Confidential and Privileged Communications

Legal Developments

Clergy-Penitent Privilege Invalid in Murder Case

Deacon allowed to testify about murder suspect’s confession.

Richard R. Hammar, Attorney, CPA
Bio

Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Key point 3-07.4. 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 New York court ruled that the clergy-penitent privilege did not apply to a murder suspect's confession to a detective who also was a church deacon, and therefore the detective could testify about the conversation at the defendant's trial. Two persons were injured and one killed in a shooting outside an apartment building. A few days later an adult male contacted a police detective who was a deacon at the same church that he attended, and asked to meet with him and his brother (the defendant) at a local restaurant. The detective agreed, and drove to the restaurant. As he was parking his car, he was approached by the defendant and his brother, and their aunt. The defendant was crying and the detective asked him what he wanted to talk about. The defendant said that he wanted to talk and that he was under a lot of pressure. The defendant and the detective got into the rear seat of the car, leaving the door open. The aunt got into the front passenger seat, and the defendant's brother stood outside, leaning into the open door.

Inside the car, the defendant repeated that he was under a lot of pressure and said that he did not mean for this to happen. He said he heard a noise or a commotion the night of the shooting and was worried about his brother. He went downstairs and asked if his brother was okay. He heard the shots and "just fired." He said that he was trying to protect his brother. He got rid of the gun afterwards. He said he was not a bad person, that it was an accident, and that he could not eat or sleep. He said that it was on his conscience and that he did not want to go to hell. The defendant said that his deceased mother was looking down on him and asked to go to the church to pray. The detective said that the church was closed and prayed with the defendant inside the car. The prayer was a brief petition for God's assistance and it lasted one or two minutes. After the prayer, the detective suggested that the defendant turn himself in. The defendant said that he would do so if the detective went with him. The detective then drove the defendant and his aunt to the nearest police precinct. The defendant was charged with second degree murder and a firearms offense. The defendant asked the court to bar the detective from testifying about their conversation on the ground that their conversation occurred while the detective was acting in his role as a deacon, and as such it was protected by the clergy-penitent privilege.

The New York clergy privilege states:

Unless the person confessing or confiding waives the privilege, a clergyman or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor.

The court noted that for a communication to fall within this privilege, it must meet four criteria: "(1) it must be confidential; (2) it must be made to a minister or clergy member acting in a professional character as a spiritual advisor; (3) it must be made for the purpose of seeking spiritual advice or religious counsel; and (4) it must not be waived by the person making the confidential statement. As the person asserting the privilege, the defendant, has the burden of establishing that all four criteria are met." The court concluded that the defendant's conversation with the detective was not privileged according to its four-part test.

(1) confidential

The court concluded that "there was no showing that the statements were confidential as they were made in the presence of both the defendant's aunt and his brother …. Exceptions to this general rule have been made only when the third party is essential to the communication, such as an interpreter, or serving as an agent of the person seeking counsel or the person giving it." The test for whether a third party's presence negates the privilege is "whether, in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential." The court concluded:

Here, the defendant never sought to speak privately with the detective, although he easily could have done so, either by coming alone to the meeting or by having his family members remain outside the car while he spoke to the detective. Nothing in this record suggests that the family members were needed to assist the defendant in communicating with the officer. Therefore, his statements were neither intended to be confidential when made nor actually made in confidence, and are, therefore, not privileged.

(2) made to a minister

The court concluded that the detective's status as a deacon did not make him a minister for purposes of the privilege:

While the statute was drafted to apply to a broad array of clergy of all denominations and faiths, its application is limited to clergy who perform "significant spiritual counseling which may involve disclosure of sensitive matters." Although the detective had the title of deacon, his duties within the church were purely administrative: he was in charge of music, events planning, church maintenance, and some youth activities. He was not trained in counseling, had never been approached by a church member for advice on anything other than minor personal matters, and testified that, as a deacon, it was "not his position" to talk with parishioners about their sins or to give spiritual guidance. Moreover, the church in which the detective was a deacon, had several persons who acted in a counseling and spiritual advisor capacity. These included the Pastor, who ran the church and who ordained or appointed the other church officials, and several ministers whose duties were to preach, to counsel and to witness to people. Therefore, the detective's role as a deacon in this particular church was not that of a clergy person as defined by the statute.

(3) for the purpose of seeking spiritual advice

The court concluded that there was no indication that the defendant was seeking spiritual advice when he met with the detective:

Neither the brother nor the defendant sought to meet inside the church or otherwise indicated to the detective that the defendant was seeking spiritual, rather than practical, advice …. Although the defendant did express that the shooting was on his conscience, that he did not want to go to hell, and that he wanted to pray at the church, he did not say any of these things until after he had already told the detective that he had accidentally shot his friend while trying to protect his brother. By first revealing his problem and only later asking for prayer or some kind of spiritual solace, it is clear that the defendant's original reason for speaking to the detective was not to seek religious advice or spiritual counsel, but to ask a sympathetic member of law enforcement for practical counsel on his situation …. Moreover, because the defendant and his family members had attended or belonged to the church and because his aunt held an office within the church, the defendant was fully aware of the roles of the different church officials and also fully aware of the detective's dual roles both within the church and as a detective. Therefore he knew when he confessed to the shooting that he was not speaking to a member of the clergy at this church who would ordinarily give spiritual guidance or counseling.

(4) waiver

The court noted that waiver of a privilege occurs "when the person making the otherwise privileged statement reveals to a third party both the statement's contents and the fact that it was made to the clergy member." By speaking in front of his aunt and brother, "the defendant effectively waived any claim of privilege."

What This Means For Churches:

There are two noteworthy aspects to this case.

The first aspect is that 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. The first definition is the Uniform Rules of Evidence adopted by most states, 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. 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."

The second definition is to define, as a minority of state clergy-penitent laws have, 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 New York clergy privilege is not based on the Uniform Rules of Evidence, and does not specifically preclude the presence of third parties. Nevertheless, the court defined "confidential" to mean an absence of third persons, noting that the test for whether a third party's presence negates the privilege is "whether, in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential."

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 law is construed to mean the absence of third persons.

The second noteworthy aspect of this case is that the court concluded that in deciding if the defendant's confession to the detective 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 detective 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. People v. Harris, 934 N.Y.S.2d 639 (N.Y. Sup. 2011).

Legal Developments

Conversations Shouldn’t Have Been Used for Prosecution

Man’s confession of child abuse to pastor shouldn’t have been used as evidence in court, under clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Court Rules Conversations Shouldn’t Have Been Used in Case

Man’s confession of child abuse to pastor shouldn’t have been used as evidence in court, under clergy-penitent privilege.

Richard R. Hammar

* The New Jersey Supreme Court ruled that a criminal defendant’s conversations with a pastor were protected by the clergy-penitent privilege and therefore should not have been introduced as evidence by a trial court in the defendant’s prosecution for child abuse. Two minor girls reported to their mother that their father (the “defendant”) had sexually abused them. The mother then contacted her pastor and reported the children’s allegations. Believing he had a duty to protect the defendant’s wife and children, the pastor called the defendant at work to tell him he should not go back to his home. The defendant met with the pastor outside the pastor’s home. The pastor later recounted that “without directly saying [he] sexually molested them … he acknowledged what he did.” The defendant asked for counseling, but the pastor refused because he was “too angry” and the defendant needed psychological help which he was not qualified to give. A few weeks later, the defendant went to the pastor’s church where he again “acknowledged what he did.” The defendant asked the pastor to baptize him, but the pastor declined. The pastor urged him to turn himself into the police.

The defendant was later charged with criminal sexual abuse of his daughters. At a pretrial hearing the pastor testified about his conversations with the defendant, including the defendant’s confession. A trial judge ruled that the pastor’s testimony was covered by the clergy-penitent privilege and could not be used at trial. A state appeals court reversed the trial court’s ruling, and concluded that the clergy-penitent privilege did not apply in this case because the circumstances surrounding the communications did not demonstrate that they were made in confidence to the pastor in his role as a spiritual advisor.

On appeal, the state supreme court reversed the appellate court’s decision, and ruled that the clergy-penitent privilege did apply.

The supreme court began its opinion by noting that “this case involves what has been described as the most privileged of all communications: private conversations between a penitent and a cleric. Specifically, we are called on to clarify the standard for deciding when the cleric-penitent privilege may be invoked.” It added, “The privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. Thus, the underlying rationale for the privilege is the public interest in fostering the cleric-penitent relationship.”

The New Jersey clergy-penitent privilege statute provides:

Any communication made in confidence to a cleric in the cleric’s professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric’s professional or spiritual counseling role.

The privilege belongs to both the cleric and the person making the communication, and either can invoke it. N.J.S.A. 2A:84A-23; N.J.R.E. 511.

The court noted that this language could be summarized in a three-part test. A communication is privileged if “an objectively reasonable penitent, under the totality of the circumstances,” would conclude that a communication was made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor. The court concluded that all three elements were met in this case, and therefore the defendant’s conversations with the pastor were protected by the clergy-penitent privilege.

Application. This ruling demonstrates that the availability of the clergy-penitent privilege will depend on whether or not the minister was being sought out in a professional capacity as a spiritual advisor. 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 the following question, “Are you seeking me out in my professional capacity as a spiritual advisor, 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. State v. J.G., 990 A.2d 1122 (N.J. 2010).

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Clergy-Penitent Privilege Doesn’t Apply in Molestation Case

Pastor’s account stands because statements made by member weren’t confidential; privilege had been waived.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax Report

Clergy-Penitent Privilege Doesn’t Apply in Molestation Case

Pastor’s account stands because statements made by member weren’t confidential; privilege had been waived.

Richard R. Hammar

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 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.

* An Iowa court ruled that the clergy-penitent privilege did not apply to incriminating statements made by a church member to his pastor since the statements were not confidential and any privilege had been waived. A single mother frequently used a 28-year-old male (the “defendant”) to babysit her three minor sons. After several months, the defendant began watching the boys in his own residence, and eventually the boys were staying with the defendant overnight at his apartment almost every weekend. The defendant engaged in frequent acts of sexual molestation with all three boys. One of the boys finally decided to tell his mother about what the defendant had been doing, and by the time he told her, the molestation had been going on for about a year. This victim stated that he had not disclosed the molestation sooner because he was afraid that the defendant would hurt him.

The boys’ mother contacted her pastor and informed him about the boys’ allegations. After church services the following Sunday evening the pastor and one of the church deacons met with the defendant, who also attended the church, to discuss the boys’ allegations. When the pastor asked him what should be done about the situation the defendant replied that he would need to “get saved.” The pastor spoke with the defendant again the following Wednesday at church; the defendant asked if he could go before the church to apologize for “what he had done.” The pastor told him he could not. The two met again the next Saturday. A church deacon was present at this meeting as well. The pastor discussed possible church disciplinary actions at this meeting.

The pastor testified at the defendant’s trial, describing the incriminating statements the defendant made during their meetings at the church. The defendant was convicted on all counts, and appealed his conviction on the ground that his pastor’s testimony should not have been permitted since all of his conversations with his pastor were protected from disclosure by the clergy-penitent privilege.

the clergy-penitent privilege

The appeals court began its opinion by quoting the Iowa statute recognizing the clergy-penitent privilege: “A member of the clergy shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person’s professional capacity, and necessary and proper to enable the person to discharge the functions of the person’s office according to the usual course of practice or discipline.” Iowa Code § 622.10(1). The statute further provides that the privilege does not apply to cases where the person in whose favor the prohibition is made waives those rights.

