Counseling

Legal Developments

Court Denies Lawsuit Against Clergy for Malpractice

Husband claimed priest’s affair with his wife led to her suicide.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1995-11-01Recent Developments

Sexual Misconduct by Clergy and Church Workers

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

• Key point: In many states, a husband is barred from suing a minister for seducing his wife. The husband also may be barred from suing the minister’s employing church and parent denomination.

• A Louisiana court ruled that an Episcopal diocese was not legally responsible for the suicide of a woman allegedly caused by a sexual relationship with an Episcopal priest. The husband of a woman who committed suicide sued a priest and diocese, claiming that his wife’s suicide had been caused by the sexual misconduct of the priest. The priest was also a physician, but the husband alleged that the priest was acting in his role as a clergyman when he engaged in a counseling relationship with the victim. The husband’s lawsuit alleged that the priest was guilty of malpractice by taking advantage of an emotionally dependent woman and then abusing his position of trust to engage in sexual intercourse with her on numerous occasions. The husband claimed that the priest’s behavior violated the teachings of the Episcopal Church as well as the ninth commandment (“thou shalt not covet they neighbor’s wife”) and the sixth commandment (“thou shalt not commit adultery”). The husband claimed that the diocese was responsible for his wife’s suicide on the basis of the following factors:

(1) Vicarious liability as the “principal” of the priest with direction and control over the services he provided to the victim.

(2) Failure to investigate (or adequately investigate) the priest as to his emotional, psychological, and moral fitness to be a minister of the Episcopal Church.

(3) Placing the priest in a position in which the victim could receive spiritual services from him.

(4) Failure to adequately train and prepare the priest for the ministry.

(5) Failure to adopt or enforce the Cannons of the Episcopal Church of America.

A trial court rejected the request of the diocese that the case be dismissed, and the diocese appealed. A state appeals court began its opinion by observing that the husband’s lawsuit attempted “to state a claim for clergy malpractice,” and that “[t]o date, no court has acknowledged the existence of a separate cause of action for the malpractice of a clergy member while acting within a clerical capacity.” The court expressed concern that “clergy malpractice” suits would have a “chilling effect” on the first amendment guaranty of religious freedom. It quoted with approval from a landmark decision of the United States Supreme Court more than a century ago:

It would therefore also be inappropriate and unconstitutional for this Court to determine after the fact that the ecclesiastical authorities negligently supervised or retained the defendant Bishop. Any award of damages would have a chilling effect leading indirectly to state control over the future conduct of affairs of a religious denomination, a result violative of the text and history of the establishment clause. Watson v. Jones, 80 U.S. 679 (1871).

The court then turned its attention to the husband’s claim that the adulterous relationship between his wife and the priest led to his wife’s suicide:

[The husband] complains about the adulterous sexual relationship between the decedent and [priest] and the effect that relationship may have had on the decedent’s mental state as a cause of her suicide. But they were both adults. As there is no civil nor criminal prohibition against such conduct between adult laypersons the state cannot penalize such conduct because [the defendant] was an Episcopal priest. To do so would require this court to determine the standards of the Episcopal Church and then put the weight of the state behind those standards or to require a different standard of behavior of the clergy, neither of which is permissible. (emphasis added)

The court then addressed the husband’s claim that the priest’s behavior violated the Ten Commandments as well as the Canons of the Episcopal Church. It observed simply that

this court has no right to interpret religious doctrine … nor standards of religious behavior …. This is a secular court. If sexual or other conduct of a priest violates secular standards, e.g., child molestation, this court will impose whatever civil or criminal secular sanctions may be appropriate. But this court has no authority to determine or enforce standards of religious conduct and duty.

In support of its conclusion that neither the priest nor diocese could be sued as a result of the wife’s suicide, the court quoted from a federal court ruling in New York:

It would be impossible for a court or jury to adjudicate a typical case of clergy malpractice, without first ascertaining whether the cleric … performed within the level of expertise expected of a similar professional … following his calling, or practicing his profession within the community ….

Any effort by this court to instruct the trial jury as to the duty of care which a clergyman should exercise, would of necessity require the court or jury to define and express the standard of care to be followed by other reasonable [Episcopalian] clergy of the community. This in turn would require the court and the jury to consider the fundamental perspective and approach to counseling inherent in the beliefs and practices of that denomination. This is as unconstitutional as it is impossible. Schmidt v. Bishop, 779 F.Supp. 321 (S.D.N.Y. 1991).

“What it comes down to,” the Louisiana court concluded, “is that the secular state was not equipped to ascertain the competency of counseling when performed by those affiliated with religious organizations.” And, since the priest could not maintain a lawsuit against the priest, “there can be no claim against the Episcopal Diocese based on any theory of responsibility for [the priest’s] actions.” The court also dismissed the husband’s allegation of “negligent selection” of the priest by the diocese, by referring to the Schmidt case (quoted above):

Furthermore, any inquiry into the policies and practices of the church defendants in hiring or supervising their clergy raises the same kind of first amendment problems of entanglement discussed above, which might involved the court in making sensitive judgments about the propriety of the church defendants’ supervision in light of their religious beliefs …. The traditional denominations each have their own intricate principles of governance, as to which the state has no rights of visitation. Church governance is founded in scripture, modified by reformers over almost two millennia [sic]. As the Supreme Court stated long [ago]: “It is not to be supposed that the judgment of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the blest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case, to one which is less so.”

In summary, this case is significant for a number of reasons, including the following:

(1) It is further confirmation of the unwillingness of the civil courts to permit clergy or their employing churches to be sued on the basis of malpractice.

