The Clergy/Penitent Privilege

Every state1 has a law making certain communications to clergy “privileged”. This generally means that neither the minister nor the “penitent” can be forced to testify in court (or in a deposition or certain other legal proceedings) about the contents of the communication. What is the justification for this rule, that “contravenes the fundamental principle that the public has a right to every man's evidence”?2 The United States Supreme Court has observed that “the priest--penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”3 A federal appeals court judge stated the justification for the privilege as follows:

Sound policy—reason and experience—concedes to religious liberty a rule of evidence that a clergyman shall not disclose in a trial the secrets of a penitent's confidential confession to him, at least absent the penitent's consent. Knowledge so acquired in the performance of a spiritual function . . . is not to be transformed into evidence to be given to the whole world. . . . The benefit of preserving these confidences inviolate overbalances the possible benefit of permitting litigation to prosper at the expense of the tranquility of the home, the integrity of the professional relationship, and the spiritual rehabilitation of a penitent. The rules of evidence have always been concerned not only with truth but with the manner of its ascertainment.4
Not every communication made to a minister is privileged and thereby protected from disclosure. The typical statute applies only to (1) communications (2) confidentially made (3) to a minister (4) acting in his or her professional capacity as a spiritual adviser. To illustrate, Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, provides:

(a) Definitions. As used in this rule:
(1) A “clergyman” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is “confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to the clergyman in his professional character as a spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.
Some states add a fifth requirement—the communication made in confidence to a clergyman must be made “in the course of discipline.” All five elements of the clergy--penitent privilege will be considered in turn.

1. WERE THE STATEMENTS INTENDED TO BE COMMUNICATIONS?

The privilege against divulging confidential communications extends only to actual communications between an individual and a clergyman. Communications obviously include verbal statements, but they also can include nonverbal forms of communication. One court ruled that the delivery of a gun to a minister constituted a “privileged communication” that was not admissible in court. A New York City police officer who also served as assistant pastor of a local church was approached one evening (while in civilian clothes on the church grounds) by an elderly man who addressed the minister by name and stated that he had something at home that he wanted to give him. A few minutes later, the individual returned, and was escorted into an office where he handed the minister a plastic bag containing a .38 caliber revolver. Not wanting to the leave the gun on church premises overnight, the minister flagged a patrol car that was passing by the church, and handed the gun to the officer driving the vehicle. A few months later, the minister was accused of violating several police department regulations in the proper disposition of the gun. The minister claimed that the incident could not give rise to any disciplinary action since it was a “privileged communication” under New York law and therefore could not be used in any legal proceeding. A trial judge found the minister guilty of all charges, and concluded that the “privileged communication” defense was not available since the gun had been delivered to the minister in his capacity as a police officer rather than a clergyman.

A state appeals court reversed this ruling, and dismissed the charges. The appeals court concluded that the gun had been delivered to the minister in his capacity as a minister, and that the manner in which the gun was delivered constituted a “confidential” nonverbal communication. The court found it significant that the elderly gentleman had gone to the church with the gun rather than to a police facility, and that the minister was wearing civilian clothes.5

Another court ruled that the act of a murder suspect in displaying a gun to a minister was a “communication.”  The court reasoned that the word communication is not limited to conversation but includes “any act by which ideas are transmitted from one person to another.”6

But acts that are not intended to “transmit ideas” are not deemed communications. Thus, it has been held that a minister's personal impressions of a person's mental capacity were not privileged,7 nor were a minister's personal observations of the demeanor or reactions of another.8 In a case involving a challenge to the will of an elderly decedent, a minister who testified concerning the speech, hearing, and sight of the decedent was held not to have “waived” the privilege since he only testified concerning personal “observations.” He therefore was permitted to claim the privilege with respect to confidential communications he had conducted with the decedent.9 And a minister who assumed the custody of a two--month--old child was permitted to testify concerning the child's condition and the conduct of the child's parents, since such testimony related only to observations and not to communications arising out of spiritual counseling.10

There is no reason why communications transmitted by telephone should not be privileged, if they satisfy the applicable requirements under state law. What about correspondence? Should a letter to a minister be privileged? One federal court ruled that a letter written by a prisoner to a priest, requesting the priest to get in contact with an FBI agent and have him visit the prisoner, was not privileged.11 The court observed: “The letter contains no hint that its contents were to be kept secret, or that its purpose was to obtain religious or other counsel, advice, solace, absolution, or ministration. It merely requested assistance by putting [the prisoner] in touch with the agent and explained [his] purpose and plan in asking this.” Under the circumstances, the court concluded that the letter was not confidential. However, the court's decision strongly suggests that a letter written to a minister may be privileged if it (1) seeks religious counsel, and (2) indicates on its face that its contents are to be kept secret.