The court concluded: “In order to [be privileged] a communication to a member of the clergy must be: (1) confidential; (2) entrusted to a person in his or her professional capacity; and (3) necessary and proper for the discharge of the function of the person’s office.” The court concluded that for the following reasons the defendant’s communications with the pastor were not confidential:

First, the pastor testified he did not consider either of his meetings with the defendant to be confidential and did not ever tell the defendant, or lead him to believe, they were going to be confidential. The pastor testified he did not consider the meeting confidential because a third person was present. The pastor discussed the meeting with his wife, other deacons, his former pastor, and the boys’ family. He testified that if he believed the meeting to be confidential or privileged he would not have shared it with all of these people. Second, the pastor made it clear to the defendant that the scripture says the church falls under the legal system so if a law had been broken it was his responsibility to turn the matter over to the legal system and it would then be for the authorities to deal with this as need be. Finally, the pastor testified that the defendant himself generally knew of the church’s discipline procedure and the fact that if the defendant were found to have done something that “brings public reproach to the name of Christ” the person either goes before the church to publicly apologize or the pastor makes a recommendation and the church as a whole votes on the matter. Thus, the defendant was aware that his statements would not be kept confidential based on these church practices. At their Saturday meeting the pastor specifically told the defendant that it was going to be a matter of church discipline and the defendant continued to discuss the matter with the pastor. Furthermore, the pastor told the defendant the matter might be discussed with the police, the Department of Human Services, or both, also indicating to the defendant the statements were not considered to be confidential. Accordingly, we agree with the district court that the defendant’s communications with the pastor were not confidential in nature and thus do not fall within the purview of the priest-penitent privilege.

The court also noted that the first meeting was initiated by the pastor, not the defendant, and “the defendant merely thought the pastor wanted to speak with him about a possible job.” The pastor testified the meeting was “not him coming to me to confess. It was me confronting him.” The meeting was to investigate the allegations that had been made by the boys. The pastor specifically denied that at least the first part of the meeting dealt with spiritual needs. As a result, “the pastor did not intend, and the defendant did not consider, the meeting to be for the defendant to confess to the pastor or to be for spiritual or pastoral purposes.”

waiver

The court noted that even if the conversations between the pastor and defendant were privileged, the defendant waived the privilege when he made the statements in the presence of third parties. The court explained that “although all the necessary elements for a communication to be privileged may be met, the privilege may be lost if the otherwise privileged statements are made in the presence of a third person.” The court clarified that “the presence of a third person during an otherwise confidential communication does not automatically destroy the privilege.” For example, “if the third person is present to assist in the discharge of another’s professional function or the third person’s presence is in some other way necessary, then the privilege will protect confidential communications made in the presence of the third person.”

The court noted that a deacon was present at both of the defendant’s meetings with the pastor. It concluded:

Thus, unless it can be shown the deacon’s presence was to assist the pastor in the discharge of his pastoral functions or was otherwise necessary in order for the pastor to discharge his pastoral duties, any priest-penitent privilege the defendant would have was waived. The pastor testified that none of the deacons in their church provide any kind of counseling services in an official capacity, they have no special responsibilities in the church, and that they were at the meeting simply as witnesses and not to aid in any kind of spiritual advisement. Further, the pastor testified he believed the presence of the deacons was fatal to any claim that the communications with him were privileged. We conclude the deacons’ presence at the meetings was not to assist the pastor in the discharge of his pastoral functions or otherwise necessary to the discharge of his pastoral duties. Thus, their presence at the meetings waived any potential priest-penitent privilege.

Application. This case illustrates two important points. First, not all conversations between a pastor and church member are privileged. The court concluded that the defendant’s conversations with his pastor in this case were not confidential and therefore not privileged for the following reasons:

  • The conversations were initiated by the pastor, not the defendant, to investigate the mother’s allegations of child abuse.
  • The defendant did not initiate the conversations for the purpose of seeking spiritual counsel.
  • A third person (a deacon) was present during both conversations.
  • The pastor did not consider the conversations to have been privileged, as illustrated by his disclosure of the substance of the conversations to others.
  • The defendant was familiar with the church’s disciplinary procedure which requires the pastor to inform the congregation of the nature of a disciplined member’s infractions.
  • The pastor informed the defendant that he might have to discuss the matter with the police or Department of Human Services.

Second, even if the conversations were privileged, any privilege was waived because of the presence of a third party. 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.”

But some states have adopted a clergy-penitent privilege not based on the Uniform Rules of Evidence, and in these states the presence of a third party may preclude the privilege. This Iowa court’s decision is important because the Iowa privilege is not based on the Uniform Rules of Evidence and yet the court acknowledged that the presence of a third person during a conversation between a pastor and church member does not necessarily preclude the privilege. The key consideration, according to the Iowa court, is whether “the third person is present to assist in the discharge of another’s professional function or the third person’s presence is in some other way necessary.” The court concluded that the deacon’s presence during the defendant’s conversations with the pastor did not qualify for this exception since the deacon’s presence was not necessary in order for the pastor to discharge his pastoral duties. But consider the following situations in which a court might conclude that one or more persons, in addition to the minister and penitent, were present in furtherance of the purpose of the communication:

  • A minister engages in marital counseling with a husband and wife, and often all three are present during counseling sessions.
  • An adolescent female informs her youth pastor that she is being sexually abused by a relative. The youth pastor urges the victim to seek out the senior pastor for spiritual advice. She agrees to do so, and later that day she and the youth pastor meet with the senior pastor.
  • An adolescent male confesses to his youth pastor that he has committed a crime. The youth pastor encourages him to seek spiritual counsel from the senior pastor, and he agrees to do so. The youth pastor, and the minor, both meet with the senior pastor.
  • Same facts as the previous scenario, except that the minor’s parents attend the meeting.
  • A church adopts a policy prohibiting the senior pastor from engaging in opposite sex counseling without the presence of a third person.
  • A state penitentiary has a policy prohibiting clergy from visiting incarcerated persons without the presence of a guard.
  • A man confesses to his neighbor that he committed an unsolved crime. The neighbor encourages him to confess to her pastor. He agrees to do so, but only if the neighbor accompanies him “for moral support.” The two of them meet with the pastor, and he confesses to the crime and seeks spiritual guidance. State v. Hesse, 767 N.W.2d 420 (Iowa App. 2010).

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.

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Clergy-Penitent Privilege Waived

Murder suspect lost privilege when he confessed murder to a law enforcement officer

Richard R. Hammar, Attorney, CPA
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Church Law and Tax Report

Clergy-Penitent Privilege Waive

Murder suspect lost privilege when he confessed murder to a law enforcement officer.

Richard R. Hammar

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 Georgia Supreme Court ruled that the clergy-penitent privilege did not apply to a confession made by a murder suspect to a prison chaplain, since the suspect had waived the privilege when he confessed to a law enforcement officer. A criminal defendant who was in prison awaiting trial for murder told a prison chaplain that he wanted to confess to the crime. The chaplain testified at the defendant’s trial that he told the defendant that “if you want to do a confession, you don’t do it to the chaplains. You do it to the proper authorities.” The defendant asked to speak to a law enforcement officer, and one was immediately sent to the defendant’s cell to take his confession. The officer asked the defendant if he wanted to confess, and the defendant confirmed that he did. The officer then informed the defendant that if he did confess the confession would be forwarded to the detective who was handling his case. With all of this information, the defendant signed a written confession that was drafted by the law enforcement officer, knowing that it would be handed over to law enforcement in the case against him.

The defendant was convicted of murder, in part due to the signed confession. On appeal, the defendant claimed that the written confession should not have been introduced as evidence at his trial because it was protected by the clergy-penitent privilege. The Georgia Supreme Court disagreed: “Under these circumstances, the clergy-parishioner privilege is simply not applicable because the defendant knowingly gave the confession to law enforcement, not privately to the chaplain. The chaplain did not disclose the confession to police. To the contrary, the defendant did so himself. Moreover, even if there were any clergy privilege at play in this case, it was repeatedly waived. The chaplain testified that he sought out law enforcement at the defendant’s request, and both the chaplain and the officer who took the confession first made certain that he understood what he was doing and that he wanted to do it.” Willis v. State, 699 S.E.2d 1 (Ga. 2010)

Church Law & Tax Report is published six times a year by Christianity Today International, 465 Gundersen Dr. Carol Stream, IL 60188. (800) 222-1840. © 2011 Christianity Today International. editor@churchlawandtax.com All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. “From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.” Annual subscription: $69. Subscription correspondence: Church Law & Tax Report, PO Box 37012, Boone, IA 50037-0012.

Legal Developments

Spouse’s Presence May Not Nullify Clergy-Penitent Privilege

A conversation may be protected even if a third party is present.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Spouse’s Presence May Not Nullify Clergy-Penitent Privilege

A conversation may be protected even if a third party is present.

Richard R. Hammar, J.D., LL.M., CPA

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.

An Arizona court ruled that a conversation between a minister and a counselee may be covered by the clergy-penitent privilege even if the counselee’s wife is present. A woman contacted her pastor and informed him that her husband had confessed to her that he had sexually molested their minor daughter. The pastor met with the couple, and during this meeting the husband again confessed to the molestation. The husband was indicted on several counts of molestation of a child. The state gave notice that it intended to introduce the testimony of the pastor at trial. The husband filed a motion to suppress the testimony of the pastor “as privileged communications between communicant and clergy.” The trial court agreed that the conversation with the pastor was privileged, and that it had not been waived by the presence of the wife. The state appealed.

A state appeals court agreed with the trial court that the privilege had not been waived by the wife’s presence. It noted that the Arizona clergy privilege statute states that “a person shall not be examined as a witness in the following cases … a clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.”

The court noted that the privilege can be waived if a third person is present during a conversation between a minister and penitent on the ground that “confidentiality could not be intended with respect to communications that the speaker knowingly allowed to be overheard by others foreign to the confidential relationship.” However, this rule does not apply “when the presence of a third party does not indicate a lack of intent to keep the communication confidential.” The court added that the key question in such cases is “whether the communicant reasonably understood the communication to be confidential notwithstanding the presence of third parties.”

Applying these principles the court concluded that the clergy-penitent privilege was not waived in this case by the wife’s presence:

There is no evidence that the husband later disclosed the conversation with the pastor to an individual not present during the confession. The meeting took place in private. The husband received assurances from the pastor, in accordance with church policy, that their conversation would remain confidential. On these facts, the presence of the wife is not evidence of conduct inconsistent with a desire to maintain the privilege. The wife was not a foreign and uninterested third party. The husband’s conduct giving rise to this case and his participation in the repentance process through the church had a direct effect upon his wife. His statements to the pastor in his wife’s presence were made in furtherance of the confession and repentance process, and do not amount to “conduct inconsistent with observance of the privilege.” On this record, given the marital relationship and the spouse’s interest in her husband completing the repentance process, we do not believe the spouse’s presence constitutes an implied waiver of the privilege.

The court noted that courts in other states had reached similar conclusions when confronted with the question whether waiver should apply when a third party is present during the confession. And, while some courts have reached the opposite conclusion, the third party in these cases “was someone other than the communicant’s spouse and usually not a person the communicant could appropriately rely upon to keep statements confidential.”

The court rejected the state’s argument that the husband waived the privilege by confessing to his wife before meeting with the pastor. It observed: “Although the husband made statements to his wife in advance of confessing to the pastor, his wife was not a foreign third party. She sat through the entirety of her husband’s private confession with the pastor, and her participation was considered by the pastor and her husband as confidential. The pastor viewed part of his duties as helping both of them and their marriage, and the wife’s presence during the confession was permitted in furtherance of this purpose. Additionally, it would be inconsistent to hold that the wife’s presence during the actual confession with the pastor did not waive the privilege but that her husband’s statements to her prior to the privileged communication did result in waiver. Finally, the clergy-penitent privilege did not arise until the husband confessed to the pastor.”

Application. This case is significant for two reasons. First, it demonstrates that the presence of a third party during a confidential counseling session between a pastor and penitent will not necessarily prevent the conversation from being protected by the clergy-penitent privilege if “the presence of a third party does not indicate a lack of intent to keep the communication confidential.”

