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 Military court ruled that a confession made by a soldier to his pastor was protected by the clergy-penitent privilege despite the presence of the soldier's wife during some of the counseling. The clergy-penitent privilege protects ministers from having to disclose in court the content of confidential statements shared with them while acting in their professional capacity as a spiritual adviser. But what is a confidential communication? Is it limited to conversations between a minister and a counselee with no third parties present? Or, does the privilege apply even if third parties are present, and, if so, under what circumstances? These are issues of fundamental importance to ministers, and each was addressed in this ruling.
A soldier (the "defendant") sexually molested his four-year-old daughter. The defendant's wife learned of the molestation, and contacted the family pastor. The defendant met with the pastor and a pastoral intern in a church office the following evening after his wife first reported their daughter's allegations. First, they prayed together, just as they did before discussing other matters. Then the pastor began the counseling by saying, "Now, something was done in your house. Your wife told me something and I want to know if you did it because it's serious and you can go to jail for it." The pastor asked for the truth, stating, "Christians don't tell lies, so I need to know." The defendant then admitted that he had engaged in sexual misconduct with his daughter.
The pastor responded to the defendant's confession by stating, "You really need to get with your wife; she needs to hear that from you because you lied to her. You know, you lied to her about it and she wants to know the truth." The defendant agreed that his wife needed to know what he did to their daughter. When the pastor asked him to go home and return to the church office with his wife to discuss the matter further, the defendant complied. He never asked the pastor or the pastoral intern to keep his comments in confidence, nor did he seek spiritual guidance or absolution.
Thirty minutes later, the defendant returned to the church with his wife. The pastor started the discussion by telling the defendant, "Well, you need to talk to her. Tell her exactly what happened." The defendant responded by telling his wife, "I did it. I did it. I'm wrong. I did it. That's not the way I want to be." He did not reveal to his wife the details of his misconduct. After this admission, they discussed how this would impact the couple's relationship and family life. The pastor concluded the meeting, stating that this was a serious matter, that the defendant could go to jail, and that by law crimes against children had to be reported.
A week later, the pastor asked the defendant's wife if she had reported the incident to the authorities. She had not, and the pastor said that "either you do it or I'll do it." He did not suggest who should be contacted or tell her what to say to authorities. The pastor had previously told his church members, including the defendant and his wife, "that if you come to me with a matter that you want me to keep as a confidence, you have to tell me." The pastor also informed church members that "by law" he was obligated to report any crime against a child, and that he had to report such information because otherwise it could damage his own reputation and the reputation of their church. A short time later, the wife reported her husband's misconduct to a military child abuse hotline that she found in the telephone book. This led to an investigation during which the defendant admitted to his offenses.
A military judge sitting as a general court-martial convicted the defendant, pursuant to his guilty plea, of indecent acts upon a female under sixteen years of age. A court of appeals affirmed the judge's ruling, rejecting the defendant's claim that the statements he had made to his pastor were protected by the clergy-penitent privilege and should not have been used in his trial. The court stressed that "the defendant did not intend his communication to be confidential, as demonstrated when he brought his wife to see the pastor and then disclosed his misconduct to her." The defendant appealed this ruling to the United States Court of Appeals for the Armed Forces. The court concluded that the defendant's conversation with the pastor was protected by the clergy-penitent privilege, despite the presence of the defendant's wife during part of the counseling.
The court quoted the clergy privilege under rule 503 of the Military Rules of Evidence: "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or as a matter of conscience." Rule 503 allows either the counselee or the clergy member to claim the privilege.
The court concluded that the presence of the defendant's wife during the counseling session did not prevent the session from being both confidential and privileged. It noted that the pastor told the defendant that it was important that his wife be present and that he needed to tell her the truth because he had lied to her. The defendant "followed the advice of his spiritual advisor." Since the pastor believed the wife's presence was necessary for the defendant's redemption, he brought his wife into the room where she learned that he had been sexually abusing his stepdaughter. The court quoted with approval from a previous federal appeals court ruling: "As is the case with the attorney-client privilege, the presence of third parties, [which is] essential to and in furtherance of the communication, does not vitiate the clergy-communicant privilege." In re Grand Jury Investigation, 918 F.2d 374, 377 (3d Cir.1990).
