Clergy-Penitent Privilege Does Not Extend to Email in Sexual Harassment Case

A key email between an investigator and an archbishop falls outside the ‘cleric-congregant’ privilege.

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State: Michigan
Categories: Confidential and Privileged Communications

Key point 3-07.1. In order for the clergy-penitent privilege to apply there must be a “communication.” A communication includes verbal statements, but it also may include nonverbal acts that are intended to transmit ideas. Mere observations generally are not considered to be communications.

Are email communications between ministers and church members protected from disclosure by the clergy-penitent privilege?

It’s a question a federal court in Michigan recently addressed.

Archdiocese seeks ‘clergy-penitent’ privilege protection for key email exchange

Two men (the “Plaintiffs”) sued a priest and parochial school for: assault; retaliation; negligent hiring, supervision, and retention; and intentional infliction of emotional distress. The men alleged the priest sexually harassed them while they were employed by the school operated by their church and archdiocese. They also alleged the priest retaliated when they rejected his advances.

One man said the priest’s behavior caused him to resign. The other claimed he was fired for reporting the priest’s conduct to the school’s board of regents.

Download Sexual Harassment in the Christian Workplace, Church Law & Tax’s study into the reality of sexual harassment and what churches can do to prevent harassing behaviors and address them should they occur.

Before the plaintiffs’ lawsuit, a representative of the archbishop who investigated sexual abuse crimes on behalf of the archdiocese emailed the archbishop to report that a school board member had raised concerns about the priest’s sexuality and behavior.

Court: Email exchange did not involve spiritual matters

The representative asked the archbishop for spiritual guidance on how to proceed “given the other concerns we’ve had about [the priest].”

The plaintiffs later asked the archdiocese to turn over the email. The archdiocese asked the court to seal the email under the “cleric-congregant” privilege.

The court observed:

Under Michigan law, communication between “members of the clergy and the members of their respective churches” are privileged “when those communications were necessary to enable” the members of the clergy to serve as such. … The cleric-congregant privilege applies “when the communication: (1) serves a religious function, such as providing guidance, counseling, forgiveness, or discipline, (2) is conveyed to the cleric in his or her capacity as a spiritual leader within the denomination, and (3) [is] considered privileged under the discipline or practices of the denomination.” All three elements are required to establish invocation of the privilege. … And for the privilege to apply, the congregant must have spoken to the cleric as part of the cleric’s job as a cleric and not in the cleric’s role as a relative, friend, or employer.

The archdiocese argued the email was privileged because “it exclusively concerns seeking counsel from a church leader and an internal discussion between two church leaders … as to the appropriate next step in an internal church investigation,” and contended the email contained a board member’s private communication about her spiritual concerns.

The court ruled that the key email was not privileged. The investigator “was not seeking spiritual advice from the archbishop, and the archbishop was not serving a religious function.” Rather, “the representative was acting as an investigator for the archdiocese seeking direction from the archdiocese about an employment matter.”

What this means for churches

It is common for ministers to provide spiritual guidance or solace during cell phone and email conversations. Are such conversations protected by the clergy-penitent privilege? This case suggests they are if the requirements for a privileged conversation under state or federal law are met. However, since the requirement that a conversation with a minister serving in his or her professional capacity as a spiritual advisor was not met, the conversation was not privileged.

Again, in Michigan, the requirements for a conversation to be protected by the clergy-penitent privilege are as follows:

(1) The communication serves a religious function, such as providing guidance, counseling, forgiveness, or discipline,

(2) is conveyed to the cleric in his or her capacity as a spiritual leader within the denomination, and

(3) [is] considered privileged under the discipline or practices of the denomination.

Very few courts have addressed electronic communications and the clergy-penitent privilege, so a definitive answer is not possible. On the other hand, the opinion of those few courts that have addressed an issue often constitutes a stronger precedent.

Many states require a communication to be made in confidence, meaning there is an expectation that it will not be revealed to a third party. The presence of a third party often negates the privilege. This is important to remember in situations involving electronic communications, and whether other parties are present for a cell phone call or receive a copy of an email sent.

Doe v. Orchard Lake School, 2022 WL 1262547 (E.D. Mich. 2022).

Legal Developments

New Mexico Court: Child Abuse Reporting Laws Did Not Apply to Pastor’s Testimony

The defendant in this case was protected by both the clergy-penitent privilege and state statute.

Richard R. Hammar, Attorney, CPA

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State: New Mexico
Categories: Confidential and Privileged Communications

Key point 3-08.08 . Clergy who are mandatory reporters of child abuse are excused from a duty to report in many states if they learn of the abuse in the course of a conversation covered by the clergy-penitent privilege. Some state child abuse reporting laws do not contain this exception.

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

A New Mexico court ruled that the designation of clergy as mandatory reporters under state child abuse reporting laws does not serve as a basis for admitting into evidence communications clearly protected by the clergy-penitent privilege.

The trial court said the pastor’s testimony was admissible

An adult male (the “defendant”) was charged with the sexual abuse of a child under 13 years of age. He was found guilty and appealed his conviction on the ground that his pastor was allowed to testify at trial about a confession he had made to him.

The defendant claimed that his pastor’s testimony was barred by the clergy-penitent privilege—a privilege that generally prohibits ministers from testifying in court regarding statements shared with them in confidence in the course of spiritual counseling.

The trial court ruled that even if the defendant’s statements to the pastor were privileged, they were admissible in court because of the state’s child abuse reporting law, which requires “a member of the clergy . . . who knows or has a reasonable suspicion that a child is an abused or a neglected child” to “report the matter immediately only if the information is not privileged as a matter of law.”

Appeals court: The trial court erred

A state appeals court concluded that the defendant’s statements to his pastor fell within the scope of the clergy communication privilege and thus were not admissible at trial.

The appeals court stated:

It was obvious error for the [trial court] to rule that New Mexico’s child abuse reporting statute . . . allowed the [trial court] to admit Defendant’s statements into evidence. . . . Insofar as the pastor’s knowledge or suspicion that [the] Victim had been abused was based on information that was privileged, the plain language of the statute exempted the matter from disclosure.

What this means for churches

Clergy are mandatory reporters of child abuse in most states. Several state child abuse reporting laws provide that clergy, even if mandatory reporters, are not required to report evidence of child abuse obtained in the course of conversations protected by the clergy-penitent privilege.

What Pastors Need to Know About Reporting Abuse

In this overview article, attorney Richard Hammar further explains child abuse reporting.

And, according to this court, the designation of clergy as mandatory reporters does not serve as a basis for admitting into evidence communications between clergy and their counselees clearly protected by the clergy-penitent privilege.

State v. Pritchett, 2021 WL 3674571 (N.M. App. 2021).

Legal Developments

Defamation Claim Dismissed Due to Church’s “Qualified Privilege”

Case illustrates a protection church leaders may receive when communicating negative information with members—but caution must be exercised.

Richard R. Hammar, Attorney, CPA

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State: Iowa
Categories: Confidential and Privileged Communications, Defamation

Key point 4-02.01. Ministers may be liable for making defamatory statements if a civil court can resolve the dispute without any inquiry into church doctrine or polity.

Key point 4-02.03. Several defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

The Iowa Supreme Court ruled that the “qualified privilege” insulated a church from liability for defamation based on email communications by a pastor to some church members in which he falsely claimed that a church member was guilty of sexually abusing the member’s three-year-old daughter.

Background

An adult male (the “plaintiff”) is a former member of defendant church. He began attending the church in 2005 and became a full member in 2007. From 2006 to 2015, he served as a volunteer leader in the church’s high school ministry.

Through his involvement with the church, he met a woman who was also an active member. The couple was married a few years later.

The couple regularly participated in a church small group where group members discussed their lives and weekly Scripture readings. The couple’s small group was attended by ten couples, including a pastor who led their small group. The church practiced what it describes as “Biblical Soul Care,” which was further defined as “speaking the truth in love in your circle of influence.” Small groups are a part of this. The plaintiff testified that the couple’s small group operated as follows:

Generally, we would get together and meet, talk, socialize for a bit of time, maybe eat some food, and then we would gather in a room and either watch a video, do a study from the Bible, and then after a time, then the men would break out and go to our own area and the women would do the same.

Essentially the congregants of the church provided counsel to one another using a “counseling in community” approach. According to the plaintiff, there was no formal confidentiality agreement, but there was discussion “[t]hat it’s a safe place to share and what’s said there stays there.”

The pastor and his wife became close friends with the plaintiff, the plaintiff’s wife, and a third couple. The pastor invited the two other couples to join him and his wife in a new regular group consisting of just the three couples. The new group met on a weekly basis. They had the same verbal commitment that “what’s said there stays there.”

The new group met over 20 times as a group of six, without men and women breaking off separately. The new group practiced “Biblical Soul Care,” but more informally. The three couples would go around the room and each couple would give an update on how things were going in their marriage and in their family. In these discussions, the plaintiff frankly discussed “all my sexual sin.” He also discussed problems with sexual intimacy.

In April 2015, the plaintiff’s wife called the pastor and reported that her three-year-old daughter told her that the plaintiff had touched her under her underwear. The wife immediately sought a temporary protective order against her husband. The court granted an order the next day.

The wife sent emails to staff members at the church about the sex abuse. She also discussed the allegations with members of the congregation and notified the police and the state Department of Human Services (DHS).

Pursuant to church policy, the following day a “Security Alert” flyer was posted in the church with a picture of the plaintiff and stating: “The court finds that the Protected Party [the wife] and the children . . . are in danger of physical harm from[the plaintiff] (husband & father).” It explained that the plaintiff “cannot be on the premises at the same time as [his wife and children]. He cannot be in contact or pick up his children from church.”

On May 3, 2015, the pastor sent an email to the members of the ten-couple small group. This email read, in part:

Well—it is with a very heavy heart that I am needing to write this email to all of you. A[s] our former small group and partners in ministry I thought it best to do it this way so that you can discreetly pass this information on to others who you think need to know. Please use much discretion. . . . [I]n the past 3 months things got to a point that intensive counseling was absolutely necessary [for the plaintiff and his wife] and we were to begin it a week from today. Unfortunately, we had to pull the plug out of fear of authorities getting involved due to the fact that [the counselor] is a mandatory reporter of child abuse. . . . We believe not going was best [because] we did not believe at that time the kids were in immediate danger and since the information came out to me in an informal setting of a home I was not a mandatory reporter. . . .

As it stands there is currently an order of protection against [the plaintiff] until at least Wed[nesday] when there will be a hearing. This came about from events that transpired last week . . . that forced [the plaintiff’s wife] to take action and get authorities involved (DHS and police)—which meant filing for the protection order and removing him from the house. . . . I trust you can connect the dots and realize that what we are talking about are horrific allegations and are tough to even discuss openly. . . .