One court concluded that the clergy--penitent privilege covered personal records of a deceased church member that were in the possession of the pastor.12


2. WAS THE COMMUNICATION MADE IN CONFIDENCE?

To be entitled to the privilege against the disclosure of confidential communications made to a minister, a communication must be made in confidence. This generally is interpreted to mean that a communication must be made under circumstances which indicate that it would forever remain a secret. Otherwise, the privilege does not apply. Thus, statements made to a minister in the presence of other persons generally will not be privileged.

To illustrate, no privilege existed with respect to statements made by a murder suspect to his minister in the presence of a church elder;13 nor did a privilege exist in the case of statements made by a church member to his minister in the presence of his pastor's wife,14 a confession by a church member to his minister in the presence of two other persons,15 and a confession made to a minister by a prisoner in the obvious presence of a prison guard.16

Similarly, statements made by a suspected rapist to a minister immediately following a Sunday morning worship service three days before the rape were not privileged since they were not made in confidence. The minister testified that the conversation had occurred while “many people were hanging around as they usually do” following a service, and that “we [the minister and the accused] talked with quite a number of people.” The accused claimed that the prosecution erred in allowing the statements made by the accused to the minister to be introduced in court, since such statements were the product of the “clergy--penitent” privilege. The court rejected this claim, noting that only confidential communications made to a minister acting in his or her professional capacity as a spiritual advisor are privileged from disclosure in a court of law, and that the statements made by the accused in this case were not privileged. It concluded that “the record supports the trial court's finding that the conversation had not taken place in private and therefore was not a privileged confidential communication.”17

If the presence of a third person is legally required (e.g., a prisoner who cannot communicate with a minister unless a guard is present), the privilege may apply.18 A few courts have concluded that communications made to a minister in the presence of elders, deacons, or other church officers are privileged, at least if the communication involved a confession of sin made in the course of a disciplinary proceeding.19 And, a few state laws seem to extend the clergy--penitent privilege to situations in which other persons are present “in furtherance of the communication.”20

Statements made to a minister by a spouse during marriage counseling may be privileged despite the presence of the other spouse, and a few state laws specifically so provide.21 In other states, the same will be true because of liberal interpretations of state law.22 Certainly, the objective of the privilege (as noted above) applies to marital counseling involving one or both spouses perhaps as much as in any other context. Ordinarily, however, statements made to a minister in the presence of deacons, elders, church members, or any other persons will not be privileged, unless specifically recognized by state law.23 Statements made to a minister in the course of friendly, informal conversation ordinarily are not privileged, since the circumstances do not suggest that the conversation will be kept in confidence.24 Communications made to a minister with the understanding that he or she will transmit them to a third party obviously lack confidentiality, and are not considered privileged.25

In summary, privileged communications to a minister must not only be made in private, but they also must be made with an express or implied understanding that they will never be disclosed. The substance of the communication, the place where it is made, and the relationship, if any, between the minister and the one making the communication, are all factors to be considered.


3. WERE THE STATEMENTS MADE TO A CLERGYMAN?

The typical statute provides that only those confidential communications made to clergymen, priests, or ministers of the gospel are privileged. Communications made to nuns,26 an elder and deacon in the Christian Church,27 lay religious counselors whose services are not indispensable,28 “lay ministers”29 and unordained, self--proclaimed ministers,30 and a “born--again” police officer who was a former deacon in his church,31 have been held not to be privileged. But communications made to lay religious counselors whose services are necessary because of the number of people requiring counseling,32 and to elders in the Presbyterian Church,33 have been deemed privileged.

It has been held that the IRS could not be prevented from inspecting church records on the basis of the privilege against disclosure of confidential communications to clergymen, since the term clergyman applies only to natural persons and not to church corporations.34

4. WAS THE MINISTER ACTING IN A PROFESSIONAL CAPACITY?

Most state laws require that the communication be made to a minister acting in his or her professional capacity as a spiritual adviser. Certainly there can be no expectation of confidentiality—and therefore no privilege—unless a statement is made to a minister acting in a professional capacity.

