• Key point: Not all statements to clergy are protected by the clergy-penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in his or spiritual capacity as a spiritual adviser.
• A New York appellate court ruled that statements made to a priest were not privileged since they were not made while seeking spiritual advice. A man was convicted of sexually molesting his young stepdaughter. The trial court permitted a priest to testify about a conversation he had with the father. Among other things, the father informed the priest (with regard to the allegations of sexual abuse) that he “did it” only once and would not “do it” again, and that the incident happened because he and his stepdaughter both had a mutual need for comfort and consolation. The father appealed his conviction, claiming that his statements to the priest were privileged and accordingly should not have been disclosed at his trial. The appeals court disagreed: “[The father] did not seek out the priest for spiritual advice, but was responding to the latter’s request to see him for the purpose of informing him of the allegations that had been made against him by his wife and stepdaughter, and to warn him that the authorities would be advised unless he quit his job at the day-care center. As the priest was clearly not acting or purporting to act as [the father’s] spiritual adviser, the communication was not privileged.” There is another aspect of this case that should be mentioned. The stepdaughter changed her story during the trial and insisted that she had not been molested. The court ruled that “the stepdaughter’s recantation did not so undermine her credibility as to require dismissal of the proceeding” since “a child’s recantation is a common reaction among abused children and was particularly understandable given the proof that the child was fearful of [her stepfather] . . . and testimony that during the course of the trial [the stepfather] was overheard threatening the child.” In the Matter of N and G Children, 574 N.Y.S.2d 696 (A.D. 1 Dept. 1991).
See Also: Was the Minister Acting in a Professional Capacity?
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