[T]he allegations are serious enough that I would counsel you not have him stay in any of your homes if he asks to do so especially if you have children.

Following an investigation, DHS did not conclude that the child sexual abuse allegations were founded. In September 2015, the plaintiff’s wife filed a second report of child sexual abuse, which DHS likewise investigated and was unable to substantiate. In January 2016, she filed a third report of child sexual abuse, which DHS investigated and was unable to substantiate.

Law enforcement also declined to pursue criminal charges against the plaintiff. In addition, on September 14, 2016, the couple’s divorce was finalized with the court awarding physical care of the children to the plaintiff. The court presiding over the divorce proceeding determined that the plaintiff’s wife lacked credibility.

On April 17, 2017, the plaintiff filed suit against the church and its pastor (the “defendants”) on the following grounds: (1) breach of a fiduciary duty of confidentiality; (2) invasion of privacy based on placing him in a false light and public disclosure of private facts; and (3) defamation.

The trial court dismissed the breach of confidentiality and defamation claims. With respect to the duty of confidentiality, the court ruled that the pastor’s communications were subject to a “qualified privilege” because they were “made in furtherance of the church congregation’s common interest.”

The Iowa Supreme Court addressed the plaintiff’s claims

The plaintiff appealed to the Iowa Supreme Court.

The duty of confidentiality

On appeal, the plaintiff claimed that the pastor breached a duty of confidentiality—a neutral duty that does not require consideration of religious belief or practice.

The court was not persuaded that the alleged duty “can be neatly separated from [the church’s] teachings and practices.” It concluded that “[t]he question . . . boils down to whether the confidentiality duty can be defined by some neutral source or requires reference to church doctrine and practices.”

The plaintiff pointed to three sources for the confidentiality duty: (1) the clergy-penitent privilege, which the court said “clearly does not apply” because the pastor’s statements occurred in a group setting and therefore were not made in confidence as required for the privilege to apply; (2) the second source was the verbal understanding that what was said in the small groups would stay in the groups; and (3) the third source was a provision in the church bylaws that members would “neither gossip nor listen to gossip concerning any member.”

In effect, the plaintiff claimed that the second and third commitments imposed a legal duty on the pastor as a group leader not to share anything about the plaintiff with the members of the groups or with church staff.

In rejecting the plaintiff’s argument, the court observed:

[T]he second and third commitments were far from specific. We see no way for a court to interpret the scope of these vague promises, and how they apply to [the pastor’s] internal communications with group members and staff, without immersing itself in [the church’s] customs, practices, and doctrine.

In short, deciding liability here would not be a simple task of applying a well-defined secular standard but would involve weighing of both marital counseling standards and the norms by which the church is governed. . . .

[W]e believe “[t]he means by which [the church official] chose to counsel and advise the congregation is outside the purview of the government.”

Because determining whether [the pastor], and derivatively [the church], breached a fiduciary duty of confidentiality to [the plaintiff] arising out of group discipleship discussions would require our courts to interpret [church] doctrine and practices, such a claim cannot proceed in our courts.

Defamation

The plaintiff also claimed that the pastor’s emails “expressly or impliedly stated that he had abused his children.” Those statements were false and so, in the plaintiff’s view, he was entitled to a jury trial on defamation.

The church defendants argued that a “qualified privilege” applied that protected them from liability. The court referred to a past defamation claim brought by a church member against the church and church officials. Kliebenstein v. Iowa Conference of United Methodist Church, 663 N.W.2d 404 (Iowa 2003). In that case, church officials sent out a letter referring to the church member as having “the spirit of Satan.” The court in the Kliebenstein case concluded that the defamation claim would not “enjoy viability had the matter been divulged solely to the members of the church.” It continued:

[T]he common interest of members of religious associations is such as to afford the protection of qualified privilege to communications between them in furtherance of their common purpose or interest. Thus, communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged.

The qualified privilege means that otherwise defamatory statements are not defamation unless made with malice. Malice means a knowledge that the statements were false or made with a reckless disregard as to their truthfulness.

But the court in Kliebenstein concluded that the qualified privilege was not available because “publication of the letter was not limited to a ‘religious community or body’”; rather, the letter had been “mailed not only to members of the congregation but also to other persons living in the . . . community.”

In the present case, the plaintiff opposed application of the qualified privilege on the ground that the pastor sent the May 3 email to a nonmember of the church. One of the recipients of that email had ceased to be a member of the church. In rejecting the plaintiff’s argument, the court concluded:

“Qualified privilege may be lost, however, if the speaker abuses the privilege by speaking with actual malice or excessively publishing the statement ‘beyond the group interest.’ . . . In the clergy context, a statement loses its privilege if made to individuals outside the congregation.” Does it make a difference that [the pastor] sent his May 3 email to [a former church member]?

The defendants say no, and the trial court agreed. [The recipient] was no longer a member of [the church], but he was not a stranger. [The pastor] attested there was no requirement that someone be a member of the church in order to participate in small groups. [The email recipient] had remained involved with the discipleship group for [the plaintiff]. He had been checking in by email with [the plaintiff] monthly for continued discipleship with the men in the Small Group.

Moreover, [his] responses to the May 3 email show that he had a common interest in the matter. In his first email [he] said, “I’m heart-broken for [the plaintiff’s family].” In a later communication, he added that [the plaintiff] had been contacting him. He indicated that his spouse and [the plaintiff’s former wife] were close, and he asked whether he should be concerned about the safety of his girls since they spent time with the plaintiff’s children.

The court concluded:

Under these circumstances, we find as a matter of law that [the former member] retained a common interest in the subject matter of [the pastor’s email] communications. The qualified privilege for communications by religious organizations is essentially a variant of the common-interest privilege. . . . Again, no one other than Small Group members and church staff received the pastor’s emails. . . .

In sum, [the pastor’s] emails, whatever their flaws, were sent by a religious leader exclusively to staff and members of that religious community, plus one person who retained genuine ties to that religious community. The emails were in furtherance of their common purposes. We conclude that a qualified privilege applies. Given the lack of evidence of malice, summary judgment on the defamation claim was warranted.

What this means for churches

Church leaders should be familiar with this case for the following reasons.

First, pastors should be careful when disseminating damaging personal information concerning a member to other members, since this may constitute defamation. If in doubt about the propriety of doing so, seek legal counsel.

Second, this case illustrates the concept of qualified privilege. According to this widely recognized legal principle, statements made by church leaders to members regarding matters of common interest generally cannot be defamatory unless made with “malice.”

Malice in this context means that the person making the statements knew they were false or made them with a reckless disregard as to their truthfulness.

Malice is very difficult to prove, and this means that churches have significant protection when communicating with members regarding matters of common interest. But the protection is not absolute and does not extend to malicious statements as defined above. It is critical to note that the privilege only applies to communications to or among church members, the key point being that nonmembers do not have a legitimate interest in knowing matters of common interest among members, and so any disclosure to them would transcend any legitimate need to know.

Church leaders wanting to preserve the qualified privilege defense when communicating matters of common interest to the congregation should take steps to ensure that their statements are directed exclusively to members. Be sure to consult with legal counsel before making any communication that is potentially damaging to any one or more persons.

Common examples of the application of the qualified privilege would include congregational meetings that are called to inform members about the reasons for the discipline of a church staff member. Sharing negative and damaging information about a current or former employee at such a meeting can be reduced by ensuring that only members are in attendance.

959 N.W.2d 680, 2021 Iowa Sup. LEXIS 67 (2021 WL 2021643

Legal Developments

Sexual Abuse Conviction Upheld Despite the Defendant’s Claim His Pastor Broke Privilege

A man was sentenced to two life terms in prison for sexual battery and lewd or lascivious molestation of his stepdaughter.

Richard R. Hammar, Attorney, CPA

Bio

State: Florida
Categories: Confidential and Privileged Communications

Key point 3-07.02 . 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.

A Florida appeals court upheld a criminal defendant’s child abuse conviction despite his argument that it was improperly based on the testimony of a pastor in violation of the clergy-penitent privilege.

Background

A young child’s stepfather (the “defendant”) sexually abused her for several years beginning at age seven.

The Florida appeals court summarized the events that lead to arrest and subsequent sentencing of the defendant:

The victim did not tell her mother because she trusted the defendant and did not know it was wrong. The defendant began to tell the victim that what they were doing was not right. The sexual abuse would stop for a few weeks and then start up again. The victim began to feel guilty about what was happening, but the defendant instructed her not to tell anyone. He told her that he would be sent away or something bad would happen if her mother found out.

The mother noticed the victim was depressed when she was eleven. When the mother attempted to talk to the victim about her depression, the victim insisted she was just stressed from schoolwork. The defendant offered to talk to the victim. That weekend, he took her to get ice cream and then bought her a pregnancy test. When the mother found out about the pregnancy test, the defendant told her the victim was depressed because she thought she was pregnant.

Sometime later, the mother “saw the victim come out of the bathroom crying,” the court stated. “The mother followed the victim into her room, begging her to tell her what was bothering her.” The victim acknowledged that she and the defendant were having sexual relations.

When the mother confronted the defendant, he admitted having sex with the victim. The defendant then called his pastor. “Although the mother was not present during the call,” according to the court, “the defendant told her that he ‘told [the pastor] everything.’”

The court further explained:

The defendant attempted to put the mother in contact with his pastor so she could speak with him. When the pastor didn’t answer the call, the defendant told the mother that they should go to the church closest to their house and find someone who could help them. The defendant organized a meeting at Dunkin Donuts with a volunteer from the local church. There, the mother and church volunteer listened as the defendant admitted having sex with the victim.

Later in the week, the defendant approached the mother and victim. He promised everything was going to be okay and that he would stop.

Nevertheless, the abuse ended up being reported to the police. The defendant was arrested and charged with three counts of sexual battery upon a person less than 12 years of age and three counts of lewd or lascivious molestation. He was found guilty on all charges and sentenced to two life terms in prison.

The defendant appealed his conviction on the ground that the trial court erred in allowing the pastor and church volunteer to testify regarding the defendant’s admissions of guilt, which the defendant insisted were protected from disclosure by the clergy-penitent privilege. The appeals court affirmed the defendant’s conviction.

The conversation with the pastor

The Florida clergy-penitent privilege statute states that “[a] person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.”

A communication is “‘confidential’ if made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication.”

The court noted:

This statute creates a four-part test to establish the existence of a privilege. First, the communication must be made to a “member of the clergy.” Second, the statement must be made for the purpose of seeking spiritual counseling or advice. Third, the information must be received in the usual course of the clergyman’s practice or discipline. And fourth, the communication must be made privately and not intended for further disclosure. . . .

The defendant first challenges the trial court’s determination that no privilege attached to his communication with his pastor because the clergy communications privilege provides for disclosure to persons “present in furtherance of the communication.” The State responds that the privilege does not apply because the mother was near the defendant during his conversation [with the pastor] and the defendant told her about the conversation immediately following it. We agree with the State.

