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.
A Massachusetts appeals court concluded that incriminating statements made to a pastor by a man who was charged with the molestation of his stepdaughter were not protected from disclosure by the clergy-penitent privilege because they were not made to the pastor while acting as a spiritual advisor. For a period of ten years an adult male (the "defendant") allegedly sexually molested his minor stepdaughter when she was between 6 and 16 years of age. The defendant later disclosed to his wife that he had sexually touched the victim on two occasions. After this disclosure, the defendant called a local pastor who previously had counseled him and his wife.
The defendant was prosecuted for two counts of aggravated rape and abuse of a child. At his trial, the pastor testified that the defendant had told him that the victim had said her accusations of sexual abuse were not a dream, and that he did not remember whether he had done it. The defendant also admitted to the pastor that he had told his wife "what he thought [she] wanted to hear so that he could have a shot of keeping the kids." A jury convicted the defendant on both counts.
The defendant appealed his conviction on several grounds, including the trial judge's alleged error in admitting incriminating statements the defendant made to his former pastor during their telephone conversation. The defendant argued that the statements were protected from disclosure by the clergy-penitent privilege since they were made in the course of seeking spiritual guidance, comfort, and counsel.