If a statement is made to a minister as a mere friend, the privilege does not apply. To illustrate, a murder suspect's incriminating admissions made to a clergyman who was a friend and frequent companion were held not to be privileged. The court reasoned that the statements had been made to the clergyman as a friend and not as a professional spiritual adviser.35 Statements made by a murder suspect to a minister were not privileged when the suspect (1) was not a church member, (2) had entered a minister's home to conceal himself from the police, (3) did not seek spiritual counseling and did not request that their conversation be kept confidential, and (4) the minister did not believe the conversation was confidential. The court reasoned that the facts did not establish the confidential nature of the statements or that the minister was acting in his professional capacity as a spiritual adviser.36

In another case, statements made to a clergyman by an individual who was attempting to sell him a watch were held not to be privileged.37 And, statements made to a priest who worked as an executive in a secular business (while on a leave of absence from the priesthood) were not privileged since they were not made to a minister acting in his professional capacity as a spiritual adviser.38

A New York state appeals court addressed the issue of privileged communications to clergy in an important decision. An individual entered an office building in New York City, pulled a gun and ordered several people to lie on the floor, and fired at least one shot. He later left the building and went to a nearby Catholic church. The church secretary informed the priest that there was a man in the office who wanted to see him. The priest met the individual in the church sanctuary a short time later. The individual appeared very distraught, and informed the priest that his mother was a member of the parish and that she was a saint, and that he had done something very bad. Upon further questioning by the priest, the individual disclosed the actions he had taken earlier in the day. The priest advised the individual that if he had not hurt anyone he “would be better off” turning himself in to the police. The individual rejected this advice and stated that he wanted to pray. A short time later, the priest slipped outside and ran to a police headquarters a block away. On his way, he yelled to several police officers that there was a man in the church with a gun. The officers went into the church, removed the gun from the individual and placed him under arrest. The individual was later indicted on 24 counts by a grand jury which based its decision in part on the conversation that occurred between the priest and the accused in the church. The individual sought a court order dismissing the indictment on the ground that it was based on privileged communications between himself and the priest. New York law provides that “unless the person confessing or confiding waives the privilege, a clergyman . . . or minister of any religion . . . shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual adviser.” The court observed that “not every communication between a clergyman and a penitent is considered privileged.” To be a privileged communication (i.e., not admissible in court), the communication made to the clergyman “must have been made to him in his or her professional character as a spiritual adviser.” The court cited an earlier case in which a letter written to a priest was not privileged since it contained no hint “that its contents were to be kept secret, or that its purpose was to obtain religious or other counsel, advice, solace, absolution or ministration.” In the present case, however, the individual with the gun “was seeking some type of spiritual advice from [the priest] and had the reasonable expectation that his conversation with the priest was to be kept secret. Therefore, [the priest] was not at liberty to testify before the grand jury as to his conversation with [the accused].”39

Another New York state court ruled that a priest's testimony in a criminal hearing was not “privileged” since the information shared with the priest by a criminal suspect was not communicated in the course of spiritual counseling.40 The court acknowledged that there was a difference of opinion as to why the suspect had spoken with the priest. The suspect claimed that he spoke with the priest solely to ask him to contact an attorney on his behalf. On the other hand, the priest testified that the suspect sought him out in order to apologize personally to him for burglarizing his home. The court concluded that only those communications made to a minister while acting in his or her professional role as a spiritual adviser are privileged from disclosure in a court of law. Under either the suspect's or the priest's account of the communication, it was not privileged since the priest had not been sought out for spiritual counsel or advice. Accordingly, it was appropriate to admit the priest's testimony over the defendant's objection.

A California state appeals court ruled that confidential statements made by a church treasurer to an Episcopalian priest were not “penitential communications” exempted by law from involuntary disclosure in a civil court. Late one night, the treasurer arranged a meeting with the priest after informing him that she “had done something almost as bad as murder.” The treasurer, after requesting that their conversation be kept confidential, informed the priest that she had embezzled nearly $30,000 in church funds from a church account. The priest, with the permission of the treasurer, sought the assistance of the church wardens and vestry. Soon thereafter, the vestry decided that the embezzlement had to be reported to the local police. At a subsequent criminal prosecution, the treasurer was convicted and placed on formal probation including four months in jail (prior to trial, she had fully repaid the church).

The treasurer appealed her conviction on the ground that it had been based on her confidential statements to the priest which, in her opinion, were “penitential communications” that were privileged against disclosure in court. California law specifies that “a penitent . . . has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication” made to a clergyman.  A “penitential communication” is defined as a confidential communication to a clergyman “who, in the course of the discipline or practice of his church, denomination, or organization is authorized or accustomed to hear such communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep such communications secret.”

