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.

* An Iowa court ruled that the clergy-penitent privilege did not apply to incriminating statements made by a church member to his pastor since the statements were not confidential and any privilege had been waived. A single mother frequently used a 28-year-old male (the “defendant”) to babysit her three minor sons. After several months, the defendant began watching the boys in his own residence, and eventually the boys were staying with the defendant overnight at his apartment almost every weekend. The defendant engaged in frequent acts of sexual molestation with all three boys. One of the boys finally decided to tell his mother about what the defendant had been doing, and by the time he told her, the molestation had been going on for about a year. This victim stated that he had not disclosed the molestation sooner because he was afraid that the defendant would hurt him.

The boys’ mother contacted her pastor and informed him about the boys’ allegations. After church services the following Sunday evening the pastor and one of the church deacons met with the defendant, who also attended the church, to discuss the boys’ allegations. When the pastor asked him what should be done about the situation the defendant replied that he would need to “get saved.” The pastor spoke with the defendant again the following Wednesday at church; the defendant asked if he could go before the church to apologize for “what he had done.” The pastor told him he could not. The two met again the next Saturday. A church deacon was present at this meeting as well. The pastor discussed possible church disciplinary actions at this meeting.

The pastor testified at the defendant’s trial, describing the incriminating statements the defendant made during their meetings at the church. The defendant was convicted on all counts, and appealed his conviction on the ground that his pastor’s testimony should not have been permitted since all of his conversations with his pastor were protected from disclosure by the clergy-penitent privilege.

the clergy-penitent privilege

The appeals court began its opinion by quoting the Iowa statute recognizing the clergy-penitent privilege: “A member of the clergy shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person’s professional capacity, and necessary and proper to enable the person to discharge the functions of the person’s office according to the usual course of practice or discipline.” Iowa Code § 622.10(1). The statute further provides that the privilege does not apply to cases where the person in whose favor the prohibition is made waives those rights.

The court concluded: “In order to [be privileged] a communication to a member of the clergy must be: (1) confidential; (2) entrusted to a person in his or her professional capacity; and (3) necessary and proper for the discharge of the function of the person’s office.” The court concluded that for the following reasons the defendant’s communications with the pastor were not confidential:

First, the pastor testified he did not consider either of his meetings with the defendant to be confidential and did not ever tell the defendant, or lead him to believe, they were going to be confidential. The pastor testified he did not consider the meeting confidential because a third person was present. The pastor discussed the meeting with his wife, other deacons, his former pastor, and the boys’ family. He testified that if he believed the meeting to be confidential or privileged he would not have shared it with all of these people. Second, the pastor made it clear to the defendant that the scripture says the church falls under the legal system so if a law had been broken it was his responsibility to turn the matter over to the legal system and it would then be for the authorities to deal with this as need be. Finally, the pastor testified that the defendant himself generally knew of the church’s discipline procedure and the fact that if the defendant were found to have done something that “brings public reproach to the name of Christ” the person either goes before the church to publicly apologize or the pastor makes a recommendation and the church as a whole votes on the matter. Thus, the defendant was aware that his statements would not be kept confidential based on these church practices. At their Saturday meeting the pastor specifically told the defendant that it was going to be a matter of church discipline and the defendant continued to discuss the matter with the pastor. Furthermore, the pastor told the defendant the matter might be discussed with the police, the Department of Human Services, or both, also indicating to the defendant the statements were not considered to be confidential. Accordingly, we agree with the district court that the defendant’s communications with the pastor were not confidential in nature and thus do not fall within the purview of the priest-penitent privilege.

The court also noted that the first meeting was initiated by the pastor, not the defendant, and “the defendant merely thought the pastor wanted to speak with him about a possible job.” The pastor testified the meeting was “not him coming to me to confess. It was me confronting him.” The meeting was to investigate the allegations that had been made by the boys. The pastor specifically denied that at least the first part of the meeting dealt with spiritual needs. As a result, “the pastor did not intend, and the defendant did not consider, the meeting to be for the defendant to confess to the pastor or to be for spiritual or pastoral purposes.”

waiver

The court noted that even if the conversations between the pastor and defendant were privileged, the defendant waived the privilege when he made the statements in the presence of third parties. The court explained that “although all the necessary elements for a communication to be privileged may be met, the privilege may be lost if the otherwise privileged statements are made in the presence of a third person.” The court clarified that “the presence of a third person during an otherwise confidential communication does not automatically destroy the privilege.” For example, “if the third person is present to assist in the discharge of another’s professional function or the third person’s presence is in some other way necessary, then the privilege will protect confidential communications made in the presence of the third person.”

