• 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 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.
The Clergy-Penitent Privilege
* A Washington court ruled that a confession made to a group of ministers was protected by the clergy-penitent privilege and therefore could not be disclosed to a civil court. A member of a Mormon church was accused of sexually molesting his two stepdaughters over many years when they were minors. He appeared before a church disciplinary council presided over by two bishops and 16 other members who were laymen “ordained” for the purpose of serving on the disciplinary council. Evidence was presented at this hearing, and the member confessed to his acts. The church made a written summary of the hearing. The abuse was not reported to the civil authorities by any minister or other church leader. The two daughters later sued the church, claiming that bishops and other council members breached a legal duty under state law to report the abuse to civil authorities. The daughters’ attorney subpoenaed the minutes of the council meeting, but the church declined to provide them on the ground that they were protected from disclosure by the Washington clergy-penitent privilege, which provides: “A member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.”
The court rejected the plaintiffs’ claim that the 18 council members were not all ministers and therefore the clergy-penitent privilege did not apply. It observed, “Whether a clergy member is an ordained clergy is determined by ordination within one’s church or religious denomination and whether the ordained clergy member was functioning in a clerical capacity.” The court concluded that all 18 council members were “functioning in an official clerical capacity and are considered under church doctrine to be clergy bound by sacred obligations of confidentiality. Under church doctrine, all the participants at the disciplinary proceeding were ordained clergy members functioning in a clerical capacity.”
Did the presence of “third parties” at the disciplinary hearing negate the clergy-penitent privilege? Washington law, like the laws of many other states, specifies that for the clergy-penitent privilege to occur, a statement must be made to a minister “in confidence” without the presence of third parties except those whose presence is necessary for the communication to occur. The court concluded that the presence of each of the 18 “ministers” who made up the disciplinary council was necessary for the father’s statements to occur. It noted, “The presence of all the participants in the disciplinary council was necessary for the communication to occur. The presence of a third party does not automatically vitiate the clergy-penitent privilege. Privilege is not vitiated when the presence of the third person is necessary for the communication to occur or … when the third person is another member of the clergy …. Church doctrine mandates the attendance and participation of [each member] at the disciplinary council in cases of alleged child abuse.”
The plaintiffs claimed that their father waived his right to assert the clergy-penitent privilege at the council hearing since he had privately confessed to a church official before the hearing convened. In other words, he was repeating to the council a private confession previously made to a minister, and any subsequent disclosure of a privileged communication constitutes a “waiver” of the privilege. The court disagreed since church governing documents impose a duty of confidentiality in both situations.
Application. This case is important because it is one of the few cases to address the issue of whether the presence of one or more third parties during a person’s conversation with a minister destroys the clergy-penitent privilege. The court answered “no” to this question, for two reasons. First, all of the other persons who were present during the council meeting when the father confessed were themselves “ministers.” This is a helpful clarification, since in many states is it unclear whether a statement made to two or more ministers can be privileged. For example, if an adolescent girl informs her youth pastor that she has been molested by her stepfather, and the youth pastor has the girl repeat the allegations to him in the presence of the senior pastor, is this conversation privileged? This case obviously is not binding in any other state, but it at least can be used as supporting precedent, and its value may be enhanced by the fact that it is one of the only courts to have ever addressed this question. Second, the court concluded that the privilege applies even when third parties are present, if their presence is in furtherance of the purpose of the communications with a minister. Many state clergy-privilege statutes expressly contain such a clarification of the privilege. The Washington statute does not, but the same clarification has been created by the courts. Doe v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 90 P.3d 1147 (Wash. App. 2004).
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