The court concluded that the statements made by the church treasurer to the priest were not privileged since they involved a “problem--solving entreaty” by the treasurer rather than “a request to make a true confession seeking forgiveness or absolution—the very essence of the spiritual relationship privileged under the statute.” That is, the treasurer sought out the priest not for spiritual counseling, but to disclose her embezzlement and to seek his counsel on how to correct the problem. Further, the court observed (despite testimony to the contrary) that while Episcopalian priests have a duty to maintain the secrecy of a confession by a penitent seeking God's forgiveness, there is no corresponding duty with respect to statements made to a priest in the course of ordinary “pastoral counseling.” The court also emphasized that the treasurer had “released” the priest from his assurance of confidentiality by consenting to his disclosure of the facts of the case to the church wardens and vestry.  Unfortunately, the court's decision contradicts the very purpose of the “penitential communications” privilege. Church members in California may be dissuaded from seeking pastoral counseling now that there is no assurance that communications made in confidence in the course of such counseling sessions are privileged from involuntary disclosure in a court of law. Such a crabbed interpretation of the California statute is unwarranted, and hopefully will be rejected by the state supreme court and by other appeals courts in the state.41

One court ruled that statements made by a murder suspect to a minister regarding his intent to kill his wife were not privileged since they were not made by the suspect “in professing religious faith or seeking spiritual comfort or guidance.”42

A Pennsylvania state appeals court ruled that statements made by a murder suspect to a minister were not “privileged” since they were not made to the minister while acting in his professional role as a spiritual adviser.43 The facts of the case are tragic. In 1966, a 10--year--old girl and her 6--year--old friend were playing by a creek near their homes. A man approached the children, and asked them to help him “catch minnows” around a bend in the stream. He offered them chewing gum if they would accompany him. The 6--year--old declined the invitation, but the 10--year--old girl went with the man. A search for the girl was launched when she failed to return home for lunch. Her body was discovered, with her throat slashed, behind some bushes a few hundred yards from where the children had been playing. A small, plastic “sheriff's badge” was found under her body. An intensive search was conducted, and several suspects were questioned, but no arrests were made.

Twenty--two years later, a man was arrested in the same community for indecent exposure. The court appointed a local minister to counsel with the individual. While he was not an active member of the minister's church, he and his wife occasionally attended services at the church. During a counseling session, the individual informed the minister that he was guilty of the murder of the girl 22 years before, and he asked the minister to accompany him to the police station where he stated he would confess to the crime. The minister also noticed that the individual had a plastic sheriff's badge in his pocket. Largely on the basis of this new evidence, a murder prosecution was commenced and the individual was convicted of first degree murder. The murderer appealed his conviction on the ground that the statements he had made to the minister were protected by the clergy--penitent privilege, and accordingly should not have been introduced in evidence during the trial.

A state appeals court rejected this claim, and upheld the murder conviction. The court began its opinion by noting that Pennsylvania law provides that “no clergyman . . . who while in the course of his duties has acquired information from any person, secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any governmental unit.” The court concluded that this statute did not apply in this case, since “the circumstances in which the statements were made were not religious, in that nothing spiritual or in the nature of forgiveness ever was discussed.” The court emphasized that “our legislature did not intend a per se privilege for any communication to a clergyman based on his status. We therefore look to the circumstances to determine whether [the murderer's] statements were made in secrecy and confidence to a clergyman in the course of his duties.” The court noted that the minister had been appointed by the court to counsel with the murderer concerning his indecent exposure conviction, and that it was the minister who sought out the murderer. The court observed:

[The murderer] never sought [the minister] in a confessional role; further, there was no evidence that [the minister] was acting in any capacity other than that of counselor. Thus, the statements were not motivated by religious considerations or in order to seek the forgiveness of God. Accordingly, they were not made to [the minister] in the course of his duties as a minister. Instead, they were made because he was a court--appointed counselor. Further, [the murderer] never was a member of the church. Under these circumstances, we conclude that the fact that [the minister] is ordained was not relevant to [the murderer's] statements to him and there is no basis to conclude that his statements were made confidentially or for religious, penitent purposes.44
Accordingly, the clergy--penitent privilege did not apply, and the minister could testify regarding the murderer's confession. Further, the court stressed that “we categorically reject the allegation that this privilege extends to openly--displayed objects, as was the toy sheriff's badge.” This case illustrates two important principles. First, the clergy--penitent privilege generally extends only to those confidential statements that are communicated to a minister while acting in his or her professional capacity as a spiritual adviser. Second, the privilege ordinarily does not extend to observations made by a minister during the course of counseling.