The court noted that a deacon was present at both of the defendant’s meetings with the pastor. It concluded:

Thus, unless it can be shown the deacon’s presence was to assist the pastor in the discharge of his pastoral functions or was otherwise necessary in order for the pastor to discharge his pastoral duties, any priest-penitent privilege the defendant would have was waived. The pastor testified that none of the deacons in their church provide any kind of counseling services in an official capacity, they have no special responsibilities in the church, and that they were at the meeting simply as witnesses and not to aid in any kind of spiritual advisement. Further, the pastor testified he believed the presence of the deacons was fatal to any claim that the communications with him were privileged. We conclude the deacons’ presence at the meetings was not to assist the pastor in the discharge of his pastoral functions or otherwise necessary to the discharge of his pastoral duties. Thus, their presence at the meetings waived any potential priest-penitent privilege.

Application. This case illustrates two important points. First, not all conversations between a pastor and church member are privileged. The court concluded that the defendant’s conversations with his pastor in this case were not confidential and therefore not privileged for the following reasons:

• The conversations were initiated by the pastor, not the defendant, to investigate the mother’s allegations of child abuse.
• The defendant did not initiate the conversations for the purpose of seeking spiritual counsel.
• A third person (a deacon) was present during both conversations.
• The pastor did not consider the conversations to have been privileged, as illustrated by his disclosure of the substance of the conversations to others.
• The defendant was familiar with the church’s disciplinary procedure which requires the pastor to inform the congregation of the nature of a disciplined member’s infractions.
• The pastor informed the defendant that he might have to discuss the matter with the police or Department of Human Services.

Second, even if the conversations were privileged, any privilege was waived because of the presence of a third party. Most states have adopted the Uniform Rules of Evidence which defines confidentiality in the context of the clergy-penitent privilege as “a communication … made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” There are two points to note about this definition. First, the communication must be “private,” and second, it must not be intended for further disclosure except to “other persons present in furtherance of the purpose of the communication.” According to this definition, other persons can be present, and listening, when a person seeks out a minister for spiritual counsel so long as their presence is “in furtherance of the purpose of the privilege.”

But some states have adopted a clergy-penitent privilege not based on the Uniform Rules of Evidence, and in these states the presence of a third party may preclude the privilege. This Iowa court’s decision is important because the Iowa privilege is not based on the Uniform Rules of Evidence and yet the court acknowledged that the presence of a third person during a conversation between a pastor and church member does not necessarily preclude the privilege. The key consideration, according to the Iowa court, is whether “the third person is present to assist in the discharge of another’s professional function or the third person’s presence is in some other way necessary.” The court concluded that the deacon’s presence during the defendant’s conversations with the pastor did not qualify for this exception since the deacon’s presence was not necessary in order for the pastor to discharge his pastoral duties. But consider the following situations in which a court might conclude that one or more persons, in addition to the minister and penitent, were present in furtherance of the purpose of the communication:

• A minister engages in marital counseling with a husband and wife, and often all three are present during counseling sessions.
• An adolescent female informs her youth pastor that she is being sexually abused by a relative. The youth pastor urges the victim to seek out the senior pastor for spiritual advice. She agrees to do so, and later that day she and the youth pastor meet with the senior pastor.
• An adolescent male confesses to his youth pastor that he has committed a crime. The youth pastor encourages him to seek spiritual counsel from the senior pastor, and he agrees to do so. The youth pastor, and the minor, both meet with the senior pastor.
• Same facts as the previous scenario, except that the minor’s parents attend the meeting.
• A church adopts a policy prohibiting the senior pastor from engaging in opposite sex counseling without the presence of a third person.
• A state penitentiary has a policy prohibiting clergy from visiting incarcerated persons without the presence of a guard.
• A man confesses to his neighbor that he committed an unsolved crime. The neighbor encourages him to confess to her pastor. He agrees to do so, but only if the neighbor accompanies him “for moral support.” The two of them meet with the pastor, and he confesses to the crime and seeks spiritual guidance. State v. Hesse, 767 N.W.2d 420 (Iowa App. 2010).

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.

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