• Key point. Confidential communications made by a person to a minister, while acting in a professional capacity as a spiritual adviser, are protected from disclosure in court by the clergy-penitent privilege.

• Key point. Persons or organizations that are adversely affected by government actions that violate a civil right protected by the Constitution or a federal statute are entitled to recover money damages from the government under Title 42, section 1983, of the United States Code.

A federal appeals court ruled that a prosecutor violated the legal rights of a priest by secretly tape recording a penitential conversation between the priest and an inmate at a county jail. A Catholic priest occasionally administered the sacrament of penance to inmates of a local county jail. On one occasion, he met with an inmate who was a suspect in the murder of three young persons. Unknown to the priest, his conversation with the inmate was being secretly recorded by the prosecuting attorney’s office. The tape recording soon became known to the press and public. Representatives of the archdiocese met with the prosecutor to request the tape’s destruction and a guarantee of no further taping of sacramental confession in the jail. The prosecutor asked a court to retain and seal the tape and to prohibit anyone who knew its contents from divulging them without further order of the court. The priest, and an archbishop, filed a petition in a local court seeking the destruction of the tape and an order as to the secrecy of the tape’s contents. They asserted that the taping and its preservation violated both the federal and the state constitutions and federal and state statutes. They supported their claim with an affidavit as to the sacrament of penance in Catholic belief, and by the priest’s own affidavit, in which he stated that as long as the tape remained in existence he would “feel uncomfortable in administering the sacrament of penance” in the jail. The court rejected this petition, and the priest and archbishop immediately brought a lawsuit in federal court claiming that the secret recording (and retention of the tape) violated the first amendment guaranty of religious freedom, the fourth amendment protection against unreasonable searches and seizures, the Religious Freedom Restoration Act (RFRA), and the federal Wiretapping Act. They sought an order destroying the tape and transcript, and prohibiting publication of its contents; and an injunction prohibiting the prosecutor from future interception and taping of the sacrament of penance “and similar religious communications” at the jail. The prosecutor rejected the claims of the priest and archbishop, and asserted that “law enforcement officers in the ordinary course of their duties intercepted the conversation between [the priest] and defendant.” The inmate objected to the proposed destruction of the tape as impairing his defense to the capital charge of murder. The court acknowledged that the priest and archbishop were “justifiably outraged” by the prosecutor’s actions. It added that “there are some things which are legal and ethical but are simply not right. I have concluded that tape recording confidential clergy-penitent communications falls within the zone of societally unacceptable conduct.” Nonetheless, the court refused to order the tape and transcript destroyed. The priest and archbishop appealed.

A federal appeals court ruled that the prosecutor’s act of secretly taping a confidential communication between the inmate and priest violated the federal Religious Freedom Restoration Act and the fourth amendment prohibition against unreasonable searches and seizures. The court observed:

[The priest] had two bases for a reasonable expectation of privacy in his encounter with [the inmate]: First, [the state clergy-penitent privilege] provides that “[a] member of the clergy shall not, without the consent of the person making the communication, be examined as to any confidential communication made to the member of the clergy in the member’s professional character.” As [the priest] could not be examined directly in court on a confession it was reasonable for him to suppose that the prohibition of [the privilege] could not be easily circumvented by the prosecutor taping a confession made to him. Secondly, the history of the nation has shown a uniform respect for the character of sacramental confession as inviolable by government agents interested in securing evidence of crime from the lips of criminal …. All fifty states have enacted statutes granting some form of testimonial privilege to clergy-communicant communications. Neither scholars nor courts question the legitimacy of the privilege, and attorneys rarely litigate the issue. It would be strange if a privilege so generally recognized could be readily subverted by the governmental recording of the privileged communication and the introduction of the recording into evidence.

If the inviolability of religious confession to the clergy were not the law of the land, the expectation of every repentant sinner, and the assured confidence of every minister of God’s grace, a prosecutor would have a cheap and sometimes helpful way of uncovering evidence of crime by obtaining a court order … to wire a church known to be frequented, say, by families or other persons believed to be associated with a criminal organization. On [the prosecutor’s] reasoning such bugging would be lawful because authorized by a judge in accordance with statute and not unlawful because contrary to the reasonable expectations of the participants. Such a fear does not exist because no one expects any prosecutor to engage in such a strategy. The prosecutor has cited no case in the United States in which a court has given approval to the invasion of the Catholic rite of confession by an agency of government. Our own research has discovered none …. Hard as a negative is to prove, it must be concluded that no evidence has been offered that would have led a priest … to expect that his participation in the sacrament of penance would be bugged. He was reasonable in relying on the [state clergy-penitent privilege] and the nation’s history of respect for religion in general and respect for the sanctity of the secrets of confession in particular, and so had a reasonable expectation of privacy.

The court acknowledged that the inmate knew that his meetings with visitors were recorded and he often would make gestures to visitors to warn them not to speak about matters that he did not want disclosed. In fact, the substance of his conversation with the priest was highly suggestive that he knew he was being recorded. He admitted to burglaries that he had already confessed to the police, and he insisted that he had not committed the murders. The court concluded that the inmate was “using” his conversation with the priest as a means of communicating false information that he knew was being recorded. But, the fact that the inmate had no reasonable expectation of confidentiality did not diminish the priest’s expectation: “It is neither logically nor factually impossible for one party to a communication to have an expectation of privacy and the other not to have one. [The inmate’s] expectation does not destroy [the priest’s]. But it does affect the remedy. There is no reason to protect [the inmate’s] confession from publication when he desires it. There is reason to protect [the priest’s] expectation of privacy in hearing confessions.”

The court concluded that the priest and archbishop were entitled to money damages as a result of the prosecutor’s violation of their rights under the Religious Freedom Restoration Act and the fourth amendment. Title 42, section 1983 of the United States Code provides redress for the deprivation of any right “secured by the Constitution and laws” of the United States. The court also ordered the district court to issue an injunction prohibiting the prosecutor “from further violation of RFRA and the fourth amendment by assisting, participating in or using any recording of a confidential communications from inmates of the [county jail] to any member of the clergy in the member’s professional character.”

Application. This case is important for two reasons. First, it illustrates that clergy who counsel with inmates in jails are entitled to an expectation of privacy. Any attempt by the government to tape record such conversations violates the clergy-penitent privilege, the fourth amendment, and possibly the Religious Freedom Restoration Act. Clergy who are aggrieved by such a practice may have the right to recover money damages (including, at a minimum, legal fees incurred in defending their rights). Many clergy engage in counseling in jails. This may be part of a regular prison ministry, or because a member of the church is charged with a crime and wants to talk with his or her pastor. This case will provide helpful insights to such ministers if they should learn that one of their prison conversations has been secretly tape recorded. Second, the case demonstrates that the clergy-penitent privilege is not affected by the fact that an inmate knows or suspects that a conversation with a minister is being tape recorded. The minister still has a legitimate expectation of confidentiality. Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997). [The Clergy-Penitent Privilege ]

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