Confidential and Privileged Communications

Legal Developments

The Clergy-Penitent Privilege and Consent to Disclosure

Minister’s confession of misconduct not protected from disclosure.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-07-01

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key Point. Confidential communications made to a minister are not protected from disclosure by the clergy—penitent privilege if the person making the communications consents to their disclosure.

• The West Virginia Supreme Court ruled that statements made by an imprisoned pastor to another pastor were not protected by the clergy—penitent privilege. The facts of this case are tragic. In 1991, seven—year—old Joshua, his two sisters, and his parents began attending a local church after Joshua’s mother had received counseling from the church’s pastor. The pastor and his wife soon became friends with Joshua’s family, and the two families often visited in each other’s homes and had dinner together. The pastor also befriended Joshua and one of his sisters, taking them places and inviting them to spend the night at his apartment that he shared with his wife. After a period of time, the pastor began inviting only Joshua to spend the night. These overnight visits progressed from one night per week to approximately two nights per week. During these visits, Joshua slept on a mattress on the pastors basement floor. Joshua told his mother that the pastor often slept on the mattress with him and sexually molested him on at least three or four occasions. Joshua also indicated he was afraid to report this abuse earlier because the pastor told him he would regret revealing this information. Joshuas mother immediately reported the information to the local sheriffs department. The pastor was later charged with several counts of molestation, and was imprisoned awaiting trial. While in prison, he was visited by another local pastor who met with him in order to provide comfort and solace. The two prayed together.

At the pastors trial, the visiting pastor testified regarding the conversation that occurred in prison. He related that he and the accused pastor spoke about the allegations that the pastor had sexually assaulted male children who attended his church. While speaking of these charges, the pastor allegedly stated that “he knew what was happening was wrong, [but he] couldn’t quit.” The visiting pastor also testified that the accused pastor gave him permission to “use [their conversation in] any way that [he thought] would be helpful” to others. The pastor was found guilty of several counts of molestation, and sentenced to not less than 50 years or more than 110 years in prison. The pastor appealed his conviction, in part because his conversation with the visiting pastor was protected by the clergy—penitent privilege and therefore should not have been disclosed. With regard to his conversation, he testified at his trial that he believed that “what I talked to [him] about would be between us.” He admitted that he had never before sought spiritual guidance or forgiveness from the visiting pastor and that he did not “confess to [the visiting pastor] as a communicant confesses to a priest when [he] talked to [him] that day.” The pastor also testified that he could not remember whether he gave the visiting pastor permission to disclose their conversation to others, but that he may have granted such permission. Nevertheless, he insisted that he spoke with the visiting pastor in his professional capacity as a minister, and believed that he had visited him for the sole purpose of providing comfort and strength during his confinement.

The state argued that the clergy—penitent privilege was not available in this case because the pastor failed to show that he spoke with the visiting pastor in his role as a professional counselor. The state pointed out that the pastor admitted that he did not attend the visiting pastors church and that he had never before confided in him as a pastor. More importantly, the state contends that the pastor waived any privilege by granting permission for the visiting pastor to use the information in “any way that [he thought] would be helpful” to others.

The state supreme court concluded that the clergy—penitent privilege was not available, and it affirmed the pastors conviction and sentence. It quoted the West Virginia clergy—penitent privilege statute:

No priest, nun, rabbi, duly accredited Christian Science practitioner or member of the clergy authorized to celebrate the rites of marriage in this state … shall be compelled to testify in any criminal or grand jury proceedings or in any domestic relations action in any court of this state: (1) With respect to any confession or communication, made to such person, in his or her professional capacity in the course of discipline enjoined by the church or other religious body to which he or she belongs, without the consent of the person making such confession or communication …. W. Va. Code § 57—3—9.

The court noted that the rationale for such a privilege “seems to be the demands of religious liberty, the need for individuals to be able to disclose sinful acts to a spiritual counselor, and the desire to avoid confrontation with clergy who refuse to divulge communications they feel ethically and religiously obligated to keep secret.”

The court concluded that a communication is privileged if four tests are met:

(1) the communication must be made to a clergyman; (2) the communication may be in the form of a confidential confession or a communication; (3) the confession or communication must be made to the clergyman in his professional capacity; and (4) the communication must have been made in the course of discipline enjoined by the rules of practice of the clergyman’s denomination.

The court concluded that the communications in this case met the first three requirements of the privilege-they were made to a clergyman, they were confidential, and the clergyman was acting in his professional capacity. However, the court had trouble deciding if the fourth requirement was met-that the communications to the visiting pastor were “in the course of discipline enjoined by the church or other religious body to which he … belongs.” The court noted that “[n]owhere in this record do we find evidence demonstrating one way or another that there was a course of discipline enjoined by [the visiting pastors] church.” However, the court concluded that it did not have to resolve this issue since it was clear that the pastor “consented to the testimony and therefore waived the confidentiality of the communication” by giving the visiting pastor permission to use their conversation in any way that he thought would be helpful to others.

The court made two important clarifications. First, the privilege is not limited to “confessions” but also includes “communications”. The court observed that although the term “confession” ordinarily means “a penitential acknowledgment to a clergyman of actual or supposed wrongdoing while seeking religious or spiritual advice, aid, or comfort,” the term “communication” is not so limited and is not restricted to incriminatory statements. Second, “[i]t is only where the church of the clergyman requires that the communicant must belong or be a member of the … church that we find such a relationship necessary to invoke the privilege.”

Application. This case is important for the following reasons: (1) It demonstrates the severe consequences that can befall persons who molest children. The pastor was sentenced to a minimum of 50 years in prison for his actions. (2) It demonstrates the risk parents incur when they allow their children to spend time with adults. This of course is not to say that such relationships cannot be positive and nurturing. But they also can be highly destructive. Church leaders should be alert to such arrangements occurring among their members, and never allow minors to spend time in staff members homes unless at least two adults are present at all times. (3) The case contains an excellent four—step analysis to apply in determining whether or not the clergy—penitent privilege exists. (4) The case illustrates that communications with a pastor may not be privileged, even if all of the elements of the privilege are satisfied, if the person making the communications consents to their disclosure. State v. Potter, 748 S.E.2d 742 (W. Va. 1996). [ The Clergy-Penitent Privilege]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0497

Legal Developments

What Does the Clergy-Penitent Privilege Cover?

Not all confidential conversations are protected.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-03-01

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Not all statements to clergy are protected by the clergy—penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in his or spiritual capacity as a spiritual adviser.

A federal court in Utah ruled that statements made by a church member to three church officials were not protected by the clergy—penitent privilege. Two adults drowned during a tragic accident while camping with another adult and five minors in a national park. A lawsuit was brought against the United States government by the families of the victims. The government later asked for a copy of a tape recording that was made in a church shortly after the accident, in which the sole surviving adult gave an account of the accident to three church leaders. The church leaders called for the meeting in order to obtain a first hand account of the trip so they could respond properly to the media and address the needs of family members. The church refused to provide the government with a copy of the tape on the ground that it was protected from disclosure by the clergy—penitent privilege. Utah law provides for a privilege to refuse to disclose a “confidential communication to a cleric in the cleric’s religious capacity and necessary and proper to enable the cleric to discharge the functions of the cleric’s office according to the usual course of practice or discipline.” The court noted that “not all confidential communications to a cleric are protected.” Rather, the communication “must be in the cleric’s religious capacity and must be pertinent to religion and not just church administration or information.” The court concluded that the statements made by the adult survivor to the three church officials did not meet this test. The court acknowledged that the survivor believed that the meeting was in part for “counseling,” and that it occurred on church premises and involved three ministers. While these facts suggested that the statements were privileged, they were outweighed by a number of other facts, including the following: (1) the survivor did not seek out the counseling but was invited to share his account of the accident with church officials; (2) church officials considered the meeting to be an “information exchange” rather than a confession or personal counseling session; and (3) there was evidence that some of the comments shared during the meeting were later disclosed to others. The court concluded:

An examination of the transcript … aided the court in a resolution of the privilege claim. Based on the Utah clergy privilege … the communication of [the survivor] is not privileged. The communication is a narrative of the events of the [camping trip]. It is a clear statement of [his] knowledge and perceptions. Although the communication is at times moving and in some places poignant and stirring, it was not ecclesiastical or religious. It was not a communication for doctrinal, spiritual, or religious purposes. It was a communication to impart and report about an event for purposes of informing and acquainting the listener to what had happened. The church leaders did not receive the communication within the religious role of clerics, but as clerics performing an attendant executive function. The communication is not within the clergy privilege and must be disclosed.