The clergy communication privilege statute provides: “[a] communication between a member of the clergy and a person is ‘confidential’ if made privately . . . and not intended for further disclosure except to other persons present in furtherance of the communication.”

Here, the conversation with the pastor was not private. The pastor testified he could hear the mother over the phone during the conversation. And, the record reflects the defendant intended the conversation be communicated.

Nevertheless, the defendant argued that his disclosure to the mother was within the privilege’s protections because the mother was “present in furtherance of the communication.” We disagree.

The pastor testified he could hear the mother crying and talking in the background during the call. But the mother testified she was not present when the defendant called the pastor because she was inside her office.

Even if she was present, the defendant did not establish her presence was necessary to the furtherance of the communication. . . . (“[C]ommunications made in the presence of third parties not necessary to the furtherance of the communication . . . are not privileged.”)

The conversation with the church volunteer

In addressing the defendant’s conversation with the church volunteer, the court concluded:

[T]he communications privilege did not apply because the record does not establish the defendant reasonably believed the church volunteer was a “member of the clergy.” [The Florida clergy privilege] defines a “member of the clergy” as a “priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed so to be by the person consulting him or her.” . . .

[The defendant] testified on cross-examination that he sought “some sort of spiritual help” because the mother was going into a depressive episode and he wanted “someone“ to provide family counseling.”

[E]ven if the church volunteer could be considered a clergy member the communication was not private. . . . The church volunteer, defendant, and mother met at a Dunkin Donuts, a public area. . . . ([T]he clergy communications privilege does not protect communications made under circumstances “where confidentiality cannot be expected, e.g., in public facilities or large groups.”). And, the mother was present throughout the conversation.

What this means for churches

This case illustrates three points.

First, the clergy-penitent privilege only protects confidential communications. This requirement can be traced back to the original formulation of the clergy privilege when it was restricted to confessions.

However, as the privilege evolved beyond the confines of a confession, the requirement of confidentiality was retained. This makes sense. If a person is willing for others to overhear a conversation he or she is having with a minister, then there is little reason why jurors should be denied access to the contents of that conversation.

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.”

Second, even if a conversation is privileged, the privilege can be waived because of the presence of a third party whose presence is not in furtherance of the communication.

Third, the privilege only applies to communications made to ministers. Conversations with nonministers, such as the church volunteer in this case, are not protected by the clergy privilege.

These considerations illustrate the importance of ministers being familiar with the clergy privilege in their state. If unclear, the assistance of legal counsel is imperative . Cuevas v. State, 310 So.3d 60 (Fla. App. 2021).

Legal Developments

Pastor’s Conversation with the Defendant Allowed in Murder Case

The trial court did not abuse its discretion by letting the pastor testify.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Confidential and Privileged Communications

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.

An Indiana appeals court affirmed a trial court’s conviction of a defendant for the murder of his wife; the appeals court rejected the defendant’s claim that his conviction had to be reversed because the trial court permitted a pastor to testify regarding an incriminating statement the defendant had made to him.

No reason to believe “the defendant expected any confidentiality”

Following a jury trial, a defendant was convicted of murdering his wife and sentenced to a prison term of 75 years. The jury rejected the defendant’s claim that he shot his wife in self-defense because she was attacking him with a large kitchen knife.

The court allowed the defendant’s pastor to testify about a conversation he had with the defendant while he was in prison awaiting trial. During that conversation, the defendant stated that he had attempted to corroborate his story by “planting” a knife at the scene of the incident.

On appeal, the defendant argued that the pastor’s testimony regarding the defendant’s incriminating statement should not have been allowed as evidence at trial because it was protected from disclosure by the clergy-penitent privilege. The appeals court began its opinion by quoting the Indiana clergy privilege:

Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications . . . (3) Clergymen, as to the following confessions, admissions, or confidential communications. . . . A confidential communication made to a clergyman in the clergyman’s professional character as a spiritual adviser or counselor. Indiana Code section 34-46-3-1.

The defendant argued that the incriminating statement he made to the pastor was privileged because it was a “confidential communication made to a clergyman in the clergyman’s professional character as a spiritual adviser or counselor.” The court noted that the incriminating statement was made during a meeting in the defendant’s prison cell that was called by the pastor in order to provide the defendant with a letter suspending his church membership. The court concluded:

We find nothing in this conversation between the pastor and defendant that . . . indicates that the defendant expected any confidentiality on the pastor’s part or that the defendant was seeking spiritual advice or counseling from the pastor in the pastor’s professional character. Furthermore, the pastor testified that confession was not part of [his church’s] discipline; the church recognized the need for discretion but not confidentiality; and if a member of the church reported a crime to him, he believed it was his responsibility to report the crime to the authorities. Based on the foregoing, we find that the incriminating statement the defendant made to his pastor was not protected under [the clergy privilege]. Thus, the trial court did not abuse its discretion when it allowed the pastor to testify over defendant’s objection.

What this means for churches

This ruling demonstrates that the availability of the clergy-penitent privilege will depend on whether the minister was being sought out in a professional capacity as a spiritual adviser. The answer to this question is often unclear.

Clergy can help to ensure the availability of the privilege by asking counselees at some point during a conversation: “Are you seeking me out in my professional capacity as a spiritual adviser, or for some other purpose?” If a counselee responds that he or she sought out the minister as a spiritual advisor, then this will be relevant if not compelling evidence in demonstrating that the conversation was privileged despite the presence of conflicting or ambiguous evidence.

For additional guidance on this issue, see the “What this means for churches” section in “Pastor Allowed to Testify at a Man’s Sexual Abuse Trial.”

Elliott v. State, 152 N.E.3d 27 (Ind. App. 2020).

Legal Developments

Pastor Allowed to Testify at a Man’s Sexual Abuse Trial

Appeals court determined that the pastor acted in the role of a friend and the clergy-penitent privilege did not apply.

Richard R. Hammar, Attorney, CPA

Bio

State: Michigan
Categories: Confidential and Privileged Communications

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 Michigan appeals court ruled that a trial court did not err in allowing a pastor to testify concerning a criminal defendant’s confession.

The defendant communicated with his pastor “as a friend”

A young girl was repeatedly sexually molested by her stepfather (the “defendant”) beginning when she was 7 years old. The jury found the defendant guilty, and trial court sentenced the defendant to “three concurrent sentences of 25 to 50 years’ imprisonment,” according to the disposition of the court.

The defendant appealed, arguing that his pastor should not have been allowed to disclose a confession he had made to him. The pastor testified that the defendant admitted to him on two separate occasions that he had engaged in sexual intercourse with the victim. The first confession took place in the driveway of defendant’s mother’s house, and the second confession occurred at the office of defendant’s attorney.

The appeals court ruled that the clergy-penitent privilege did not apply. It concluded:

The pastor testified that he was a friend of defendant’s. . . . The trial court determined that defendant had not necessarily communicated with the pastor as a pastor, but instead as a friend from whom defendant sought “help . . . with his mounting serious legal predicament.” We discern no clear error from that conclusion. And . . . we note that . . . defendant’s pastor explicitly testified . . . that he had concluded with his church elders that communications are not considered confidential in their denomination when they involve “harm to anyone else or their immediate family,” or when the communication demonstrates that the congregant is a “threat to themselves or anyone else.” The trial court did not err when it determined that the cleric-congregate privilege was inapplicable.

What this means for churches

For statements to a minister to be protected against involuntary disclosure in a court of law by the clergy-penitent privilege, they must be made to a minister acting in a professional capacity as a spiritual adviser. In this case, the court concluded that this requirement was not met since the defendant was speaking to the minister as a friend rather than as a spiritual adviser.

Many, perhaps most, of the communications made to clergy are not made to them in their professional capacity as spiritual advisers. They are made by church members and nonmembers alike at church functions, following church services, in committee rooms, in hospital rooms, at funeral homes, in restaurants, on street corners, and at social and recreational events.

Such communications ordinarily are not privileged, since other persons typically are present, and it is difficult to conclude that the “counselee” sought out the minister in a professional capacity as a spiritual adviser. This is not a necessary conclusion, since it is possible that such conversations, even if they begin as a purely social exchange, could become spiritual in nature. In other words, by the end of a conversation the counselee may well be communicating with the minister because of his or her status as a spiritual adviser.

There is no reason why such a conversation should not be privileged, assuming that the other requirements are satisfied. On the other hand, even strictly private conversations may be made for purposes other than spiritual advice, and thus are not privileged.

A minister (or court) may need to ascertain the objective of a conversation in determining whether a communication is privileged.

Was the minister sought out primarily for spiritual advice? Were the statements of a type that could have been made to anyone? Where did the conversation take place? Was the conversation pursuant to a scheduled appointment? What was the relationship between the minister and the person making the communication? These are the kinds of questions which help to clarify the purpose of a particular conversation, thereby determining the availability of the privilege.

The applicability of the clergy-penitent privilege can be enhanced if a minister simply asks a person during a conversation, “Are you speaking to me in my professional capacity as a spiritual adviser?” If the counselee responds affirmatively, then there is little doubt that the courts will conclude that the privilege applies.

If, during a conversation with a member (wherever it may occur), it appears to a minister that the other person may intend for the conversation to be confidential and privileged, the minister should confirm this understanding verbally. If the minister is ever called to testify in court concerning the conversation, this verbal confirmation should resolve most questions regarding the applicability of the clergy-penitent privilege. People v. Foy, 2020 WL 3121164 (Mich. App. 2020).

Legal Developments

Defendant’s Meeting with Pastor Was Not for Spiritual Advice

Man accused of sexual abuse of stepdaughter not protected by clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Confidential and Privileged Communications

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 Louisiana court ruled that the clergy-penitent privilege did not apply to statements made by a criminal defendant to a pastor. The court based its ruling on the fact that the defendant had met with the pastor to refute criminal charges made against him rather than to seek spiritual counsel required for the privilege to apply.

The defendant is given a 15-year sentence by a trial court

During a three-day trial, a jury heard the victim testify that her stepfather (the “defendant”) began a sexual relationship with her when she was 14 years old that lasted for more than three years.

An associate pastor testified that in April 2017 the victim told him the defendant had been having sex with her since she was 14 years old, continuing until about two weeks before the meeting with the associate pastor. The associate pastor agreed to meet with the victim and her mother the following day so that she could tell her mother, who was unaware of the situation.

The associate pastor stated that he and the church’s senior pastor met with the victim and her mother, and that the defendant was outside the room during the meeting. Thereafter, the associate pastor testified that the defendant wanted to tell his side of the story and did so in the pastor’s office out of the presence of his wife and her daughter. According to the pastor, the defendant admitted to having a sexual relationship with the victim but only after she turned 18.

