The Arizona Supreme Court handed down unanimous guidance clarifying the state’s clergy-penitent privilege lawafter a lower appellate court overturned a trial court ruling that the privilege did not apply to a private conversation between two pastors.
The decision is binding only in Arizona, but it offers a useful illustration of how courts nationwide typically analyze clergy-penitent privilege questions.
A powerful purpose
Arizona’s clergy-penitent privilege for criminal proceedings prevents a clergy member from being compelled to testify in any legal proceeding about a qualifying confession made by a person seeking spiritual counsel, unless the privilege is waived.
The law protects a person’s ability to seek spiritual guidance in confidence. One Arizona appellate court described its purpose as allowing people to confide in spiritual counselors “without fear of reprisal” and to receive spiritual guidance “so that harmony with one’s self and others can be realized.”
The privilege works like ones adopted in many other states. Even the US Supreme Court, through a 1980 case, recognized the privilege’s powerful purpose, addressing “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.”
Working framework
A 2009 Arizona appellate decision established three questions for determining whether the privilege applied in a case before it:
- Was the person receiving the confession a clergyman or priest?
- Was that person acting in a professional capacity as clergy?
- Was the confession made in the course of discipline enjoined by the church?
Through its latest ruling, the Arizona Supreme Court formally adopted that framework, but added a threshold question: Was the communication actually a “confession” under the statute? The party asserting the privilege bears the burden of establishing that threshold requirement and each element that follows.
A pastor admits abuse
The case before the court involved a Phoenix pastor who met privately with his co-pastor, a longtime friend and brother-in-law, after allegations arose that the first pastor sexually abused the co-pastor’s 13-year-old niece. The co-pastor recorded the conversation without the accused pastor’s knowledge.
During the conversation, the accused pastor admitted misconduct involving the girl. But the court record also showed extensive discussion about the “optics” of the allegations, the potential effect on the congregation and church administration, what might happen if authorities became involved, and even the possibility of the accused pastor fleeing.
The trial court concluded the privilege did not apply. The appellate court reversed.
What is a confession?
The Arizona Supreme Court said the appellate court erred by failing to establish a governing definition of “confession” before applying the privilege.
The supreme court drew from a separate case it decided two weeks earlier regarding the clergy exemption to the state’s child abuse reporting law. Because both statutes use the term “confession,” the court adopted the same definition: a confidential acknowledgment or admission of a crime, sin, or fault to clergy for the purpose of absolution.
Importantly, the court said “absolution” is defined by function, not denomination. A formal sacramental rite is unnecessary. A communication can qualify if a person discloses wrongdoing to clergy while seeking “spiritual absolution, consolation, or guidance.”
That makes the purpose of the communication critical. The question is not whether a particular faith tradition considers the exchange a formal confession. Instead, a court asks what the person was seeking from the clergy member.
Applying the definition
The supreme court concluded reasonable evidence supported the trial court’s finding that the pastor was not seeking spiritual absolution or guidance and did not intend the conversation to remain confidential.
The discussion, the court said, centered on protecting the pastor’s reputation, managing the church, and minimizing the legal and practical consequences of the allegations. Although the conversation included admissions of wrongdoing, spiritual discussion, and prayer, those features alone did not transform it into a privileged confession.
Because the communication failed this threshold requirement, the court did not need to decide whether the other elements of the privilege were satisfied.
The remaining three parts of the test
The court nevertheless provided useful guidance about the remaining requirements.
- First, “clergyman” and “priest” are not necessarily limited to ordained clergy based on constitutional considerations.
- Second, the person making the confession must subjectively believe the clergy member is acting as a spiritual leader, and that belief must be objectively reasonable under the circumstances. A person’s undisclosed intention alone is not enough.
- Third, the confession must occur in accordance with the religious organization’s “rules, customs, or practices” governing confidential spiritual communications.
The court also confirmed that the privilege belongs to the person making the communication, not the clergy member, and may be either explicitly waived, or implicitly waived by conduct inconsistent with maintaining confidentiality.
What this means for churches
Church leaders should draw five practical lessons from the ruling.
- One, not every private conversation with a pastor is privileged. Even an admission of wrongdoing, a discussion containing spiritual counsel, or a prayer may fall outside the privilege if the communication’s purpose is primarily administrative, legal, reputational, or practical, rather than seeking spiritual absolution, consolation, or guidance.
- Two, context matters. Courts may examine the circumstances surrounding a communication to determine its purpose, whether confidentiality was reasonably expected, and whether the clergy member was acting in a spiritual capacity. In Arizona, the person asserting the privilege bears the burden of proving its requirements.
- Three, the privilege is not necessarily limited to ordained clergy, although in some states, it is. The Arizona Supreme Court determined that restricting the privilege only to faith traditions that formally ordain clergy could raise constitutional concerns.
- Four, churches should understand and clearly articulate their own rules, customs, and practices for confidential spiritual communications. Those practices can become relevant when a court evaluates whether the privilege applies.
- Finally, clergy should not assume they personally control the privilege. The privilege belongs to the person making a qualifying confession, and that person’s conduct—whether explicit or implicit—is the only means for waiving it.
The ruling is Arizona-specific, and privilege laws vary by state. Churches facing a question involving confidential clergy communication should consult qualified local legal counsel before deciding whether the communication is protected or must be disclosed.
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