Second, the court concluded that the clergy-penitent privilege in this case was not nullified by the husband’s confession to his wife prior to meeting with the pastor, since the privilege did not arise until the husband confessed to his pastor, and prior to that time there was no privilege to waive. State v. Archibeque, 221 P.3d 1045 (Ariz. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2011.

Legal Developments

Keeping a Secret

Counselee’s disclosure of information to third party may waive the clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Keeping a Secret

Counselee’s disclosure of information to third party may waive the clergy-penitent privilege.

Richard R. Hammar, J.D., LL.M., CPA

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 3-08.05. 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.

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.

An Arizona court ruled that a criminal defendant waived the clergy-penitent privilege by sharing incriminating information that he had divulged to his pastor in a confidential counseling session. An adult male (the “defendant”) sexually molested his 8-year-old stepdaughter and a second child. She disclosed the abuse to her mother’s sister, who immediately informed the child’s mother. The mother and her child moved out of the home. Distraught that his wife had left him, the defendant contacted his pastor. The two met in the pastor’s office where the defendant disclosed that adults had forced him to engage in sexual activities when he was a teenager and that he was doing the same thing to his stepdaughter. The pastor, unsure of whether he was legally obligated to report this disclosure, called another pastor who informed him that he was required to report. That same day the pastor drove the defendant to the police station to turn himself in. The pastor was questioned privately by a detective, and disclosed the defendant’s confession. The defendant was taken into custody that day. While in prison awaiting trial, the defendant called his wife and admitted to the molestation, and informed her that he had confessed to their pastor.

The defendant was charged with two felony counts of child molestation, and was convicted in part because of the pastor’s testimony regarding the confession. The court concluded that the clergy-penitent privilege had been waived, and therefore the pastor was free to testify about his conversation with the defendant. The defendant was sentenced to two 10-year terms, to run consecutively. He appealed his conviction, claiming that the privilege had not been waived and therefore the pastor should not have been allowed to testify.

The clergy-penitent privilege

The Arizona clergy-penitent privilege states that a member of the clergy “shall not, without his consent, be examined as a witness concerning any confession made to him in his role as a member of the clergy.” Because the privilege belongs to the communicant, the “clergyman may not disclose the communicant’s confidences without the communicant’s consent.”

The court rejected the prosecutor’s argument that the pastor could testify about the defendant’s confession because his conversation with the defendant was not privileged:

There is evidence in the record indicating defendant’s confessions were directed to the pastor in his capacity as a spiritual leader. The pastor knew the defendant for eight years, married defendant and [his wife], and counseled the parties when they were experiencing troubles at the beginning of their marriage. Additionally, defendant testified that he contacted the pastor after the molestation allegations because his family was falling apart and he did not know what to do. Consequently, because defendant contacted the pastor in his capacity as a spiritual leader in the course of the pastor’s obligations in the church, we agree the parties’ conversation was privileged.

To allow a plaintiff to sue additional defendants after a default judgment would potentially allow the plaintiff to collect multiple damages for the same injury.

Child abuse reporting

The Arizona child abuse reporting law makes every citizen a mandatory reporter of child abuse. However, with regard to clergy, it provides:

A member of the clergy … who has received a confidential communication or a confession in that person’s role as a member of the clergy … may withhold reporting of the communication or confession if the member of the clergy … determines that it is reasonable and necessary within the concepts of the religion. This exemption applies only to the communication or confession and not to personal observations the member of the clergy … may otherwise make of the minor.

Waiver of the privilege through disclosure to third parties

The court noted that the clergyman-penitent privilege, like other privileges, “is susceptible to implied waiver through conduct inconsistent with the maintenance of conversational privacy.” Waiver may occur through “any course of conduct inconsistent with observance of the privilege.” As a result, “a minister maybe allowed to testify as to the communications made to him when the one making the privileged conversation tells the facts and substance of his communications with the minister to third parties.”

The court concluded that the defendant waived the privilege when he disclosed to his wife that he had told the pastor about the molestations:

After the defendant disclosed the molestations to his pastor, and during a recorded confrontation call [from prison] the defendant again admitted to sexually molesting [his stepdaughter]. He said that [the child] was not lying about the molestations …. The defendant said he said he was sick, needed help, and that he planned on turning himself in to police. He told his wife that he had told the pastor about the molestations because he wanted to be in trouble for his actions. He also told his wife, referring to the pastor, “Don’t you know that by law he’s gotta go down and tell ’em what I told him?”

The court concluded:

The defendant’s conduct shows he did not intend for his communications with the pastor to be privileged because he told his wife that he had told the pastor about the molestations. The defendant told his wife that he had told the pastor about the molestations. He also acknowledged that the pastor had to report the molestations to authorities. Because the defendant’s conduct was inconsistent with the maintenance of confidentiality … the defendant waived the clergyman-penitent privilege.

The court rejected the defendant’s argument that he did not waive the clergy-penitent privilege by making statements to his wife, because communications between spouses are protected by the “spousal privilege.” The court, in rejecting this argument, observed: “Statements by a party to a third person revealing the content and fact of otherwise privileged communications can amount to an implied waiver of the privilege.”

Application. In Arizona, as in many other states, a conversation between a minister and a counselee is protected by the clergy-penitent privilege only if it is made privately with no third persons present. Some state clergy-penitent privilege statutes extend the privilege to conversations in the presence of a third person who is present “in furtherance of the communication.” Obviously, it is essential for ministers to be familiar with the text and application of their state’s clergy privilege. The clergy privilege statutes of all 50 states are quoted in full in Appendix 2 to the fourth edition of Richard Hammar’s text, Pastor, Church & Law.

The court also addressed another question of first impression: Is the clergy-penitent privilege waived when a pastor shares with his or her spouse the substance of a previous confidential conversation with another person? The court concluded that the privilege is not preserved under these circumstances despite the possible application of the husband-wife or spousal privilege. While statements made between spouses generally are privileged, and therefore are not admissible in court, the spousal privilege does not preserve the clergy-penitent privilege when the substance of a conversation between spouses relates to confidential information shared with the minister-spouse in the course of counseling another person. State v. Baca, 2009 WL 5156236 (Ariz. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2011.

Legal Developments

Confidentiality During Spiritual Counsel

Only statements made in the course of seeking spiritual counsel are protected by the privilege.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Confidentiality During Spiritual Counsel

Only statements made in the course of seeking spiritual counsel are protected by the privilege.

Richard R. Hammar, J.D., LL.M., CPA

Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

Key point 3-08.01. The courts have not required that a counselee be a church member in order for communications to a minister to qualify for the clergy-penitent privilege. However, church membership is a factor that the courts have considered in deciding if the privilege applies to a particular communication.

The Massachusetts Supreme Judicial Court ruled that the clergy-penitent privilege did not apply to incriminating statements made by a father to a pastor concerning allegations of child abuse since the statements were not made in the course of seeking spiritual counsel. A man (the “defendant”) sexually abused his two minor daughters for several years. When the older daughter was in college, she returned home for Thanksgiving. The defendant again attempted to molest her, but she resisted and threatened to call the police. He became angry, showed her a nine millimeter handgun, and said, “I could kill you if you ever open your mouth.” Although the defendant did not touch this daughter after this incident, she continued to fear for her safety and for that of her mother.

When the defendant’s younger daughter was a senior in high school, she disclosed the abuse to one of the pastors at her church (“Pastor Ron”). She told Pastor Ron that she had not disclosed the abuse previously because she did not think that anyone would believe her and because the defendant had threatened her if she did so. Pastor Ron suggested alternative actions that the daughter could take, including contacting the police or confronting her father, but she decided that the best option would be to leave home to attend college. However, after a long weekend home from college, she informed Pastor Ron that she wanted to confront the defendant.

A family meeting was held at the church. The defendant’s two daughters, their mother, Pastor Ron and two other pastors, and the defendant attended the meeting. During the meeting, the defendant made incriminating statements to Pastor Ron and the other pastors. He apologized to his daughters for “what he did” and asked for forgiveness. The meeting ended without agreement concerning any future action.

The defendant was asked to leave the family home. He initially agreed to do so, but then refused to move. He became angry and verbally abusive. His wife and one of the daughters went to the police to report the defendant’s actions, and he was arrested a few days later. The defendant was charged with two counts of rape of a child, four counts of indecent assault and battery on a child under 14, and one count each of assault and battery and threatening to commit a crime. At his trial the prosecutor sought to have Pastor Ron testify concerning the incriminating statements made by the defendant during the church meeting. The defendant objected to Pastor Ron’s testimony. He insisted that the statements he made during the church meeting were in the context of seeking spiritual advice, and therefore they were protected by the clergy-penitent privilege.

The prosecutor countered that the statements made during the church meeting were not privileged since they were not in the course of seeking spiritual advice, and in addition, that the presence of the defendant’s daughters at the meeting precluded it from being “confidential” and therefore the clergy-privilege did not apply.

The trial court ruled that the defendant’s statements to Pastor Ron at the church meeting were not made in the process of seeking “spiritual advice or comfort,” and were not “motivated by a religious or spiritual purpose.” Based on this conclusion, the judge declined to address the prosecutor’s argument that any privilege was waived due to the presence of the defendant’s daughters when some of the statements were made. Partly due to Pastor Ron’s testimony, the defendant was found guilty and sentenced to prison. He appealed to the state supreme court.

The Massachusetts clergy-penitent privilege statute states:

A priest, rabbi or ordained or licensed minister of any church or an accredited Christian Science practitioner shall not … testify as to any communication made to him by any person in seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character, without the consent of such person.

The state supreme court agreed with the trial judge that the defendant’s statements to Pastor Ron at the church meeting were not protected by the clergy-penitent privilege:

The evidence clearly supports the judge’s conclusion that the defendant did not attend the meeting for a spiritual or religious purpose, but rather attended at the urging of his wife and his wife’s pastor to discuss a “family issue.”

That the defendant was not a member of the church, and did not attend services regularly, is not dispositive, since the statute plainly applies to “any person … seeking religious or spiritual advice.” Nonetheless, the defendant’s prior sporadic contact with the pastors and lack of regular attendance at church services is relevant to his purpose in attending the family meeting. The defendant’s angry demeanor and denials of the allegations, as well as his repeated statements that he wanted to leave the meeting, further support this conclusion …. The defendant’s question to Pastor Ron about what he should do to make things “better,” and Pastor Ron’s suggestion that the defendant follow his “conscience,” are not inconsistent with the judge’s conclusion that the defendant was seeking pragmatic advice rather than spiritual guidance.

Since the defendant’s statements were not made in the course of seeking spiritual guidance or support, the court did not address “whether any privilege was waived by the presence of third parties not covered by the statute.”

Application. 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. The court cited the following factors in concluding that the defendant’s statements to Pastor Ron were not privileged: (1) the defendant’s sporadic church attendance (which, while not precluding the application of the privilege, made it less plausible that his comments to Pastor Ron were in the course of seeking spiritual advice); (2) the defendant’s angry demeanor at the church meeting, and his initial denials of the allegations of abuse; (3) the defendant’s repeated requests to leave the meeting. The court declined to address the question of whether the privilege applies when third persons are present. Commonwealth v. Kebreau, 909 N.E.2d 1146 (Mass. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2010.

Legal Developments

Expectation of Secrecy

Court rules that murderer waived his right to the privilege.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Expectation of Secrecy

Court rules that murderer waived his right to the privilege.

Richard R. Hammar, J.D., LL.M., CPA

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.

A Florida court ruled that a murderer’s confession to a minister was not protected by the clergy-penitent privilege and therefore a trial court did not commit reversible error in allowing the minister to testify at the murder trial concerning the confession. The minister testified that he warned the defendant several times that he would not treat anything incriminating as confidential. Having been asked by the defendant to accompany him to the police station for questioning, he testified that he warned the defendant against disclosing anything that “was bad” and that if defendant reported anything that “was bad” the minister would have to tell the police about it. Specifically, the minister said: “Be careful what you are about to say to me, because any information that could be damaging … I cannot promise you that I could keep it, because I will become an accessory to whatever.” He added that if the defendant told him something that could get him in trouble with the law, he would have to divulge the information to police. At that point the defendant told the minister that he had killed the victim. The defendant thereupon asked the minister if he could keep the substance of the conversation a secret, but the minister said no. The defendant then told the minister not to bother coming into the police station with him.

