted by the "should not" standard instead of the more protective "shall not" standard. Many school districts and mental health professionals use the "shall not" standard.

Sexual Conduct

4.5  Clergy, staff, and volunteers should review and know the contents of the child abuse
regulations and reporting requirements for the state of [state name] and should follow
those mandates (p.5)

• Comment:  Two more permissive "should's"  that requires replacement with the mandatory "shall".

Confidentiality

2.3  Pastoral Counselors and Spiritual Directors should keep minimal records of the content of [counseling, advising, or spiritual direction] sessions (p.3).

• Comment:  The curious instruction to keep minimal records, although couched as a confidentiality technique, could also be interpreted as a method to later create plausible deniability where no written evidence exists and subsequent memories fail.  On the bright side, this is the one section where the permissive word "should" also gives the reader permission to keep copious and fully detailed records.

Sexual Conduct

4.4  Allegations of sexual misconduct should be taken seriously and reported to the [appropriate person in the parish, community/institute, diocese, or organization] and to civil authorities if the situation involves a minor (p.5).

• Comment:  What is wrong with, "Allegations of sexual misconduct shall be taken seriously..."?

4.5  Clergy, staff, and volunteers should review and know the contents of the child abuse regulations and reporting requirements for the state of [state name] and should follow those mandates (p.5).

• Comment:  Another permissive "should"  that requires replacement with a mandatory "shall".

Reporting Ethical or Professional Misconduct

8.1 Clergy, staff, and volunteers must hold each other accountable for maintaining the highest ethical and professional standards.  When there is an indication of illegal actions by clergy, staff, or volunteers, you should notify the proper civil authorities immediately. Also notify the [diocese, parish, religious community/institute, or organization] (p.9).

• Comment:  Better to replace "...should notify..."  with  "...shall notify..." when reporting illegal actions.

The Model Code of Pastoral Conduct is littered with statements where the option of "should  notify" requires replacement with "shall notify" or "will notify".  Too much of the present document appears to be optional instead of mandatory.

One useful addition to The Code could be information about the law regarding the crime of misprision.  Misprision is defined as neglect or wrong performance of an official duty, or concealment of a felony by one who is not a participant in the felony.  The US statute -  Misprision of Felony, is found at 18 USC §4.  It reads as follows:   Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.The misprision of felony statute has been interpreted through several court decisions to require knowledge of the crime along with some affirmative act of concealment or participation in the crime.
 
In the interest of protecting people from harm it is time to revisit and revise The Code.  Replace the permissive word "should" with the mandatory word "shall" throughout the document, thus requiring rather than just suggesting exemplary conduct for clergy, staff, and volunteers.  Make those who attempt to use religion for the purpose of facilitating their crimes aware that they shall, not should, be held accountable to not only their maker; but also to the criminal justice system.

References

Branzburg v. Hayes, 408 US 665 (1972). [Footnote 36]. This statute (18 USC §4) has been construed, however, to require both knowledge of a crime and some affirmative act of concealment or participation. Bratton v. United States, 73 F.2d 795 (CA10 1934); United States v. Farrar, 38 F.2d 515, 516 (Mass.), aff'd on other grounds, [408 U.S. 665, 697]   281 U.S. 624 (1930); United States v. Norman, 391 F.2d 212 (CA6), cert. denied, 390 U.S. 1014 (1968); Lancey v. United States, 356 F.2d 407 (CA9), cert. denied, 385 U.S. 922 (1966). Cf. Marbury v. Brooks, 7 Wheat. 556, 575 (1822) (Marshall, C. J.).  Retrieved from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=408&invol=665

Kane. M.N. (April 10, 2006). New Standards for Pastoral Care. America Magazine. The National Catholic Review. Retrieved from http://americamagazine.org/issue/568/article/new-standards-pastoral-care

The National Catholic Risk Retention Group. (2004). Model Code of Pastoral Conduct: For priests, deacons, pastoral ministers, administrators, staff and volunteers.  Retrieved from https://www.virtus.org/virtus/PastoralConduct.pdf

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