On February 4th it was made public that Mormon President and Prophet Thomas Spencer Monson was summoned to court in the UK to answer charges of Fraud. Various commentators and authorities have had much to say on the likelihood of the case seeing more than a few seconds of life before being soundly extinguished. This post is aimed at examining some aspects of the 2006 Fraud law that the case is filed under and attempts to provide an explanation for why it may have staying power.
Fraud Act of 2006
The text of the law under which the claim is issued is available on the official UK government website. Only time will tell how it is actually applied to this case. Since most legal commentators have expressed incredulity that a case against a religion could get as far as this one has, it may be instructive to examine the text of the law to determine how the case has gotten to the point that it has.
What Constitutes Fraud?
Section 1 of the law establishes that a person is guilty of fraud if they are in breach of any of three separate types of fraud. The type which appears to most closely apply to the case is that described in Section 2 – Fraud by False Representation. If we turn to this section, it lays out in clear language the details of the crime. It starts by describing the crime in general terms:
(1) A person is in breach of this section if he—
(a) dishonestly makes a false representation, and
(b) intends, by making the representation—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(“Section 2.1” Fraud Act of 2006)
Intent to make a gain
First, lets examine the item in Section 2.1.b which speaks to the intention of making gain as the motivation for false representation. If it is established that a false representation was made, it has to be shown that the intention of making that false representation was to get gain for the Church. In a post attributed to Tom Phillips (the main personality behind the charges) this aspect of the case is explained as follows:
“If the Mormon Church admitted its religious statements were untrue, many people would not pay tithing; hence, creating a significant reduction in income for the Mormon Church.
As a personal example, Phillips says that in his personal conversion to Mormonism, false statements were made to him by Mormon Church missionaries, including that God had spoken to Joseph Smith. Nonetheless, Phillips initially believed this and other Mormon Church claims to be true, joined the Mormon Church and commenced paying tithing. When he discovered that these religious statements made by the Mormon Church were not true, he discontinued paying tithing–as many others have done, as well.
A case where such a phenomenon has occurred involves another church which today operates under the name of the Community of Christ (originally known as the Reorganized Church of Jesus Christ of Latter-day Saints, or RLDS]. When the RLDS admitted that it had made untrue religious statements, it experienced loss of both membership and tithing income. The Mormon Church knows that if it (the Mormon Church) acknowledges that it, too, has made untrue religious statements, it would suffer the same financial repercussions as experienced by RLDS.”
(“Details of Criminal Fraud Case Against Monson” Tom Phillips, Steve Benson. exmormon.org)
Essentially, it is acknowledged that if the Church’s claims are untrue, then people would stop paying tithing. The practical example of Tom Phillips and other exmormons who no longer pay tithing once they discover what they believe to be fraud is cited as well of the experience of other churches who have acknowledged prior false claims and seen a subsequent loss of membership and donations. Thereby it is established that if shown to have been making false claims, the church has a potential motive of retaining members who are willing to continue to pay tithing – to get gain.
Next, Section 2.1.a states that a person is guilty of fraud by misrepresentation if he “dishonestly makes a false representation.” It then becomes important to define what exactly constitutes a false representation. that is where Section 2.2 come in:
(2) A representation is false if—
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
(“Section 2.2” Fraud Act of 2006)
This section is the critical section in the fraud case against Monson. As we will see in subsequent posts on this case – there are 2 separate aspects of each of the seven claims that must be established in order for the case to succeed.
The first is that the representation must actually be untrue or misleading. That two letter word “or” is likely to play a big part in the case. As we will see, some of the charges such as the Book of Abraham translation, may be demonstrably shown to be false. In other charges, the church may be able to introduce enough uncertainty to avoid labeling some claims as patently false, but it will be much harder to say that the church has not been misleading. See the later post on the method of translating the Gold Plates for the most obvious example.
Secondly, and this is the most important part of the case, it must be shown that, regarding a particular claim, Monson “knows that it is, or might be, untrue or misleading” Again, a key aspect of the law is contained in the short phrase “or might be.” This totally changes the burden of proof placed upon the person accused of making a false representation.
The prosecutor doesn’t have to prove the claims are false, they simply have to show that there is enough evidence to demonstrate that they might be false. Think about that.