The trial court denied the defendant’s motion to suppress his statements to the minister, holding that he had waived any privilege of confidentiality about the conversation. The court found that after the minister had warned defendant against speaking, he “no longer had a reasonable expectation that the communication was going to remain private under those circumstances.”

A state appeals court affirmed the trial court’s decision that the clergy-penitent privilege did not apply to the defendant’s conversation with the minister. The court noted that a state statute specified that “a person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person … voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.”

The court concluded that “the record supports the trial court’s finding that the defendant knew when he voluntarily made the disclosure to the minister that it would not be held confidential and would be subject to disclosure to the police. We find no error in the admission of the confession.” Monroe v. State, 14 So.3d 1205 (Fla. App. 2009).

Application. 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, since 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. The court in this case concluded that incriminating statements made by a person to a minister cannot be privileged if the minister states in advance that he or she will not consider incriminating statements to be confidential. Monroe v. State, 14 So.3d 1205 (Fla. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2010.

Legal Developments

Woman Sues Pastor for Divulging Confidential Information

Court rules that the First Amendment prevents it from resolving case.

Richard R. Hammar, Attorney, CPA
Bio

Key Point 6-10.1 According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the first amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

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.

A church endeavored to operate according to biblical principles and practices as described in the church's constitution and statement of faith. The church required all membership applicants to affirm their willingness to abide by the church's constitution, which contains the following disciplinary policy:

We believe that one of the primary responsibilities of the church is to maintain the purity of the Body. We are directed by God to be holy. In recognition of the importance of this obligation, the elders will biblically and lovingly utilize every appropriate means to restore members who find themselves in patterns of serious misconduct. When efforts at restoration fail, the elders will apply the Biblical teaching on church discipline, which could include revocation of membership, along with an appropriate announcement made to the membership (Matthew 18:15-17; 1 Corinthians 5:1-5; Galatians 6:1, Galatians 6:2; 2 Thessalonians 3:6).

The church's constitution provided that, if a member engaged in conduct that "violates Biblical standards, or which is detrimental to the ministry, unity, peace or purity of the church," and the member is unrepentant, "the elders will follow our Lord's instructions from Matthew 18:15-20," which states: "If your brother sins, go and show him his fault in private; if he listens to you, you have won your brother. But if he does not listen to you, take one or two more with you, so that by the mouth of two or three witnesses every fact may be confirmed. If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, let him be to you as a Gentile and a tax collector."

If a member remained unrepentant and chose not to resign, the constitution instructed the church elders to revoke the person's membership and announce his or her removal to the congregation. The church's stated goal is "to encourage repentance and restoration of fellowship with the Lord and His people."

A woman (the plaintiff) became a member of the church. In applying for membership, she signed an application in which she expressed her agreement with the church's beliefs and affirmed her willingness to abide by the church constitution.

The plaintiff separated from her husband, and thereafter the couple participated in a series of weekly counseling sessions at the home of their pastor, who was also a licensed professional counselor. The plaintiff alleged that the Bible was not discussed in these sessions and she considered them to be a professional counseling relationship with the pastor in his role as a licensed professional counselor.

The plaintiff later informed the pastor that she had decided to divorce her husband, and that she had engaged in an extramarital sexual relationship. When the pastor informed her that her extramarital sexual relationship would trigger the church's disciplinary process, she informed him that she was resigning her membership.

A few days later the pastor and church elders wrote a letter to the church membership concerning the plaintiff. The letter explained to the congregation that the plaintiff intended to divorce her husband, there was no biblical basis for the divorce, she had engaged in a "biblically inappropriate" relationship with another man, and she had rejected efforts to bring her to repentance and reconciliation.

Describing the disciplinary process as one of "tough love," the letter encouraged the congregation to "break fellowship" with her in order to obtain her repentance and restoration to the church body. The letter admonished the congregation to treat the matter as a "members-only issue, not to be shared with those outside the congregation."

The plaintiff sued the pastor, church, and church elders alleging defamation, professional negligence, breach of fiduciary duty, and emotional distress. The professional negligence claim was based on the pastor's breach of an alleged "secular duty" to refrain from disclosing confidential information shared with him during counseling sessions.

The church defendants claimed that the plaintiff's claims all arose in the context of a church disciplinary matter which the First Amendment placed beyond the jurisdiction of the civil courts. A trial court agreed with the church defendants, and dismissed the lawsuit. The plaintiff appealed, but only with respect to her claims against the pastor. A state appeals court affirmed the dismissal of all of the plaintiff's claims except for her professional negligence claim which the court concluded could be resolved without violating the First Amendment. The pastor appealed to the Texas Supreme Court.

The church autonomy doctrine

The court began its opinion by acknowledging that "when a pastor who holds a professional counseling license engages in marital counseling with a parishioner, the line between the secular and the religious may be difficult to draw."

The court noted that "while it might be theoretically true that a court could decide whether the pastor breached a secular duty of confidentiality without having to resolve a theological question, that doesn't answer whether its doing so would unconstitutionally impede the church's authority to manage its own affairs.

Churches have a fundamental right to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." The court stressed that "it is a core tenet of First Amendment jurisprudence that, in resolving civil claims, courts must be careful not to intrude upon internal matters of church governance. It quoted from a landmark decision of the United States Supreme Court:

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it.

But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872).

As a result, "the autonomy of a church in managing its affairs and deciding matters of church discipline … or the conformity of the members of the church to the standard of morals required of them" has long been afforded broad constitutional protection."

The neutral principles exception

The court acknowledged that the United States Supreme Court has recognized a narrow exception to the church autonomy doctrine when "neutral principles of law" may be used to resolve disputes over ownership of church property. The plaintiff asked the court to apply the neutral principles exception to her professional negligence claim, claiming that it could be resolved under neutral legal principles without resorting to or infringing upon religious doctrine.

Specifically, she asserted that the primary focus of her complaint was not the letter the church sent to the congregation or the church's disciplinary process. Rather, it was the pastor's disclosure to the church elders of confidential information he obtained during the marital counseling sessions, which she claimed constituted a breach of professional counseling standards. The court was not persuaded that her claim could be resolved without implicating religious considerations:

It is true that the plaintiff pins the pastor's liability … on his breach of a secular duty by disclosing confidential information to the church elders. However, this disclosure cannot be isolated from the church-disciplinary process in which it occurred, nor can [it be resolved] without examining what effect the imposition of damages would have on the inherently religious function of church discipline.

Subjecting the pastor to liability for engaging in the disciplinary process that the church requires would clearly have a chilling effect on churches' ability to discipline members and deprive churches of their right to construe and administer church laws …. In sum, while the elements of the plaintiff's professional negligence claim can be defined by neutral principles without regard to religion, the application of those principles to impose civil liability on the pastor would impinge upon the church's ability to manage its internal affairs and hinder adherence to the church disciplinary process that its constitution requires.

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.

Even if the pastor's dual roles as secular counselor and pastor could be distinguished, which is doubtful, he could not adhere to the standards of one without violating the requirements of the other. Any civil liability that might attach for his violation of a secular duty of confidentiality in this context would in effect impose a fine for his decision to follow the religious disciplinary procedures that his role as pastor required and have a concomitant chilling effect on churches' autonomy to manage their own affairs. The result would be interference by the civil courts in the relationship among the church, its pastor, and the church members, which the First Amendment prohibits.

Resignation from church membership

The plaintiff claimed that her resignation from the church after she revealed confidences to the pastor "precluded any argument that he was performing a pastoral function in disseminating confidential information to the church."

The court disagreed. It noted that the church's constitution required the discipline of members to follow the procedure laid down in Matthew 18:1-35. According to this procedure, if a member sins and does not heed the counsel of church leaders, then the matter must be "told to the church." The court concluded that the church's decision to proceed with the formal discipline of the plaintiff following her resignation "was based on its interpretation of Matthew 18:15-20, an inherently ecclesiastical matter. We hold that court interference with that decision through imposition of liability in this case would impinge upon matters of church governance in violation of the First Amendment."

What this means for churches

What is the relevance of the Texas Supreme Court's decision to other churches? Obviously, the court's decision is binding only upon churches in the state of Texas. Nevertheless, the case represents one of the most extensive discussions of church discipline by any court, and as a result may be given special consideration (and no doubt be followed) by the courts of other states. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

  • This is one of the few courts to address the question of whether a minister can be liable for divulging confidential information. The court concluded that a pastor was not liable for divulging confidential information to his congregation regarding a member's confession of marital infidelity since the disclosure occurred in the context of administering discipline pursuant to the church's constitution.
  • The most significant church discipline ruling up until now has been a 1989 decision of the Oklahoma Supreme Court. Guinn v. Church of Christ, 775 P.2d 766 (Okla. 1989). In the Guinn case, the court reached the following conclusions: (1) The discipline of church members (i.e., persons who have not withdrawn from membership) is a constitutionally protected right of churches. (2) Discipline of persons who have withdrawn their church membership is not a constitutionally protected activity, and a church that engages in such conduct can be sued under existing theories of tort law. (3) Church members have a constitutional right to withdraw from church membership unless they have waived that right. (4) Statements by church leaders to church members concerning the discipline of current members are conditionally privileged—meaning that the disciplined member cannot successfully sue the church for making such disclosures unless the church acted maliciously (i.e., it either knew that the disclosures were false or made them with a reckless disregard as to their truthfulness).

It is important to note that the Texas Supreme Court deviated in two significant ways from the Guinn ruling: First, the court rejected the conclusion that the discipline of persons who have resigned their church membership is not a constitutionally protected activity, and a church that engages in such conduct can be sued under existing theories of tort law. The court stressed that the church's decision to proceed with the discipline of the plaintiff following her resignation "was based on its interpretation of Matthew 18:15-20, an inherently ecclesiastical matter," and that "court interference with that decision through imposition of liability would impinge upon matters of church governance in violation of the First Amendment."

Second, the Guinn court noted that a "qualified" or "conditional" privilege protects churches from liability for disclosing confidential information to members, but it concluded that this privilege does not apply to disclosures made to non-members. The Texas Supreme Court ignored this issue. It simply noted that the church sent a letter "to the congregation," without any indication if the recipients included both members and nonmembers. Perhaps the court concluded that its ruling did not require a discussion of the qualified privilege. That is, since the church's disclosure of the plaintiff's marital infidelity was constitutionally protected, it didn't matter to whom the disclosure was communicated. Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).

Legal Developments

Clergy-Penitent Privilege in Court Cases

The clergy-penitent privilege may be lost if a counselee seeks out a minister for spiritual counsel in the presence of one or more third persons.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Clergy-Penitent Privilege in Court Cases

The clergy-penitent privilege may be lost if a counselee seeks out a minister for spiritual counsel in the presence of one or more third persons.

Richard R. Hammar, J.D., LL.M., CPA

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.

* A North Carolina appeals court rejected a youth pastor’s argument that his conviction for murdering his wife should be overturned because the trial court erred in allowing his senior pastor to testify about statements he made to him that were protected by the clergy-penitent privilege. A youth pastor (the defendant) began informing people that his wife had disappeared. He went with his senior pastor to search for her. The following morning, several members of the church joined the search. Several searchers noticed that the defendant had several scratch marks on the side of his face, which he claimed to have sustained during the search. The search proved fruitless, and the defendant’s wife was considered missing.

A few months after the wife’s disappearance, and following the defendant’s return from a church-related trip to another state, the senior pastor and other pastors of nearby churches met with the defendant to discuss some improper credit card charges which he had made on the church credit card. At that meeting, the defendant disclosed that his relationship with his wife had become strained. He later resigned from the church and moved.

