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.
Key point 3-08.06. Federal courts generally apply state clergy-penitent privilege statutes.
Key point 3-08.08. Clergy who are mandatory reporters of child abuse are excused from a duty to report in many states if they learn of the abuse in the course of a conversation covered by the clergy-penitent privilege. Some state child abuse reporting laws do not contain this exception.
Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.
A federal district court in Rhode Island ruled that the psychotherapist-patient privilege did not apply to counseling records maintained by a counselor with a doctorate in counseling since he was not a state-licensed psychotherapist, but that the clergy-penitent privilege did apply since the counselor also was an ordained minister who provided spiritual counsel. A federal prosecutor in a criminal prosecution for child abuse attempted to subpoena the counseling records of the defendant’s counselor for presentation to a grand jury. The defendant sought to quash the subpoena on the ground that the counselor’s records were protected against disclosure by the psychotherapist-patient and clergy-penitent privileges.
Psychotherapist-patient privilege
The government acknowledged the existence of a psychotherapist-patient privilege, “which undoubtedly applies to confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment.” But the government claimed that this privilege did not apply in this case because the counselor was not a licensed psychotherapist. Rather, his credentials included a Ph.D. in Christian Counseling from the American Christian College and Seminary, a Doctorate of Ministry in Christian Counseling from Patriot University, a Master’s in Theological Studies and a Master’s in Christian Ministry, both from the International School of Theology, and a Bachelor’s in Business Administration from Texas Christian University. He is a Board Certified Professional Counselor with the American Psychotherapy Association and an ordained minister, although he was not engaged in pastoral ministry. The government insisted that although the counselor “had amassed substantial credentials in the field of counseling, he has chosen not to pursue licensing by the state.”
The defendant, on the other hand, argued for use of a “reasonable belief” test, asserting via that the counselor “was known to me as a licensed professional counselor and psychotherapist who also conducted Christian counseling.” He further contended that he considered the information he divulged to the counselor to be personal and confidential absent his signing of a release.
According to the court, the issue was “whether the defendant has established he is entitled to the privilege, because it is not limited to licensed psychotherapists, as to include [his counselor] or because the privilege extends to persons who the patient reasonably believed were licensed.”
The court conceded that “there is no consensus among federal courts that have been faced with this issue.” But it concluded that the psychotherapist-patient privilege only applies to psychotherapists licensed by the state. It reasoned that
the licensing requirement establishes a bright line for the boundaries of the privilege so that both professional and patient may be clear about the confidentiality of their communications. Moreover, the … overriding public good justifying the privilege is promoting the mental health of the citizenry [and] licensure provides a minimum, if rough, measure of assurance that the privilege is implicated only when the patient communicates with one who, by satisfying the requirements for licensure, has demonstrated some threshold level of ability to assist the patient in improving her mental health … . The court hereby … concludes that there is indeed a bright-line rule requiring licensing of the psychotherapist and in the absence of licensing of [the defendant’s counselor] the court declines to extend the privilege to his records.
“Clergy-communicant” privilege
The defendant insisted that the “clergy-communicant privilege” applied to his communications with the counselor based on his knowledge that the counselor was an ordained minister and that he had sought spiritual counseling from him.
The court concluded that the defendant established that “he conveyed information to the counselor for purposes of spiritual advisement,” and was willing “to extend the clerical privilege to the counselor in light of his ordination and the fact that his practice is devoted to Christian counseling and spiritual advisement.” The court noted that the counselor was an ordained minister “and performs baptisms, marriages, and engages in Christian counseling.” During their counseling sessions, the counselor prayed with the defendant, which was his normal practice in counseling patients. In addition, there was no dispute that both the counselor and defendant believed that what the defendant said to the counselor was confidential. As a result, the court concluded that the counselor’s notes of his counseling sessions with the defendant were protected from disclosure to the grand jury by the clergy-communicant privilege.
The government argued that members of the clergy are mandatory reporters under the Oklahoma child abuse reporting law, and this negated the defendant’s claim that the counselor’s notes were protected from disclosure by the clergy-communicant privilege. But the court concluded that the fact that the counselor was a mandatory reporter of alleged child abuse did not preclude application of the clergy-communicant privilege. It pointed out that the counselor chose not to report the alleged abuse to the state Department of Human Services as required by statute in cases involving reasonable belief that child abuse had occurred. The court noted that the counselor and his attorney concluded that he did not have sufficient evidence triggering a duty to report. Furthermore, “any such reporting would not eliminate the privilege with regard to statements made by defendant to the counselor that were not directly relevant to any allegations of child abuse.” As a result, “certain of the statements gleaned from the counselor’s records that the government contends would not be subject to the privilege would remain privileged even if the counselor had complied” with the child abuse reporting law.
What This Means For Churches:
This case is important because of the court’s conclusion that state child abuse reporting laws designating clergy as mandatory reporters, and eliminating the clergy-communicant privilege as a bar to reporting, do not necessarily eliminate the privilege in contexts other than the reporting of child abuse. To illustrate, if a state’s child abuse reporting law designates clergy as mandatory reporters of child abuse, and specifies that the clergy-communicant privilege does not excuse ministers from the reporting obligation, this does not necessarily preclude the privilege with respect to the content of communications a minister has outside the context of child abuse. United States v. Durham, 93 F.Supp.3d 1291 (W.D. Okla. 2015).
