Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

Key point 3-08.01. The courts have not required that a counselee be a church member in order for communications to a minister to qualify for the clergy-penitent privilege. However, church membership is a factor that the courts have considered in deciding if the privilege applies to a particular communication.

The Massachusetts Supreme Judicial Court ruled that the clergy-penitent privilege did not apply to incriminating statements made by a father to a pastor concerning allegations of child abuse since the statements were not made in the course of seeking spiritual counsel. A man (the "defendant") sexually abused his two minor daughters for several years. When the older daughter was in college, she returned home for Thanksgiving. The defendant again attempted to molest her, but she resisted and threatened to call the police. He became angry, showed her a nine millimeter handgun, and said, "I could kill you if you ever open your mouth." Although the defendant did not touch this daughter after this incident, she continued to fear for her safety and for that of her mother.

When the defendant's younger daughter was a senior in high school, she disclosed the abuse to one of the pastors at her church ("Pastor Ron"). She told Pastor Ron that she had not disclosed the abuse previously because she did not think that anyone would believe her and because the defendant had threatened her if she did so. Pastor Ron suggested alternative actions that the daughter could take, including contacting the police or confronting her father, but she decided that the best option would be to leave home to attend college. However, after a long weekend home from college, she informed Pastor Ron that she wanted to confront the defendant.