Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.
A Massachusetts appeals court concluded that incriminating statements made to a pastor by a man who was charged with the molestation of his stepdaughter were not protected from disclosure by the clergy-penitent privilege because they were not made to the pastor while acting as a spiritual adviser. For a period of ten years an adult male (the "defendant") allegedly sexually molested his minor stepdaughter when she was between 6 and 16 years of age. The defendant later disclosed to his wife that he had sexually touched the victim on two occasions. After this disclosure, the defendant called a local pastor who previously had counseled him and his wife.
The defendant was prosecuted for two counts of aggravated rape and abuse of a child. At his trial, the pastor testified that the defendant had told him that the victim had said her accusations of sexual abuse were not a dream, and that he did not remember whether he had done it. The defendant also admitted to the pastor that he had told his wife "what he thought [she] wanted to hear so that he could have a shot of keeping the kids." A jury convicted the defendant on both counts.
The defendant appealed his conviction on several grounds, including the trial judge's alleged error in admitting incriminating statements the defendant made to his former pastor during their telephone conversation. The defendant argued that the statements were protected from disclosure by the clergy-penitent privilege since they were made in the course of seeking spiritual guidance, comfort, and counsel.
The Massachusetts clergy-penitent privilege states:
A priest … or ordained or licensed minister of any church … shall not, without the consent of the person making the confession, be allowed to disclose a confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs; nor shall a priest … or ordained or licensed minister of any church … testify as to any communication made to him by any person in seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character, without the consent of such person.
Prior to trial, the judge held a hearing to determine the applicability of the privilege. During the hearing, the pastor explained that for a time he had regularly met with the defendant and his wife and counselled them on marital and parenting matters. However, after the defendant's wife obtained a restraining order against the defendant, the pastor suggested that the defendant "seek spiritual aid and counsel at a different congregation." The defendant did so. After that date, the pastor had limited contact with the defendant, other than an occasional telephone call.
The pastor also testified that while attending a conference at a retreat center, he received a telephone call from the defendant. The defendant was "pretty distraught," and there "seemed to be a lot of remorse, a lot of sorrow, a lot of tears." During the call, the defendant admitted he had told his wife he had touched the victim. The defendant explained "he wanted to have the kids back, and he felt that if he said what his wife wanted to hear that maybe the kids would be able to come back to him." However, the defendant also told the pastor that he did not remember whether he had actually touched the victim.
The pastor did not view the defendant's statements to him during the telephone call as a pastoral confession. It appeared to the pastor that the defendant's purpose in calling him was to look for someone who could bring some influence to bear on the situation and act as a middleman between the defendant and his wife. The pastor's initial impression was that the defendant was seeking "comfort," but in the sense that he was seeking someone to show him sympathy and intervene on his behalf. But the pastor conceded that "it could be manipulation as well," on the theory that the defendant might have recognized that his statements were incriminating and that the defendant might have felt a "need to cover his tracks."
The next day, the judge ruled that the pastor's testimony was not barred by the clergy-penitent privilege. The judge's ultimate finding was "that the [defendant's telephone] call itself was not made for the sole purpose of seeking spiritual advice and counsel and not even for the main purpose of seeking spiritual advice and counseling."
The appeals court's ruling
The appeals court began its opinion by noting that "the clergy-penitent privilege is strictly construed and applies only to communications where a penitent seeks religious or spiritual advice or comfort." This standard was not met, the court concluded:
Here, the trial judge did not err in admitting the defendant's statements to the pastor. The defendant … did not communicate with the pastor to receive "religious or spiritual advice or comfort." The pastor's testimony established that the defendant feared losing his children, may have suspected that criminal charges were possible, and, according to the pastor, was looking for "anyone that could bring to bear any kind of influence on the situation" and act as a "middle man" between the defendant and his wife. It seems clear that the defendant did not call the pastor to receive spiritual comfort, as the defendant urges, but rather sought to enlist the pastor's assistance in an attempt to avoid the possible consequences of his admissions—i.e., the "train going right at [the defendant's] forehead … ."
The judge permissibly found that the defendant had "switched churches" … [and that the pastor] had asked the defendant to seek spiritual guidance elsewhere, that the defendant had done so, and that the pastor's relationship with the defendant at that point was "very ambiguous." While not dispositive, "since the statute plainly applies to 'any person … seeking religious or spiritual advice,'" the lack of an ongoing pastoral relationship between the defendant and pastor and the defendant's lack of continued attendance at [the pastor's church] were appropriate factors for the judge to consider in determining the defendant's intent in calling him.
The court cited another case in which a court ruled that a defendant's prior sporadic contact with pastors and lack of regular attendance at church was relevant to determining the defendant's purpose in meeting with a pastor.
What This Means For Churches:
There are four reasons this ruling is important. First, it is the first case involving the application of the clergy-penitent privilege to conversations between a pastor and counselee using a telephone. The court concluded the conversation was not privileged, and here is the key point: not because it was conducted by telephone, but because the defendant was not speaking to the pastor in his professional role as a spiritual adviser. The application of the privilege to telephonic conversations was not questioned. As a result, this case provides indirect support for the application of the clergy-penitent privilege to phone conversations.
Second, the court noted that the pastor's church was a Lutheran church having a formal process for confession and absolution, and that "it would be extremely unusual for him to take a confession and profess absolution over the telephone." The court noted that the clergy-penitent privilege statute applies the privilege to statements to clergy "in the course of discipline enjoined by the rules or practice of the religious body to which they belong," and it concluded that "the defendant's statements to the pastor were made outside the 'rules or practice of the religious body to which [the pastor] belonged.'" This reasoning calls into question the applicability of the privilege to statements between clergy and counselees made in a manner outside the normal context of the "rules and practice" of a church or denomination. In other words, if the "rules or practice" of a church only recognize a system of "confession" in a formal, prescribed manner, then this would suggest that conversation over the telephone would not be privileged.
Third, the court concluded that a counselee's sporadic attendance at a church suggests that conversations between the counselee and the church's pastor are not privileged: "Since the [clergy-penitent privilege] statute plainly applies to 'any person … seeking religious or spiritual advice,'" the lack of an ongoing pastoral relationship between the defendant and pastor and the defendant's lack of continued attendance at [the pastor's church] were appropriate factors for the judge to consider in determining the defendant's intent in calling him (i.e., for spiritual counsel or other reasons).
Fourth, this case illustrates the difficulty of determining whether the clergy-penitent privilege applies to a particular conversation. Attorneys for both sides in this case, as well as the trial court and appeals court, struggled with this question. This raises an important question under state child abuse reporting laws. Clergy are mandatory child abuse reporters in many states, but in some states they are not required to report evidence of child abuse obtained during a privileged conversation. Clearly, this is a legal question that in many cases will be highly technical, and for this reason clergy should not make such a decision without input from legal counsel to avoid potential civil and criminal liability for incorrectly assuming that a conversation was privileged. Commonwealth v. Nutter, 28 N.E.3d 1 (Mass. App. 2015).
