• Key point. Statements made between a pastor and counselee may be protected by the clergy-penitent privilege even if other persons are present, so long as the statements cannot be heard by the other persons.

A Washington court ruled that the clergy-penitent privilege applied to confidential statements made to a pastor, and that the privilege was not waived when the pastor disclosed the communications to two others. A distraught mother contacted a pastor and asked him to meet with her son. The pastor, who was not acquainted with either the mother or son, drove to the son’s apartment where he was introduced by the mother as “the preacher.” The mother remained in the apartment during the pastor’s “spiritual” consultation with her son which lasted about an hour. The pastor met with the son on at least two other occasions before the son turned himself over to the police. One meeting took place at an army medical center, where the son was accompanied by his mother, wife, and several others, and the other at a friend’s home. The pastor later shared the substance of the son’s communications with two colleagues. The son was later charged with second degree murder for the death of his three-month-old son. The state alleged that the son caused the child’s death by violently shaking him.

The prosecutor asked the trial court to determine whether the clergy-penitent privilege applied to the son’s statements to the pastor. The trial court ruled that the privilege did not apply since the son had not sought out the pastor as a matter of church “discipline.” The court then ordered the pastor to appear for a deposition so that he could be questioned about his meetings with the son. At the deposition, the pastor refused to answer questions regarding the content of those conversations based upon his constitutional right to religious freedom. The trial court ruled that the pastor had no constitutional right to refuse to testify, and informed him that he would be sent to prison for contempt of court if he refused to testify. The pastor appealed the trial court’s ruling.

Availability of the Clergy-penitent Privilege

The Washington state clergy-penitent privilege states that “[a] member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.” The pastor argued that he cannot be compelled to testify because his conversations were privileged. The state asserts that the privilege is unavailable because (1) the “course of discipline” of the pastor’s religion does not “enjoin” its members to make individual, private confessions of sins, (2) the son was not enjoined by any church doctrine to make a confession, and (3) the son’s conversations with the pastor were not confidential.

The court agreed with the pastor that confidential statements made to him by the son were protected by the clergy-penitent privilege. The court conceded that the privilege applies only to “confessions,” but it concluded that the son’s statements to the pastor were confessions because the pastor “considered those communications to be such.” The court also noted that the privilege refers to confessions that are made in the course of church discipline. The court interpreted this requirement to refer to “the rules or practices of the religion to which the clergy member belongs.” It continued: “The statute does not require that the communicant be enjoined by his or her religion to confess or to seek spiritual counseling. Rather, the statute requires only that the clergy member receiving the confidential communication be enjoined by the practices or rules of the clergy member’s religion to receive the confidential communication and to provide spiritual counsel.” The court concluded that the pastor in this case “felt enjoined by his religion to receive [the son’s] penitential communications and to provide [him] with spiritual counsel.” As a result, the pastor’s religion “constrains him to provide confessors with spiritual counsel and the opportunity for redemption. It is a duty that the pastor must fulfill based upon the tenets of his faith.”

The court acknowledged that the son was not a member of the pastor’s church, and was not constrained by the doctrine of his church to make a confession, but it concluded that this did not matter. The privilege applies to a “person” making a confession and not a “parishioner” or “church member.” The communicant “need not be a member of any particular church or faith, let alone the clergy member’s church or faith, requiring the communicant to confess.” The court stressed that “we are not concerned with the communicant’s reasons for speaking to the clergy member; we only determine whether the clergy member’s practice enjoins the clergy member to receive the communication.” Therefore, the fact that the son was a member of the pastor’s church did not negate the privilege.

Waiver of the Privilege

The state asserted that the son’s conversations with the pastor were not privileged because they were not confidential. The state noted that the mother was in the apartment during the pastor’s initial meeting with her son, and that other individuals were present during the pastor’s other visits with him. Further, the pastor shared the contents of the son’s communications with two of his colleagues.

The court noted that whether a communication is confidential “turns on the communicant’s reasonable belief that the conversation would remain private.” The court pointed out that while the mother was present in the apartment, there was no proof that she was in the room the entire time that her son spoke with the pastor. To the contrary, the pastor claimed that he spoke confidentially with the son at his apartment outside of the mother’s presence. The pastor also insisted that he spoke privately with the son during each of his other meetings with him, even though others were present for part of the time. The court concluded that those portions of the conversations that occurred outside of the presence of any third person were privileged. It cautioned that the son’s communications to the pastor “are confidential only to the extent the conversations were outside the presence of others.”

The court sent the case back to the trial court, and instructed it to regard as privileged any statements made to the pastor while the son and the pastor were alone. But it also instructed the court to require the pastor to disclose any statements made to him by the son “in the presence of a third party, unless the third party was another clergy member or other person needed to aid the communication.”

What about the fact that the pastor shared the son’s communications with two of his colleagues? Did this have the effect of “waiving” the privilege? No, concluded the court. It noted that the “communicant is the holder of the privilege, and only the communicant can waive it.”

Application. What is the significance of this case? Consider the following: (1) The case demonstrates the importance of confidentiality in preserving the clergy-penitent privilege. This does not necessarily mean that no third persons are present. But if other persons are present, then a court may conclude that only those statements shared between a pastor and counselee outside of the hearing of the other persons who were present will be covered by the clergy-penitent privilege. (2) This case rejects an earlier Washington court ruling that limited the clergy-penitent privilege to confessions made to Catholic priests. State v. Martin, 959 P.2d 152 (Wash. App. 1998). [The Clergy-Penitent Privilege , The Clergy-Penitent Privilege ]

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