• Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

• Key point 3-08.02. The clergy-penitent privilege may apply to communications made to a minister in the course of marriage counseling, even when both spouses are present.
The Clergy-Penitent Privilege

* A Louisiana court ruled that a man’s confession to a minister that he had committed a murder was not admissible as evidence at trial because it was protected by the clergy-penitent privilege. An associate pastor was contacted by cell phone on a Saturday evening by a female member of the congregation who asked him to meet her and her two sons in a hotel room. When the pastor asked the woman about the purpose of the meeting, she replied that she wanted him to counsel her sons “about a matter” and “lead them to Christ.” The sons did not attend the church, and the pastor did not know them. When the pastor arrived at the hotel room, the mother told her sons to tell him “what happened.” One of the boys explained how they had called a cab driver to rob him, and when he reached for a gun they shot and killed him.

The pastor spoke with the sons about their lifestyle and the outcome of their way of living, and prayed with them. After being told about the shooting, the pastor did not know what to do. He called his senior pastor and was told to report the incident to the police. However, he did not tell the mother or her sons that the pastor had instructed him to inform the police, or that he intended to do so. When he left the hotel, the pastor called the police as he had been instructed. The sons were later charged with murder, and the prosecution attempted to have the pastor testify about the sons’ confession. The sons’ attorney objected, claiming that the confession was protected by the clergy-penitent privilege and was therefore not admissible in evidence. A trial court determined that the confession was privileged and refused to allow the pastor to testify. It conceded that there were four people in the room, that the sons did not know the pastor, and that the pastor made a phone call to his senior pastor from the hotel room following the sons’ confession. However, it based its decision on the fact that the sons claimed that they had sought out the pastor primarily for spiritual guidance, and it was their expectation that the pastor would keep their confession in confidence. The prosecutor appealed this ruling.

A state appeals court began its ruling by quoting the Louisiana clergy-penitent privilege: “A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.” State law specifies that a communication is “confidential” if it is “made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” In responding to the prosecutor’s claim that the sons’ confession was not privileged because there were four people in the room, the court quoted from a committee report of the state legislature that explained the clergy-penitent privilege: “Defining ‘confidential’ to include communications made in the presence of ‘other persons present in furtherance of the purpose of the communication’ makes it clear that under appropriate circumstances the privilege may extend to revelations made in the presence of each other by a husband and wife who together seek marital counseling, and similar joint consultations.” The court concluded,

Since the penitent is the holder of the privilege and the person supposed to be encouraged to communicate under the instrumental rationale, it is clear that the intent of the penitent is the controlling factor in confidentiality. The fact that religions differ in whether or not they require penitential communications to be confidential and imposing duties of confidentiality on their clerics may be relevant to prove the intent of the penitent, they are not controlling; the penitent may desire confidentiality and reasonably expect the cleric to honor it even though it is not required by church doctrine.

One indicia of an absence of intent to make a confidential communication is where the communication itself discloses an intent that its content be revealed to others, or where the circumstances show that the penitent expects or intends disclosure, or where the contents of the communication are shown to have been intended to be transmitted to a third person. The cases rather uniformly refuse to allow the privilege to be used to prevent disclosure in court where it can be shown that the communication was intended to be disclosed to others out of court. The rationale is that this disclosure involves no betrayal of the penitent by the cleric and that the purpose of the privilege is not to encourage the use of the cleric as a privileged intermediary between the penitent and others. Thus, it has been held that there is not the requisite confidentiality when the cleric is asked to negotiate a plea for the defendant, to communicate information to the police or to the defendant’s ex-spouse, or lawyer, or the cleric is made an innocent dupe in conveying instructions to a jailed defendant’s co-conspirators. A lack of confidentiality can be “implied” from “circumstances where confidentiality cannot be expected.” For example, a murder suspect confronted by the cleric-father of his victim cannot reasonably expect that the cleric will keep confidential what the suspect says. It has also been said that confidentiality cannot be expected “in public facilities or large groups”; e.g., when the penitent addresses the cleric on the steps of the church following worship in the presence of other members of the congregation. But this circumstance needs to be considered with care; for example, the nature of the confessional and the acoustics in some churches makes it fairly easy for those waiting in line to make their confession to hear the words of those already in the confessional. Nonetheless, Roman Catholics, at least, would regard such a confession as confidential because of the obligation under canon law “to preserve the secret” that is imposed on “all others to whom knowledge of sins from confession shall come in any way.”

