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 3-08.05. 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.
A Louisiana court ruled that inculpatory statements made by a murder suspect to a church employee were not protected from disclosure by the clergy-penitent privilege because the employee was not a minister and the privilege had been waived.
A murder suspect (the "defendant") confided in a lay church employee who worked in "congregational care" that he had killed someone. The defendant gave the employee some names and telephone numbers of people, and he asked the employee to contact the people and tell them he was "not a monster" and that he did not mean to kill the victim. The defendant stated that he would eventually turn himself in. The employee told him that he could give him until 2 p.m. the following day to do so. If he failed to do so, the employee said he would call the police. When the defendant failed to turn himself in by the deadline, the employee contacted the police and disclosed everything the defendant had told him.
The defendant was found guilty of manslaughter. The church employee testified for the prosecution at the trial, and fully disclosed his conversations with the defendant. The defendant appealed his conviction, claiming that his conversations with the church employee were protected by the clergy-penitent privilege and should not have been disclosed to the jury. The appeals court disagreed.
The court noted that the state clergy-penitent privilege applied to confidential communications between a penitent and minister for the purpose of spiritual counsel and advice. It concluded that the defendant's conversations with the church employee were not privileged for two reasons. First, the employee was not a minister. While the privilege applied to communications with someone a penitent reasonably believed to be a minister, such a belief was not reasonable in this case. The court observed that the trial court did not err "in concluding that defendant could not have reasonably believed the employee was a minister … such that his inculpatory admissions were privileged."
Second, the court concluded that the defendant had "waived" the privilege:
While it might be argued that defendant sought consolation from the employee, the record does not clearly reflect that defendant made the communication intending that the employee never disclose to another person that he killed his friend. Further, after making the communication to the employee, defendant implicitly consented to the employee revealing the communication to [the authorities] in the event defendant did not turn himself in by 2 p.m. the following day. Additionally, according to [the employee's] testimony, defendant specifically asked him to contact certain persons to tell them that defendant wanted them to know that he was not a monster, and didn't mean to do this (meaning the killing). Thus, even assuming the prerequisites necessary for the privilege to apply … were present when defendant initially made the communication to the employee, defendant clearly waived the privilege by then implicitly, although conditionally, consenting to disclosure of the privileged matter.
What This Means For Churches
This case illustrates two important points regarding the clergy-penitent privilege.
First, in all states, the privilege applies to confidential communications made to a minister in the course of spiritual counseling, and in many states, like Louisiana, the privilege applies to confidential statements made to a person who is not a minister but whom the communicant reasonably believes to be a minister. This case demonstrates that a belief that someone is a minster must be reasonable in light of all the facts and circumstances. The court concluded that the defendant's belief that a church employee was a "minister" was not reasonable.
Second, this case demonstrates that an otherwise privileged communication may be lost through waiver. The court concluded that the defendant's request that the employee inform several friends that he was not "a monster," and acquiesced in the employee's threat to report the defendant's culpability to the authorities if he failed to do so by the next day, amounted to a waiver. State v. Luzzo, 214 So.3d 55 (La. App. 2017).