This case illustrates an important pointnot every confidential communication made to a minister is protected by the clergy—penitent privilege. The minister must be acting in a professional capacity as a spiritual advisor. Here is a helpful tipif there is any doubt regarding the purpose of a particular communication, a minister should ask a counselee if he or she is seeking out the minister in a professional capacity as a spiritual advisor. If the answer is yes, then this information will be helpful should a question later arise regarding the privileged nature of the conversation . Ellis v. United States, 922 F. Supp. 539 (D. Utah 1996). [ The Clergy-Penitent Privilege]

© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0297

Legal Developments

Letter Calling for Pastor’s Resignation Not Defamatory, Court Rules

Letter meets with “qualified privilege” requirements.

Richard R. Hammar, Attorney, CPA
Bio

Key point: Statements made to other church members concerning a matter of common interest are protected by a "qualified privilege," meaning that they cannot be defamatory unless made with malice.

An Ohio court ruled that church board members who wrote a letter asking their pastor to resign on account of his failing health were not guilty of defamation.

A pastor sued all 12 members of the board of deacons of his former church as a result of a letter the board had sent to him. The letter was written following a series of meetings and expressed the deacons' belief that the pastor's health problems prevented him from performing his duties effectively. The letter stated, in pertinent part:

[I]t is the opinion of the Deacon Board that [your resignation] is necessary to protect the health and vitality of [the church]. We are thoroughly convinced that your general health and physical condition prohibit you from effectively performing your pastoral responsibilities. Additionally, we are convinced that the spirituality within the church has reached a point that the only logical alternative is to change pastoral leadership. We simply need a pastor that is capable of providing creative leadership, new ideas, and visionary direction. Our church must be restored to its historical and enriched heritage.

The letter requested that the pastor either retire or resign and stated that if he did not elect one of these alternatives, the deacons would recommend to the church congregation that his services as pastor be terminated. The pastor responded to the deacons' request by informing them that he would neither retire nor resign. The deacons then called for a special meeting of the congregation and distributed to those members present copies of the letter they had sent the pastor. At this meeting, the congregation requested that the pastor retire and approved the terms and conditions of his retirement package. The pastor retired at this meeting. He later sued the board of deacons for defamation. The trial court "directed a verdict" in favor of the deacons before it heard all the evidence. This is an extraordinary action indicating that a lawsuit lacks any merit. The pastor appealed.

A state appeals court ruled that even if the letter signed by the deacons was defamatory, it was protected by a "qualified privilege." A qualified privilege protects "communications made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty [if such communication is] made to a person having a corresponding interest or duty …." This privilege typically applies to statements made by church members to other church members regarding matters of common interest. For such statements to be defamatory, they must be made with "legal malice," meaning that the defamatory statements were made "with knowledge that the statements are false [or with a] reckless disregard as to their truth or falsity." The court concluded that the deacons' letter was protected by the qualified privilege. It observed:

Our review of the evidence in this case indicates that the deacons properly raised the defense of qualified privilege … and that the evidence adduced at trial during the presentation of [the pastor's] case clearly established the elements necessary for application of the qualified privilege, as a matter of law. The letter in question concerned various church interests, i.e., [the pastor's] perceived inability to perform his pastoral duties and to inspire the congregation in light of his health problems and the need to restore the spirituality of the church. It was written by members of the congregation of the church, i.e., the deacons, and published exclusively to other members of the church. No evidence was established at trial that any nonmembers were either given or otherwise received a copy of the letter. Furthermore, the letter was sent to [the pastor] prior to any publication and was limited in scope to informing him of the deacons' concern as to his leadership and the future of the church if he did not resign or retire. From this evidence, we conclude that the deacons were entitled to the defense of qualified privilege. Therefore, [the pastor] could only … recover for defamation if he could prove by clear and convincing evidence that the deacons acted with actual malice in publishing the letter ….

The court concluded that the pastor failed to prove that the deacons acted with legal malice, and accordingly the letter was not defamatory. It observed:

[T]he actual malice standard applied in defamation cases is defined as "acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." At trial, [the pastor] seemed to concede that the deacons did not act with knowledge that the statements were false. Rather, he attempted to prove actual malice by asserting that the deacons' failure to contact [the pastor's] doctors or consult the church records immediately prior to drafting the letter amounted to reckless disregard as to the truth or falsity of the statements contained therein. While it is true that the deacons consulted neither [the pastor's] doctors nor the church records immediately prior to drafting the letter, we see no reason why the deacons would be required to consult these specific sources to establish the truth of their statements. Numerous other sources of information were available to them for this purpose. For instance, several of the deacons testified that they came to the conclusion that [the pastor's] health was affecting the leadership of the church through their conversations with members of the congregation, their independent observations of his performance, and repeated discussions during official meetings regarding the deteriorating financial condition and membership of the church. Thus, the deacons did have a factual foundation for their opinion concerning the effect of [the pastor's] health on his performance as pastor and did not act in reckless disregard as to the truth or falsity of their statements in the letter.

What this means for churches

This case demonstrates the legal protection that is extended to communications made among church members. However, as the court pointed out, the qualified privilege does not apply to communications shared with nonmembers. The court stressed that the deacons' letter "was written by members of the congregation of the church, i.e., the deacons, and published exclusively to other members of the church. No evidence was established at trial that any nonmembers were either given or otherwise received a copy of the letter." This is a very important principle for church leaders to keep in mind when they are considering the dissemination of information. Mosley v. Evans, 630 N.E.2d 75 (Ohio App. 11 Dist. 1993).PCL4B2, PCL4B3e

Legal Developments

Confidential Communications with More than One Person

Clergy-penitent privilege may be revoked if information has been shared with others.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: The clergy-penitent privilege may be “waived” when a counselee shares the same information with another person.

• A New York court ruled that a murderer did not “waive” the clergy-penitent privilege when he disclosed to police a confession he had made to two ministers. A drug dealer murdered his girlfriend in New York, and then took a bus to Miami. A clerk at the bus station in Miami noticed that the murderer was “in deep need” and asked him to come over to the ticket counter. The clerk spoke with the murderer and repeatedly assured him that God loved him. The murderer related to the clerk that he had grown up in the church and had become involved in drugs after leaving the church. He also admitted that he had killed someone. The clerk called his pastor, and a few minutes later the pastor, along with another pastor (a former police detective), arrived at the station. The ministers took the murderer to a church service, and following the service they spoke with him further. The murderer confessed to the ministers that he had murdered a woman in New York, and the ministers urged him to turn himself in to the police. The murderer later contacted the police and confessed to the killing. At the murder trial, the court concluded that the statements the murderer made to the ministers were covered by the clergy-penitent privilege. But, the court also ruled that the murderer had “waived” the privilege by telling the police the same thing he had told the ministers. As a result, the court let the ministers testify regarding the murderer’s confession. The murderer was convicted, and he appealed his conviction in part because the trial court had permitted the ministers to disclose his confession.