Many, perhaps most, of the communications made to clergy are not made to them in their professional capacity as spiritual advisers. They are made, by church members and nonmembers alike, at church functions, following church services, in committee rooms, in hospital rooms, at funeral homes, on street corners, and at social and recreational events. Such communications ordinarily are not privileged, since other persons typically are present and it is difficult to conclude that the “counselee” sought out the minister in his or her professional capacity as a spiritual adviser. This is not an absolute conclusion, since it is entirely possible that such conversations, even if they begin as a purely social exchange, could become spiritual in nature. In other words, by the end of a conversation the “counselee” may well be communicating with the minister because of his or her status as a spiritual adviser. There is no reason why such a conversation should not be privileged, assuming that the other requirements are satisfied. On the other hand, even strictly private conversations may be made for purposes other than spiritual advice, and thus are not privileged.

A minister (or court) may need to ascertain the objective of a conversation in determining whether a communication is privileged. Was the minister sought out primarily for spiritual advice? Were the statements of a type that could have been made to anyone? Where did the conversation take place? Was the conversation pursuant to a scheduled appointment? What was the relationship between the minister and the person making the communication? These are the kinds of questions which help to clarify the purpose of a particular conversation, thereby determining the availability of the privilege.

5. WAS THE COMMUNICATION MADE IN THE COURSE
OF DISCIPLINE?

Several state laws require that the communication be made to a minister “in the course of discipline enjoined by the rules or practice” of his or her church. Some courts have interpreted this language strictly. As a result they apply the privilege only to communications “made in the understood pursuance of that church discipline which gives rise to the confessional relation, and, therefore, in particular to confessions of sin only, not to communications of other tenor.”45 Other states construe such language broadly, extending the privilege to all confidential communications made to clergy acting in their professional capacity as spiritual advisers. In a leading case, one court, in interpreting the phrase in the course of discipline enjoined by the rules or practice of the  religious body to which he belongs, observed:

The word “discipline” . . . has no technical legal meaning. . . .  The “discipline enjoined” includes the “practice” of all clergymen to be trained so as to . . . concern themselves in the moral training of others, and to be as willing to give spiritual aid, advice, or comfort as others are to receive it . . . . So it is in the course of  “discipline enjoined” by the “practice” of their respective churches that the clergyman is to show the transgressor the error of his way; to teach him the right way; to point the way to faith, hope, and consolation; perchance, to lead him to seek atonement.
. . . .

It is important that the communication be made in such spirit and within the course of “discipline,” and it is sufficient whether such “discipline” enjoins the clergyman to receive the communication or whether it enjoins the other party . . . to deliver the communication. Such practice makes the communication privileged, when accompanied by the essential characteristics.
. . . .

The fundamental thought is that one may safely consult his spiritual adviser. . . . When any person enters that secret chamber, this statute closes the door upon him, and civil authority turns away its ear.46
At least one state has recognized that a narrow interpretation of the requirement that confidential communications be made “in the course of discipline enjoined by the rules or practice” of a church would largely restrict the privilege to the Roman Catholic Church, since most Protestant denominations have no formalized system of “discipline.”47 One court has labeled any such limitation of the privilege to the clergy of one denomination an “absurdity.”48 Such an interpretation, favoring the clergy of one sect, would present serious constitutional problems, since the first amendment prevents states from passing laws which arbitrarily favor one sect to the disadvantage of others.49 In 1982, the Supreme Court ruled that “when we are presented with a state law granting a denominational preference, our precedents demand that we treat such a law as suspect” and that it be invalidated unless it (1) is justified by a compelling governmental interest, and (2) is closely fitted to further that interest.50 This standard could not be satisfied by a state law recognizing the privileged status of confidential communications only in the context of a few religious organizations.

Most states broadly interpret the requirement that the confidential communication be made in the course of discipline. It may be safely assumed in most states that the privilege will extend to any communication made in confidence to clergy acting in their professional capacity as spiritual advisers. Such an interpretation is not only permissible in view of the lack of any technical legal definition of the term, but it is also a socially desirable interpretation, since it encourages spiritual counseling. Some of the more recent state laws recognizing the privilege have avoided any reference to the term discipline. Rule 505 of the Uniform Rules of Evidence, which has been adopted in several states, provides that the privilege extends to any confidential communication made “to a clergyman in his professional character as spiritual adviser.”