Prior to this phrasing in this law, most people would never think to bring a fraud case against a religion because it could be argued that the leaders making the claims believed the claims to be true. Since belief is subjective, it cannot be a standard for conviction in a case of fraud. This law changes that whole landscape. Essentially, if the leader making the claim has been exposed to any information that could reasonably call into question the truthfulness of a claim, and they continued to make the claim as unequivocally true, then they may be committing fraud even if they believe the claim to be true themselves. The fact that they now know that there is reason to believe that it might not be true and yet still make the claim as true is a violation of the law.
BYU – Bringing You Undeniability
Consider that the President of the Corporation of the Church of Jesus Christ of Latter-Day Saints is also the owner of several academic institutions. Over the past decades each of these institutions have done rigorous in-depth study of almost every tangible or factual claim that has ever been found in revealed scripture or made by prior leaders of the church. The motivation has been to try to find material evidence which supports the historicity of the Book of Mormon, Book of Abraham or other Mormon assertions of tangible fact. Their findings are recorded in the theses, dissertations and publications of the faculty and graduates. If any of this research has ever called any aspect of the Churches tangible claims of historical fact into question or even simply found no supporting evidence after exhaustive research (hello departments of archeology, biology, church history and doctrine and ancient scripture), then the threshold of “might be untrue” has been breached. Tangible claims subject to such fruitless study may now be said have questionable truth based on scientific and objective investigation. As leader of the Church and owner of the Schools, President Monson can be reasonably expected to have been informed of any findings which bear upon the truthfulness of the claims of the church.
Because of its academic and scientific endeavors, BYU might very well stand for “Bringing You Undeniability” when it comes to leaders attempting to plead ignorance of objective evidence against a claim’s truthfulness.
Even if you don’t think Monson himself would necessarily have been made known, other church officials who have served as presidents of BYU, heads of departments or other academic posts would certainly know – but can Monson be held accountable for false representations made by official underlings?
Proxy Convictions – for and in behalf of….
Monson is the only individual currently named in the summons, but a careful review of Section 12 of the fraud act adds some complexity to the matter:
12. Liability of company officers for offences by company
(1) Subsection (2) applies if an offence under this Act is committed by a body corporate.
(2) If the offence is proved to have been committed with the consent or connivance of—
(a) a director, manager, secretary or other similar officer of the body corporate, or
(b) a person who was purporting to act in any such capacity,
he (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.
(3) If the affairs of a body corporate are managed by its members, subsection (2) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(“Section 12” Fraud Act of 2006)
So if a member, with consent of a director such as the corporate sole (Monson), acts in an official capacity for a corporation and makes false representations, the corporation is said to have been party to the fraud. Since Monson is the corporation sole of the Church and by definition the only member of the corporation, then he is the ultimate party at guilt for any claims of fraud that are proven.
Note that the member who makes the claim is guilty as well as the body corporate. This may explain why Tom Phillips has indicated that other names may be added to the case as it progresses:
“Mormon Church president Thomas S. Monson and the Mormon Church’s Corporation of the President (COP) are the initial defendants in this Court filing. Plans are to eventually expand the case beyond Monson as Mormon Church president (i.e., the Corporate Sole), by bringing charges against the entire high command of the Mormon Church– comprised of the First Presidency and the Quorum of Twelve Apostles.”
(“Details of Criminal Fraud Case Against Monson” Tom Phillips, Steve Benson. exmormon.org)
That courtroom may get very crowded very quickly.
The UK 2006 Fraud Law was designed to have more teeth to cover fraudulent activities that were proliferating on the internet and in the modern era. In doing so, the expanded language has opened up the scope of potential fraud to include claims from religious entities that cross the bounds from the metaphysical into the real world of objective truth. This case will be test of this application of the law. If a religion acquires funds from a system of tithing which is established under threat of eternal consequences or bodily harm, as the Mormon Church does, then those claims of truth may enter the realm of actual fraud under this law. When such a church undertakes to institutionally combine religious study with rigorous scientific academic study, they leave themselves little if any wiggle room to plead ignorance of contradictions that may call the truthfulness of certain claims into question. BYU itself may be the gun with which the church shoots itself in the foot.
(Over the next few posts, I will cover each of the seven charges individually and examine how they might meet the criteria of fraud laid out above – stay tuned!)