The New York Court of Appeals (the highest state court in New York) agreed with the trial court that the statements made by the murderer to the two ministers were protected by the clergy-penitent privilege from disclosure in court, and it reversed the trial court’s ruling that the murderer had waived the privilege. The New York clergy-penitent privilege states: “Unless the person confessing or confiding waives the privilege, a clergyman … shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor.” The court noted that the privilege protects clergy and counselees from being forced to testify in court regarding communications made in confidence in the course of spiritual counseling. The court noted that the purpose of the privilege was to recognize “the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance.” The court acknowledged that “not every communication between a cleric and a congregant will justify application of the privilege,” and that “the privilege may not be invoked to enshroud conversations with wholly secular purposes solely because one of the parties to the conversation happened to be a religious minister.” However, the court concluded that the murderer’s confession to the two ministers in this case was privileged since his contact with the ministers “had been initiated for the purpose of obtaining spiritual guidance and solace” and he “had bared his soul only after attending a church service” and “discussing his standing under religious laws with the two ministers.”

The court ruled that the murderer had not waived the privilege by repeating to the police the same confession he had made to the ministers. However, it based this ruling on a legal technicality. When the murderer made his confession to the police he was speaking without the benefit of legal counsel and accordingly his comments to the police were not admissible in court under the so-called “exclusionary rule”. The court concluded that the prosecutor could not avoid this rule by allowing the ministers to testify regarding the same confession, since “any waiver defendant may have made would be inconsistent with the principles and purposes underlying the exclusionary rule.” In summary, were it not for the improper questioning of the murderer without the presence of an attorney, the court likely would have agreed with the trial court that the murderer “waived” the privilege by disclosing to the police the same information he had disclosed to the ministers. People v. Carmona, 606 N.Y.S.2d 879 (Ct. App. 1993).

See Also: Waiver of the Privilege

© Copyright 1995, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0195

Legal Developments

Confidential and Privileged Communications Between Members and Clergy

Court rules clergy-penitent privilege not limited to “confessions.”

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: In most states, the clergy-penitent privilege is not limited to “confessions” but includes any conversation in which the penitent is seeking spiritual counsel from a member of the clergy.

• The Utah Supreme Court ruled that a bishop did not have to disclose in a civil trial information shared with him by a father who was guilty of abusing his adopted child. An adult woman sued her adoptive father, alleging that he had sexually abused her throughout her childhood. As a result of his conduct, the father sought advice from a bishop of his church. The church later convened a disciplinary hearing at which the father was excommunicated. The daughter subpoenaed documents from the church pertaining to any communications her father had with the bishop regarding his conduct. The bishop opposed this request on the ground that the information sought by the daughter was protected from disclosure by the clergy-penitent privilege. The daughter insisted that any communications made by her father to the bishop were not privileged since they were not made in the context of a “confession” as required by the Utah clergy-penitent privilege. The Utah clergy-penitent privilege provides: “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of the discipline enjoined by the church to which he belongs.” The Court agreed with the bishop that the statements made by the father were privileged. It refused to narrowly interpret the word “confession” to mean a penitential confession to a member of the clergy, since such an interpretation would limit the privilege to the Catholic Church. The Court observed that such an interpretation would favor one sect over all others, making it unconstitutional. Further, the Court noted that the word “confession” is used in several ways, including to simply “disclose or acknowledge” something, and it insisted that this broader interpretation is more sensible and realistic:

[A] constricted interpretation of the privilege does not take into account the essential role that clergy in most churches perform in providing confidential counsel and advice to their communicants in helping them to abandon wrongful or harmful conduct, adopt higher standards of conduct, and reconcile themselves with others and God …. In counseling parishioners in religious and moral matters, clergy frequently must deal with intensely private concerns, and parishioners may be encouraged, and even feel compelled, to discuss their moral faults. As one commentator has stated, “Because most churches do not set aside formal occasions for special private encounters labeled ‘confession,’ less formal consultation must be privileged if the privilege is not in effect to be limited to Roman Catholics.”

The Court concluded that “the term ‘confession’ need not be construed to apply only to penitential communications and that a broad construction of that term is necessary to take into account the essential religious role clergy play in dealing with the wrongdoing of parishioners.”

While the Court interpreted the word “confession” broadly, it did caution that the clergy-penitent privilege still requires that the communication be confidential and in the course of discipline. In deciding if a conversation with a minister is “confidential” and in the course of “discipline” the Court suggested that the following factors be considered:

[W]hether the [location] of the communication indicates an intent that the communication be confidential, whether the conversation was casual in nature or undertaken by the cleric and the parishioner with a sense that the parishioner’s moral conduct was at issue, and whether persons not concerned with the subject matter were present. A communication that does not take place in private or that is made in the presence of others not intimately and directly concerned with the issue may indicate that the parties involved did not intend the conversation to be confidential …. Likewise, statements made to a cleric in a social context are not privileged because the statements are not made to the cleric in the course of his or her professional responsibilities or in a religious context.

The Court concluded that statements made by the father to the bishop were privileged, even though some of them occurred in the father’s home, since “the bishop communicated with [the father] in the bishop’s clerical role with regard to spiritual or religious matters.” Scott v. Hammock, 870 P.2d 947 (Utah 1994).

See Also: Was the Communication Made in the Course of Discipline?

© Copyright 1995, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 m10 c0195

Legal Developments

When Are Statements to Clergy Confidential and Privileged?

Recent case highlights some statements that may or may not be protected by penitent privilege.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: Not all statements to clergy are protected by the clergy-penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in his or spiritual capacity as a spiritual adviser.

• Key point: A minister’s observations of a counselee’s demeanor is not protected by the clergy-penitent privilege.

• Key point: The presence of a third party during an otherwise confidential counseling session between a minister and counselee may prevent the conversation from being privileged.

• A Minnesota court ruled that most statements made by a murder suspect to two ministers at a public hospital were privileged. An unemployed psychologist (the “defendant”) lived with a woman and her 23-month-old son. Late one night, while the infant’s mother was at work, the defendant brought the child into a hospital emergency room. The child was not breathing and exhibited multiple bruises and other evidence of abuse. Hospital personnel revived the child and placed him in intensive care. The hospital chaplain was present in the emergency room that night, and met with the defendant in a hallway. She identified herself as the chaplain, and escorted the defendant to the hospital’s family room where they spoke. The defendant recounted to the chaplain his financial difficulties, and asked about the child. During this conversation, the child’s grandmother entered the room and the three of them remained in the room and conversed for several more minutes. Hospital personnel later called a local Baptist pastor to meet with family members. The pastor was introduced to the defendant, and he asked the defendant if he “wanted to talk.” The two went to a hospital waiting area for several minutes and spoke. The defendant explained to the pastor his financial difficulties and stress, and also explained that he was trying to teach the child to be a “polite, little boy” by withholding food until the child said “thank you.” The defendant also stated that he wanted to be a better father than his own father had been. During this conversation a hospital orderly entered the room briefly to get something to drink, and then left. A few days later the child died. A pathologist concluded that the child had died from abuse and malnutrition. The defendant was convicted of second degree murder. He appealed his conviction on the ground that the chaplain and Baptist pastor had been permitted to testify at his trial in violation of the clergy-penitent privilege. The appeals court upheld the conviction. While it agreed with the defendant that the conversations with the chaplain and pastor were privileged under state law, it concluded that this testimony was not prejudicial to the defendant since the evidence against him was overwhelming even without this testimony.

