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Pastor, Church & Law

written by Richard R. Hammar, J.D., LL.M., CPA

The Clergy-Penitent Privilege—Defining "Made in Confidence"

Volume 1 . Chapter 3 . § 3-07.2
Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

The clergy-penitent privilege only protects confidential communications. This requirement can be traced back to the original formulation of the clergy privilege, when it was restricted to confessions. However, as the privilege evolved beyond the confines of a confession, the requirement of confidentiality was retained. This makes sense, since if a person is willing for others to overhear a conversation he or she ...

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