Two years later the skeletal remains of the defendant’s wife were found. A nylon cord was knotted and looped around the top of the rib cage near the neck area. In the opinion of the medical examiner, she died as a result of violent injury or trauma, most likely asphyxiation. The defendant was charged with first degree murder. The state produced considerable evidence of guilt. A pathologist testified that the scratch marks on the defendant’s face appeared more like fingernail marks than briar marks. He further testified that the defendant had bruising on his right upper arm that was consistent with a “grab mark.” The state also called a prison inmate as a witness who had been incarcerated with the defendant while the defendant was awaiting trial. The inmate testified that the defendant informed him that his wife discovered that he had been having an extramarital affair, and had followed him to a meeting with the other woman and confronted him. The inmate further testified that the defendant admitted to him that he had strangled his wife and had driven around for a period of time trying to dispose of her body. The state also produced two witnesses who had seen the defendant near the place where the skeletal remains were found, on the same day as the wife’s disappearance.

The defendant produced evidence at trial of his innocence. In particular, he testified that he and his wife were both involved in the music ministry of the church, and though his wife was not paid, she contributed her efforts to that ministry and to youth and outreach activities. The defendant insisted that they were a very happy and loving couple and participated in a number of mission trips together. Because of the defendant’s meager salary, the couple struggled financially, which caused strains upon their marriage, as did other factors. Defendant admitted that he had spent money making phone-sex calls, and had become involved in a romantic, though not sexual, relationship with another woman with whom his wife was acquainted. He claimed that he confessed the affair to his wife and she forgave him, though he acknowledged that for a time there were issues of trust. In addition, defendant had occasional sexual dysfunction which strained their relationship.

The defendant testified that he had “relationship problems” with his senior pastor which came to a head when the senior pastor asked him to reduce his workload at the church. In addition, the defendant wanted to go on a mission trip to Romania, but the senior pastor would not permit him to go at church expense. Though defendant was angered at the denial of his request, he and his wife went at their own expense.

A jury convicted the defendant of first degree murder, and sentenced him to life in prison without the possibility of parole. The defendant appealed on several grounds, two of which are summarized below.

Use of church credit cards

The defendant claimed that the trial court erred in allowing the jury to hear evidence regarding his unauthorized use of church credit cards. The appeals court disagreed, noting that this evidence “was relevant in showing the financial status of the defendant and his wife before and immediately after the wife’s disappearance. From this evidence, the jury could infer that the marriage relationship between defendant and his wife was not as good as shown by defendant’s evidence. In addition, defendant’s improper use of the credit cards was linked in time and circumstances with the crime. Finally, the evidence was not offered to show, nor does it suggest, a propensity or disposition on the part of the defendant to commit murder.”

Clergy-penitent privilege

The defendant also claimed that the trial court erred in allowing his senior pastor to testify about statements he made to him. This testimony, the defendant asserted, was in direct violation of the clergy-penitent privilege. The North Carolina privilege states:

No priest, rabbi, accredited Christian Science practitioner, or a clergyman or ordained minister of an established church shall be competent to testify in any action, suit or proceeding concerning any information which was communicated to him and entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted, provided, however, that this section shall not apply where communicant in open court waives the privilege conferred.

The court stressed that “to fall within the protection of the privilege, the defendant must be seeking the counsel and advice of his minister and the information must be entrusted to the minister through a confidential communication.” The court concluded that the defendant’s statements to his senior pastor were not privileged, since a church elder was present during the conversation. The court concluded: “The clergy-communicant privilege is not applicable in this case [since] a person to whom the privilege did not extend was present at the meeting between defendant [and senior pastor]. This person was a church elder rather than an ordained minister or clergyman …. The conversation of the defendant and the clergy, held in the presence of an elder who was not an ordained minister, is one in which the defendant no longer entrusts his admissions solely to the clergy …. As a result, the clergy-communicant privilege does not apply in this case.”

The appeals court rejected all of the defendant’s remaining arguments, and affirmed his conviction and sentence.

Application. This case demonstrates that the clergy-penitent privilege may be lost if a counselee seeks out a minister for spiritual counsel in the presence of one or more third persons. The North Carolina clergy privilege does not specifically negate the privilege under these circumstances, but the court construed the statute to apply only to confidential communications made to one or more ministers, and without the presence of a third person.

The court suggested that the clergy privilege would apply to statements made by a counselee to two or more ministers. This is a helpful clarification of an issue that arises frequently. To illustrate, assume that a teenage boy informs his youth pastor that he has committed a crime. The youth pastor takes the boy directly to the senior pastor and has him repeat his confession in the presence of both pastors. This case suggests that this confession remains privileged despite the presence of a third person, since that person was a minister. Of course, courts in other jurisdictions may or may not agree with this conclusion, but the case represents one of the few times that a court has addressed this issue and so it may be given special consideration by other courts. State v. Anonymous, 636 S.E.2d 231 (N.C. App. 2006).

Legal Developments

Communication Between Pastors and Denominational Officers

Not every conversation between clergy and denominational officials is protected by the clergy-penitent privilege.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Communication Between Pastors and Denominational Officers

Not every conversation between clergy and denominational officials is protected by the clergy-penitent privilege.

Richard R. Hammar, J.D., LL.M., CPA

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.

* The Alabama Supreme Court ruled that communications between a pastor and a denominational officer are not protected by the clergy-penitent privilege from compelled disclosure in court unless there is evidence that the pastor was speaking to the officer in his or her professional capacity as a spiritual advisor. A priest confessed to an inappropriate sexual relationship with a female member of his church (the “plaintiff”). The archbishop of the diocese achieved a confidential settlement of the plaintiff’s grievances which included payment of her counseling fees, and an assurance that the priest would be removed from the ministry “for a good long period” and would receive counseling. For her part, the plaintiff agreed to keep the affair confidential, and not to pursue litigation. A year later, the plaintiff learned that the priest had returned to active ministry and had not received therapy. This caused her to suffer emotional trauma requiring additional counseling. She presented her counseling bills to the archdiocese, but it refused to pay them. Believing that the archdiocese had breached their agreement, she pursued litigation.

As the litigation progressed, the woman learned that the priest had received some counseling at a psychiatric hospital, and that he had authorized the release of the counseling records to his archbishop. As a result, the plaintiff asked the archdiocese to turn over all of these counseling records, including “complete and correct” copies of all psychological testing. The archdiocese objected on the ground that the counseling records were privileged under the clergy-penitent privilege.

The priest asserted that he had known the archbishop for many years, and that

He is both my bishop and a spiritual advisor. I have entrusted to him many confidential matters over the years concerning my vocation and calling into the priesthood, and I have had many private discussions with him concerning my spiritual growth and discernment and I have always expected these matters of utmost trust would remain confidential. I am certain he feels the same way. I signed a release authorizing my counselor to give the archbishop access to my counseling records in order to assist him in giving me personal and spiritual guidance. I do not have these records in my personal possession. I simply released them to the archbishop as a substitute for me getting the records and then forwarding them to him. I am generally familiar with the clergyman’s privilege since I am a priest myself. My communications with the archbishop and my authorization for records to be released directly to him constitute communications to the archbishop in his professional capacity, as my bishop and a spiritual advisor. In my opinion, the communications are covered by the clergyman’s privilege. They were made privately and it was not intended that the communications and the records related thereto be further discussed or given to any other person. The sole purpose of the communications with the archbishop [was] to advise me as my bishop and a spiritual advisor.

The plaintiff argued that the counseling records were not protected by the clergyman privilege because they were not released to the archbishop in his professional capacity as the priest’s spiritual advisor but rather in his capacity as an officer of the archdiocese investigating her complaint and enforcing the agreement she had entered into with the archdiocese. The trial court ruled that the counseling records were not protected by the clergy-penitent privilege, and it ordered the archbishop to release them subject to a “protective order” prohibiting their disclosure outside of the context of the litigation. The priest appealed.

The Alabama Supreme Court began its opinion by quoting the clergy-penitent privilege under Alabama law: “If any person shall communicate with a clergyman in the clergyman’s professional capacity and in a confidential manner, then that person or the clergyman shall have a privilege to refuse to disclose, and to prevent another from disclosing, that confidential communication.” The court interpreted this language as imposing three requirements for the privilege to arise: “The communication must be made (1) to a clergyman, (2) in the clergyman’s professional capacity, and (3) in a confidential manner.” The court concluded that the first and third requirements were satisfied since the archbishop was a clergyman, and the communications between him and the priest were confidential. The remaining question, then, was whether the second requirement was met. Was the archbishop acting in his “professional capacity” as a spiritual advisor during his conversations with the priest? This requirement, the court noted, is not further defined by state law. The court construed it to mean that “the communication must be made to the clergyman in his role as a provider of spiritual care, guidance, or consolation to the individual making the communication.” The court referred to the following cases which also addressed the application of the clergy-penitent privilege to communications made to a clergyman serving as both a spiritual advisor and as an administrator:

(1) Magar v. State, 826 S.W.2d 221 (Ark. 1992). The parents of two boys told their pastor that the church’s music director had sexually abused their sons. The pastor confronted the music director about the allegations, and the director admitted that they were true. The Arkansas Supreme Court ruled that the conversation was “disciplinary in nature” and, therefore, was not protected by the privilege.

(2) State v. Guthrie, 627 N.W.2d 401 (S.D. 2000). A denominational officer confronted a pastor concerning allegations that the pastor was having an extramarital affair. The South Dakota Supreme Court ruled that while the pastor intended his conversation with the officer to remain confidential, the communication was not privileged because the communication was not made by the pastor when he was seeking spiritual advice or counseling. Rather, the communication was made to assist the officer in determining whether he should allow the pastor to continue in his position at the church. The court focused on the fact that the officer initiated the communication about the pastor’s affair and that after the communication the officer permitted the pastor to remain in his position at the church. As a result, the court concluded that when the communication was made the pastor was not seeking spiritual advice and the officer was acting in his supervisory capacity, and therefore the communication was not privileged.

(3) Kos v. Texas, 15 S.W.3d 633 (Tex.App.2000). A Catholic priest had a conversation with another priest who had been accused of sexual misconduct. The accused priest claimed that the communication was privileged under the Texas clergy-penitent privilege which provides that confidential communications made by an individual to a clergy member acting in a professional capacity as a spiritual advisor are privileged. The communication occurred when the priest in his role as “intervenor” in cases where child abuse had been alleged confronted the accused priest about the abuse allegations. The priest testified that the communications with the accused priest were not part of a “Catholic confession” by the accused priest and that the accused priest was not seeking spiritual advice. The priest further stated that at the time of the meeting he was not concerned about the state of the accused priest’s soul but was focusing on conducting a “disciplinary intervention.” A Texas Court of Appeals ruled that the communications were not privileged. It concluded: “The statements [the accused priest] made were not made in an effort to obtain some sort of spiritual advice or guidance; to the contrary, the meeting was more in the nature of a disciplinary/administrative meeting, with [the intervening priest] attempting to determine what to do in the face of the abuse allegations. We note that the communications were not initiated by [the accused priest]; rather, they were initiated by [the intervening priest] for the specific purpose of obtaining information about the abuse allegations. Although it is true that [the clergyman-privilege rule] does not require for its application that the communicant be the one seeking, summoning, or soliciting the presence of the clergy, it nevertheless does require that the communications be made for the purpose of obtaining spiritual guidance or consolation. Because the communications at issue were not motivated by any religious or spiritual considerations, we conclude that [the accused priest’s] statements were not addressed to [the intervening priest] in his ‘professional character as a spiritual advisor.'”

The Alabama Supreme Court concluded that the counseling records in this case were not protected by the clergy-penitent privilege because the archbishop was not communicating in his professional capacity as a spiritual advisor when speaking with the priest. It observed: “The archbishop’s testimony established that before, during, and after the investigation into the plaintiff’s complaint against the priest, he was not acting as the priest’s spiritual advisor but as an investigator looking into the plaintiff’s allegations and a resolver of her complaint.”