The court began its opinion by noting that the Minnesota clergy-penitent privilege states that “[a] member of the clergy or other minister of religion shall not … be examined as to any communication made to the … minister by any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the … minister’s professional character, without the consent of the person.” The court observed that the purpose of this privilege “is to allow individuals freedom to unburden themselves by seeking spiritual healing without the threat of incriminating themselves.” It further noted that there are three requirements to raising the privilege: (1) the communicant spoke with a minister; (2) the communicant intended for the conversation to be private; and (3) the communicant was seeking spiritual help. The court concluded that these 3 requirements were met in this case with regard to most of the statements made by the defendant to the chaplain and pastor. First, the chaplain and pastor were both ministers. Second, the defendant’s conversations with both individuals were intended to be confidential:

After [the defendant] met [the chaplain] in the hospital hallway, the two went to a hospital reception room and talked for ten to fifteen minutes. When [the grandmother] arrived, the three of them remained in the room talking together for a while longer. The state argues that this three-way conversation indicates that the original conversation between [the defendant and the chaplain] was not private. We draw an opposite inference. The circumstances leading up to the conversation between [the two] and the fact that they retired to a room away from others, support a reasonable belief that they engaged in a confidential conversation prior to being joined by [the grandmother].

The conversation between [the Baptist pastor and the defendant] took place in the hospital waiting room. The state correctly notes that one person entered to get something to drink and then left. This, without more, however, does not undermine the private character of their conversation.

Third, the defendant was seeking spiritual help when he spoke with the chaplain and pastor. The court noted that “these clergy were called to aid a family in crisis. There was no reason for [the defendant] to speak with them about his life other than that they were religious figures, and he was in need of comfort.” Accordingly, the court concluded that most of the statements made by the defendant to the chaplain and pastor were protected from disclosure in court by the clergy-penitent privilege.

However, the court concluded that conversations between the defendant and chaplain while the grandmother was in the room “fall outside of the privilege” since the defendant “could not have intended confidentiality at that moment.” Further, the court concluded that the chaplain’s testimony in court regarding the defendant’s “general demeanor,” observable by all at the hospital, was not based on confidential information and is unprotected by the privilege.” While most of the conversations between the defendant and the chaplain and pastor were privileged, the court concluded that the defendant was not “prejudiced” by the introduction of this evidence in court since there was ample evidence to convict the defendant even without this evidence. Accordingly, it upheld the defendant’s conviction for second degree murder. State v. Orfi, 511 N.W.2d 464 (Minn. App. 1994). 3G2

See Also: Was the Communication Made in Confidence?

© Copyright 1995, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0195

Legal Developments

Letters to Ministers and the Clergy-Penitent Privilege

When is written communication protected?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-09-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: In some cases, a letter written to a minister may be covered by the “clergy-penitent privilege” and accordingly be immune from involuntary disclosure in a court of law. However, this may not be the case if the letter is left open in plain view in the author’s home, since under these circumstances the communication may not be “confidential”.

• A New Jersey court ruled that a letter written by a murderer to his pastor, and left in plain view in his home after he killed 5 members of his family, was not protected from disclosure in court by the clergy-penitent privilege since it was not considered “confidential”. The facts of this case are tragic. One morning after his three children had gone to school, a man (the “defendant”) shot and killed his wife while she was sitting at the breakfast table. He then proceeded to the third floor of his home where his mother lived and shot and killed her. He then returned to the first floor, dragged his wife’s body into the living room, and ate lunch. After lunch, he went to the bank to cash some checks, and then placed a stop order on his mail at the post office. Later in the afternoon, defendant shot and killed his three children when they returned home. The defendant then stopped all milk and newspaper deliveries and made arrangements for the children’s absences from school and other activities, as well as his own absence from work. He then wrote letters to several relatives and a long letter to his pastor in order “to tell somebody about what had occurred.” Defendant also composed some other notes with instructions concerning funeral arrangements for his family members. He then ate supper and went to bed. Early the next day, he packed some of his possessions and shipped them by railway express. He drove to Kennedy Airport and abandoned his car there. He then went to New York City by public transportation and commenced a circuitous trip ending in Denver, where he obtained a new social security card under a fictitious name. He took a job as a cook and “kept a low profile life,” changing his appearance from time to time and avoiding any trouble. He “made sure not even to get a parking ticket,” and avoided situations such as passport applications which, he believed, required fingerprinting. One month after the killings, the police were summoned to the house by concerned friends. After consulting with these friends and some neighbors who expressed particular concern for the defendant’s mother, the police and two of the friends entered the house through the only unlocked window they found, on the side porch. The bodies were discovered. Shortly thereafter, the police officer in charge of the investigation arrived. He and other police officers assisting him read a note which they found on top of a desk in the study. The note was addressed “to the finder” and signed by the defendant. It contained a request that the authorities be contacted. Another note on the front of a locked desk drawer was labelled “guns and ammo.” A police officer pried the drawer open and found two firearms and some assorted ammunition. Notes were also attached to the two file cabinets. One attached to the middle drawer of the smaller cabinet was addressed to the defendant’s pastor. The note on the larger filing cabinet contained the name of defendant’s employer. Inside the smaller file cabinet the police found an unsealed file folder that also was addressed to the defendant’s pastor. The folder contained a five-page letter to the pastor in which the defendant confessed to killing the members of his family. The letter was not in a separate envelope. The folder also contained photocopied stock certificates, a checkbook and an interest computation slip. The police also found a letter in the top drawer of one of the file cabinets which was addressed to the defendant’s employer. Despite a lengthy and intensive investigation, the police could not locate the defendant. Then, some 18 years later, the crime was featured on a network television broadcast. The defendant was identified as a result of this broadcast and was arrested a few days later. He was tried and convicted for murder and sentenced to 5 consecutive life terms. He appealed his conviction on the ground that it was based in part on the letter to his pastor in which he confessed to the murders. The defendant insisted that this letter was protected from disclosure in court by the clergy-penitent privilege. The clergy-penitent privilege under New Jersey law provides:

[A] clergyman, minister or other person or practitioner authorized to perform similar functions, or any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications between and among him and individuals, couples, families or groups with respect to the exercise of his professional counseling role.

A state appeals court ruled that the clergy-penitent privilege was not violated since it did not apply to the facts of this case. It observed: “Defendant’s invocation of the clergy-communicant (priest-penitent) privilege is insupportable. It is clear both from the very terms of [New Jersey law] and the history of the privilege that it protects confidential communications only. The letter to [the pastor], left for anyone to find and read, cannot be considered to have been made with a reasonable expectation of confidentiality.” State v. List, 636 A.2d 1054 (N.J. Super. A.D. 1993).

See Also: Was the Communication Made in Confidence?

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0594

Legal Developments

Counseling Session Notes and the Clergy-Penitent Privilege

Personal notes made by ministers during counseling sessions may be privileged.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Personal notes ministers make during counseling sessions may be privileged.

A federal court in Virginia ruled that the clergy-penitent privilege applied to a pastoral counselor, and that as a result the counselor did not have to disclose notes she took during counseling sessions.

A woman was injured when she was struck by a can falling from the top shelf in a grocery store. She later sued the grocery store for personal injuries and emotional distress. At the time of the accident and thereafter the woman sought counseling from a pastoral counselor at a local nonprofit, multidenominational counseling center operated by 8 churches. All of the counselors at the center are ordained ministers.

During the woman's counseling sessions, her counselor followed her usual practice of taking notes. The grocery store learned of the counseling relationship and issued a subpoena seeking disclosure of all of the counselor's notes in an attempt to verify the woman's injuries. The counselor claimed that her notes were protected from disclosure by the clergy-penitent privilege, and refused to disclose them.

