Church Law and Tax 1995-03-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: In some states, the clergy-penitent privilege is broad enough to protect clergy from disclosing the identities of persons they speak with in confidence, as well as the content of their conversations.

• A Texas court ruled that a minister did not have to disclose the identity of a person who spoke with him in confidence about the cause of an accident that injured a young child on church premises. The facts of this case are tragic. Officials of a local Methodist church caused the legs of a monkey-bar set to be cut and the set to be laid on its side on the church playground. The monkey bars were not chained to a fence to prevent their use, nor were church personnel warned not to use them until the set could be anchored safely in the ground. Unknown persons stood the monkey bars upright on a Saturday night. On the following Sunday morning, teachers and aides took a Sunday school class to the playground and allowed the children to use the monkey bars without realizing that they were unsecured. A 3-year-old girl was swinging on the monkey bars when they collapsed upon her. The child suffered a broken neck and was rendered quadriplegic and respirator-dependent for life. The child’s parents sued the church, and settled the case out of court. They later sued the Annual Conference (a regional denominational body of the United Methodist Church). In preparing for trial, the parents’ attorney took the deposition of the church’s pastor. The attorneys asked the pastor if he had any information as to who stood up the monkey bars on the evening before the accident. The pastor replied that he had some information but invoked the clergy-penitent privilege and refused to disclose what information he had or who gave it to him. The parents asked the trial court to compel the pastor to answer their question. The court refused, concluding that the clergy-penitent privilege protected the pastor from disclosing the identity of a counselee as well as what the counselee said. The parents appealed.

A state appeals court agreed with the trial court that the clergy-penitent privilege protected the pastor from disclosing the identity of the person who spoke with him about the monkey bars. The court began its opinion by quoting the Texas clergy-penitent privilege:

Rule 505. Communications to Clergymen. (a) Definitions. As used in this rule: (1) A “clergyman” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting him. (2) 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. (b) 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 spiritual advisor. (c) 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.

During the pastor’s deposition he admitted that someone had spoken with him about the monkey bars, but insisted that “when it was told to me, it was told in the confidence of the confessional—informal confessional that we Methodists use, and [I was] asked that our conversation be kept confidential. And it came to me as a burden and a pain; and I prefer that—that I not answer any questions concerning it.” Based on this response the court concluded that the conversation the pastor had with the unidentified individual was privileged, since the conversation was confidential and the pastor had been sought out in his professional capacity as a spiritual advisor. In support of its conclusion, the court observed:

Communicant-clergyman confidentiality benefits the individual communicant, the clergy, and society. The individual benefits from unfettered freedom of religion in his use of the confessional; his perceived ability to communicate with God through an emissary; the therapeutic value in obtaining psychological and physical relief from fear, tension, and anxiety; and in his exercise of a fundamental right to privacy. The clergy benefits in being able to safely draw out a communicant’s innermost thoughts and feelings with the assurance that confidences are protected by public policy. Id. The church as an institution benefits in enjoying recognition of its prestigious place in society. The judiciary benefits by avoiding direct confrontations with the clergy. There is the realization that requiring the clergy to testify will not necessarily produce testimony. “The concept of jailing a clergyman for adhering to the absolute duty imposed upon him by deep religious beliefs is offensive.”

While acknowledging that few courts have addressed this issue, the court concluded that the privilege was broad enough to protect clergy from disclosing the identity of counselees as well as what counselees share. It pointed out that the child’s parents were “no worse off being denied the identity of the communicant since that information would not have existed but for the privilege …. Communications that are made because of the privilege and which the law assumes never could have been made without the privilege remain private. Nothing is hidden that the rest of the world would have reasonably expected to be available.”

The parents claimed that a person’s identity is not a “communication” at all, but a mere “observation” that is not privileged. The court conceded that other courts have ruled that a counselee’s demeanor and state of mind are not protected by the privilege, but it pointed out that “in all these cases, the communicant’s identity was already known. These cases are no authority for the proposition that the hitherto unknown identity of a communicant is discoverable as a mere observation.”

Finally, the court noted that the Texas clergy-penitent privilege is a broad one, and this fact bolstered its conclusion. It observed:

Our decision to uphold the trial court’s protection of the identity of [the pastor’s] communicant is consistent with what we believe to be the intent of the Texas legislature and Supreme Court to provide Texans with a strong communications-to-clergymen privilege. First, the Texas privilege is broader than in some jurisdictions in that a communication need not be strictly “penitential” to qualify for protection. Second, while other comparable Texas communications privilege rules contain express exceptions, the communications-to-clergyman privilege contains none at all. Third, and most significantly, when Rule 505 was adopted in 1983, it dropped a provision of the previous communications-to-clergymen statute that had given the trial court discretion to compel disclosure of a communications to a clergyman if necessary to a proper administration of justice. We perceive a clear intent to afford Texans the opportunity for spiritual counseling in “total and absolute confidence.”

This case will be useful precedent for other ministers to use when called upon to disclose the identities of persons who seek them out for spiritual guidance. Simpson v. Tennant, 871 S.W.2d 301 (Tex. App. Houston 1994).

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