• Key point: The clergy-penitent privilege may not be waived by children of the penitent.

• A Massachusetts court ruled that the children of a deceased woman could not waive the clergy-penitent privilege with regard to documents given by their mother to her priest in the course of an ecclesiastical annulment proceeding. A wealthy attorney divorced his wife, and planned to marry another woman. The other woman refused to marry the attorney unless the marriage occurred in the Catholic Church, and this was not possible unless the attorney obtained an ecclesiastical annulment of his previous marriage. The attorney contacted his first wife, who agreed to cooperate in the annulment proceeding. The decision to cooperate was allegedly based on the husband’s oral promise to the first wife that he would leave two-thirds of his estate to their four children. The church granted the annulment, and the attorney remarried. In less than three years the first wife and the attorney died, and the attorney’s will was admitted to probate. The will left the attorney’s entire estate (amounting to nearly $3 million) to his second wife. The four children were disinherited. The children filed a lawsuit, seeking to enforce their father’s oral promise to their mother that he would leave two-thirds of his estate to them. The children argued that their mother would never have cooperated in the annulment without this assurance. Unfortunately, the children were unable to prove that the attorney in fact made such a promise to his first wife. In their attempt to prove that such a promise had been made, the children asked the local archbishop to release any documents submitted by their mother during the ecclesiastical annulment proceedings. The archbishop refused to release any of these documents on the ground that they were privileged. A trial judge agreed with the archbishop’s position, and the children appealed. A state appellate court upheld the trial judge’s ruling. The court began its opinion by quoting the Massachusetts clergy-penitent privilege:

A priest … shall not, without the consent of the person making the confession, be allowed to disclose a confession made to him in his professional character … nor shall a priest … testify asa to any communication made to him by any person in seeking religious or spiritual advice or comfort … without the consent of the other person.

The court acknowledged that it “had no indication of what a person such as [the first wife] would be expected to reveal in her participation in the [ecclesiastical] annulment proceedings.” Nevertheless, the court concluded that the process “may well have literally involved `seeking religious or spiritual advice or comfort,’ but, in any event, the process appears to fall within the scope of what the legislature was seeking to protect [by the clergy-penitent privilege].”

The court rejected the children’s claim that they could waive the privilege on behalf of their deceased mother. The court conceded that some privileges, including the attorney-client and physician-patient privileges, can be waived by a deceased person’s heirs. However, the court concluded that “[t]he legislative concern for the inviolability of the communications in this case is more substantial than that expressed in most [other privileges].” The court noted that the Massachusetts clergy-penitent privilege “contains no list of exceptions” as do other privileges. As a result, the civil courts should be “cautious in accepting any argument that the representatives of the [deceased wife], especially when they are not disinterested persons, may waive the privilege, a right that [the deceased wife] had but never exercised.” The court concluded:

[I]t is not possible to determine that [the deceased wife’s] interests would be served by permitting her [children] to waive the privilege. The information sought by the subpoena may well involve personal and confidential information that [she] would not have wanted revealed, or at least that she would not have wanted revealed when the sole benefit of disclosure would have been to aid in proving (a) that she performed her part of the bargain with [her former husband], an uncontested fact, and (b) the benefit to [the former husband] of her services in cooperating in the annulment proceeding, a fact that was capable of being shown by other evidence. Assuming that there is ever to be a case in which an executor or administrator may waive the priest-penitent privilege, this is not that case.

This case is noteworthy for two reasons. First, the court reached the incredible conclusion that documents in the possession of the archbishop were protected from disclosure by the clergy-penitent privilege—without knowing their contents! The court assumed that the documents contained information protected by the privilege. Second, the court concluded that the heirs or executors cannot waive the clergy-penitent privilege on behalf of a deceased person, at least where the heirs or executors are not disinterested and the position they are attempting to establish can be proven by other evidence. Ryan v. Ryan, 642 N.E.2d 1028 (Mass. 1994).

See Also: Who May Assert the Privilege? | Waiver of the Privilege

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