The grocery store argued that the clergy-penitent privilege only applied to "testimony [given] as a witness in any civil action," and accordingly did not apply to a request for notes or other documents. The court ruled that the counselor's notes were protected from disclosure by the privilege. It began by quoting the Virginia clergy-penitent privilege:

No regular minister, priest, rabbi or accredited practitioner over the age of eighteen years, or any religious organization or denomination usually referred to as a church, shall be required in giving testimony as a witness in any civil action to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted. Va. Code Ann. § 8.01-400.

The court rejected the grocery store's claim that the privilege applied only to in-court testimony by ministers and not to subpoenas demanding the disclosure of documents. It acknowledged that the privilege protects ministers from "giving testimony as a witness in any civil action," and that this language could be interpreted to limit the privilege to in-court testimony. However, in rejecting this interpretation the court observed:

Although a close question, this court concludes that to compel the production of these "documents" would render meaningless the clear protection against disclosure of confidential communications as to clergy provided by [the privilege. The counselor's] notes would reveal the substance of [the woman's] confidential communications to [her]. Consequently [the counselor's] testimony as a witness in the civil trial would no longer be needed …. Moreover [the grocery store] could use the notes to cross-examine [the woman], thereby placing into evidence the substance of the notes. Thus, a party seeking disclosure of such confidential communications could easily subvert the protections provided by the statute in cases in which a prudent clergyperson had documented the counseling. This court holds, therefore, that the protection … given to the clergy, "in giving testimony as a witness in any civil action," against compelled disclosure of "any information communicated to them in a confidential manner" also extends to their disclosure, in any civil action, of documents that contain the substance of that testimony.

There are a few additional aspects of the court's ruling that are of interest. First, the court ruled that the privilege could only be asserted by the minister-counselor and not by the pastoral counseling center. Second, the court noted that the woman herself sought to obtain her counselor's notes in order to verify her injuries, but could not do so since the privilege (under Virginia law) can be asserted or waived only by the minister and not by the counselee. The court observed:

This situation exposes a peculiar feature of the privilege …. The statute grants the privilege only to the clergyperson, not to the communicant. Vesting the clergyperson with the privilege without regard to the wishes of the communicant, however, serves no apparent purpose. In fact, in this case it has frustrated the needs of the communicant, the person whose confidences such statutes have traditionally sought to protect. Moreover, by giving the clergy the exclusive right to assert the privilege, the statute actually discourages candid disclosure in that the clergyperson can choose to reveal a confidential communication without the consent of the communicant.

Finally, the court noted a number of problems with the language of the privilege and encouraged the Virginia legislature to address them:

First, the statute leaves unclear whether, in a civil action, it protects against all compelled disclosure, regardless of its form, or whether it protects only against compelled testimonial disclosure. Second, the statute inexplicably grants the privilege exclusively to the clergy, regardless of whether the communicant consents to disclosure. Third, the statute does not address whether the privilege extends to counseling services provided by the clergy, for a fee, in cases which those counseling services differ from secular counseling only by their emphasis on "spiritual" issues rather than psychopathological issues.

This is the first court ruling to question the propriety of applying the clergy-penitent privilege to pastoral counselors who charge a fee for their services and whose counseling services differ from secular counseling only by an "emphasis on spiritual issues."

The court's concern was misplaced. The purpose of the privilege—encouraging persons to unburden their souls to the clergy—is in no way diminished by the fact that a person pays a fee, or that the minister-counselor's services are similar to secular counseling except for an emphasis on spiritual issues. Indeed, the whole point is that the minister-counselor's services emphasis the spiritual. This is the very distinction that makes pastoral counseling unique and that supports the clergy-penitent privilege.

Blough v. Food Lion, Inc., 142 F.R.D. 622 (E.D. Va. 1992).

Legal Developments

Mandatory Reporters and the Clergy-Penitent Privilege

What to do when a confession of child abuse is disclosed confidentially.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-09-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: In some states the clergy-penitent privilege does not protect ministers from the legal duty to report child abuse. However, the privilege still may protect ministers from having to testify in a civil lawsuit arising out of the abuse.

• A federal court in Utah ruled that a church official did not have to disclose in a civil trial information shared with him by a father who was guilty of abusing his adopted child. In many states ministers are mandatory reporters of child abuse. This means that they can be criminally prosecuted for failing to report known or reasonably suspected incidents of abuse. In most of these states the clergy-penitent privilege does not excuse ministers from their duty to report. As a result, ministers who are mandatory reporters under state law have a duty to report incidents of child abuse even if they learn of them in the context of a confidential counseling session. A federal court in Utah recently addressed a related question—does the clergy-penitent privilege protect a minister from testifying in a civil lawsuit brought by an adult survivor of child abuse against her adoptive father? The facts of this case are simple. An adult woman sued her adoptive father, alleging that he had sexually abused her throughout her childhood. As a result of his conduct, the father sought advice from a bishop of his church. The church later convened a disciplinary hearing at which the father was excommunicated. The daughter sought information regarding any communications her father had with the bishop regarding his conduct. The bishop opposed this request on the ground that the information sought by the daughter was protected from disclosure by the clergy-penitent privilege. The daughter insisted that any communications made by her father to the bishop were not privileged since they were not made in the context of a confession. The court agreed with the bishop that the statements made by the father were privileged. It noted that a federal court applies the clergy-penitent privilege available under state law, and that the Utah clergy-penitent privilege provides: “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of the discipline enjoined by the church to which he belongs.” The court concluded that the bishop was a “clergyman,” and that the father’s statements to the bishop had been made in the course of “discipline.” The court rejected the daughter’s claim that the clergy-penitent privilege applies only to confessions. It reviewed several court rulings rejecting this narrow interpretation of the privilege, and then observed: “From these authorities it can be seen that the modern trend of cases construing the scope of the clergy privilege is to read it more broadly than merely being applicable to ‘confessions’ in the penitential sense, but to apply it to communications for religious counseling.” It further noted that “[i]n this case, it seems appropriate to use the term ‘confession’ to mean a confidential communication within the doctrine of the church involved.” Accordingly, the court rejected the daughter’s attempt to force the bishop to disclose in court the content of his conversation with her father. The father’s communications with his bishop were privileged since “they were for the religious purpose of receiving church counseling and ecclesiastical advice.”

Does this mean that the clergy-penitent privilege also excuses ministers from a duty to report child abuse to civil authorities? The court refused to address this related question, noting simply that “this court has no reason to develop this issue.” The court also noted that the father’s wife was present during his conversation with the bishop. However, this did not affect the court’s conclusion that the communications between the father and the bishop were privileged. It simply noted that “the parties have not raised any issue as to the defendant’s wife being present during one communication and the court will not [on its own initiative] consider the circumstances as affecting this case.” Finally, the court noted that the bishop had discussed the father’s statements regarding his conduct with another church official. The court concluded that this did not affect the privileged nature of the original conversation. Quite to the contrary, the court concluded that “[t]he intra-faith communications from one ecclesiastical officer to another for the purpose of carrying out church discipline are also protected.” The court continued:

It is appreciated that the communication in this case is different than one that involves a declaration by the church member to an assemblage of church officials. In this case, the communication was passed vertically from one religious authority up to another within the church hierarchy. Such communication was necessary as a part of the church sanction process and in carrying out church discipline. The need for the privilege to follow the communication in such circumstances is obvious and appropriate. Otherwise, the privilege would be destroyed and the confidence abridged. Therefore, the repeating of the defendant’s statement and its communication to superior religious authorities must be deemed cloaked with confidentiality and privileged from forced disclosure.

This last observation is an important one. Associate and youth pastors sometimes feel compelled to disclose privileged communications with a senior minister. Or, a senior minister feels compelled to disclose a privileged communication with a denominational official. According to this court, such disclosures do not affect the privileged status of the original communication. Scott v. Hammock, 133 F.R.D. 610 (D. Utah 1990). [PCL4H, PCL3G6h]

See Also: Failure to Report Child Abuse | Child Abuse Reporting

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 m10 c5094

Legal Developments

Clergy-Penitent Privilege and Communication to a Third Party

When does the privilege apply?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-07-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: A confession made to a minister may not be protected from disclosure by the clergy-penitent privilege if the confessor intended that the minister communicate the confession to a third party.

