* The New Jersey Supreme Court ruled that a criminal defendant’s conversations with a pastor were protected by the clergy-penitent privilege and therefore should not have been introduced as evidence by a trial court in the defendant’s prosecution for child abuse. Two minor girls reported to their mother that their father (the “defendant”) had sexually abused them. The mother then contacted her pastor and reported the children’s allegations. Believing he had a duty to protect the defendant’s wife and children, the pastor called the defendant at work to tell him he should not go back to his home. The defendant met with the pastor outside the pastor’s home. The pastor later recounted that “without directly saying [he] sexually molested them … he acknowledged what he did.” The defendant asked for counseling, but the pastor refused because he was “too angry” and the defendant needed psychological help which he was not qualified to give. A few weeks later, the defendant went to the pastor’s church where he again “acknowledged what he did.” The defendant asked the pastor to baptize him, but the pastor declined. The pastor urged him to turn himself into the police.
The defendant was later charged with criminal sexual abuse of his daughters. At a pretrial hearing the pastor testified about his conversations with the defendant, including the defendant’s confession. A trial judge ruled that the pastor’s testimony was covered by the clergy-penitent privilege and could not be used at trial. A state appeals court reversed the trial court’s ruling, and concluded that the clergy-penitent privilege did not apply in this case because the circumstances surrounding the communications did not demonstrate that they were made in confidence to the pastor in his role as a spiritual advisor.
On appeal, the state supreme court reversed the appellate court’s decision, and ruled that the clergy-penitent privilege did apply.
The supreme court began its opinion by noting that “this case involves what has been described as the most privileged of all communications: private conversations between a penitent and a cleric. Specifically, we are called on to clarify the standard for deciding when the cleric-penitent privilege may be invoked.” It added, “The 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. Thus, the underlying rationale for the privilege is the public interest in fostering the cleric-penitent relationship.”
The New Jersey clergy-penitent privilege statute provides:
Any communication made in confidence to a cleric in the cleric’s professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric’s professional or spiritual counseling role.
The privilege belongs to both the cleric and the person making the communication, and either can invoke it. N.J.S.A. 2A:84A-23; N.J.R.E. 511.
The court noted that this language could be summarized in a three-part test. A communication is privileged if “an objectively reasonable penitent, under the totality of the circumstances,” would conclude that a communication was made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor. The court concluded that all three elements were met in this case, and therefore the defendant’s conversations with the pastor were protected by the clergy-penitent privilege.
Application. This ruling demonstrates that the availability of the clergy-penitent privilege will depend on whether or not the minister was being sought out in a professional capacity as a spiritual advisor. The answer to this question is often unclear. Clergy can help to ensure the availability of the privilege by asking counselees at some point during a conversation the following question, “Are you seeking me out in my professional capacity as a spiritual advisor, or for some other purpose?” If a counselee responds that he or she sought out the minister as a spiritual advisor, then this will be relevant, if not compelling, evidence in demonstrating that the conversation was privileged despite the presence of conflicting or ambiguous evidence. State v. J.G., 990 A.2d 1122 (N.J. 2010).
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