The defendant later met with a detective who took a recorded video statement of the defendant after he was advised of and waived his Miranda rights. In the video statement, the defendant admitted to engaging in sexual intercourse with the defendant when she was 17 and 18, but he denied earlier contact. The defendant was charged with sexual abuse of a minor.

At the defendant’s trial, the pastor was allowed to testify regarding the defendant’s confession despite the defendant’s claim that the confession was protected from disclosure by the clergy-penitent privilege. The jury found the defendant guilty and sentenced him to 15 years at hard labor. The defendant appealed on the ground that his conversation with the pastor should not have been allowed in evidence at his trial.

Appeals court: “spiritual guidance” was not the sole purpose of meeting

On appeal, the defendant asserted that the trial court erred in rejecting his claim that his conversation with the pastor was protected by the clergy-penitent privilege and should not have been admitted into evidence at his trial. He noted that the statements he communicated to his pastor were made in a private setting and were made for the sole purpose of spiritual counseling.

The appeals court ruled that the clergy-penitent privilege did not apply in this case and therefore it was appropriate for the pastor to testify regarding his conversation with the defendant. The court began its opinion by quoting the clergy-penitent privilege in Louisiana:

“A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.

“A communication is ‘confidential’ if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

“The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person.”

The court noted:

“Thus, there are three legal prerequisites to finding that the clergy privilege applies. First, it must be determined that the person to whom the communication was received is a ‘clergyman.’ Second, it must be determined that the purpose of the communication was to seek spiritual advice or consolation. . . . Third, it must be determined that the communication was made privately and was not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. However, even if those explicit requirements of the article are met, it must also be determined whether or not the communicant waived the application of the privilege” by voluntarily disclosing or consenting “to disclosure of any significant part of the privileged matter” [quoting State v. Gray, 891 So.2d 1260 (La. 2005)].

The court concluded that the second requirement for the clergy-penitent privilege to apply was not met since “the primary purpose of defendant’s [conversation with] the pastor was for a reason other than spiritual guidance. The record supports the finding that defendant’s sole purpose was to refute the victim’s accusation that the sexual intercourse started when she was fourteen years old.”

What this means for churches

This case illustrates that not all conversations with clergy are protected by the clergy-penitent privilege. Such conversations are protected only when clergy are sought out in their professional capacity as spiritual advisers. In rejecting the application of the privilege, the court stressed that the purpose of the meeting was to rebut the victim’s claims and to share his side of the story. State v. Faciane, 2020 La. App. Lexis 485 (La. App. 2020).

Legal Developments

A Murder Confession to a Pastor Not Considered Privileged

The defendant waived clergy-penitent privilege by sharing substantial statements with others.

Richard R. Hammar

State: Maine
Categories: Confidential and Privileged Communications

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.

The Supreme Judicial Court of Maine ruled that a murder suspect’s confession to a pastor was not protected from disclosure at his trial by the clergy-penitent privilege because the privilege had been waived.

Background

In 1980, a 16-year-old girl was abducted and murdered by a teenage boy (the “defendant”) while jogging in her neighborhood. The body was found the next day in a wooded area near a public high school. Although the defendant was identified as a suspect in the victim’s death early on in the investigation, he was not questioned during the first months of the investigation because of injuries he suffered in a car accident.

A year after the murder, the defendant had his stepfather drive him to a local parsonage so that he could meet with a pastor.

During that meeting, the defendant revealed to the pastor that he had killed the victim by hitting her with a pole with a knob on it, but stated that he did not sexually assault her. The pastor told the defendant that he did not believe his statement that he had killed the victim and that he would only believe him if he told his mother and stepfather what he had done.

The defendant’s mother and stepfather arrived at the parsonage at the pastor’s request, and the defendant told them that he had killed the victim. Afterward, the pastor drove the defendant to the local police department, where he met with two detectives.

During the interview with the detectives, the defendant stated that the victim had been tied with a rope, and that he “had a feeling” that three adolescent males had sexually assaulted her. The defendant added that the victim had kicked him in the leg and that he hit her once with an insulator he found on the ground. The defendant was not arrested after the interview.

In June 1989, eight years later, the defendant began working at a community college as a janitor. During his first night on the job, he met with his supervisor, who asked him some questions to get to know him. After learning that he was from the town where the victim had been murdered, the supervisor asked if he knew about the case. The defendant responded that he knew about the murder because he was the one who had killed the victim with a glass insulator. The supervisor later asked why he had not been arrested, and the defendant proclaimed that he had “beat” all of the interviews.

Trial court: pastor could testify

In March 2016, 27 years later, the defendant was indicted for the victim’s murder.

A critical piece of evidence was the defendant’s confession to the pastor. The trial judge ruled that the pastor could testify about the confession because the defendant had “waived” the clergy-penitent privilege. The court found the defendant guilty of murder and imposed a 45-year sentence of incarceration.

Disclosing “a significant part of the privileged matter” to others

The defendant appealed to the state supreme court, claiming that the trial court erred when it found that the defendant had voluntarily waived the clergy privilege by repeating to his mother, stepfather, and law enforcement officers substantial portions of the statements that he had made to the pastor.

The supreme court agreed that the defendant had waived the clergy privilege and, therefore, the pastor could testify at his trial concerning the confession. It quoted the Maine clergy-penitent privilege statute: “A person has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made to a member of the clergy who was acting as a spiritual adviser at the time of the communication.” However, the statute goes on to provide that a person waives the privilege “if the person . . . voluntarily discloses or consents to the disclosure of any significant part of the privileged matter.”

The court concluded:

[T]here is competent evidence in the record that the defendant disclosed to his mother and stepfather a significant part of the confidential communication he made to the pastor. Although the defendant did not disclose to his mother and stepfather every detail of the information that he had disclosed to the pastor, he disclosed a significant part of the privileged matter, namely, that he had killed the victim. . . . Therefore, the trial court did not err in determining that the defendant had waived the religious privilege.

What this means for churches

Not all conversations with a pastor are protected against future disclosure in court by the clergy-penitent privilege. While the definition of this privilege varies slightly from state to state, it is generally acknowledged that only confidential communications made to a pastor acting as a spiritual adviser can be privileged.

As this case illustrates, pastors may be compelled to testify regarding confessions shared with them in confidence if the counselee waived the privilege by communicating substantial portions of what he or she shared with a pastor to others. State v. Fournier, 203 A.3d 801 (Me. 2019).

Legal Developments

Pastor’s Multiple Acts of Sexual Misconduct Not Necessarily Protected by First Amendment

The First Amendment does not categorically insulate religious relationships from judicial scrutiny.

Richard R. Hammar, Attorney, CPA

Bio

State: Iowa
Categories: Confidential and Privileged Communications, Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.

The Iowa Supreme Court ruled that finding a church liable on the basis of negligent supervision for a pastor’s multiple acts of sexual misconduct with adult women was not necessarily barred by the First Amendment guaranty of religious freedom.

In 2003, a church hired a new pastor. The pastor was respected and considered a “dynamic” and “very talented speaker.” He engaged in sexual relationships with several women in the congregation, as summarized below.

Victim 1

A couple in the church were members of the church at the time the pastor arrived. In 2005, the couple were struggling with infertility, which was taking an emotional toll on the wife. Upon learning of her struggles, the pastor began making unsolicited phone calls to her cellphone, inquiring into her personal life and fertility. In 2006, the couple were in the process of seeking an international adoption, and the wife decided to seek counseling from the pastor to help her cope. The pastor invited her to comes see him “at his study,” which was in the basement of his home. The pastor locked the door to his office during the initial counseling session, and engaged in sexual contact and intercourse. The wife consistently maintained that the sex was against her will. Following the encounter, the pastor continued to call the wife, insisting that her husband was not meeting her needs. He informed her that her emotional struggles stemmed from “sexual frustration” and unhappiness in marriage, and that he was “protecting” her by helping her release her sexual energy. He also persuaded her to loan him $70,000.

Victim 2

In 2009, victim 1’s sister confided in her that the pastor had tried to kiss her during a counseling session. Once victim 1 learned what the pastor had done to her sister, she realized he was using his pastoral position and the trust that people put in him as a pastor to recruit women to be counseling candidates so he could get them into a position of trust and vulnerability for the very purpose of abusing them.

Soon after this conversation, victim 1 called the pastor and told him he was using his position as pastor under the guise of counseling to have sexual relationships with women. She broke off contact with him, although she did not inform the church or the police of his conduct out of fear of retribution or not being believed.

Victim 3

Another couple were members of the church when the pastor was called. In 2008, the wife was going through a difficult time. She felt overwhelmed by a recent death in the family, marital problems, and her special needs child. She had been prescribed antidepressant and anxiety medications, which she was taking. The pastor called the wife and suggested that she counsel with him. As with victim 1, the wife counseled with the pastor behind a locked door in his basement office. The counseling consisted of highly personal questions regarding her personal life, her marital struggles, and whether she had engaged in premarital sex. The wife left the meeting to pick up her son, although she felt uneasy about the line of questioning.

The pastor then began calling the wife frequently, asking to see her again. During a subsequent counseling session, the pastor grabbed her and kissed her. Soon, the “counseling” evolved into regular meetings for the pastor to provide “healing” through sexual activity. Beyond sexual intercourse, the pastor would aggressively call the wife, sometimes 10 to 15 times a day.

Victim 4

Eventually, the pastor informed victim 3 about his prior relationship with victim 1 and a fourth woman. After this conversation, victim 3 “started putting all the pieces together very quickly.” She began to see what had happened to victims 1 through 4, and multiple other women in the church.

Two of the victims’ husbands met with three church elders and informed them of the pastor’s misconduct with their wives. That same evening, the pastor came to a church meeting and one elder questioned him about his conduct with victim 3. The pastor admitted to inappropriate conduct with victim 3 and voluntarily offered his resignation. The entire board of elders met later that evening and voted to accept the pastor’s resignation.

The elders sent a letter to the entire congregation explaining they had accepted the pastor’s resignation. The letter stated that his “sins are of such a nature that they warrant our acceptance of his resignation,” but did not disclose the nature of the misconduct. A few weeks later, victims 1 and 3 were called to appear before the elders. At the meeting, the women were asked to confess their sins with the pastor and ask for forgiveness, which they did. The elders understood the women to have confessed to “adultery.” The elders granted the women forgiveness.

A female church member wrote the elders and urged them to refrain from blaming the pastor’s victims or referring to the misconduct as “affairs.” The member, a social worker, explained that blaming the women for the pastor’s clergy abuse would significantly damage them, as well as the congregation as a whole. The member submitted suggested language for a letter to the elders, who declined to send the letter. In a letter circulated among the elders, the elders expressed their view that

a false dichotomy is established when it asserts that all blame is [the pastor’s]. The victims are certainly sinned against, but they are also sinning. All the parties involved failed to walk in the light (1 John 1) and the women, though not bearing the same degree of responsibility as does [the pastor], were certainly responsible for their behavior and need to be called to repentance for consenting to his advances and for violating their marital covenant. They sinned sexually, even though they can rightly in one sense be denominated as victims of the pastor’s machinations.