• A New York court ruled that a confession made by a rapist to a minister was not protected by the clergy-penitent privilege since the rapist intended that his confession be communicated to a third party. A rapist, soon after raping a woman, contacted a minister and asked him to tell the woman that he “was sorry.” The minister disclosed this conversation during the trial of the rapist and was instrumental in his conviction. The rapist appealed his conviction on the ground that the statement he made to the minister was protected by the clergy-penitent privilege and should not have been disclosed in court. New York law specifies that “[u]nless 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 spiritual advisor.” A state appeals court rejected this argument, noting that “[t]he apology, as an admission intended to be passed on to a third party, was excluded neither by the hearsay rule nor … the clergyman-penitent privilege ….” People v. Dixon, 604 N.Y.S.2d 604 (A.D. 2 Dept. 1993).

See Also: Fraudulent Practices

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106.Reference Code: m33 c0494

Legal Developments

Use of the Clergy-Penitent Privilege

When can the privilege be raised?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-05-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: The “clergy-penitent privilege” is a rule of evidence that prohibits the disclosure of privileged communications at trial when the privilege is properly raised.

• A New York court ruled that the clergy-penitent privilege could not be used to attack a warrantless arrest. The body of a woman was found at a church camp. A few weeks later, another woman went to the home of a local pastor and confessed that she had killed the deceased. When the woman left, the pastor called the police and advised them of the confession. Based entirely on this information, the police arrested the woman, obtained a confession from her, and charged her with murder. The woman was later found guilty of second degree murder by a jury and sentenced to a term of imprisonment of not less than 22 years. The woman appealed her conviction, claiming that her arrest had been unlawful since it was based on the improper and unauthorized disclosure of her privileged communication with the pastor. A state appeals court disagreed, noting simply that “the clergyman-penitent privilege is an evidentiary rule proscribing the revelation of privileged communications at a trial when the privilege is asserted by the protected party. Here, revelation of [the woman’s] confession to the police provided probable cause for her arrest and subsequent prosecution.” In other words, if the woman’s conversation with the pastor was privileged, the legal effect of this would be to prevent the pastor from testifying in court about the conversation. The privilege does not apply in making a decision whether or not the police have probable cause to make an arrest. As a result, the woman’s arrest was lawful, as was her conviction. People v. Ward, 604 N.Y.S.2d 320 (A.D. 3 Dept. 1993).

See Also: Miscellaneous Considerations

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0394

Legal Developments

Written Communications and the Clergy-Penitent Privilege

In some cases, a letter written to a minister may be protected.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-01-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: In some cases, a letter written to a minister may be covered by the “clergy-penitent privilege” and accordingly immune from involuntary disclosure in a court of law.

• A Texas appeals court suggested that letters written to clergy may be protected by the clergy-penitent privilege if they otherwise qualify. A woman was prosecuted for the murder of her husband. A jury rejected her alibi defense that she was with her pastor at the time of the murder. The prosecution, in rebutting the woman’s alibi defense, introduced into evidence two letters written by the woman to her pastor in which she urged him to testify that she was with him at the time of the murder. The letters warned the pastor that if he did not agree to testify that she had been with him at the time of the murder, she would “be forced” to disclose “the full truth” about their “personal relationship.” The pastor, who denied any inappropriate relationship with the woman, took the letters to the police. He later testified in court that the woman had not been with him at the time of the murder. The woman was convicted of murder, and sentenced to 75 years in prison. She appealed her conviction, in part on the ground that the letters she wrote to the pastor were protected by the clergy-penitent privilege and should not have been introduced into evidence at her trial. A state appeals court rejected this claim, and affirmed the conviction. The court observed:

The privilege in Texas … need not be penitential in order to qualify for protection. Nevertheless, not every private conversation with or letter to a member of the clergy is privileged. The privilege extends only to communications that are addressed to a clergyman in his professional capacity. The [trial court] found that the [woman’s] letters were not written to the pastor in his professional character as a spiritual adviser. There is nothing in either letter than can remotely be characterized as a request for spiritual guidance or consolation. The letters were nothing more than open threats to destroy the pastor’s reputation if he did not provide [her] with an alibi, and could as easily have been addressed to any other man with whom [she] had or could claim to have had a “personal relationship.”

In summary, the court concluded that letters to a minister may be privileged if they are written to the minister in his or her professional capacity as a spiritual adviser. Of course, not every letter to a minister will fall into this category, and this certainly was true in this case. This case will be useful precedent to clergy seeking to resist disclosure of confidential letters received in their capacity as spiritual advisers. Easley v. State, 837 S.W.2d 854 (Tex. App. 1992).

See Also: Were the Statements Intended to be Communications? | Was the Minister Acting in a Professional Capacity?

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0194

Legal Developments

Counselors and the Clergy-Penitent Privilege

After a minister disclaims a counseling relationship, further communications are not privileged.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

Richard R. Hammar, J.D., LL.M., CPA

• An Illinois appeals court ruled that statements made by a criminal defendant to a minister could not be protected by the “clergy-penitent” privilege if the minister informed the defendant that he would not be his counselor. A man was prosecuted for criminal sexual assault against his 11-year-old stepdaughter. The stepdaughter testified that her stepfather had sexual intercourse with her more than 100 times, on virtually every occasion when the child’s mother “left the house.” The child was so traumatized that she attempted suicide. The stepfather was found guilty and sentenced to 28 years in a state penitentiary. At the trial, the prosecution relied in part on the testimony of a minister. The minister testified that the stepfather had contacted him three times by telephone, seeking counsel and advice. The minister told the stepfather during their second conversation that he would not be his counselor, since the stepfather had lied to him. Under the minister’s theology, these lies prevented him from entering into a counseling relationship with the stepfather. The minister testified that during their third conversation, the stepfather admitted to having had sexual intercourse with his stepdaughter on 25 to 50 occasions. The stepfather argued on appeal that the minister should not have been permitted to testify because of the clergy-penitent privilege. Specifically, her claimed that the privilege applied (and therefore the minister should not have been permitted to testify) because he contacted the minister “to confess and for spiritual guidance, and the conversation was in confidence as no third party was present.” A state appeals court ruled that the conversations with the minister were not covered by the clergy-penitent privilege, and accordingly that it was appropriate for the minister to testify. The court observed: “It is clear from the record that the privilege did not apply under the statute. [The minister] testified that [the stepfather] was disqualified from his counsel. He told [the stepfather] that prior to the conversation regarding the number of incidents that he would not be his counselor. Thus [the stepfather’s] statements to the minister were not obtained by the minister in his professional character or as a spiritual adviser.” The stepfather had argued that the confessions he made to the minister should be privileged even if the minister did not consider himself to be a spiritual adviser at the time, since “it is the perception of the penitent which is determinative.” In other words, if the penitent believes that he is making a confession to a minister acting as a spiritual adviser then the privilege applies even if the minister does not believe he is acting in such a role. In rejecting this claim, the court noted that it was not supported by the language of the Illinois clergy-penitent privilege statute. The court continued: “Furthermore, [the stepfather’s] perception of the privilege existing is not supported by the record. [The minister] told him he would not act as his counselor in the second conversation. The fact the minister accepted the stepfather’s third phone call and agreed to talk to him fails to establish the stepfather’s claim that an ‘illusion of being [his] counselor’ was created in view of the minister’s admonishment to [the stepfather]. The stepfather asserts that he approached the minister only in his capacity as a minister; however, this point does not create the privilege where [the stepfather] was told by the minister that the minister was not his counsel.” This case suggests that if a minister specifically disclaims a counseling relationship with a particular “counselee,” then any further communications to the minister are not privileged even if the counselee believes they are. People v. Bole, 585 N.E.2d 135 (Ill. App. 2 Dist. 1991).

