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 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.
Key point 3-08.03. In most states either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.
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 Illinois court ruled that the clergy-penitent privilege could be asserted by a lay practitioner, and that the privilege was not necessarily precluded or waived by the practitioner's disclosure of statements made to him by the penitent in the course of spiritual counseling.
An adult male (the "defendant") was charged with violating an order of protection when he allegedly went to the home of his ex-wife and slashed the tires on a car sitting in the home's driveway. At his trial, a witness (Craig) was called to testify regarding incriminating information the defendant shared with him. He attempted to avoid testifying by invoking the clergy-penitent privilege, claiming that, as the defendant's "spiritual advisor," he could not be forced to testify about an incriminating admission the defendant made to him. The defendant also invoked the privilege.
Craig conceded that he was neither a pastor at the church he and the defendant attended, nor a paid member of any clergy. However, he was a leader of a small Bible-study group at the church, he had been discipling the defendant, and he and the defendant were "accountability partners." As accountability partners, the defendant would confess his faults to Craig, and Craig would pray for him.
Craig often would talk to and pray with other members of the small group about the matters the defendant shared with him. He estimated that he had made these disclosures, including the defendant's confession, to eight persons. He did so to seek the collective wisdom of the group regarding how to disciple the defendant. At the defendant's trial, Craig testified that he had been "accepted" by the church elders as a small-group leader. Craig further testified that, in addition to leading the small group, he was "authorized" by the elders to baptize the defendant.
The trial court found that the clergy-penitent privilege applied and so Craig did not have to testify about the defendant's confession. In reaching that conclusion, the court found that: (1) Craig was approved by the church elders, who comprised the governing body responsible for making spiritual decisions in the church, to lead a small group and baptize the defendant; (2) Craig and the defendant had entered into a discipleship relationship that was supervised by the pastor; (3) conversations between the two were intended to be of a confidential nature and were discussed with others solely for the purposes of prayer.
The state appealed the court's ruling regarding the application of the clergy-penitent privilege. Illinois law defines this privilege as follows:
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.
The state asserted that the privilege did not apply to the defendant's confession to Craig for two reasons. First, Craig was not a "clergyman" or "practitioner" as defined in the statute, and second, even if he was, the privilege was waived when he discussed the confession with other people.
The court noted that according to the statute the clergy-penitent privilege applied to both clergy and "practioners" who are accredited "by the body to which he or she belongs," and it concluded that Craig was a practitioner. It acknowledged that the terms "practitioner" and "accredited" were not defined by either the clergy-penitent privilege statute or prior cases in Illinois, so it turned to the dictionary for direction:
"Practitioner" is defined as "one that does something or follows some course or regimen habitually or customarily." Webster's Third New International Dictionary (1993). "Accredit" is defined as "to give official authorization to or approval of," "to order or permit to proceed on an official mission or on one otherwise officially recognized," or "to vouch for officially." In light of these definitions, we conclude that Craig was a "practitioner of [a] religious denomination accredited by the religious body to which he … belonged."
Specifically, the evidence established that the church elders did authorize Craig to lead a small group and to baptize defendant. Thus, the elders, acting on behalf of the church, certainly did "accredit" him to perform certain activities. Although nothing in the statute specifically requires that the practitioner be authorized to receive confessions or admissions from others, the facts here strongly suggest that the church was well aware of the fact that Craig, as defendant's spiritual advisor, was doing just that. Indeed, he regularly spoke with the pastor and assistant pastor about the things to which defendant confessed. Moreover, the evidence established that Craig was fully and regularly engaged in his religious edification with the church. He not only led a religious life, having been discipled himself throughout his Christian life, but he led a small group for the church, was charged with discipling others, and was in training to become a church elder … .
Further … it is unfeasible to expect a pastor of a church to counsel all of the people in the church. Although the specific number of people attending the church is unknown, Craig testified that there were approximately 56 to 64 people in the small groups alone. When we consider the huge congregations of some other churches, like Willow Creek Community Church, the ability of a clergyman to be available to counsel all of the people in the congregation becomes even less likely. Thus, it makes sense that the church would authorize other people in the church to counsel fellow churchgoers in a manner similar to that of a clergyman. Moreover … the evidence here strongly suggests that, when Craig spoke with defendant, he … did so as an assistant to the pastor of the church. That is, when defendant talked to him, the defendant, as he would with a pastor, admitted to things that he had done and sought forgiveness. Craig and the defendant would then pray together and ask for forgiveness.
Waiver of the privilege
The court then addressed the state's claim that the privilege was waived once Craig discussed the defendant's confession with eight people in their small group at church. The court acknowledged that "a plain reading of the [clergy-penitent] statute reveals a design to protect those communications between clergymen and laymen that originate in confidence that they will not be disclosed."
The court concluded that in some cases a communication can be confidential and privileged even if third persons are present. It noted that two other Illinois courts "have recognized that the privilege is not destroyed simply because a third person is present when a defendant confesses to a clergyman or practitioner." In one of those cases a state appeals court ruled that a trial court had erred in holding that the privilege extends only to admissions or confessions made in a "one-on-one setting." People v. Campobello, 810 N.E.2d 307 (Ill. App. 2004). In the second case, an Illinois court ruled that if the third person is regularly engaged in aiding the clergyman or practitioner in giving spiritual advice, the privilege will survive. People v. Diercks, 411 N.E.2d 97 (Ill. App. 1980).
Turning to the facts of this case, the court noted that "here, the undisputed evidence revealed that, although Craig relayed what defendant told him to eight other people, he did so only so that he could obtain advice on how to disciple defendant." It added, "The presence of third parties when a confession is given to a clergyman for the purpose of spiritual advice should not waive the privilege because, among other things, the statute requires simply that the confession be given for the purpose of obtaining spiritual advice, and the presence of third parties should not affect the clergyman's capacity to do so."
The court noted that even if it were to conclude that Craig waived the privilege when he relayed defendant's admission to other people, the defendant did not do so. Because "the privilege belongs both to the person making the statement and to the clergyman [or practitioner] … the privilege would still apply here, as nothing indicates that defendant, who joined Craig in invoking the privilege, ever shared his admission with anyone other than Craig."
What this means or churches
This case is instructive for two reasons. First, it is one of the few cases to address the important question of the impact third persons will have on the clergy-penitent privilege. The presence of one or more individuals when a penitent is seeking spiritual counsel from a minister may jeopardize the privilege in two ways: First, the communication may not be "confidential," as required by the clergy-penitent privilege in all states; and second, the privilege may be "waived" if a penitent is seeking spiritual counsel from a minister in the presence of others.
According to this court, Craig's disclosure—to all eight members of his small group—of the defendant's confidential communications did not destroy the privileged nature of those communications since Craig's disclosure was for the limited purpose of obtaining advice on how to disciple the defendant. In other words, the disclosure was to assist Craig in his counseling of the defendant.
Second, the court concluded that even if Craig had waived the privilege, the defendant had not done so, and therefore Craig was not required to testify regarding the defendant's confession. It is important to note that in most states either the minister or penitent can claim the privilege, and therefore the fact that the minister chooses to testify without asserting the privilege does not preclude the penitent from doing so. People v. Thodos, 49 N.E.3d 62 (Ill. App. 2015).