Application. This case is important for two reasons. First, it demonstrates that not every conversation between clergy and denominational officials is protected by the clergy-penitent privilege. When denominational officials speak with clergy in the course of performing investigatory or some other administrative responsibility, and not primarily as providers of spiritual counsel, the conversation may not be privileged. This means that the denominational official may be compelled to testify about the contents of that conversation in a deposition or trial. Both pastors and denominational officers often assume that their conversations are privileged, since both are members of the clergy. This case demonstrates that this is a questionable assumption in some cases.

Second, this case is important because it illustrates the importance of “protective orders.” While the court ordered the archbishop to turn over his counseling notes to the plaintiff’s attorney, the court granted the priest’s request to issue a protective order prohibiting any dissemination of the documents outside the context of the litigation. Courts often issue such orders to protect the confidentiality of sensitive information. Before turning over any document containing sensitive information in response to a subpoena, church officials should always ask their attorneys to seek an appropriate protective order from the court. Ex parte Zoghby, 2006 WL 3239971 (Ala. 2006).

Legal Developments

Disclosing Confidential Statements in Court

A Military court ruled that a confession made by a soldier to his pastor was protected by the clergy-penitent privilege despite the presence of the soldier’s wife during some of the counseling.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Disclosing Confidential Statements in Court

A Military court ruled that a confession made by a soldier to his pastor was protected by the clergy-penitent privilege despite the presence of the soldier’s wife during some of the counseling.

Richard R. Hammar, J.D., LL.M., CPA

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.

* A Military court ruled that a confession made by a soldier to his pastor was protected by the clergy-penitent privilege despite the presence of the soldier’s wife during some of the counseling. The clergy-penitent privilege protects ministers from having to disclose in court the content of confidential statements shared with them while acting in their professional capacity as a spiritual adviser. But what is a confidential communication? Is it limited to conversations between a minister and a counselee with no third parties present? Or, does the privilege apply even if third parties are present, and, if so, under what circumstances? These are issues of fundamental importance to ministers, and each was addressed in this ruling.

A soldier (the “defendant”) sexually molested his four-year-old daughter. The defendant’s wife learned of the molestation, and contacted the family pastor. The defendant met with the pastor and a pastoral intern in a church office the following evening after his wife first reported their daughter’s allegations. First, they prayed together, just as they did before discussing other matters. Then the pastor began the counseling by saying, “Now, something was done in your house. Your wife told me something and I want to know if you did it because it’s serious and you can go to jail for it.” The pastor asked for the truth, stating, “Christians don’t tell lies, so I need to know.” The defendant then admitted that he had engaged in sexual misconduct with his daughter.

The pastor responded to the defendant’s confession by stating, “You really need to get with your wife; she needs to hear that from you because you lied to her. You know, you lied to her about it and she wants to know the truth.” The defendant agreed that his wife needed to know what he did to their daughter. When the pastor asked him to go home and return to the church office with his wife to discuss the matter further, the defendant complied. He never asked the pastor or the pastoral intern to keep his comments in confidence, nor did he seek spiritual guidance or absolution.

Thirty minutes later, the defendant returned to the church with his wife. The pastor started the discussion by telling the defendant, “Well, you need to talk to her. Tell her exactly what happened.” The defendant responded by telling his wife, “I did it. I did it. I’m wrong. I did it. That’s not the way I want to be.” He did not reveal to his wife the details of his misconduct. After this admission, they discussed how this would impact the couple’s relationship and family life. The pastor concluded the meeting, stating that this was a serious matter, that the defendant could go to jail, and that by law crimes against children had to be reported.

A week later, the pastor asked the defendant’s wife if she had reported the incident to the authorities. She had not, and the pastor said that “either you do it or I’ll do it.” He did not suggest who should be contacted or tell her what to say to authorities. The pastor had previously told his church members, including the defendant and his wife, “that if you come to me with a matter that you want me to keep as a confidence, you have to tell me.” The pastor also informed church members that “by law” he was obligated to report any crime against a child, and that he had to report such information because otherwise it could damage his own reputation and the reputation of their church. A short time later, the wife reported her husband’s misconduct to a military child abuse hotline that she found in the telephone book. This led to an investigation during which the defendant admitted to his offenses.

A military judge sitting as a general court-martial convicted the defendant, pursuant to his guilty plea, of indecent acts upon a female under sixteen years of age. A court of appeals affirmed the judge’s ruling, rejecting the defendant’s claim that the statements he had made to his pastor were protected by the clergy-penitent privilege and should not have been used in his trial. The court stressed that “the defendant did not intend his communication to be confidential, as demonstrated when he brought his wife to see the pastor and then disclosed his misconduct to her.” The defendant appealed this ruling to the United States Court of Appeals for the Armed Forces. The court concluded that the defendant’s conversation with the pastor was protected by the clergy-penitent privilege, despite the presence of the defendant’s wife during part of the counseling.

The court quoted the clergy privilege under rule 503 of the Military Rules of Evidence: “A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman’s assistant, if such communication is made either as a formal act of religion or as a matter of conscience.” Rule 503 allows either the counselee or the clergy member to claim the privilege.

The court concluded that the presence of the defendant’s wife during the counseling session did not prevent the session from being both confidential and privileged. It noted that the pastor told the defendant that it was important that his wife be present and that he needed to tell her the truth because he had lied to her. The defendant “followed the advice of his spiritual advisor.” Since the pastor believed the wife’s presence was necessary for the defendant’s redemption, he brought his wife into the room where she learned that he had been sexually abusing his stepdaughter. The court quoted with approval from a previous federal appeals court ruling: “As is the case with the attorney-client privilege, the presence of third parties, [which is] essential to and in furtherance of the communication, does not vitiate the clergy-communicant privilege.” In re Grand Jury Investigation, 918 F.2d 374, 377 (3d Cir.1990).

The court concluded: “[The] privilege is preserved where there is a “relationship by blood or marriage” as well as a “commonality of interest” between the accused and the third party present during the privileged communications. Both these factors are present here as the third party present was the defendant’s wife who had played the pivotal role of sending the defendant [to the pastor] in the first instance.”

Application. This case is important for the following reasons.

1. The court recognized that the presence of third parties does not necessarily prevent communications to a pastor from being privileged. It is important to note, however that the clergy-penitent privilege contained in the Military Rules of Evidence does not specifically prohibit the privilege from applying to conversations in the presence of third parties. Some states have enacted legislation or court rules that do negate the privilege if a third party is present, regardless of that person’s status or the reason for his or her presence. Many other states have adopted the uniform rules of evidence. The clergy-penitent privilege under these rules 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 that individual’s professional character as spiritual adviser,” and it adds that “a communication is confidential if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” This language contemplates the extension of the privilege to statements made in the presence of third parties whose presence is “in furtherance of the purpose of the communication.”

Key point. The take-away point is that it is important for pastors to be familiar with the wording of the clergy-penitent privilege in their state. A future issue of this newsletter will summarize the clergy-penitent privilege statutes and court rules in all 50 states. However, unless a state law or court rule explicitly negates the privilege for communications that are made with one or more third persons present, cases such as this one, and the Grand Jury Investigation case (see the following paragraphs), support the application of the privilege in some cases even if third persons are present.

2. The court quoted with approval from a previous federal appeals court decision. In re Grand Jury Investigation, 918 F.2d 374 (3rd Cir. 1990). This ruling addressed the question of whether a Lutheran pastor could be compelled to testify before a federal grand jury about statements that were made during a counseling session he conducted with four members of a family (a husband and wife, their son, and their son’s fiancée). The pastor sought to quash the subpoena on the ground that the clergy-penitent privilege applied to the counseling session and therefore he could not be compelled to testify. The government insisted that the counseling session was not privileged, and so the pastor could be forced to testify. It asserted that the clergy-penitent privilege only applies to confidential communications, and that this requirement was not met in this case because of the presence of third parties during the counseling session including one person (the fiancée) who was not yet a member of the family. A federal district court ruled that the clergy-penitent privilege applied since the pastor believed that the counseling session was confidential. The government appealed.

A federal appeals court agreed that the counseling session was confidential. It noted that “the clergy-communicant relationship is so important, indeed so fundamental to the western tradition, that it must be sedulously fostered. Confidence is obviously essential to maintaining the clergy-communicant relationship. Although there are countervailing considerations, we have no doubt that the need for protecting the relationship outweighs them.” The court went on to conclude that “the privilege should apply to protect communications made (1) to a clergy-person (2) in his or her spiritual and professional capacity (3) with a reasonable expectation of confidentiality. As is the case with the attorney-client privilege, the presence of third parties, if essential to and in furtherance of the communication, should not void the privilege.”

The court further observed:

The traditional clergy-communicant privilege protected a penitential relationship in which a person privately confessed his or her sins to a priest, in order to receive some form of church sanctioned discipline or absolution. Neither family nor other types of group counseling fit neatly within this one-to-one model of the privilege. We have explained, however, that the modern view of the privilege is more expansive than the traditional one. We discern nothing in modern clergy-communicant privilege doctrine … that would limit the privilege’s application solely to group discussions involving family members related by blood or marriage. Modern clergy-communicant privilege doctrine focuses, rather, on whether the presence of a third party is essential to or in furtherance of a communication to a member of the clergy. We think, consistent with the general constructional rule that evidentiary privileges should be narrowly construed, that recognition of the clergy-communicant privilege in this circumstance depends upon whether the third party’s presence is essential to and in furtherance of a communication to a member of the clergy. As is the case with consultations between attorneys and clients, the presence of multiple parties, unrelated by blood or marriage, during discussions with a member of the clergy may, but will not necessarily, defeat the condition that communications be made with a reasonable expectation of confidentiality in order for the privilege to attach.

This language constitutes the most helpful analysis by any court of the application of the clergy privilege in the context of group conversations.

3. Another person present when the defendant spoke with the pastor was a pastoral intern. This is the first case to address a common question: Does the clergy-penitent privilege apply to statements made by a counselee to two pastors? According to this court, the presence of the pastoral intern did not affect the privileged status of the conversation. U.S. v. Shelton, 64 M.J. 32 (2006).

Legal Developments

Clergy-Penitent Privilege and Confidentiality

In many states, the presence of third persons during a conversation with a minister will prevent the conversation from being privileged.

Richard R. Hammar, Attorney, CPA
Bio

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.

The Mississippi Supreme Court ruled that a pastor's confession to another pastor that he was guilty of rape was not protected by clergy-penitent privilege since other persons were present when the confession was made and so it was not confidential.

The court noted that the clergy-penitent privilege prevents ministers from testifying in court regarding statements made to them in confidence while acting in a professional capacity as a spiritual advisor. The Mississippi privilege states: "A person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser."

The court noted that the confession was not privileged because it was not confidential. It based this conclusion on the fact that five persons were present when the confession was made. The court concluded that the clergy-penitent privilege only protects confidential communications, and that "a communication is confidential if made privately and not intended for further disclosure except in furtherance of the purpose of communication." Disclosure of confidential information or communication "in the presence of third parties generally operates to waive any privilege."

What this means for churches

This case illustrates an important point. The clergy-penitent privilege generally applies to confidential communications made to a minister acting in a professional capacity as a spiritual advisor, meaning that these communications are not admissible in court. This court defined "confidential" to exclude statements made in the presence of third parties. This demonstrates why it is important for ministers to be familiar with their state's clergy-penitent privilege. In many states, the presence of third persons during a conversation with a minister will prevent the conversation from being privileged. Rogers v. State, 928 So.2d 831 (Miss. 2006).

Legal Developments

Clergy-Penitent Privilege and Observations

Ministers can be compelled to testify regarding their “observations” or general impressions of a counselee’s demeanor.

Richard R. Hammar, Attorney, CPA
Bio

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.

The Tennessee Supreme Court ruled that the clergy-penitent privilege did not prevent a pastor from testifying in a murder trial regarding his observations of the defendant during the several hours he met with him while awaiting trial.