Some elders did not view the victims’ experiences as rape or sexual assault, and some even questioned whether the pastor engaged in any misconduct at all. One elder opined that there was “sin on both sides” and that the pastor’s conduct “was not clergy sexual abuse.”

The pastor was prosecuted for three counts of sexual abuse in the third degree, four counts of sexual exploitation by a counselor or therapist, and one count of engaging in a pattern or practice of sexual exploitation by a counselor or therapist. The pastor testified in his defense, maintaining all sexual activity was consensual, and he never provided mental health services. The jury convicted him of the five sexual exploitation charges and the court sentenced him to five years in prison.

Two of the victims sued the church and several elders on the following grounds: (1) negligently declined to invite mental health counselors and clergy sexual abuse experts to work with the congregation; (2) negligently blamed the women for their sexual exploitation, causing them severe emotional harm; (3) negligently investigated the pastor’s misconduct following the victims’ complaints; (4) negligently supervised and retained the pastor; and (5) made a number of defamatory statements against the victims.

The trial court dismissed all of the claims against the church and elders, and the victims appealed.

Negligent response to sexual abuse allegations

The plaintiffs allege the church (1) willfully disregarded the advice of professional counselors and denounced established and accepted mental health treatment concepts after it learned of the abuse; and (2) ignored any duty of care it had to the plaintiffs and instead blamed them for their actions, causing them emotional harm.

In rejecting this theory of liability the court observed:

Following the pastor’s resignation, the elders sought to help the congregation move forward and heal. The means by which they chose to counsel and advise the congregation is outside the purview of the government. The plaintiffs argue “a reasonable church would seek assistance for parishioners and not label victims ‘adulteresses.’” Yet, that is precisely the type of determination that the [First Amendment] Religion Clauses prohibit. The elders determined that certain speakers and mental health resources were outside of their faith. A court cannot dictate what teachings and services a church offers its parishioners. Nor can we disapprove of the elders deciding, pursuant to their duty as religious authorities, that the women would be best healed by simply confessing their “sins.” Because the plaintiffs’ first two negligence claims go to the very heart of religious decision-making, they are barred by the First Amendment.

Negligent investigation

The plaintiffs next claimed that the church was negligent in failing to conduct an investigation into the pastor’s conduct after the plaintiffs disclosed his abuse. The court upheld the trial court’s dismissal of this claim: “The elders were informed of the pastor’s criminal conduct on December 13, 2010. A few hours later, they accepted his resignation. While the church indeed owed a duty of care to the plaintiffs, it acted immediately and affirmed the pastor’s removal from his office, preventing him from further using his office to abuse [the victims].”

Negligent supervision

The court then addressed the victims’ negligent supervision claim: “The crux of a negligent-supervision claim is an employer’s failure to exercise ordinary care in supervising the employment relationship so as to prevent the foreseeable misconduct of an employee from causing harm to others. . . . Conduct that results in harm to a third person is not negligent or reckless unless there is a foreseeable likelihood that harm will result from the conduct.”

The church argued that negligent-supervision claims are barred by the First Amendment, as a court would be called upon to “adjudicate the reasonableness of a church’s supervision of a cleric,” which is an adjudication that necessarily requires inquiry into religious doctrine. The court disagreed: “The First Amendment does not categorically insulate religious relationships from judicial scrutiny, for to do so would necessarily extend constitutional protection to the secular components of these relationships . . . and impermissibly places a religious leader in a preferred position in our society.”

Defamation claims

The victims claimed that many of the statements made by the elders were defamatory. The church insisted that statements made by the elders were protected by a “qualified privilege.” The court acknowledged that “communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged.” The qualified privilege may be lost, however, “if the speaker abuses the privilege by speaking with actual malice or excessively publishing the statement beyond the group interest.” A statement is made with actual malice if the speaker “acted with knowing or reckless disregard of the truth of the statement.” In the clergy context, “a statement loses its privilege if made to individuals outside the congregation.”

The court concluded that none of the allegedly defamatory statements constituted defamation. For example, the victims alleged that the elders prepared and read the following statement to the congregation: “God calls it sin when someone who is married willingly has intimate relations with a person who is not their spouse and we have learned that other members rejected the manipulations of a man who never should have lead them astray.” The court concluded that this statement was not defamatory since it was qualifiedly privileged: “The elders were speaking to members of the church about the conduct of other members in their capacity as such. . . . We find that plaintiffs have not proven that the elders spoke with a knowing or reckless disregard of the truth.”

Similarly, during a home visitation with members of the church, an elder stated, “Our only wish is that the women would admit what they did was wrong and ask for forgiveness like [the pastor] did.” The court conceded that some may have found the statement offensive, but “since he was speaking as an elder to members of the church about whether other members should ask for forgiveness for their alleged sins,” the statement was qualifiedly privileged “as it is a “communication between members of a religious organization concerning the conduct of other members or officers in their capacity as such.”

What this means for churches

This case contains a number of important lessons for church leaders, including the following.

First, this case graphically illustrates the importance of establishing boundaries in the counseling activities of ministers. Amazingly, much of the illicit activities of the pastor in this case occurred in the basement of his private residence, behind a locked door with no one else present or even nearby. Church leaders should be alert to any counseling activities by clergy and other staff that are conducted in isolation.

Second, the court rejected many of the victims’ claims on the ground that they would impermissibly entangle the court in matters of church doctrine and governance, but it did allow the victims to pursue their negligent supervision claim against the church so long as the court would not be required to apply or interpret religious doctrine.

Third, the court recognized the so-called qualified privilege to defamation claims. Many courts have recognized this privilege, which shields some intra-church communications from defamation claims. The privilege applies to statements made to members concerning a matter of “common interest” among members. Such statements ordinarily cannot be defamatory unless made maliciously (meaning with a knowledge that a statement is false, or with a reckless disregard as to its truthfulness). This is why it is important for potentially damaging statements regarding matters of common interest to members (e.g., member discipline, employee terminations) be communicated only to members. The privilege does not apply if nonmembers are present. Bandstra v. Covenant Reformed Church, 913 N.W.2d 19 (Iowa 2018).

Legal Developments

Clergy-Penitent Privilege Not Applicable to a Conversation with a Church Elder

Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a

State: California
Categories: Confidential and Privileged Communications

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 3-07.4. 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 federal court in California ruled that the clergy-penitent privilege did not apply to a criminal defendant’s conversation with a church elder since the presence of a second elder in the room negated the essential requirement of confidentiality and the purpose of the conversation was more in the nature of marital than spiritual counseling.

A woman contacted her local police department because she suspected that her husband’s private computer contained child pornography. Six months earlier she walked into their bedroom and her husband was on the computer. She observed several thumbnail photos of “young girls . . . engaged in sexually suggestive poses while wearing bra and panties.” The girls appeared “between the ages of 13–15 years old,” and some “were . . . as young as 10 years of age.” When the wife confronted her husband about the photos, he told her they “had been attached to an email he had received and he was trying to identify the sender.”

The husband was “always using his computer and even attached a mirror next to it so he would know if someone was entering the bedroom.” He kept its password protected and did not allow anyone else to use it. A few days before contacting the police, the wife found two pairs of young girls panties concealed in a drawer next to his computer.

The husband explained that he had seen “a girl throwing items into a trashcan” and, after she walked away, “he retrieved the items from the dumpster . . . and kept them.” The wife suspected that this behavior had been going on for years. She believed that he “had confessed his activities to two of the elders at their church in an attempt to keep her from moving out of their residence.” The elders “would not elaborate on the conversation other than to say the information he disclosed ‘was horrible.’” The wife turned over her husband’s computer to the police, and they booked it into evidence.

The police obtained statements from the two elders who had met with the husband. Based on the information from the wife and elders, a judge issued a warrant to search the computer. As a result of the search, police recovered thousands of pornographic images of “young children and teenage girls,” in addition to over 200 videos. The police also recovered video of the husband molesting a 10-year-old girl. Based on this evidence, the police requested, and the trial court granted, a search warrant for the husband’s vehicle, home, and camera. The husband was convicted of one count of a lewd act on a child and one count of possession of child pornography.

The trial court sentenced him to a prison term of six years. The husband sought habeas corpus relief in a federal district court in California. The husband claimed that the police had violated his right to “due process” by securing a search warrant based on information procured in violation of the clergy-penitent privilege. The court rejected the husband’s request for habeas corpus relief based on the state court’s alleged violation of the clergy-penitent privilege, noting that “to the extent that the husband’s argument is simply that the police and trial court violated the state-created clergy-penitent privilege, his claim fails [since] the United States Supreme Court has long recognized that a mere error of state law is not a denial of due process.” Even assuming California’s clergy-penitent privilege could provide a basis for a due process claim, the husband “has not shown the evidence contained in the search warrant affidavit was privileged.”

The court observed:

For purposes of the clergy-penitent privilege, California’s Evidence Code defines “penitential communication” as “a communication made in confidence, in the presence of no third person so far as the penitent is aware.” California courts have found the privilege does not apply in circumstances where third persons are present during an allegedly privileged conversation or where it is to be expected the statements will be shared with a third party, even where the third party is another clergyman. In addition, California’s clergy-penitent privilege does not apply “to communications made to a religious or spiritual advisor acting as a marriage counselor.”

Here, the detective stated in the statement of probable cause that the husband made admissions during a meeting with two religious elders. In addition, his wife informed police that he sought the assistance of the elders to prevent her from moving out of their home, not for the purposes of religious repentance. Where the husband’s statements were made in the presence of a third party, albeit another religious elder, and were made in the context of marital counseling, it is unlikely that his statements to his elders were privileged under California’s clergy-penitent privilege.

What This Means For Churches:

The court defined the clergy privilege’s requirement of confidentiality to mean the absence of any third persons. State clergy-penitent privilege laws define confidentiality in one of two ways.

Most state laws have adopted the Uniform Rules of Evidence which defines confidentiality in the context of the “religious 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: (1) the communication must be “private,” and (2) 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.”

A minority of state clergy-penitent privilege laws define confidentiality more narrowly to mean that a communication was made in private in the presence of no other persons besides the minister. This is a very different view of confidentiality than the more expansive view taken by the Uniform Rules of Evidence and a majority of the states. The California clergy privilege is not based on the Uniform Rules of Evidence, and specifically precludes the presence of third parties.

The takeaway point here is that ministers need to understand that the presence of a third person in the course of providing spiritual counsel to a counselee can negate the privilege. This is so under the Uniform Rules of Evidence if the third person’s presence is not “in furtherance of the privilege.” But it is also the case in states in which the clergy privilege’s requirement of a “confidential” communication is construed to mean the absence of third persons.