Finally, it should be noted that some states protect confessions from compulsory disclosure in court. This term generally has been broadly interpreted. One court has observed that “[t]he `confession' contemplated by the statute has reference to a penitential acknowledgment to a clergyman of actual or supposed wrongdoing while seeking religious or spiritual advice, aid, or comfort, and . . . it applies to a voluntary `confession' as well as to one made under a mandate of the church.”51

6. MISCELLANEOUS CONSIDERATIONS

a. Clergy--Parishioner Relationship

Most courts that have addressed the question have concluded that a clergy--parishioner relationship is not necessary to invoke the privilege.52 Thus, even though the person making the communications is not a member of the minister's church, his or her confidential communications to that minister generally will be privileged. This would appear to be the correct view, for the purpose underlying nondisclosure of confidential communications made to clergy applies with equal force to all who seek out a minister in confidence for spiritual guidance and help.53

b. Marriage Counseling

Many courts have had difficulty in deciding whether to apply the privilege to communications made to clergy in the course of marriage counseling. The prevailing view is that such statements will be privileged so long as all of the various elements of the privilege are satisfied. Most courts have assumed that statements made to a minister in the course of marriage counseling are made to the minister in his or her professional capacity as a spiritual adviser, and in the course of discipline.54 One court observed that the presence of both spouses during marital counseling with a minister “did not destroy the confidential nature of the admissions the husband made during marriage counseling—to attempt reconciliation of the parties in a troubled marriage reinforces the confidential nature of communications made during those sessions.”55 Some courts have reached the opposite conclusion.56 A few state laws specifically extend the privilege to marital or family counseling sessions even if both spouses are present.57

c. Who May Assert the Privilege

In most states, either the person who made the communication or the minister to whom it was made may claim the privilege. Many states permit the person who made the communication to prevent the minister or any other person from disclosing the communication.58 In some states, only the penitent or “counselee” may assert the privilege, not the minister. Such was the conclusion of an Arizona state court. A member of the Church of Jesus Christ of Latter--Day Saints (the church) informed three church officials that he had sexually molested a number of children. The mother of one of the victims sued the church, arguing that its negligence in not reporting the molester to civil authorities and in carelessly counseling with him had contributed to the molestation of her daughter. The molester later confessed to at least 33 acts of child molestation, and freely disclosed to the police the confessions that he had made earlier to the church officials. The mother sought to compel the church officials to testify regarding the confessions as part of her attempt to demonstrate that the officials had been aware of the risks posed by the molester and had been negligent in failing to report him to the authorities. This request was opposed by the church officials, who claimed that the confessions previously made to them were shielded from disclosure in court by the “clergyman--penitent privilege.” The court ruled that under Arizona law the clergyman--penitent privilege “belongs to the communicant, not the recipient of a confidential communication,” and accordingly only the molester could assert it. Further, the court concluded that the molester had “waived” the privilege by his voluntary disclosures to the police. The court rejected the church's claim that the church officials to whom the confessions were made could independently assert the clergyman--penitent privilege as a means of avoiding the obligation to testify. It observed that the clergyman--penitent privilege was a response “to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one's self and others can be realized. This urgent need is the penitent's, not the clergyman's. And once the penitent has waived the privilege, his penitential need is unserved and the public's evidentiary need disserved by permitting a clergyman to assert the privilege independently.”

The court acknowledged that “complex issues” would be raised if the church officials, like Roman Catholic or Episcopalian clergy, were bound by an absolute obligation of silence “unwaivable by a penitent.” However, it observed that the church officials had failed to demonstrate that they were similarly bound by an absolute obligation of silence, and therefore it refused to rule on this issue. The church officials were required to testify in court about the confessions that the molester had made to them in the course of counseling.59

Many state laws give the minister the right to claim the privilege only on behalf of the penitent, meaning that if the penitent waives the privilege and agrees to testify, the minister cannot assert the privilege independently. In other states, the minister can assert the privilege independently of the penitent (see Appendix 2).