An adult male (the "defendant") was convicted of three counts of premeditated murder for killing three restaurant employees, execution style. A jury sentenced him to death. While the defendant was in prison awaiting trial he became acquainted with a pastor who participated in a volunteer prison ministry.

The pastor spent more than 75 hours talking with the defendant. The pastor was called to testify at the trial regarding his conversations with the defendant. The trial judge ruled that the pastor could not testify as to his conversations with the defendant because the defendant had not waived his clergy-penitent privilege.

However, the judge allowed the pastor to testify regarding his general impressions of the defendant. In particular, he testified that the defendant did not focus on trial strategy but instead tended to concentrate on irrelevant details. He further testified that the defendant expended a great deal of energy trying to appear normal, often watching and mimicking the behavior of others. It was his opinion that the defendant behaved much like a twelve-year-old boy.

The defendant appealed his conviction on several grounds. One of his arguments was that he was "incompetent," and as such he lacked the capacity to "waive" the clergy-penitent privilege and therefore the trial judge erred in refusing to allow the pastor to testify regarding his conversations with the defendant. The court disagreed.

What this means for churches

The clergy-penitent privilege protects "communications" made to a minister while acting in a professional capacity as a spiritual adviser. Ministers cannot be compelled to testify regarding such communications. However, as this court noted, the privilege only extends to communications. Ministers can be compelled to testify regarding their "observations" or general impressions of a counselee's demeanor, since a person's demeanor is not a communication. State v. Reid, 2006 WL 3804398 (Tenn . 2006).

Legal Developments

Inspecting Church Records

Most state nonprofit corporation laws give members a legal right to inspect corporate records for a “proper purpose.”

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A New York court ruled that members of churches incorporated under the state nonprofit corporation law have a legal right to inspect church records so long as they act in good faith and for a proper purpose, and their request pertains to records that are relevant and necessary to the proper purpose.

A church member asked to inspect certain church records. When his request was denied, he asked a court to compel the church to turn over the records pursuant to a provision in the state nonprofit corporation law giving "any person who shall have been a member of record of the corporation for at least six months immediately preceding his demand" to have access to the records of the corporation. A trial court denied the member's request, but this ruling was reversed on appeal.

A state appeals court noted that while the member was no longer a member of the church's board of deacons, his status as a member of the congregation during the six months preceding his request to inspect church records was sufficient to trigger the right of inspection. The court further noted that the nonprofit corporation law permitted members to inspect corporate records only when acting in good faith and for a "proper purpose." The court concluded that both of these requirements were met in this case.

However, the court concluded that the member's description of the records he wanted to inspect was vague, and that "to the extent that the demand is over-broad, the [trial court] may exercise its discretion to narrow its focus so that the church is required to produce only those records that are relevant and necessary for [the member's] purposes.

What this means for churches

This case illustrates three important points. First, most state nonprofit corporation laws give members a legal right to inspect corporate records for a "proper purpose." As a result, members of churches that are incorporated under such a law have a legal right to inspect specified records. Second, a right of inspection only applies to members. The New York law confers a right of inspection only on persons who have been church members for the six months preceding their request for inspection. Third, a request for inspection will be denied, or limited, if it is "over-broad." That is, the church is only required to disclose records that are relevant and necessary to the request for inspection.

Smith v. Calvary Baptist Church, (N.Y.A.D. 2006).

Legal Developments

Confidential and Privileged Communications

In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Richard R. Hammar, Attorney, CPA
Bio

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 3-07.4. 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 Delaware court ruled that confidential statements made to a church deacon were not protected by the clergy-penitent privilege and therefore the deacon could be compelled to testify in court about them.

A woman (the 'defendant') was charged with various sex offenses involving a minor. At her trial, the prosecutor sought to have a church deacon testify concerning incriminating statements made to him in confidence by the defendant. The defendant objected to this testimony, claiming that it was protected from disclosure by the clergy-penitent privilege.

The Delaware clergy-penitent privilege specifies that 'a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser.' It defines a clergyman as 'a minister … or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.'

The court noted that the deacon in this case was 'unquestionably, not a 'minister.' As a result, the defendant had two other options to prove her claim of privilege-first, that the deacon was a 'similar functionary of a religious organization,' or she reasonably believed him to be such. The court rejected both of these arguments.

First, a deacon is not a 'similar functionary' to a minister. It observed, 'Merely an individual's being an important—even critical—functionary in a profession is not identical to his being that particular named professional. A paralegal may not practice law. A nurse, who may well have a more precise working knowledge of a given patient than a physician, is not a physician, and cannot even testify as to injury causation.'

Second, the court rejected the argument that the defendant 'reasonably believed' the deacon to be a 'similar functionary.' She never observed him 'attired in ministerial garb or conducting services' and never heard him say that he was a minister. Further, the court pointed out that the defendant's father was a pastor, and so she 'should be even more aware than the average person that deacons and pastors are hardly one and the same.'

Finally, the court noted that the clergy-penitent privilege applies only to statements made to a minister acting in a professional capacity as a spiritual adviser, and that 'there is little suggestion of that in this case.' It stressed that the deacon thought that the defendant was speaking to him as a 'concerned friend.'

State v. Price, 881 A.2d 1082 (Dela. Superior 2005)

Legal Developments

Confidential and Privileged Communications

The Louisiana Supreme Court ruled that a man’s confession to a minister that he had committed a murder was admissible as evidence at trial.

Richard R. Hammar, Attorney, CPA
Bio

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 3-08.02. The clergy-penitent privilege may apply to communications made to a minister in the course of marriage counseling, even when both spouses are present.

The Louisiana Supreme Court ruled that a man's confession to a minister that he had committed a murder was admissible as evidence at trial because it was not protected by the clergy-penitent privilege.

An associate pastor was contacted by cell phone on a Saturday evening by a female member of the congregation who asked him to meet her and her son and nephew (the defendants) in a hotel room. When the pastor asked the woman about the purpose of the meeting, she replied that she wanted him to counsel the defendants "about a matter" and "lead them to Christ."

Neither defendant attended the church, and the pastor did not know them. When the pastor arrived at the hotel room, the mother told her son to tell him "what happened." The son explained how they had called a cab driver to rob him, and when he reached for a gun they shot and killed him. The nephew said nothing about the crime, and made no confession.

The pastor spoke with both defendants about their lifestyle and the outcome of their way of living, and prayed with them. After being told about the shooting, the pastor did not know what to do. He called his senior pastor and was told to report the incident to the police. However, he did not tell the mother, or either defendant, that the pastor had instructed him to inform the police, or that he intended to do so. When he left the hotel, the pastor called the police as he had been instructed.

The defendants were later charged with murder, and the prosecution attempted to have the pastor testify about their confession. The defendants' attorney objected, claiming that the confession was protected by the clergy-penitent privilege and was therefore not admissible in evidence.

A trial court determined that the confession was privileged and refused to allow the pastor to testify. It conceded that there were four people in the room, that the defendants did not know the pastor, and that the pastor made a phone call to his senior pastor from the hotel room following the confession.

However, it based its decision on the fact that the defendants claimed that they had sought out the pastor primarily for spiritual guidance, and it was their expectation that the pastor would keep their confession in confidence. The prosecutor appealed this ruling. A state appeals court affirmed the trial court's decision, and the case was appealed to the state supreme court.

Clergy-penitent privilege

The supreme court began its ruling by quoting the Louisiana clergy-penitent privilege:

"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 court noted, based on this language, that the following three conditions must be met for the privilege to apply: First, the person to whom the communication was communicated is a "clergyman." Second, the purpose of the communication was to seek spiritual advice or consolation. Third, 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.

The court conceded that the first two requirements were met since the pastor was a "clergyman," and the defendants spoke with him in order to obtain spiritual counsel. The court acknowledged that the pastor did not know either defendant, and had only spoken to them on this one occasion, but concluded that "the communicant may be a first time communicant if he or she reasonably believes, based upon the communicant's knowledge, that the communication will be held confidential and is motivated by penitential considerations."

The third requirement for the clergy privilege to apply is that the communication was made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. The court concluded that this requirement was not met. It noted that the confession was not made privately since there were four persons in the room. However, it concluded that the woman who called the meeting was a person with a "spiritual connection to the minister," and therefore her presence was "in furtherance of the purpose of the communication."

On the other hand, it ruled that the nephew's presence was not in furtherance of the communication, and so his presence prevented the son's confession from being a confidential communication protected by the clergy-penitent privilege. This was so even though the nephew was a participant in the crime.

Waiver

The court noted that the clergy-penitent privilege was waived by the defendants. First, when the pastor used his cell phone to call his senior pastor for advice on what to do about the son's confession, the son "waived any expectation in the confidentiality of his confession disclosure by remaining silent during the call and thereby consenting to disclosure of the information." Second, the court ruled that the defendants waived the clergy privilege by informing their mother and aunt about the shooting, thereby causing her to take them to see the pastor.

What this means for churches

This case represents one of the most extended discussions of confidentiality in the context of the clergy-penitent privilege, and for this reason it merits careful study. Many states limit the clergy-penitent privilege to statements made "in confidence" to a minister acting in a professional capacity as a spiritual advisor, and many define "in confidence" to include statements made to a minister in the presence of other persons present in furtherance of the purpose of the communication. These terms are often difficult to apply to particular situations, and the court's analysis in this case provides much-needed clarification. In addition, the court's discussion of waiver is helpful. State v. Gray, 891 So.2d 1260 (La. 2005).

Legal Developments

Child Abuse Reporting

A Texas court ruled that the clergy-penitent privilege did not prevent a minister from testifying against a church member in a child molestation prosecution.

Richard R. Hammar, Attorney, CPA
Bio

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 Texas court ruled that the clergy-penitent privilege did not prevent a minister from testifying against a church member in a child molestation prosecution.

A 10-year-old girl claimed that her stepfather (the defendant) had sexually molested her. Following this incident, the defendant and his wife conferred with an elder of their church. The defendant's wife also reported the incident to the police, and the defendant was charged with indecency with a child. At trial, the defendant claimed that statements he made to a church elder were privileged communications to a member of the clergy under a Texas law which states that "a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to the clergyman in his professional character as a spiritual adviser."

A jury convicted the defendant of indecency with a child and imposed a sentence of 5 years in prison. The defendant appealed his conviction on the ground that the trial court improperly admitted the testimony of the elder in violation of the clergy-penitent privilege.

The appeals court conceded 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 the member's professional character as spiritual adviser." However, "in a proceeding regarding the abuse or neglect of a child, evidence may not be excluded on the ground of privileged communication except in the case of communications between an attorney and client."

The court concluded that "because this case involved abuse of a child, we conclude the trial court was correct in overruling defendant's objection that [the elder's] testimony involved privileged matters." It also pointed out that "the Texas legislature has determined that any communication involving the abuse or neglect of a child will not be afforded protection under any circumstances other than the attorney-client privilege," and "as a result, there is no privilege protecting communications with a clergyman in his professional capacity as a spiritual adviser regarding the abuse or neglect of a child."

Application . Several states, like Texas, have laws that make ministers mandatory child abuse reporters even with respect to information disclosed to them in the course of a confidential communication subject to the clergy-penitent privilege, and that allow such information to be admissible in court proceedings. Almendarez v. State, 153 S.W.3d 727 (Tex. App. 2005).

Legal Developments

Confidential and Privileged Communications – Part 1

Pastors who know that a meeting is being secretly tape recorded may be personally liable on the basis of fraudulent concealment.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Pastors who know that a meeting is being secretly tape recorded may be personally liable on the basis of fraudulent concealment if they fail to disclose to all parties that the meeting is being recorded.

The Mississippi Supreme Court ruled that a pastor could be liable on the basis of fraudulent concealment for attending a meeting between a married couple that was being secretly recorded, with his knowledge, by the husband in order to obtain evidence for a subsequent divorce proceeding.

