Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.
The Supreme Judicial Court of Maine ruled that a murder suspect’s confession to a pastor was not protected from disclosure at his trial by the clergy-penitent privilege because the privilege had been waived.
Background
In 1980, a 16-year-old girl was abducted and murdered by a teenage boy (the “defendant”) while jogging in her neighborhood. The body was found the next day in a wooded area near a public high school. Although the defendant was identified as a suspect in the victim’s death early on in the investigation, he was not questioned during the first months of the investigation because of injuries he suffered in a car accident.
A year after the murder, the defendant had his stepfather drive him to a local parsonage so that he could meet with a pastor.
During that meeting, the defendant revealed to the pastor that he had killed the victim by hitting her with a pole with a knob on it, but stated that he did not sexually assault her. The pastor told the defendant that he did not believe his statement that he had killed the victim and that he would only believe him if he told his mother and stepfather what he had done.
The defendant’s mother and stepfather arrived at the parsonage at the pastor’s request, and the defendant told them that he had killed the victim. Afterward, the pastor drove the defendant to the local police department, where he met with two detectives.
During the interview with the detectives, the defendant stated that the victim had been tied with a rope, and that he “had a feeling” that three adolescent males had sexually assaulted her. The defendant added that the victim had kicked him in the leg and that he hit her once with an insulator he found on the ground. The defendant was not arrested after the interview.
In June 1989, eight years later, the defendant began working at a community college as a janitor. During his first night on the job, he met with his supervisor, who asked him some questions to get to know him. After learning that he was from the town where the victim had been murdered, the supervisor asked if he knew about the case. The defendant responded that he knew about the murder because he was the one who had killed the victim with a glass insulator. The supervisor later asked why he had not been arrested, and the defendant proclaimed that he had “beat” all of the interviews.
Trial court: pastor could testify
In March 2016, 27 years later, the defendant was indicted for the victim’s murder.
A critical piece of evidence was the defendant’s confession to the pastor. The trial judge ruled that the pastor could testify about the confession because the defendant had “waived” the clergy-penitent privilege. The court found the defendant guilty of murder and imposed a 45-year sentence of incarceration.
Disclosing “a significant part of the privileged matter” to others
The defendant appealed to the state supreme court, claiming that the trial court erred when it found that the defendant had voluntarily waived the clergy privilege by repeating to his mother, stepfather, and law enforcement officers substantial portions of the statements that he had made to the pastor.
The supreme court agreed that the defendant had waived the clergy privilege and, therefore, the pastor could testify at his trial concerning the confession. It quoted the Maine clergy-penitent privilege statute: “A person has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made to a member of the clergy who was acting as a spiritual adviser at the time of the communication.” However, the statute goes on to provide that a person waives the privilege “if the person . . . voluntarily discloses or consents to the disclosure of any significant part of the privileged matter.”
The court concluded:
[T]here is competent evidence in the record that the defendant disclosed to his mother and stepfather a significant part of the confidential communication he made to the pastor. Although the defendant did not disclose to his mother and stepfather every detail of the information that he had disclosed to the pastor, he disclosed a significant part of the privileged matter, namely, that he had killed the victim. . . . Therefore, the trial court did not err in determining that the defendant had waived the religious privilege.
What this means for churches
Not all conversations with a pastor are protected against future disclosure in court by the clergy-penitent privilege. While the definition of this privilege varies slightly from state to state, it is generally acknowledged that only confidential communications made to a pastor acting as a spiritual adviser can be privileged.
As this case illustrates, pastors may be compelled to testify regarding confessions shared with them in confidence if the counselee waived the privilege by communicating substantial portions of what he or she shared with a pastor to others. State v. Fournier, 203 A.3d 801 (Me. 2019).