Also, the court concluded that in deciding if the defendant’s confession to the elder was made in the course of seeking spiritual counsel, the key consideration is why the conversation started rather than how it ended. The court was convinced that the defendant’s initial purpose in speaking with the elder had nothing to do with seeking spiritual advice, and therefore the conversation was not privileged even though at some point later in the conversation the defendant may have sought such advice. Lindhorst v. Sullivan, 2018 U.S. Dist. LEXIS 151257 (C.D. Cal. 2018).

Legal Developments

Compelling Priest to Disclose Confidential Information Violated Religious Freedom Restoration Act

Case suggests that the RFRA may also serve as an alternative basis, in addition to clergy-penitent privilege laws, for protecting confidential communications with clergy from involuntary disclosure.

Richard R. Hammar, Attorney, CPA

Bio

State: Florida
Categories: Confidential and Privileged Communications

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 12-02.2. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court’s decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws .

A Florida appeals court ruled that a trial court’s ruling compelling a priest to disclose confidential information shared with him in the course of a confessional violated the state Religious Freedom Restoration Act.

In June 2017, an adult male (the “defendant”) was charged with committing sexual offenses against a minor. The charged offenses were alleged to have occurred when the alleged victim was 7 years old and when she was 13 years old. The criminal investigation of the defendant began after the alleged victim, then 17 years old, disclosed to her mother that she had been sexually abused by the defendant.

Prior to trial, the prosecutor informed a priest that he would be called as a witness to testify that the victim had disclosed to him, during confession, that the defendant had molested her. The priest filed a motion for a protective order protecting him from having to disclose confidential information shared with him by the victim in the course of a confession. The motion further alleged that:

Requiring the priest to testify as to any aspect of a confession would violate the “sacred seal of the Catholic Sacrament of Reconciliation” and, as such, would violate the priest’s constitutional rights under the First Amendment guaranty of religious freedom.

Any such communication would be privileged under the Florida clergy-penitent privilege statute, which provides that a person “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual advisor.”

The coercion of his testimony would violate Florida’s Religious Freedom Restoration Act (FRFRA).

The trial court focused almost exclusively on the application of Florida’s clergy-penitent privilege to the priest. Specifically, the trial court determined that: (1) the communications between the priest and the victim were privileged, (2) the privilege could be asserted by both the priest and victim, and (3) the priest had partially waived the privilege during a conversation with the alleged victim’s mother and her friend to the extent that he disclosed the identity of the penitent and that “the subject of the disclosure was sexual abuse.” The court concluded that the priest could be questioned about “the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse.” However, the court granted the motion for protective order “as to the content of any other communications between the priest and the victim during the Sacrament of Reconciliation, and his impressions, actions or omissions as they relate to communications made during the Sacrament of Reconciliation.”

A state appeals court concluded that the case was controlled by the application of FRFRA:

FRFRA expressly provides that the government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. . . . A substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires.

The appeals court noted that if the priest complies with the State’s demand that he testify as to his communications with the victim during the Sacrament of Reconciliation, “he would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court’s order can only be upheld if the State establishes that coercing his testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.”

The court acknowledged that the State has “a compelling governmental interest in prosecuting sex offenses perpetrated against children. . . . However, we disagree with the State’s contention that coercing the priest to testify regarding communications that occurred during the Sacrament of Reconciliation, in contravention of his sincerely held religious beliefs, would be the least restrictive means to further its compelling governmental interest of prosecuting the defendant”:

First, as the State acknowledges, the testimony of the priest would, at most, be corroborative evidence. There is no allegation that he was a witness to any sexual abuse. Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events. Third . . . the State could seek to have the alleged victim testify as to her purported prior disclosure of sexual abuse to the priest.

The court quashed the trial court’s order to the extent that it required the priest to “respond to the subpoena and . . . be questioned about the existence of the confession, the identity of the penitent, and that the subject matter involved sexual abuse.”

What this means for churches

About half the states have adopted Religious Freedom Restoration Acts (RFRA) extending the religious freedom protections of the federal RFRA to state and local governments. This case suggests that these Acts may also serve as an alternative basis, in addition to clergy-penitent privilege laws, for protecting confidential communications with clergy from involuntary disclosure. Ronchi v. State, 248 So. 3d 1265 (Fla. App. 2018).

Legal Developments

Murder Suspect’s Statements to Church Employee Not Privileged

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.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Confidential and Privileged Communications

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).

Legal Developments

First Amendment Religion Clauses Prohibit Court from Resolving Confidential Communications Claim

First Amendment religion clauses prevented the civil courts from resolving a parishioner’s claim that a priest improperly disclosed his confidential communications without permission.

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Confidential and Privileged Communications

Key point 3-08.09. Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.

A Louisiana appeals court ruled that the First Amendment religion clauses prevented the civil courts from resolving a parishioner’s claim that a priest improperly disclosed his confidential communications without permission.

A parishioner (the “plaintiff”) learned that a priest had disclosed to others the fact that he had visited the priest for confession, as well as the substance of what was said. The plaintiff sued the priest for invasion of privacy. His lawsuit made the following assertions:

A foundation doctrine in the Roman Catholic Church for thousands of years mandates that the seal of confession is absolute and inviolable.

Pursuant to his oath to the Church, a priest is compelled never to break that seal.

Neither is a priest allowed to admit that someone went to confession to him.

This is not a gray area in the doctrine of the Roman Catholic Church and a priest who violates the seal of Confession incurs an automatic excommunication.

The standard of secrecy protecting a confession outweighs any form of professional confidentiality or secrecy. When a person unburdens his soul and confesses his sins to a priest in the Sacrament of Penance, a very sacred trust is formed. The priest must maintain absolute secrecy about anything that a person confesses.

The plaintiff claimed that the priest violated his First Amendment rights and invaded his privacy when he “disregarded the sacramental seal and informed other individuals without express permission” that the plaintiff had visited him for confession. The plaintiff also sued the local bishop, claiming that he contributed to the priest’s wrongful behavior by failing to remedy his conduct “after he learned of the violation of the sacramental seal of confession.” The plaintiff sued the diocese arguing that it was vicariously responsible for the wrongful acts of its priest.

The defendants asked the court to dismiss all of the plaintiff’s claims on the ground that the First Amendment guaranty of religious freedom barred civil court interference with a foundational religious doctrine. The plaintiff countered by asserting that the court could address his claims since the priest’s actions “went beyond the scope of an internal religious matter and, therefore, outside the scope of the First Amendment’s protections.”

The court agreed with the church defendants and dismissed the case. It observed:

Plaintiff’s claims fall within the scope of internal religious affairs as they are predicated on: (1) the breach of the sacramental seal of confession, as defined by the Roman Catholic Church; and (2) the bishop’s failure to remedy the breach in accordance with church doctrine. In order to discern whether plaintiff has asserted meritorious claims against the church defendants, the court would have to interpret church doctrine relating to the sacrament of confession and otherwise encroach upon the internal affairs of the Roman Catholic Church. Application of long-standing First Amendment jurisprudence, therefore, mandates that this court refrain from considering plaintiff’s claims.

What this means for churches

This case is important because the court’s decision represents one of the few times that a court has addressed the liability of a church or pastor for the pastor’s disclosure of confidential information shared in a conversation protected by the clergy-penitent privilege. The court declined to hold the priest or church liable for the priest’s unauthorized disclosure of a penitential communication. The other cases are summarized in Table 1. Sonnier v. Diocese, 2017 WL 778153 (La. App. 2017).

Cases Addressing the Liability of a Church or Pastor for
the Pastor’s Disclosure Of Confidential Information

State Case Liable?

Arizona

A woman sought out a pastor for counseling.

Confided highly personal and private matters including the fact that her father had sexually molested her and her sister.

The sister later married the pastor’s son and accused him of infidelity.

In an attempt to defend his son, the pastor told the board and congregation that the sister could not be believed because her family was “incestuous” and “dysfunctional.” The sister sued the pastor and the church for invasion of privacy, defamation, malpractice, and breach of fiduciary duty.

An Arizona court concluded that the pastor offered “no good reason for insulating a counselor from liability for betraying clients’ confidences to their detriment merely because the counselor is a clergy member.” Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).

Yes

California

Pastor confessed to denominational officers about inappropriate conduct; assurance of confidentiality.

Denominational officers shared a minister’s confession with a church’s pastoral search committee.

The court acknowledged that it could find no previous case in which “a counselee or communicant has sought to hold a religious officer liable in tort for [an unauthorized disclosure of confidential communications].

It saw no reason why clergy and church leaders should not be held legally accountable for injuries they inflict when they disclose confidential information to others without consent. Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 1989).

Yes

Kansas

The Kansas Supreme Court ruled that a pastor and his employing church were not liable for the pastor’s disclosure of confidential information obtained during marital counseling.

The court concluded that to the extent the plaintiff’s claims were based on the pastor’s providing spiritual counseling, “we decline to find a fiduciary relationship based on the spiritual nature of the relationship alone.” Further, the court concurred with cases “which hold that a minister’s duty of confidentiality is a moral, not a legal, obligation.” Horosko v. Jones, 2004 WL 2926665 (Kan. 2004).

No

Louisiana

An adult male (the “plaintiff”) received counseling from the pastor of his church “regarding resolution of conflict between himself and his sisters resulting from physical and sexual abuse conducted by their father.”

The pastor told church leaders that the plaintiff could not serve on a church committee because he “is messed up because he has been sexually abused by his father.”

The plaintiff sued his pastor and church on the basis of malpractice, infliction of emotional distress, and violation of the clergy privilege.

A Louisiana court dismissed the lawsuit. It noted that the clergy privilege is a rule of evidence and “does not create causes of action or other substantive rights.” Therefore, the plaintiff was not entitled to monetary damages as a result of the pastor’s disclosure of confidential information he acquired during a conversation protected by the privilege. Lann v. Davis, 793 So.2d 463 (La. App. 2001).

No

Michigan

A Michigan court ruled that a minister could not be sued for breaching a “duty of confidentiality” by disclosing to the congregation information that was communicated to him by a member in the course of a confidential counseling session.

A church member confessed to his pastor that he had previously committed adultery with prostitutes. The pastor decided to communicate this information to the entire congregation, including the member’s wife, family, and friends.

The member sued his pastor and church, alleging that the pastor’s disclosure amounted to a breach of the duty of confidentiality. He insisted that the clergy-penitent privilege imposes upon clergy a “duty of confidentiality,” and that clergy who disclose confidences without permission may be sued for breaching this duty.

The court disagreed, noting that the clergy-penitent privilege is a “rule of evidence that did not create a cause of action for disclosure of private or privileged communications.” Smith v. Calvary Christian Church, 592 N.W.2d 713 (Mich. App. 1998).