d. When to Assert the Privilege

The privilege does not excuse a minister or the person making the communication from appearing in court. It merely excuses them from disclosing the communication in court against their will. The proper time to assert the privilege is when the person who made the communication or the minister to whom it was made is asked about the communication in court. The question must be objected to prior to an answer on the ground that it seeks to elicit privileged information. If the privilege is not claimed, it is waived. Thus, if the person who made the communication answers questions about the communication on the witness stand, without objecting, the privilege will be deemed waived, even if the question is later challenged. If a timely objection is overruled, it will serve as a basis for appeal.

e. Waiver of the Privilege

The clergy--penitent privilege can be “waived,” meaning that it no longer protects confidential communications against compelled disclosure in court of law or judicial proceeding. One court ruled that a counselee waived any privilege when he disclosed to the police the substance of confidential communications he had made to his clergyman.60 Another court concluded that a couple had waived their clergy--penitent privilege under New York law by alleging damages to their “marital relationship” in a medical malpractice lawsuit. To refute the claim of marital injury, the physician sought to obtain the counseling records of a Roman Catholic priest to whom the couple had gone for marriage counseling.  The priest refused to comply on the ground that such records were protected by the New York clergy--penitent privilege, which provides:  “Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion . . . shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual adviser.”  

The court concluded that by alleging damage to their marital relationship the couple had “waived the privilege of their communication with [the priest] during his counseling with them, solely as to their marital problems.  Insofar as other communications with [the priest] not pertaining to marriage counseling, the privilege remains intact.”  The court suggested that the couple delete their claim for damages to their marital relationship as a means of avoiding the necessity of having the priest's counseling records subject to disclosure.61  

f. Federal Courts

In 1972, the United States Supreme Court adopted a set of rules of evidence for use in federal courts.62 Congress later suspended implementation of these rules pending a thorough review. In 1975, Congress enacted into law a revised version of the Federal Rules of Evidence, incorporating several changes in the rules as originally proposed by the Supreme Court. One of the most significant congressional modifications pertained to privileged communications. The Supreme Court had proposed nine specific privileges for use in the federal courts, including the clergy--parishioner, attorney--client, husband--wife, and psychotherapist--patient privileges. Congress, however, deleted all of the Supreme Court's specific rules of privilege and replaced them with a single principle:

[T]he privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the privilege of a witness . . . shall be determined in accordance with state law.63
g. Constitutionality

Often, a communication made to a minister will fail one or more of the requirements for a valid privilege, yet the minister or the person making the communication will argue that the first amendment's “free exercise of religion” clause prohibits compelled disclosure of the communication. To illustrate, in one case a Catholic nun who was not eligible for the privilege argued that the first amendment protected her from being compelled to testify regarding communications made to her by a murder suspect. The court, in rejecting the nun's claim, observed that “this case calls for a balancing of interests—that of the state in enforcing the power of the grand jury to inquire into the commission of a crime, and that of [the nun] who claims she responds to a call of conscience. In the particular circumstances of this case the latter must give way to the former.”64

Another court, in rejecting a priest's claim that requiring a bishop to disclose unprivileged records relating to the priest violated the first amendment, observed: (1) disclosure of the documents pertaining to the priest would not interfere with the bishop's “right to believe as he chooses and to engage in the religious observances of his faith”; (2) no impermissible “entanglement” between church and state would result; (3) information in the possession of a church “has always been subject to civil process”; and (4) there would be no need for the clergy--penitent privilege if the first amendment's “free exercise of religion” clause protected information in the possession of a church from civil process.65

h. Child Abuse Reporting

What if a church member confesses to abusing his or her minor child in a state requiring the minister to report such information to the civil authorities? Can the minister excuse a refusal to report on the basis of the clergy--penitent privilege? This is a controversial question. A number of state clergy--penitent laws specifically nullify the privilege in the context of child abuse reporting,66 meaning that a minister cannot rely on the privilege in explaining a refusal to report. Further, the concept of “privilege” generally applies only to court--room testimony (or depositions), and not to contacts with state officials. On the contrary, a few state laws specifically preserve the clergy--penitent privilege in the context of child abuse reporting.67

One court refused to recognize the clergy--penitent privilege in the context of child abuse reporting. The case is discussed above.

