Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

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

• In a clearly erroneous decision, the Supreme Court of Arkansas ruled that statements made by a church member to his pastor were not covered by the “clergy-penitent privilege.” A church member sexually molested three boys. The boys and their families were also members of the church. The molester invited one of the boys to his home to “try on some Boy Scout uniforms,” and molested him while assisting him in trying on the uniforms. Another boy was molested by the same person in the sound room at the church. In each case, the molestation consisted of touching the boys’ genitals, either directly or through their clothing. The parents of two of the boys informed their pastor of the molestation. The pastor promptly pulled the molester out of a choir rehearsal and asked him to come to his office. The pastor confronted the individual with the allegations, and the molester admitted that they were true. The molester was later prosecuted criminally. His confession to the pastor was introduced in evidence over his objection that it was protected from disclosure by the clergy-penitent privilege. On the basis of this and other evidence, he was convicted on three counts of molestation and was sentenced to 13 years in a state penitentiary. The molester appealed his conviction, arguing that the trial court erred in allowing the pastor to testify regarding their conversation in his office. The molester pointed out that he was a member of the church; that he had counseled with the pastor on numerous occasions in the past, and the pastor had assured him that their conversations were private; and, that his confession was made in confidence. The Arkansas Supreme Court ruled that the clergy-penitent privilege did not apply to the molester’s confession, and that there was no basis to reverse the conviction. The court began by quoting the Arkansas clergy-penitent privilege, which specifies:

A communication is “confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser.

Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

The court then observed:

[The pastor] testified regarding the doctrines of his church: confession is not a tenet of his church and keeping evidence of a crime confidential is within the discretion of the pastor. His own practice was to keep confidential that information gained in a counseling relationship. Although he had had counseling sessions with [the molester] on prior occasions, he had not counseled with [him] for several months before the conversation at issue and considered this particular conversation “disciplinary in nature.” Further the pastor did not tell the molester that the conversation was confidential, nor did the molester ask that it be kept confidential …. We find it significant, in this case, that the pastor sought out the molester to confront him with the allegations of sexual abuse conveyed to him by the parents of two of the victims. Although the pastor had counseled with the molester on previous occasions … the pastor did not consider this to be a counseling session at all, but disciplinary in nature. The attendant circumstances support the trial court’s decision that this was an accusatory situation initiated by the pastor that did not encompass spiritual counseling, thereby precluding the molester from excluding the pastor’s testimony at trial …. The molester’s communication was not made to the pastor in his professional character as a spiritual adviser ….

Two Justices issued a dissenting opinion, and it is their analysis that is correct (rather than the court’s majority). The dissenters began their opinion by emphasizing the obvious fact that under the Arkansas clergy-penitent privilege (quoted above) the privilege clearly belongs to the person who seeks a pastor’s counsel (and not to the pastor). The court erred in focusing on the pastor’s expectations of confidentiality rather than the molester’s. Further, a communication is confidential if made privately and not intended for further disclosure. In this regard, the dissenters observed:

The entire relationship between [the pastor] and his church and [the molester] came about due to the molester’s felt need for counseling with respect to his sexual inclinations. The pastor testified that he had informed the molester that what he said to him in their counseling sessions would not be disclosed, and it is undisputed that the pastor had not informed the molester he felt the counseling sessions had ended.

The dissenters continued:

The majority opinion concludes that, because [the pastor] called [the molester] to his office in a “confrontational” manner, the pastor had stepped out of what [the clergy-penitent privilege] calls “his professional character as a spiritual adviser.” Why? Suppose that when the pastor interrupted choir practice to call the molester into his office the molester had reason to expect what he said to his confessor, who had counseled him on the very type of problem about which he then asked, would not honor the relationship and the promise of confidentiality? The majority opinion gives utterly no reason for concluding so. Again, the problem with the majority opinion is that it deals with the pastor’s expectations rather than those of the molester, and it is the molester’s expectations that count under the [privilege] …. “The priest-penitent 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.” The majority opinion contradicts these considerations, apparently holding there can be no confidence in communications with a clergyperson unless he or she decides the matter is one which warrants privacy. This conclusion is intolerable in view of the language of the [privilege], the policy underlying it, and the facts of this case.

What is the impact of this ruling on other clergy? The most significant aspect of this case is the fact that the applicability of the clergy-penitent privilege can be assured if the pastor simply asks a person during a counseling session whether he or she intends for the conversation to be privileged and confidential. If the counselees responds affirmatively, then there is little doubt that the courts will conclude that the privilege applies. Clergy should bear this point in mind in the course of their counseling. If, during a conversation with a member (wherever it may occur), it appears to a minister that the other person may intend for the conversation to be confidential and privileged, the minister should confirm this understanding verbally. If the minister is ever called to testify in court concerning the conversation, this verbal confirmation should resolve most questions regarding the applicability of the clergy-penitent privilege. Magar v. State, 826 S.W.2d 221 (Ark. 1992).