No

New York

A New York court ruled that two rabbis could not be sued for breaching a “duty of confidentiality” as a result of their disclosure of confidential information shared with them by a counselee since there was a third person present during the counseling sessions.

Further, the court ruled that the clergy-penitent privilege does not impose a “fiduciary duty of confidentiality” upon clergy. Lightman v. Flaum, 717 N.Y.S.2d 617 (2000).

No

Ohio

A church member (the “plaintiff”) met with his pastor for marital counseling. He confessed to having been involved in several affairs during his marriage, and that he was currently having an affair.

The minister disclosed these confessions to plaintiff’s wife and suggested that she obtain a restraining order and seek a divorce.

An Ohio court allowed the plaintiff to sue his pastor for negligence. It observed: “Public policy supports an action for breach of confidentiality by a minister. There is a public policy in favor of encouraging a person to seek religious counseling. People expect their disclosures to clergy members to be kept confidential.” Alexander v. Culp, 705 N.E.2d 378 (Ohio App. 1993).

Yes

Texas

The Texas Supreme Court ruled that the First Amendment guaranty of religious liberty prevented it from resolving a dismissed church member’s claim that her pastor committed “professional negligence” by using information she shared with him in confidence as the basis for disciplining her.

The court concluded: “The secular confidentiality interest the plaintiff’s professional negligence claim advances fails to override the strong constitutional presumption that favors preserving the church’s interest in managing its affairs. She voluntarily became a member of the church body and agreed to abide by the church constitution; indeed, she expressed that she did so willingly. That constitution outlined the disciplinary process that would be followed if a member engaged in conduct that the church considered inappropriate. The pastor … assumed an obligation to the plaintiff and to the congregation to follow the church’s constitution. Although the plaintiff contends pastoral counseling is not at issue because she did not receive marital counseling from the pastor in his capacity as a member of the clergy, the publication about which she complains was made in the course of the church disciplinary process and communicated by the pastor pursuant to the requirements of that process.” Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).

No

Legal Developments

Clergy-Penitent Privilege May Not Protect Church Elders Who Did Not Report Child Abuse Case

State’s definition of clergy narrowly defined

Richard R. Hammar, Attorney, CPA

Bio

State: Delaware
Categories: Child Abuse Reporting, Confidential and Privileged Communications

Key point 3-08.08. Clergy who are mandatory reporters of child abuse are excused from a duty to report in many states if they learn of the abuse in the course of a conversation covered by the clergy-penitent privilege. Some state child abuse reporting laws do not contain this exception.

A Delaware court ruled that the clergy-penitent privilege did not necessarily protect two church elders who failed to report a case of child abuse that was shared with them by the victim and his mother.

In 2013, a juvenile member (the "victim") of a church reported to his mother that he was engaged in a sexual relationship with an adult female church member. Two church elders met with the victim and his mother at the church. The elders were informed of the sexual relationship. They later spoke with the adult member who confirmed that the relationship occurred. Both the victim and the perpetrator were "disfellowshipped" (excommunicated) from the congregation. The elders did not report the child abuse under the procedures established by the state child abuse reporting law. The state of Delaware assessed civil penalties against the church and its two elders (the "defendants").

The defendants asked a trial court to dismiss the state's demand for civil penalties on the basis of section 909 of the Delaware child abuse reporting statute, which provides:

No legally recognized privilege, except that between attorney and client and that between priest and penitent in a sacramental confession, shall apply to situations involving known or suspected child abuse, neglect, exploitation or abandonment and shall not constitute grounds for failure to report as required by § 903 of this title or to give or accept evidence in any judicial proceeding relating to child abuse or neglect.

The court noted that section 909 "is a narrow exception to the duty to report child abuse or neglect. It is the religious equivalent of the attorney/client privilege. The obvious purpose of these privileges is to balance free and candid communications with legal or religious advisors, with the public mandate to prevent and prosecute child abuse."

The court noted that if the terms "priest," "penitent," and "sacramental confession" were narrowly interpreted, "only certain religions would be entitled to take advantage of the section 909 exception. The exception only would apply to "denominations that title their clergy 'priests,' refer to parishioners as 'penitents,' and officially recognize a sacrament called 'confession.' Clearly, such an interpretation would compel a finding that section 909 is in violation of the [Constitution] since carving out an exception only for certain denominations would impermissibly grant a preference to some religious societies, denominations, or modes of worship. If section 909 were to be interpreted narrowly, the effect would be to advance certain religions over others."

The court concluded that "to avoid a finding that section 909 is unconstitutional, the statute may be interpreted more generically." For example, "priest" could be interpreted to include any member of the clergy. A "penitent" could refer to any person who seeks spiritual counsel from a minister. And, a "confession" could refer to any confidential conversation with a minister for the purpose of absolution or spiritual counsel.

The court noted that there were two conversations at issue in this case.

Conversation 1

The first conversation was among the victim, his mother, and the two elders. The court concluded that this conversation was not necessarily privileged, and therefore it could not agree with the defendants' request to dismiss the state's attempt to assess civil penalties for violation of the child abuse reporting statute:

The section 909 privilege applies only when the purpose of the conversation is for penitence. The affidavits supplied by defendants leaves open certain questions of fact. What was the motivation of the victim and his mother in bringing the sexual relationship to the attention of the elders? Was the intention to report misconduct to church officials, or to confess sinful behavior and thus to obtain absolution? The fact that the victim was excommunicated may indicate that he did not come voluntarily to the meeting, or that he did not reveal the information with the understanding that his repentance might result in the absolution that ordinarily is associated with a sacramental confession.

Conversation 2

The court also noted that the circumstances and motivation of the perpetrator were in question. The defendants' affidavits indicate that the conversation was demanded by the elders as part of a disciplinary process. If the meeting with the elders was not initiated by the perpetrator, "she may not be deemed to be a penitent. If the purpose of this meeting was for the elders to investigate alleged child abuse, this conversation may not be a sacramental confession."

What this means for churches

This case is relevant to church leaders for the following reasons.

First, it demonstrates that clergy-privilege statutes that use restrictive terminology (i.e., priest, penitent, sacramental confession) are constitutional only if they are interpreted broadly to encompass confidential spiritual counseling involving ministers.

Second, the case illustrates the potentially negative consequences that may accompany decisions by church leaders not to report child abuse. Those consequences include the following:

1. Persons who are mandatory reporters of child abuse under state law are subject to criminal prosecution for failure to report. Some clergy have been prosecuted for failing to file a report. Criminal penalties for failing to file a report vary, but they typically involve short prison sentences and small fines. The important point to note is that the legal duty to report is not excused by a church policy of handling such cases.

2. Ministers who are mandatory child abuse reporters under state law may face civil liability for failing to report abuse, if (1) no clergy-penitent privilege exception exists under state law, or (2) such an exception exists, but information concerning child abuse is not obtained in the course of a privileged conversation. Note that the application of the clergy-penitent privilege can be a complex legal question since there are specific requirements that must be met. The communication must be in confidence; it must be made to a minister; and it must be made for the purpose of seeking spiritual counsel. While in some cases the application of the privilege seems clear, in many cases it is not, and so clergy should seek legal counsel if there is any doubt as to the existence of a clergy-penitent privilege exemption and its application to a particular conversation.

In some cases, civil liability for failure to report is based on court rulings. But, seven states have enacted laws that create civil liability for failure to report child abuse. In these states victims of child abuse can sue adults who failed to report the abuse. Not only are adults who fail to report abuse subject to possible criminal liability (if they are mandatory reporters), but they also can be sued for monetary damages by the victims of abuse. In each state, the statute only permits victims of child abuse to sue mandatory reporters who failed to report the abuse. No liability is created for persons who are not mandatory reporters as defined by state law. These seven states are: Arkansas, Colorado, Iowa, Michigan, Montana, New York, and Rhode Island. State v. Laurel Delaware Congregation, 2016 WL 369355 (Del. App. 2016).

Legal Developments

Incriminating Statements Made to Pastor Not Confidential Due to Public Setting, Retelling to Others

Church Law and Tax Report Incriminating Statements Made to Pastor Not Confidential Due to Public

State: Illinois
Categories: Confidential and Privileged Communications

Church Law and Tax Report

Incriminating Statements Made to Pastor Not Confidential Due to Public Setting, Retelling to Others

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 3-07.5. 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 incriminating statements made to a pastor by a murder defendant’s former spouse were properly allowed in evidence by a trial judge because they were not made in confidence, and therefore, the clergy privilege did not apply. In 2009, the State of Illinois charged a defendant with the first degree murder of his third ex-wife (Kathleen) who had been found dead in a bathtub in her home. Because the defendant was a police officer in the same town, a separate, independent agency, the Illinois State Police, was called in to investigate the death. A pathologist performed an autopsy and concluded that Kathleen had drowned. An inquest was later held, and a coroner’s jury found that the death was accidental. No criminal charges were filed.

A few years later, the defendant’s fourth wife disappeared. At the time of the disappearance, the couple had been discussing a divorce. Following the disappearance, Kathleen’s body was exhumed and two additional autopsies were conducted. Both pathologists separately concluded that the death was a homicide.

The case proceeded to a jury trial in July 2012. At the time of the trial, the defendant was represented by a team of six attorneys. The trial lasted over seven weeks. The trial court allowed a pastor to testify about things the defendant’s missing fourth wife had shared with him that directly implicated the defendant in the death of Kathleen.

The trial court allowed the pastor to testify on the basis of its conclusion that the pastor’s conversation with the defendant’s fourth wife was not protected against disclosure by the clergy-penitent privilege. The jury found the defendant guilty of the first-degree murder of Kathleen, and the defendant appealed.

On appeal, the defendant argued that the trial court had erred in ruling that the clergy-penitent privilege did not apply to statements made by the defendant’s fourth wife to her pastor. The defendant claimed that the trial court’s ruling was based on: (1) an erroneous interpretation of the law on the clergy privilege—that the counseling session had to take place in private or at a private place, as compared to merely being confidential, and that the clergy privilege did not apply to marital counseling; and (2) an erroneous determination that the requirements for the privilege had not been satisfied because the counseling was not for the purpose of unburdening one’s soul and because the church in this case had no formalized process for doing so.

On appeal, the state argued that the trial court’s ruling was proper and should be affirmed. In support of this argument, the state asserted that: (1) the clergy privilege did not apply because the defendant’s fourth wife had no expectation of privacy in a conversation with the pastor that took place in a public place/public setting where it could have been overheard by a third person; (2) defendant failed to establish that the requirements necessary for invoking the privilege were present; (3) the nature of the counseling—marital counseling in which the fourth wife was not making an admission or confession for the purpose of unburdening her soul but, rather, was seeking marital advice—was such that it did not qualify for the privilege; (4) even if the fourth wife’s conversation with the pastor was a confession or an admission, no clergy privilege existed because the pastor’s church did not have any formalized rules or practices which would have governed him in hearing the wife’s statements; and (5) if any clergy privilege did exist, the wife waived that privilege when she told others the same information.