Confidentiality can be found to be lacking where there is an express statement to this effect, but a statement to the cleric or others that the penitent does not expect the cleric to endure contempt or imprisonment is not such a statement. It is frequently said that the presence of third persons is a circumstance that destroys confidentiality, though writers have sometimes suggested otherwise. However, these positions may be reconciled on the basis of differing views of the concept of “presence”; for example, when courts hold that there is no confidentiality for statements made in the presence of a police officer, but there is when the officer listens in on a confession; this can be explained on the basis of a special notion of presence—that is, that the third person must be “in on the conversation” rather than simply eavesdropping. It has been sometimes suggested that a rigid application of the third person rule would bar dual confessions; e.g., where a husband and wife both consult the cleric about common marital problems. … [I]t might be better said that it is the “presence of extraneous, non-clergy, third parties” that destroys confidentiality. Thus, a confession in the presence of the penitent’s employer is not confidential because the presence of the latter is extraneous to the purpose of the communication. On the other hand, where an incarcerated person has no choice but to make a confession in the presence of a prison guard, this should be confidential if the prisoner can show that the authorities would not allow him to speak to the confessor in the absence of a guard.

The court concluded that a number of factors should be considered when determining whether the privilege applies, including the following, (1) whether the communication to the clergyman is motivated by spiritual or penitential considerations; (2) whether the communication is made to the clergyman in his or her professional capacity; (3) whether communicant believes his/her acts or thoughts to be flawed, coupled with a desire to receive pastoral consolation and guidance (vis-à-vis, in the appropriate case, the public’s right to hear all evidence in the search for truth); (4) whether the communication is intended by the communicant to be confidential; (5) whether the acts or thoughts of the communicant are enjoined by the church denomination, religious group, or sect; and (6) whether the church denomination, religious group, or sect imposes a duty upon the clergyman to keep the communication secret. In addition, we find that the communicant may be a first time communicant if he or she reasonably believes, based upon the communicant’s knowledge that the communication will be held confidential and is motivated by penitential considerations. Similarly, “one should not view the communication from a christocentric point of view; the tenets of the religion of both the communicant and clergyman must be considered.”

The court concluded, based on these considerations, that the sons’ confession to the pastor in the hotel room was protected by the clergy-penitent privilege and as a result the trial court acted properly in not allowing the pastor to testify concerning it. The court stressed that the sons were “serious about repenting that day in the motel room”; the minister never informed the sons or their mother that he intended to call the police or not hold the communication in confidence; and, the meeting in the hotel room, which was aimed only at repentance and salvation, was “private and confidential by implication, if not by an express statement by the parties.” Further, the privilege was not waived by the presence of third persons in the room since they were “other persons present in furtherance of the purpose of the communication” as specifically allowed by the clergy-penitent statute.

Application. This case represents one of the most extended discussions of confidentiality in the context of the clergy-penitent privilege, and for this reason it merits careful study. Many states limit the clergy-penitent privilege to statements made “in confidence” to a minister acting in a professional capacity as a spiritual advisor, and many define “in confidence” to include statements made to a minister in the presence of other persons present in furtherance of the purpose of the communication. These terms are often difficult to apply to particular situations, and the court’s analysis in this case provides much-needed clarification. In addition, the court’s 9-step analysis in applying the clergy-penitent privilege is very helpful. State v. Gray, 874 So.2d 893 (La. App. 2004).

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