Pastor Terry served as senior pastor of a local church in which a married couple (Ray and Julie) were members. Julie was an active, lifelong member of the church. Pastor Terry officiated at Ray and Julie's wedding, baptized both of their children, and considered Ray and Julie to be close personal friends.

Ray learned that Julie was involved in an adulterous affair, and asked Pastor Terry to be present when he confronted her about it. Ray informed Pastor Terry that he intended to record the conversation on the advice of a divorce attorney in order to obtain evidence that could be used in persuading Julie to agree to a no-fault divorce. The meeting took place in Ray and Julie's home. Julie did not know that Ray was recording the meeting nor was she aware that the purpose of the meeting was to confront her with her purported infidelity. Ray later testified in a deposition that he told Julie that he "wanted to talk to her about something important with Pastor Terry present." Ray also testified that he believed Pastor Terry's presence "could possibly help save the marriage." However, Ray acknowledged that "this meeting was not in any way a counseling session."

During the meeting Ray presented Julie with three options: save the marriage, no-fault divorce, or "we go to war" which would include an "alienation of affection" lawsuit against her alleged paramour. The first option was instantly dismissed by Julie, and it immediately became apparent that custody of the children would be a major point of disagreement. Julie expressed confusion as to why Pastor Terry was present. The pastor responded that he was there for Ray and at other times for both of them.

Julie was combative and used profanity during the course of this confrontation and begged and pleaded for custody of her children. At one point, Pastor Terry sent Ray out of the room. With Julie still upset, Pastor Terry assured Julie that he was not there to ambush her, that he was there by her side, and that she was not alone. Soon afterwards, Pastor Terry left the home. Julie claimed that following the meeting Pastor Terry "told several other people" of the conversation regarding Julie's infidelity.

Ray filed for divorce, which resulted in costly and protracted litigation. Although the transcript of the tape recording was not introduced as evidence, one of Ray's witnesses used the transcript in reaching the conclusion that Ray was the more stable parent and should have custody of the children. Ray was awarded legal custody of the children, with both parties gaining joint physical custody. During the divorce proceedings Julie learned that the meeting with her husband and Pastor Terry had been secretly tape recorded. She later sued Pastor Terry, her church, and a regional denominational agency, alleging breach of fiduciary duty, fraudulent concealment, negligent misrepresentation, invasion of privacy, emotional distress, negligent retention and supervision of clergy, and clergy malpractice. A trial court dismissed all claims except the fraudulent concealment claim against Pastor Terry, and both parties filed appeals with the state supreme court,

first amendment issues

The state supreme court ruled that the first amendment religion clauses did not prevent it from resolving Julie's claims so long as it could do so "without pressing into ecclesiastical matters." The church defendants vigorously argued that this was an ecclesiastical matter and that the court should decline to hear it, while Julie insisted that Pastor Terry's actions "had no ecclesiastical justification." The court concluded that the first amendment did not bar it from resolving the dispute:

A review of the transcript reveals no discussion of the Scriptures or religion and only one mention of God. Rather, the conversation was explosive in that it was one man confronting his wife with knowledge of her purported infidelity without any notice to her as to what the arranged meeting was about, and this conversation took place in the presence of another man, who apparently had been through some sort of similar experience. The transcript does not reveal marital counseling by Pastor Terry, but rather a confrontation initiated by Ray in an effort to get his wife to admit to an adulterous affair. The wife, reacting to being "backed into a corner," lashed out at times and at other times pleaded that her husband not take the children away from her. Other than the fact that the third person present was a pastor, there is no indication of any spiritual or other counseling occurring.

fiduciary duty

Julie claimed that Pastor Terry breached a fiduciary duty that he owed her as a member of his congregation by participating in the secret tape recording of the meeting with her husband. The court concluded that "a pastor's position alone is insufficient to establish a fiduciary relationship, for "if this court were to recognize such a duty on the basis of a position held within the church, we would necessarily be required to define a reasonable duty standard and to evaluate Pastor Terry's conduct compared to that standard. To do so would violate the first amendment."

However, the court acknowledged that a fiduciary duty may arise if a church member places "trust or confidence" in a pastor, or is "dependent" upon a pastor. The court concluded that this test was not met in this case since there was no evidence that Julie was dependent on Pastor Terry, or had placed any special trust or confidence in him. In particular, the court noted that Pastor Terry was not acting as a spiritual advisor or counselor to Julie during the meeting at which she confessed to adultery.

fraudulent concealment

The trial court ruled that Pastor Terry could be found liable on the basis of fraudulent concealment for knowingly participating in the secret tape recording of the meeting with Ray and Julie. On appeal, Pastor Terry insisted that he did not have a duty to inform Julie that Ray was taping the conversation because "it is not illegal to tape a conversation."

The court noted that under contract law, for there to be liability for nondisclosure, "silence must relate to a material fact or matter known to the party and as to which it is his legal duty to communicate to the other contracting party. An affirmative act of concealment is necessary." The court concluded that while this was not a contractual dispute, the same legal analysis was appropriate. It concluded:

Clearly, Pastor Terry had prior knowledge that Ray was going to tape the conversation on the advice of Ray's attorney. Julie asserted in her affidavit that had she known that she was being taped, she would have responded differently. Although Ray's affidavit reveals that Julie did not divulge any new or confidential information, that is immaterial as to Julie's claim. Certainly, Ray's knowledge is significantly different than having Julie's purported admission of the affair on tape. At all times, Pastor Terry was an active participant in obtaining Julie's statements relating to the affair.

However, the court declined to impute Pastor Terry's liability for fraudulent concealment to his church or denomination, since Julie presented "no facts to prove that the church or denomination authorized or ratified Pastor Terry's actions in this case."

clergy malpractice

The court noted that courts in other states have "uniformly rejected a cause of action for clergy malpractice," and that "this unanimity is based on the difficulty that would be encountered in evaluating such a claim without entangling the civil courts in extensive investigation and evaluation of religious tenets." As a result, it rejected this basis of liability.

negligence claims

Julie also asserted claims for negligent misrepresentation, negligent infliction of emotional distress, and negligent supervision and retention. The trial court dismissed all these claims, and Julie appealed that ruling. On appeal, she insisted that these claims could be resolved by a civil court without violating the first amendment. The court, in rejecting any liability based on negligence, noted that negligence requires proof of a "duty" of care and a violation of that duty. It concluded, "It is in the establishment of the duty of the pastor, the church, and the [denomination] that would excessively entangle this court into the investigation and evaluation of religious tenets. Therefore, we find that the trial judge was correct in dismissing the remaining claims against all defendants."

Application. This case is relevant for the following reasons:

  1. The court concluded that the pastor-parishioner relationship is not a fiduciary relationship that would give rise to liability based on a breach of that relationship. However, the court cautioned that such a relationship might arise in the context of a counseling relationship between a pastor and a parishioner, or in any other context in which a parishioner places special confidence in the pastor or is dependent upon him or her.
  2. The decision represents yet another rejection of the theory of clergy malpractice.
  3. The court rejected all of Julie's negligence claims (negligent misrepresentation, negligent infliction of emotional distress, and negligent supervision and retention) on the ground that these claims could not be resolved by a civil court without violating the first amendment because they would require a court to determine if a "duty of care" was owed by a pastor or church to a parishioner. Such a decision "would excessively entangle this court into the investigation and evaluation of religious tenets." This is a significant ruling, for it essentially forecloses liability against clergy or churches based on negligence to the extent that resolution of a claim would entail scrutiny of religious tenets.
  4. Most importantly, the court concluded that the pastor could be liable for "fraudulent concealment" as a result of his knowledge that Ray was secretly tape recording a meeting with his wife that the pastor attended. This conclusion is remarkable for two reasons. First, no contract was involved in this case, and so why did the court apply a contract law principle? Second, even assuming that it did apply, the requirements for fraudulent concealment were not met. As the court noted, fraudulent concealment was established by "knowing participation" in the secret tape recording. Yet, as a dissenting justice pointed out in a separate opinion:

    5. The majority correctly [notes] that, in order for there to be liability for nondisclosure, silence must relate to a material fact or matter known to the party and to which it is his legal duty to communicate to the other contracting party. Having correctly recited the principle of law, however, the majority provides no explanation of the pastor's "legal duty" to communicate to Julie that Ray was secretly recording the meeting. While I do not approve or condone the pastor's behavior, I find no authority which suggests he had a legal duty to inform Julie of Ray's secret recording …. [Further] in order to recover damages for fraudulent concealment [the plaintiff] must demonstrate [that the defendant] took some action, affirmative in nature, which was designed or intended to prevent and which did prevent the discovery of the facts giving rise to the fraud claim. Neither the majority nor Julie has suggested any action by the pastor (beyond his silence) to conceal the tape recording. The majority incorrectly substitutes the pastor's participation in the conversation for the required active participation in the concealment of the recording. It is not the conversation that Julie alleges was concealed from her, but rather the recording of it. Absent some active participation by the pastor in secretly recording the conversation, or some other legal duty to disclose to Julie that Ray was secretly recording the conversation, there can be no liability for fraudulent concealment.

    This is clearly the correct analysis, but it was rejected by a majority of the court. The dissenting justice further observed, "I believe the pastor had three appropriate, moral, honorable options. He could have insisted that Ray refrain from recording the meeting; he could have informed Julie of it; or he could have refused to attend. However, my beliefs of what is appropriate, moral or honorable cannot impose legal responsibilities upon the pastor, and I refuse to do so here. The consequences of his actions must be, I think, determined by a higher authority."

    The bottom line is that in Mississippi, or in any other state that follows this ruling, a pastor who is present in a meeting that is being secretly tape recorded by a participant may be liable on the basis of fraudulent concealment if he or she was aware that the meeting was being secretly recorded. Mabus v. St. James Episcopal Church, 884 So.2d 747 (Miss. 2004).

    © Copyright 2005 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0505

Legal Developments

Confidential and Privileged Communications

A Texas court ruled that statements made by a church member to his pastor when confronted by the pastor about allegations of inappropriate behavior with children were not protected against disclosure in court.

Richard R. Hammar, Attorney, CPA
Bio

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.

The Clergy—Penitent Privilege

A Texas court ruled that statements made by a church member to his pastor when confronted by the pastor about allegations of inappropriate behavior with children were not protected against disclosure in court by the clergy-penitent privilege.

A church member ("Jerry") became involved in various activities with church members and their children. The pastor confronted Jerry about a complaint that he had kissed a minor girl. A short time later, the pastor confronted Jerry with another complaint that he was involved in "inappropriate behavior" with a church member's ten year old daughter. After the second incident, Jerry was told that he no longer had a leadership position with the church and was not welcome there. A few months later, Jerry was charged with two counts of child molestation. He was later convicted and sentenced to a prison term of 40 years as a habitual offender.

Jerry appealed his conviction, claiming that the trial court erred in allowing the pastor to testify. Jerry asserted that his conversations with the pastor were protected by the clergy-penitent privilege and should not have been disclosed in court. The Texas clergy-penitent privilege 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 the member's professional character as a spiritual advisor."

The court noted that "under the express language of the rule, the privilege only extends to communications addressed to a clergyman in his professional capacity as a spiritual advisor, not to every private communication made to a clergy member. Thus, statements made during a disciplinary/administrative meeting are not communications made for the purpose of obtaining spiritual guidance or consolation and do not fall under the privilege."

The court noted that the pastor initiated the meetings with Jerry; told Jerry the specific purpose of the meetings was to confront him about the allegations of his inappropriate behavior with children; the pastor did not indicate that the meetings were held for spiritual guidance; and, Jerry "did not present evidence that he made statements at the meetings with a reasonable expectation of confidentiality to a member of a clergy acting in his or her professional or spiritual capacity." Therefore, "the initial meetings were administrative in nature and not privileged, and the pastor "did not communicate with Jerry in his professional character as a spiritual adviser."

Maldonado v. State, 59 S.W.3d 251(Tex. App. 2001).

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