The court concluded: "[The] privilege is preserved where there is a "relationship by blood or marriage" as well as a "commonality of interest" between the accused and the third party present during the privileged communications. Both these factors are present here as the third party present was the defendant's wife who had played the pivotal role of sending the defendant [to the pastor] in the first instance."
Application. This case is important for the following reasons.
1. The court recognized that the presence of third parties does not necessarily prevent communications to a pastor from being privileged. It is important to note, however that the clergy-penitent privilege contained in the Military Rules of Evidence does not specifically prohibit the privilege from applying to conversations in the presence of third parties. Some states have enacted legislation or court rules that do negate the privilege if a third party is present, regardless of that person's status or the reason for his or her presence. Many other states have adopted the uniform rules of evidence. The clergy-penitent privilege under these rules states that "a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in that individual's professional character as spiritual adviser," and it adds that "a communication is confidential if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication." This language contemplates the extension of the privilege to statements made in the presence of third parties whose presence is "in furtherance of the purpose of the communication."
Key point. The take-away point is that it is important for pastors to be familiar with the wording of the clergy-penitent privilege in their state. A future issue of this newsletter will summarize the clergy-penitent privilege statutes and court rules in all 50 states. However, unless a state law or court rule explicitly negates the privilege for communications that are made with one or more third persons present, cases such as this one, and the Grand Jury Investigation case (see the following paragraphs), support the application of the privilege in some cases even if third persons are present.
2. The court quoted with approval from a previous federal appeals court decision. In re Grand Jury Investigation, 918 F.2d 374 (3rd Cir. 1990). This ruling addressed the question of whether a Lutheran pastor could be compelled to testify before a federal grand jury about statements that were made during a counseling session he conducted with four members of a family (a husband and wife, their son, and their son's fiancée). The pastor sought to quash the subpoena on the ground that the clergy-penitent privilege applied to the counseling session and therefore he could not be compelled to testify. The government insisted that the counseling session was not privileged, and so the pastor could be forced to testify. It asserted that the clergy-penitent privilege only applies to confidential communications, and that this requirement was not met in this case because of the presence of third parties during the counseling session including one person (the fiancée) who was not yet a member of the family. A federal district court ruled that the clergy-penitent privilege applied since the pastor believed that the counseling session was confidential. The government appealed.
A federal appeals court agreed that the counseling session was confidential. It noted that "the clergy-communicant relationship is so important, indeed so fundamental to the western tradition, that it must be sedulously fostered. Confidence is obviously essential to maintaining the clergy-communicant relationship. Although there are countervailing considerations, we have no doubt that the need for protecting the relationship outweighs them." The court went on to conclude that "the privilege should apply to protect communications made (1) to a clergy-person (2) in his or her spiritual and professional capacity (3) with a reasonable expectation of confidentiality. As is the case with the attorney-client privilege, the presence of third parties, if essential to and in furtherance of the communication, should not void the privilege."
The court further observed:
The traditional clergy-communicant privilege protected a penitential relationship in which a person privately confessed his or her sins to a priest, in order to receive some form of church sanctioned discipline or absolution. Neither family nor other types of group counseling fit neatly within this one-to-one model of the privilege. We have explained, however, that the modern view of the privilege is more expansive than the traditional one. We discern nothing in modern clergy-communicant privilege doctrine … that would limit the privilege's application solely to group discussions involving family members related by blood or marriage. Modern clergy-communicant privilege doctrine focuses, rather, on whether the presence of a third party is essential to or in furtherance of a communication to a member of the clergy. We think, consistent with the general constructional rule that evidentiary privileges should be narrowly construed, that recognition of the clergy-communicant privilege in this circumstance depends upon whether the third party's presence is essential to and in furtherance of a communication to a member of the clergy. As is the case with consultations between attorneys and clients, the presence of multiple parties, unrelated by blood or marriage, during discussions with a member of the clergy may, but will not necessarily, defeat the condition that communications be made with a reasonable expectation of confidentiality in order for the privilege to attach.
This language constitutes the most helpful analysis by any court of the application of the clergy privilege in the context of group conversations.
3. Another person present when the defendant spoke with the pastor was a pastoral intern. This is the first case to address a common question: Does the clergy-penitent privilege apply to statements made by a counselee to two pastors? According to this court, the presence of the pastoral intern did not affect the privileged status of the conversation. U.S. v. Shelton, 64 M.J. 32 (2006).