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Clergy-Penitent Privilege in Court Cases

The clergy-penitent privilege may be lost if a counselee seeks out a minister for spiritual counsel in the presence of one or more third persons.

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.

* A North Carolina appeals court rejected a youth pastor's argument that his conviction for murdering his wife should be overturned because the trial court erred in allowing his senior pastor to testify about statements he made to him that were protected by the clergy-penitent privilege. A youth pastor (the defendant) began informing people that his wife had disappeared. He went with his senior pastor to search for her. The following morning, several members of the church joined the search. Several searchers noticed that the defendant had several scratch marks on the side of his face, which he claimed to have sustained during the search. The search proved fruitless, and the defendant's wife was considered missing.

A few months after the wife's disappearance, and following the defendant's return from a church-related trip to another state, the senior pastor and other pastors of nearby churches met with the defendant to discuss some improper credit card charges which he had made on the church credit card. At that meeting, the defendant disclosed that his relationship with his wife had become strained. He later resigned from the church and moved. Two years later the skeletal remains of the defendant's wife were found. A nylon cord was knotted and looped around the top of the rib cage near the neck area. In the opinion of the medical examiner, she died as a result of violent injury or trauma, most likely asphyxiation. The defendant was charged with first degree murder. The state produced considerable evidence of guilt. A pathologist testified that the scratch marks on the defendant's face appeared more like fingernail marks than briar marks. He further testified that the defendant had bruising on his right upper arm that was consistent with a "grab mark." The state also called a prison inmate as a witness who had been incarcerated with the defendant while the defendant was awaiting trial. The inmate testified that the defendant informed him that his wife discovered that he had been having an extramarital affair, and had followed him to a meeting with the other woman and confronted him. The inmate further testified that the defendant admitted to him that he had strangled his wife and had driven around for a period of time trying to dispose of her body. The state also produced two witnesses who had seen the defendant near the place where the skeletal remains were found, on the same day as the wife's disappearance.

The defendant produced evidence at trial of his innocence. In particular, he testified that he and his wife were both involved in the music ministry of the church, and though his wife was not paid, she contributed her efforts to that ministry and to youth and outreach activities. The defendant insisted that they were a very happy and loving couple and participated in a number of mission trips together. Because of the defendant's meager salary, the couple struggled financially, which caused strains upon their marriage, as did other factors. Defendant admitted that he had spent money making phone-sex calls, and had become involved in a romantic, though not sexual, relationship with another woman with whom his wife was acquainted. He claimed that he confessed the affair to his wife and she forgave him, though he acknowledged that for a time there were issues of trust. In addition, defendant had occasional sexual dysfunction which strained their relationship.

The defendant testified that he had "relationship problems" with his senior pastor which came to a head when the senior pastor asked him to reduce his workload at the church. In addition, the defendant wanted to go on a mission trip to Romania, but the senior pastor would not permit him to go at church expense. Though defendant was angered at the denial of his request, he and his wife went at their own expense.

A jury convicted the defendant of first degree murder, and sentenced him to life in prison without the possibility of parole. The defendant appealed on several grounds, two of which are summarized below.

Use of church credit cards

The defendant claimed that the trial court erred in allowing the jury to hear evidence regarding his unauthorized use of church credit cards. The appeals court disagreed, noting that this evidence "was relevant in showing the financial status of the defendant and his wife before and immediately after the wife's disappearance. From this evidence, the jury could infer that the marriage relationship between defendant and his wife was not as good as shown by defendant's evidence. In addition, defendant's improper use of the credit cards was linked in time and circumstances with the crime. Finally, the evidence was not offered to show, nor does it suggest, a propensity or disposition on the part of the defendant to commit murder."

Clergy-penitent privilege

The defendant also claimed that the trial court erred in allowing his senior pastor to testify about statements he made to him. This testimony, the defendant asserted, was in direct violation of the clergy-penitent privilege. The North Carolina privilege states:

No priest, rabbi, accredited Christian Science practitioner, or a clergyman or ordained minister of an established church shall be competent to testify in any action, suit or proceeding concerning any information which was communicated to him and entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted, provided, however, that this section shall not apply where communicant in open court waives the privilege conferred.

The court stressed that "to fall within the protection of the privilege, the defendant must be seeking the counsel and advice of his minister and the information must be entrusted to the minister through a confidential communication." The court concluded that the defendant's statements to his senior pastor were not privileged, since a church elder was present during the conversation. The court concluded: "The clergy-communicant privilege is not applicable in this case [since] a person to whom the privilege did not extend was present at the meeting between defendant [and senior pastor]. This person was a church elder rather than an ordained minister or clergyman …. The conversation of the defendant and the clergy, held in the presence of an elder who was not an ordained minister, is one in which the defendant no longer entrusts his admissions solely to the clergy …. As a result, the clergy-communicant privilege does not apply in this case."

The appeals court rejected all of the defendant's remaining arguments, and affirmed his conviction and sentence.

Application. This case demonstrates that the clergy-penitent privilege may be lost if a counselee seeks out a minister for spiritual counsel in the presence of one or more third persons. The North Carolina clergy privilege does not specifically negate the privilege under these circumstances, but the court construed the statute to apply only to confidential communications made to one or more ministers, and without the presence of a third person.

The court suggested that the clergy privilege would apply to statements made by a counselee to two or more ministers. This is a helpful clarification of an issue that arises frequently. To illustrate, assume that a teenage boy informs his youth pastor that he has committed a crime. The youth pastor takes the boy directly to the senior pastor and has him repeat his confession in the presence of both pastors. This case suggests that this confession remains privileged despite the presence of a third person, since that person was a minister. Of course, courts in other jurisdictions may or may not agree with this conclusion, but the case represents one of the few times that a court has addressed this issue and so it may be given special consideration by other courts. State v. Anonymous, 636 S.E.2d 231 (N.C. App. 2006).

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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