See also Child abuse, Walstad v. State, 818 P.2d 695 (Alaska App. 1991), and Church records, Hutchison v. Luddy, 606 A.2d 905 (Pa. Super. 1992), in the recent developments section of this newsletter.

See Also: The Clergy-Penitent Privilege

© Copyright 1992, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0692

Legal Developments

When Does the Clergy-Penitent Privilege Apply?

A court recently made a significant ruling.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

Richard R. Hammar, J.D., LL.M., CPA

• In a clearly erroneous decision, the Supreme Court of Arkansas ruled that statements made by a church member to his pastor were not covered by the “clergy-penitent privilege.” A church member sexually molested three boys. The boys and their families were also members of the church. The molester invited one of the boys to his home to “try on some Boy Scout uniforms,” and molested him while assisting him in trying on the uniforms. Another boy was molested by the same person in the sound room at the church. In each case, the molestation consisted of touching the boys’ genitals, either directly or through their clothing. The parents of two of the boys informed their pastor of the molestation. The pastor promptly pulled the molester out of a choir rehearsal and asked him to come to his office. The pastor confronted the individual with the allegations, and the molester admitted that they were true. The molester was later prosecuted criminally. His confession to the pastor was introduced in evidence over his objection that it was protected from disclosure by the clergy-penitent privilege. On the basis of this and other evidence, he was convicted on three counts of molestation and was sentenced to 13 years in a state penitentiary. The molester appealed his conviction, arguing that the trial court erred in allowing the pastor to testify regarding their conversation in his office. The molester pointed out that he was a member of the church; that he had counseled with the pastor on numerous occasions in the past, and the pastor had assured him that their conversations were private; and, that his confession was made in confidence. The Arkansas Supreme Court ruled that the clergy-penitent privilege did not apply to the molester’s confession, and that there was no basis to reverse the conviction. The court began by quoting the Arkansas clergy-penitent privilege, which specifies:

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.

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 a clergyman in his professional character as a spiritual adviser.

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.

The court then observed:

[The pastor] testified regarding the doctrines of his church: confession is not a tenet of his church and keeping evidence of a crime confidential is within the discretion of the pastor. His own practice was to keep confidential that information gained in a counseling relationship. Although he had had counseling sessions with [the molester] on prior occasions, he had not counseled with [him] for several months before the conversation at issue and considered this particular conversation “disciplinary in nature.” Further the pastor did not tell the molester that the conversation was confidential, nor did the molester ask that it be kept confidential …. We find it significant, in this case, that the pastor sought out the molester to confront him with the allegations of sexual abuse conveyed to him by the parents of two of the victims. Although the pastor had counseled with the molester on previous occasions … the pastor did not consider this to be a counseling session at all, but disciplinary in nature. The attendant circumstances support the trial court’s decision that this was an accusatory situation initiated by the pastor that did not encompass spiritual counseling, thereby precluding the molester from excluding the pastor’s testimony at trial …. The molester’s communication was not made to the pastor in his professional character as a spiritual adviser ….

Two Justices issued a dissenting opinion, and it is their analysis that is correct (rather than the court’s majority). The dissenters began their opinion by emphasizing the obvious fact that under the Arkansas clergy-penitent privilege (quoted above) the privilege clearly belongs to the person who seeks a pastor’s counsel (and not to the pastor). The court erred in focusing on the pastor’s expectations of confidentiality rather than the molester’s. Further, a communication is confidential if made privately and not intended for further disclosure. In this regard, the dissenters observed:

The entire relationship between [the pastor] and his church and [the molester] came about due to the molester’s felt need for counseling with respect to his sexual inclinations. The pastor testified that he had informed the molester that what he said to him in their counseling sessions would not be disclosed, and it is undisputed that the pastor had not informed the molester he felt the counseling sessions had ended.

The dissenters continued:

The majority opinion concludes that, because [the pastor] called [the molester] to his office in a “confrontational” manner, the pastor had stepped out of what [the clergy-penitent privilege] calls “his professional character as a spiritual adviser.” Why? Suppose that when the pastor interrupted choir practice to call the molester into his office the molester had reason to expect what he said to his confessor, who had counseled him on the very type of problem about which he then asked, would not honor the relationship and the promise of confidentiality? The majority opinion gives utterly no reason for concluding so. Again, the problem with the majority opinion is that it deals with the pastor’s expectations rather than those of the molester, and it is the molester’s expectations that count under the [privilege] …. “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.” The majority opinion contradicts these considerations, apparently holding there can be no confidence in communications with a clergyperson unless he or she decides the matter is one which warrants privacy. This conclusion is intolerable in view of the language of the [privilege], the policy underlying it, and the facts of this case.

What is the impact of this ruling on other clergy? The most significant aspect of this case is the fact that the applicability of the clergy-penitent privilege can be assured if the pastor simply asks a person during a counseling session whether he or she intends for the conversation to be privileged and confidential. If the counselees responds affirmatively, then there is little doubt that the courts will conclude that the privilege applies. Clergy should bear this point in mind in the course of their counseling. If, during a conversation with a member (wherever it may occur), it appears to a minister that the other person may intend for the conversation to be confidential and privileged, the minister should confirm this understanding verbally. If the minister is ever called to testify in court concerning the conversation, this verbal confirmation should resolve most questions regarding the applicability of the clergy-penitent privilege. Magar v. State, 826 S.W.2d 221 (Ark. 1992).

See Also: The Clergy-Penitent Privilege

© Copyright 1992, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0692

Legal Developments

Mandatory Reporters and the Clergy-Penitent Privilege

Can confessions of child abuse be privileged conversations?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1992-11-01Recent Developments

Taxation – Church Property

Richard R. Hammar, J.D., LL.M., CPA

• Does the “clergy-penitent” privilege exempt ministers from the obligation to report child abuse? That was the difficult question addressed by an Alaska appeals court. A man sexually molested a 4-year-old child who had been placed in his care for an evening. The molester sought help through counseling with a minister. After learning of the individual’s sexual relations with a child, the minister reported the incident to the authorities. State troopers investigated the report, and the molester was prosecuted. The molester claimed that the troopers’ investigation, and the subsequent prosecution, were based entirely on information he provided to his minister in the course of confidential counseling. As such, it was protected by the clergy-penitent privilege and could not be basis for a criminal prosecution. A trial judge agreed that the statements made to the minister were covered by the clergy-penitent privilege. On that basis, the judge ruled that the minister could not be called as a witness to testify regarding the statements made to him by the molester in the course of their confidential counseling session. On the other hand, the judge ruled that the minister had a legal obligation to report the abuse, and this duty was not affected by the clergy-penitent privilege. The molester appealed the trial judge’s ruling, and an appeals court concluded that the trial court’s decision was correct. The Alaska clergy-penitent privilege specifies that “a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser.” The privilege applies “at all stages of all actions, cases, and proceedings.” This is broad language, meaning that the privilege is not confined to “in court” testimony. The court concluded, however, that the minister’s “report of sexual abuse was made in an out-of-court statement that was unrelated to any action, case, or proceeding then pending. For this reason, although it divulged confidential communications between [the molester and the minister], the report did not amount to a violation of the … clergy privilege.” In summary, the court concluded that the clergy-penitent privilege applies only to pending “actions, cases, or proceedings,” and accordingly it prevents a minister from testifying in court regarding a conversation protected by the privilege. However, the privilege does not excuse a minister from making a report of child abuse (and thereby initiating an official investigation) since at the time of a report there ordinarily is no pending legal action. Of course, this case assumes that a minister has a mandatory duty to report child abuse. This is true in only about half the states. In those states in which ministers are not required to report child abuse, they are free to refrain from making reports on the basis of information they receive in the course of confidential spiritual counseling. Of course, even in such cases there may be legal and ethical reasons why a minister would want to report the abuse. Walstad v. State, 818 P.2d 695 (Alaska App. 1991).