While no court has addressed the issue directly, it is possible that clergy having religious opposition to disclosing confidences may be able to defend a failure to report a confession (or indication) of child abuse on the basis of the first amendment's guaranty of religious freedom. This position would be the strongest for those clergy whose churches or denominations have taken specific positions prohibiting disclosure of confessions or confidential communications as a matter of ecclesiastical doctrine or practice. Even here, it is possible that a civil court would conclude that the state's interest in obtaining information about child abuse is so compelling that it supersedes the constitutional guaranty of religious freedom. Generally, religious freedom may be limited or abridged by a state law or practice that is supported by a compelling governmental interest. One commentator has concluded that the first amendment guaranty of religious freedom outweighs the state's interest in uncovering cases of child abuse if a minister's failure to disclose is based on the established dogma or practice of his or her church or sect.68

The issue of child abuse reporting is discussed fully in chapter 4 Failure to Report Child Abuse.

i. Confidentiality

If a counselee shares confidential statements with a minister acting in his or her professional capacity as a spiritual adviser, the minister ordinarily cannot be compelled to reveal such communications in a court of law (or other judicial proceeding). Such communications are “privileged” against compelled disclosure. Closely related to the concept of privilege is the issue of confidentiality. Generally, “confidentiality” refers to a duty not to disclose to anyone the substance of communications shared in confidence. While the impropriety of disclosing confidential information is universally acknowledged, few clergy have been found legally accountable for unauthorized disclosures. This is because, until recently, the duty of clergy to preserve confidences was considered to be moral rather than legal in nature. However, in recent years come clergy have been sued for divulging confidences.

To illustrate, a bishop who confessed to church leaders that he had committed adultery sued his church when church leaders disclosed the confession without the bishop's consent.69 The bishop had specifically asked his church leaders to keep his confession in confidence, and they promised to do so. A short time later, the female church member who was the other party to the affair confessed to a church leader who promised to keep her confession in confidence. The church leaders allegedly disclosed these confidences to a local church's board of elders, and to numerous other persons. One of the church leaders allegedly disclosed the confidences to the assembled congregation in a Sunday worship service, and then proceeded to “excommunicate” the bishop and “cast his spirit” from the church. A family counselor to whom the female member had also made a confession and obtained a promise of confidentiality also allegely disclosed the information to others. And, the bishop alleged that one of the church leaders disclosed his confession to a “gathering of local priests, ministers, pastors, and guests.”

As a result of these disclosures, the bishop and the female church member were shunned by friends, family, and members of their local church and denomination. The two sued the church and various church officials, alleging invasion of privacy, breach of fiduciary duty, false imprisonment, emotional distress, and malpractice. The church countered by arguing that the civil courts lacked jurisdiction over the controversy since “the conduct complained of is ecclesiastical in nature.” A trial court agreed with the church's position, and dismissed most of the claims. On appeal, a state appeals court ruled that the church could be sued for emotional distress and related claims, and it ordered the case to proceed to trial. The court began its opinion by noting that “religious disputes can take a number of forms . . . and do not always result in immunity from liability.” The court acknowledged that the civil courts may not intervene in disputes over church doctrine, but it was not willing to accept the trial court's summary conclusion that this dispute in fact involved church doctrine. It observed: “The trial court was not told, and we do not know, whether it is a canon of [the church's] belief that confessions (penitential or not) are revealed to the congregation . . . ; whether it is church practice for the substance of a confession to be shared among church officials; or whether it is consistent with church doctrine to reveal the substance of a confession to anyone outside the church, and if so, under what circumstances.” Even if church doctrine prescribed the disclosure of confidences, this would not end the analysis, for certain types of behavior may be regulated or subjected to legal liability by state law, even if rooted in religious doctrine, so long as the state has a compelling interest that justifies the burden on religious conduct. For example, “under the banner of the first amendment provisions on religion, a clergyman may not with impunity defame a person, intentionally inflict serious emotional harm on a parishioner, or commit other torts.” In other words, the first amendment guaranty of religious freedom does not necessarily insulate clergy from liability for their actions.

The court acknowledged that “apparently there are no generally reported opinions where a counselee or communicant has sought to hold a religious officer liable in tort for [an unauthorized disclosure of confidential communications].” However, it saw no reason why clergy and church leaders should not be held legally accountable for injuries they inflict when they disclose confidential information to others without consent. What is the significance of this case to church leaders? Simply this—clergy must recognize that a failure to maintain confidences may lead to personal legal liability. It is universally acknowledged that unauthorized disclosure of confidential information is unethical; but this case indicates that such disclosures may also result in legal liability. The lesson is clear—clergy should avoid disclosures of confidential information without the express consent of the counselee. One exception that will apply in some states is the legal duty to report known or reasonably suspected incidents of child abuse. This possible exception is discussed in chapter 4 Failure to Report Child Abuse. Related topics are also discussed in chapter 4 Defamation and Invasion of Privacy.