In response to those assertions, the defendant claimed that: (1) the clergy privilege does apply to marital counseling; (2) the crucial inquiry is whether the statement was given in confidence, not whether the statement was given in a public place or within possible hearing range of a third party; and (3) the defendant’s fourth wife asserted the privilege when she asked the pastor not to tell anyone about their conversation.

The court quoted the clergy privilege under Illinois law:

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 … 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 court then explained:

The clergy privilege belongs to both the individual making the statement and the clergy member … . The party seeking to invoke the clergy privilege bears the burden of showing that all of the underlying elements required for the privilege to apply have been satisfied … . To fall under the protection of the clergy privilege, the “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 privilege applies only to admissions or confessions made in confidence. In deciding whether the admission or confession was made in confidence, the perception of the person making the statement is not determinative in and of itself. Furthermore, an admission or confession is not privileged if it was made to a clergy member in the presence of a third person unless that person was indispensable to the counseling or consoling activity of the clergy member. If the clergy member does not object to testifying, the burden is on the person asserting the privilege to show that disclosure is prohibited by the rules or practices of the particular religion involved … . In addition, the person who made the statement may waive the privilege by communicating the admission or confession to nonprivileged parties.

The court concluded:

Upon a review of the record in the present case, we conclude that the trial court did not err in finding that the clergy privilege was inapplicable to the pastor’s testimony about what the defendant’s fourth wife had told him at her counseling session. The trial court found that the conversation … was not confidential and that finding was not against the manifest weight of the evidence. The meeting took place in public with at least one other person present, although not directly. At the end of the meeting the pastor asked her what she wanted him to do with the information she had given him, a question that would have been unnecessary if nondisclosure of the communication was mandated by the rules of the church. Indeed, the pastor himself eventually approached the police and revealed the conversation to them. In addition, he never asserted the privilege or refused to testify about the matter, and there is no indication that the church itself had any formalized rules or procedures prohibiting him from disclosing what the wife had told him. Thus, even if we assume for arguments sake that the privilege applies to marital counseling in general, it would not have applied to the conversation in this case because the conversation was not confidential. Therefore, we need not determine whether the privilege applies to marital counseling in general or whether defendant has standing to assert the privilege in this case.

What This Means For Churches:

This case is instructive for two reasons.

First, clergy privilege only applies to confidential communications between a member of the clergy and a penitent seeking spiritual counsel. In most states, the clergy privilege statute does not define the essential element of confidentiality. But this court, and many others, have defined confidentiality to mean the absence of third parties during the counseling session.

The key point is this: clergy often provide spiritual counsel to a person in the presence of a third party. Examples include marital counseling with both spouses present; counseling a minor with a parent present; counseling a member of the opposite sex with a third party present for accountability purposes; and counseling someone who is accompanied by a friend for moral support. Clergy should know how “confidentiality” is defined in their state so they are able to inform counselees of the consequences of having a third party present during counseling sessions.

Note that the clergy privilege in some states defines “confidentiality” to mean the absence of third persons except those who are present “in furtherance of” the counseling. This would include some or all of the examples recited above.

Second, the Illinois clergy privilege only applies to “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.” The court noted that this requirement was met only if the pastor’s church had “formalized rules or practices which would have governed him in hearing the wife’s statements.” The court concluded that the pastor’s church had adopted no such formalized rules or practices and therefore statements made in confidence to the pastor in the course of spiritual counseling could not be privileged. This is an extremely narrow and technical interpretation of the clergy privilege that is not shared by any other state. In the meantime, it would be prudent for churches in Illinois to adopt a written policy recognizing the clergy privilege to ensure, as much as possible, its availability and application. People v. Peterson, 47 N.E.3d 1005 (Ill. App. 2015).

State	Case	Liable?
Arizona	A woman sought out a pastor for counseling. Confided highly personal and private matters including the fact that her father had sexually molested her and her sister. The sister later married the pastor’s son and accused him of infidelity. In an attempt to defend his son, the pastor told the board and congregation that the sister could not be believed because her family was “incestuous” and “dysfunctional.” The sister sued the pastor and the church for invasion of privacy, defamation, malpractice, and breach of fiduciary duty. An Arizona court concluded that the pastor offered “no good reason for insulating a counselor from liability for betraying clients’ confidences to their detriment merely because the counselor is a clergy member.” Barnes v. Outlaw, 937 P.2d 323 (Ariz. App. 1996).	Yes
California	Pastor confessed to denominational officers about inappropriate conduct; assurance of confidentiality. Denominational officers shared a minister’s confession with a church’s pastoral search committee. The court acknowledged that it could find no previous case in which “a counselee or communicant has sought to hold a religious officer liable in tort for [an unauthorized disclosure of confidential communications]. It saw no reason why clergy and church leaders should not be held legally accountable for injuries they inflict when they disclose confidential information to others without consent. Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 1989).	Yes
Kansas	The Kansas Supreme Court ruled that a pastor and his employing church were not liable for the pastor’s disclosure of confidential information obtained during marital counseling. The court concluded that to the extent the plaintiff’s claims were based on the pastor’s providing spiritual counseling, “we decline to find a fiduciary relationship based on the spiritual nature of the relationship alone.” Further, the court concurred with cases “which hold that a minister’s duty of confidentiality is a moral, not a legal, obligation.” Horosko v. Jones, 2004 WL 2926665 (Kan. 2004).	No
Louisiana	An adult male (the “plaintiff”) received counseling from the pastor of his church “regarding resolution of conflict between himself and his sisters resulting from physical and sexual abuse conducted by their father.” The pastor told church leaders that the plaintiff could not serve on a church committee because he “is messed up because he has been sexually abused by his father.” The plaintiff sued his pastor and church on the basis of malpractice, infliction of emotional distress, and violation of the clergy privilege. A Louisiana court dismissed the lawsuit. It noted that the clergy privilege is a rule of evidence and “does not create causes of action or other substantive rights.” Therefore, the plaintiff was not entitled to monetary damages as a result of the pastor’s disclosure of confidential information he acquired during a conversation protected by the privilege. Lann v. Davis, 793 So.2d 463 (La. App. 2001).	No
Michigan	A Michigan court ruled that a minister could not be sued for breaching a “duty of confidentiality” by disclosing to the congregation information that was communicated to him by a member in the course of a confidential counseling session. A church member confessed to his pastor that he had previously committed adultery with prostitutes. The pastor decided to communicate this information to the entire congregation, including the member’s wife, family, and friends. The member sued his pastor and church, alleging that the pastor’s disclosure amounted to a breach of the duty of confidentiality. He insisted that the clergy-penitent privilege imposes upon clergy a “duty of confidentiality,” and that clergy who disclose confidences without permission may be sued for breaching this duty. The court disagreed, noting that the clergy-penitent privilege is a “rule of evidence that did not create a cause of action for disclosure of private or privileged communications.” Smith v. Calvary Christian Church, 592 N.W.2d 713 (Mich. App. 1998).	No
New York	A New York court ruled that two rabbis could not be sued for breaching a “duty of confidentiality” as a result of their disclosure of confidential information shared with them by a counselee since there was a third person present during the counseling sessions. Further, the court ruled that the clergy-penitent privilege does not impose a “fiduciary duty of confidentiality” upon clergy. Lightman v. Flaum, 717 N.Y.S.2d 617 (2000).	No
Ohio	A church member (the “plaintiff”) met with his pastor for marital counseling. He confessed to having been involved in several affairs during his marriage, and that he was currently having an affair. The minister disclosed these confessions to plaintiff’s wife and suggested that she obtain a restraining order and seek a divorce. An Ohio court allowed the plaintiff to sue his pastor for negligence. It observed: “Public policy supports an action for breach of confidentiality by a minister. There is a public policy in favor of encouraging a person to seek religious counseling. People expect their disclosures to clergy members to be kept confidential.” Alexander v. Culp, 705 N.E.2d 378 (Ohio App. 1993).	Yes
Texas	The Texas Supreme Court ruled that the First Amendment guaranty of religious liberty prevented it from resolving a dismissed church member’s claim that her pastor committed “professional negligence” by using information she shared with him in confidence as the basis for disciplining her. The court concluded: “The secular confidentiality interest the plaintiff’s professional negligence claim advances fails to override the strong constitutional presumption that favors preserving the church’s interest in managing its affairs. She voluntarily became a member of the church body and agreed to abide by the church constitution; indeed, she expressed that she did so willingly. That constitution outlined the disciplinary process that would be followed if a member engaged in conduct that the church considered inappropriate. The pastor … assumed an obligation to the plaintiff and to the congregation to follow the church’s constitution. Although the plaintiff contends pastoral counseling is not at issue because she did not receive marital counseling from the pastor in his capacity as a member of the clergy, the publication about which she complains was made in the course of the church disciplinary process and communicated by the pastor pursuant to the requirements of that process.” Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).	No

Archdiocese seeks ‘clergy-penitent’ privilege protection for key email exchange

Court: Email exchange did not involve spiritual matters

What this means for churches

The trial court said the pastor’s testimony was admissible

Appeals court: The trial court erred

What this means for churches

What Pastors Need to Know About Reporting Abuse

Background

The Iowa Supreme Court addressed the plaintiff’s claims

The duty of confidentiality

Defamation

What this means for churches

Background

The conversation with the pastor

The conversation with the church volunteer

What this means for churches

No reason to believe “the defendant expected any confidentiality”

What this means for churches

The defendant communicated with his pastor “as a friend”

What this means for churches

The defendant is given a 15-year sentence by a trial court

Appeals court: “spiritual guidance” was not the sole purpose of meeting

What this means for churches

Background

Trial court: pastor could testify

Disclosing “a significant part of the privileged matter” to others

What this means for churches

Victim 1

Victim 2

Victim 3

Victim 4

Negligent response to sexual abuse allegations

Negligent investigation

Negligent supervision

Defamation claims

What this means for churches

What This Means For Churches:

What this means for churches

What This Means For Churches

What this means for churches

Cases Addressing the Liability of a Church or Pastor for the Pastor’s Disclosure Of Confidential Information

What this means for churches

Incriminating Statements Made to Pastor Not Confidential Due to Public Setting, Retelling to Others

What This Means For Churches:

What this means or churches

What This Means For Churches:

What This Means For Churches:

Federal Court Notes Limits and Protections of Psychotherapist-Patient Privilege and Clergy-Penitent Privilege

Psychotherapist-patient privilege

“Clergy-communicant” privilege

What This Means For Churches:

(1) confidential

(2) made to a minister

(3) for the purpose of seeking spiritual advice

(4) waiver

What This Means For Churches:

Cases Addressing the Liability of a Church or Pastor for
the Pastor’s Disclosure Of Confidential Information