See Also: Child Abuse Reporting | Failure to Report Child Abuse

© Copyright 1992, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 m33 c0692

Legal Developments

What Constitutes “Spiritual Counsel”?

The clergy-penitent privilege applies only in situations of spiritual counsel.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

Richard R. Hammar, J.D., LL.M., CPA

• A Louisiana appeals court ruled that two ministers could testify in court concerning confessions allegedly made to them by a murder suspect. The murder suspect was convicted of the second degree murder of his wife largely on the basis of the testimony of the two ministers. The conviction was appealed on the ground that the statements to the ministers were protected by the clergy-penitent privilege and accordingly should not have been used in court. The appeals court rejected this claim and affirmed the conviction. It began by quoting the Louisiana clergy-privilege statute: “No clergyman is permitted, without the consent of the person making the communication, to disclose any communication made to him in confidence by one seeking his spiritual advice or consolation, or any information that he may have gotten by reason of such communication.” The suspect was a good friend of one of the ministers. This minister testified that the suspect came to him “as a friend” and confessed to murdering his wife. He did not ask for forgiveness and there was no discussion of a spiritual nature. The minister later related the confession to his wife, because he simply could not believe it. He testified in court that as a minister he would not have discussed the information he got from the suspect with anyone else had the suspect come to him as a penitent to confess and seek forgiveness. The other minister also was a friend of the suspect. He testified that he called the suspect and asked him if he had shot his wife. The suspect admitted that he had. There was no discussion of a need for spiritual guidance or forgiveness. At his trial, the suspect contradicted both ministers’ testimony. While he admitted that he had spoken with both ministers, he denied having confessed to murdering his wife. He did not testify that he went to either minister for the purpose of confessing his crime or for seeking spiritual guidance. The appeals court concluded that the suspect’s testimony “was not that he sought privileged spiritual advice and guidance from the reverends in their capacity as ministers of the church, but that he made no confessions to anyone.” Accordingly, it was inappropriate for the suspect to assert on appeal that the testimony of the ministers should have been excluded on the basis of the clergy-penitent privilege. The court went on to conclude that even if the suspect could raise the clergy-penitent privilege issue on appeal, his conversations with the two ministers were not privileged. It observed: “In the instant case, the clergyman-penitent privilege is inapplicable. The totality of the circumstances presented does not indicate that statements made by the [suspect] are within the communications protected. Neither the clergymen nor the suspect considered the statements to be in the nature of a confidential disclosure by a man to his spiritual adviser for purposes of gaining religious guidance. In fact, the suspect himself denies that any statements were made for any reason. Thus, the trial judge properly allowed the testimony of these two witnesses.” State v. Mayer, 589 So.2d 1145 (La. App. 1991).

See Also: The Clergy-Penitent Privilege

© Copyright 1992, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0692

Legal Developments

Spiritual Counsel and the Clergy-Penitent Privilege

When is a conversation protected?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-03-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• A Tennessee appeals court concluded that statements made by a criminal suspect to his minister were privileged, and accordingly not admissible as evidence in a court of law. Tennessee law specifies that

no minister of the gospel … shall be allowed or required in giving testimony as a witness in any litigation, to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted.

A burglary suspect made incriminating statements to his minister, which were admitted at trial. The trial court reasoned that the statements to the minister were not privileged since they were not made to him in his professional capacity. Rather, they “emanated from the closeness of the relationship between them.” The suspect was convicted, and he appealed his conviction on the ground that the state’s clergy-penitent privilege was violated. A state appeals court agreed. It observed:

Under the statute, communications are privileges which are made to a clergyman in his professional capacity in the course of his practice or discipline, as established by the rules or customs of his religious organization or denomination when the communicator is seeking spiritual counseling and advice. We conclude that the requirements of the statute are met to establish the communications are privileged. [The minister] is a licensed minister of the gospel … and the information was communicated by the defendant in a confidential manner [to the minister] who was acting in his professional capacity in the furtherance and discharge of his functions as a minister. The minister initiated the contact and transported the defendant to a motel and inquired “are you having problems?” The minister accompanied the defendant to the motel room and explained he intended to give “comfort to him” since the defendant was “really burdened down.” [The minister] further testified he didn’t distinguish between being the defendant’s minister or friend on that occasion. He explained he counselled the defendant to put his trust in God and assured that “God will not fail.” The minister also testified he believed the defendant when defendant expressed his belief that the Lord had sent the minister to him …. While the evidence does not delineate the minister’s duties, it may be reasonably inferred that the minister’s “course of his practice or discipline” is highly informal in nature and this informality is reflected in his relationship with the defendant and other church members. Clearly, the minister inquired of defendant’s troubles, consoled him, and counseled him to put his faith in God and the defendant felt the minister was God’s emissary. The evidence [does not support] the trial judge’s determination that the [conversation] between the defendant and the minister was due to their friendship.

Accordingly, the court found the communications to the minister to be privileged under state law. The significance of this case is the recognition that a conversation between a minister and another individual can be privileged (and not admissible in court) even if the two are friends. Friendship does not automatically preclude conversations from being privileged. The question is whether a particular conversation was motivated by a person’s desire to obtain spiritual counsel. If so, the conversation ordinarily should be privileged whether or not the person is a friend of the minister. Clergy can help to ensure that conversations are privileged by simply asking the counselee whether or not the purpose of the conversation is to seek spiritual counsel. If the answer is yes, this is almost irrefutable evidence that the conversation is privileged. Because the purpose of some conversations is not clear, clergy should keep this simple suggestion in mind. State v. Boling, 806 S.W.2d 202 (Tenn. App. 1990).

See Also: The Clergy-Penitent Privilege

© Copyright 1992, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0292

Legal Developments

Counseling and the Clergy-Penitent Privilege

When are communications protected?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1991-05-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• 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. 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 therefor 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.” 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. Commonwealth v. Patterson, 572 A.2d 1258 (Pa. Super. 1990).

Was the Minister Acting in a Professional Capacity?

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0391

Legal Developments

Privileged Communications

When does the clergy-penitent privilege apply?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1991-01-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• A New York state court ruled that a priest’s testimony in a criminal hearing was not “privileged.” A criminal suspect was convicted on two counts of burglary, and he appealed his conviction. One basis for his appeal was that the trial court improperly considered the testimony of a priest with whom the defendant had spoken briefly. An appeals court rejected the defendant’s argument. It acknowledged that there was a difference of opinion as to why the defendant had spoken with the priest. The defendant 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 defendant sought him out in order to apologize personally to him for burglarizing his home. The appeals court concluded that only those communications made to a minister while acting in his or her professional role as a spiritual advisor are privileged from disclosure in a court of law. Under either the defendant’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. People v. Schultz, 557 N.Y.S.2d 543 (N.Y. 1990).

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0191

Legal Developments

Confidential and Privileged Communications

Church Law and Tax 1990-07-01 Recent Developments Confidential and Privileged Communications Richard R. Hammar, J.D.,

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1990-07-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• 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. Here are the facts. In 1983, a bishop of the Evangelical Orthodox Church confessed to two church leaders that he was involved in an extramarital affair with a church member. The bishop 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 the 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 allegedly 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). Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 1989).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 m67 m39 c0590

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