Author's Identity of Anonymous Letter Not Protected by Clergy-Penitent Privilege

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 3-07.5. In some states the clergy-penitent privilege only applies to communications made to a minister in the course of "discipline." While most courts interpret this requirement broadly to cover statements made in the course of spiritual counsel and advice, others have interpreted it narrowly to apply only to confessions made to Catholic priests.

An Illinois court ruled that a church could be compelled to disclose the identity of the writer of a confidential letter sent to the pastor so that the writer could be sued for defamation. In October 2013, the pastor of a Catholic church received an anonymous letter containing the following allegations:

• an adolescent male engaged in the sexual touching of another minor;
• a parent of the alleged perpetrator admitted the improper sexual contact;
• the perpetrator was older and larger than the other child;
• the perpetrator threatened the other child with harm if the other child told anybody about the touching.

The writer later met with the pastor, identified himself as the writer of the letter, and "sought consultation and advice about church law, ethics, and policy pertaining to his roles as a parishioner and a volunteer in the parish with responsibility for monitoring children." The pastor claimed that his role as pastor included guiding the parishioners in spiritual matters and providing counseling and direction about canon law, religious law and policy, and the Catholic faith. He insisted that church law required him to keep the confidentiality of requests for counseling and direction.

The alleged perpetrator's mother became aware of the letter. She insisted the allegations against her son were false, and the letter caused her son to become "isolated and ostracized in the community, including the parish community." The mother filed a lawsuit asking the court to compel the disclosure of the letter and its author so that she could sue the person for defamation.

The church and pastor claimed that the letter, and the identity of its author, were protected against disclosure by the clergy-penitent privilege.

A trial court ordered the disclosure of the letter, and the identity of the writer. The pastor and church appealed.

Disclosure of the writer's identity

Under Illinois law "a person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery." All that is required for a court to compel disclosure of a person's identity is proof that a lawsuit against the person would survive a motion to dismiss. In the case of defamation, a plaintiff "must plead facts demonstrating that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of the subject statement to a third party, and that the publication caused damages to the plaintiff."

The court concluded that there was sufficient evidence to support the mother's defamation claim to avoid a motion to dismiss, and therefore she was entitled to have the identity of the writer revealed.

The clergy-penitent privilege

The church and pastor claimed that the clergy-penitent privilege should bar the disclosure of the writer's identity. The Illinois clergy-penitent privilege states:

A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor. 735 ILCS 5/8-803.

The court noted that in this case the crucial phrase was "in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes … ." The court interpreted this language as follows:

The discipline … is limited to the set of dictates binding a clergy member to receive from an individual an admission or confession for the purpose of spiritually counseling or consoling the individual … . Thus, to qualify for preclusion under the clergy-penitent privilege … a communication must be an admission or confession (1) made for the purpose of receiving spiritual counsel or consolation (2) to a clergy member whose religion requires him to receive admissions or confessions for the purpose of providing spiritual counsel or consolation.

The court noted that the final clause of the privilege prevents the compelled disclosure of "any information" the clergy member has obtained "in such professional character or as such spiritual advisor."

In this case, the writer wrote a letter to his pastor

outlining certain alleged improper sexual conduct, committed several years previously, by [the alleged perpetrator]. The writer sought guidance in how to handle the situation. The writer was a volunteer for a religious-education program conducted by the parish and had the responsibility of monitoring the children in the program. In our view, at least on the present record, the statements in issue are simply not of the character of a confession or admission for which the writer was seeking spiritual guidance. Rather, they are outlining a potential source of risk for the parish and the children if [the alleged perpetrator] were to repeat such conduct while participating in the educational program offered by the parish. This is fundamentally not a matter of conscience for the writer; rather it is a matter of risk management for the writer as an agent of the parish and a guardian of children. Accordingly, we hold that the clergy-penitent privilege is simply inapplicable.

The pastor insisted that, if he identified the writer, it would breach the rules of the church and "breach the confidence of a parishioner and volunteer who sought consolation and guidance." The court disagreed:

What [the pastor] omits, however, is that the writer was a volunteer with a responsibility, within a specific program of religious instruction, to monitor the children participating in that program. Thus, the allegedly defamatory statements are more clearly seen as a request for guidance in conducting the program and discharging the writer's responsibility than as a request for consolation or counseling over a matter of conscience. In other words, the request for guidance was for the purpose of minimizing the risk to the parish and the children, rather than seeking spiritual instruction. We do not believe that the clergy-penitent privilege extends to bureaucratic and administrative purposes. Here, the writer explained the background of one of the children under his or her supervision and asked for guidance in handling the problems posed by this background; the writer did not make a confession or admission … .

The plain language of the statute applies to "a confession or admission." Here, we discern neither a confession nor an admission; rather, the writer's statements are accusative, accusing [the son] of certain improper sexual conduct … . Here, the writer sought guidance not for a spiritual matter or a matter of conscience but in the writer's capacity as a volunteer with the responsibility of monitoring the participants in one of the parish's religious-education programs. It is … the fact that the statements were not a confession or admission, that takes them outside of the privilege.

What This Means For Churches:

This case illustrates two important points. First, in some cases pastors may be compelled to turn over letters written to them in confidence.

Second, evidentiary privileges are narrowly construed, and will not apply unless there is strict compliance with the requirements for the privilege. In this case, the court ruled that the clergy-penitent privilege did not apply to the confidential letter since it did not contain a "confession or admission" as required by the wording of the privilege. This demonstrates the difficulty that is sometimes encountered in deciding if a communication with a pastor is privileged. But incorrectly assuming that a communication is privileged can have unexpected consequences. For example, many states excuse pastors from the legal duty to report child abuse if their knowledge of abuse came from a conversation protected by the clergy-penitent privilege. If a pastor incorrectly assumes that such a conversation was privileged, this may expose the pastor to civil liability for failing to report. The takeaway point is to obtain legal counsel if in doubt as to the application of the clergy-penitent privilege to a particular conversation. Doe v. Catholic Diocese, 38 N.E.3d 1239 (Ill. App. 2015).