(2) The court’s reference to the Supreme Court’s landmark ruling in the Watson case is compelling. The Supreme Court stated that finding a religious organization liable for the negligent supervision or retention of clergy would be unconstitutional!

(3) The court joined the federal district court in New York (along with other courts) in refusing to find a denominational agency liable for the “negligent selection” of a minister who engages in sexual relations with a counselee.

(4) The court noted that since there is no civil nor criminal prohibition against sexual relations between adult laypersons the state cannot impose such liability when one of the adults is a minister. To do otherwise would “require a different standard of the clergy,” which would not be permissible.

(5) In a concurring opinion, another member of the Louisiana court observed that the diocese could not be guilty of “negligent selection” of the priest since “the adulterous relationship between the plaintiff’s deceased wife and the [priest] apparently occurred after he was ordained, was the only adulterous relationship he engaged in, and was not known by the diocese.” In other words, a denominational agency cannot be liable for “negligent selection” when a minister’s sexual misconduct occurs after ordination and the agency was aware of no prior misconduct. Roppolo v. Moore, 644 So.2d 206 (La. App. 4 Cir. 1994).

See Also: Seduction of Counselees and Church Members | Negligent Selection | Negligent Supervision | Negligence as a Basis for Liability – Defenses | Cases Finding Denominations Not Liable

© Copyright 1995, 1998 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: m67 m40 c0695

Legal Developments

PA Includes Clergy Members as Mandatory Child Abuse Reporters

Exemption made for penitent privilege conversations.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-11-01 Recent Developments

Sexual Misconduct by Clergy and Church Workers

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

• Key point: Some states exempt ministers from the duty to report child abuse if they learn of the abuse in the course of a privileged conversation.

• The State of Pennsylvania amended its child abuse reporting law to include “members of the clergy” as mandatory child abuse reporters. However, the law exempts clergy from reporting abuse they learn of in the course of privileged conversations. Amended title 23, section 6311, of the Pennsylvania statutes, which took effect July 15, 1995, includes “members of the clergy” among those persons who are “required to report” cases of child abuse when they have “reasonable cause to suspect” (in the course of their employment or profession) that abuse has occurred. However, the amended statute adds: “Except with respect to confidential communications made to an ordained member of the clergy which are protected under [state law] the privileged communication between any professional person required to report and the patient or client of that person shall not apply to situations involving child abuse and shall not constitute grounds for failure to report as required by this chapter.” Pennsylvania is the 18th state to adopt such an approach to child abuse reporting by clergy. For a list of the other 17 states, see the feature article entitled “Personal Liability of Clergy for Failure to Report Child Abuse” that appeared in the September-October 1994 edition of this newsletter. Pa. C.S.A. Title 23, § 6311.

See Also: Failure to Report Child Abuse

© Copyright 1995, 1998 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: m67 m10 c0695

Legal Developments

False Accusations of Child Abuse Are Subject to Legal Recourse

New York case could be subject to charges of “gross negligence” despite other immunity laws, court says.

Richard R. Hammar, Attorney, CPA
Bio

S. v. Child & Adolescent Treatment Services, 614 N.Y.S.2d 661 (Sup, 1994)

Key point: Professional counselors who wrongfully accuse a person of child abuse may be subject to legal liability for doing so.

A New York court ruled that a grandmother could sue a professional counselor who falsely accused her of child abuse. Hundreds of thousands of adults are accused each year of child abuse.

Tragically, many of these allegations are true. But some of them are false, and the effects of a false accusation can be devastating. A New York court recently addressed the question of whether a professional counselor who falsely accuses an adult of child abuse can be sued on the basis of negligence for doing so.

A 5-year-old girl complained to her mother that her grandmother had sexually molested her during a recent visit to her home. The mother immediately had her daughter examined, but no physical evidence of abuse was observed. The mother took her daughter to a professional counselor for about two years. The counselor informed various persons that the girl "disclosed to me being sexually abused by her paternal grandmother" and that "I have no reason to doubt [her] disclosure of sexual abuse."

The counselor then informed an attorney representing the girl's mother that there should be no contact between the girl and her grandmother until the grandmother "can take responsibility for the injury [the girl] experienced, and demonstrates restitutive behavior." The counselor informed the girl's court-appointed guardian that she felt that the girl had been molested, and recommended that the grandmother only be permitted to visit the girl in the presence of other adults "until such time as she exhibits some responsibility for her actions and obtains some counseling for whatever emotional problems she may have."

The grandmother later sued the counselor, claiming that the counselor "negligently, carelessly and recklessly reached the false conclusion that the [grandmother] has sexually abused [her granddaughter] and thereafter negligently, carelessly and recklessly informed others of that conclusion." A trial court dismissed the lawsuit, and the grandmother appealed. A state appeals court ruled that the case should not have been dismissed and allowed the grandmother to pursue her lawsuit in court.

The court acknowledged that "[t]he best intentioned efforts towards determining whether sexual abuse has occurred and protecting children from it has not been without unfortunate downside effects. In recent years, much progress has been made in exposing the plight of abused and neglected children and providing them with needed protection and treatment. However, during these good faith efforts to protect children, many innocent parents have suffered." The court continued:

Particularly where the claim of abuse arises in connection with other, highly-charged disputes (such as divorce or custody and visitation proceedings), the determination that sexual abuse occurred is fraught with added dangers. More and more allegations of incest and child sexual abuse by husbands are being made by their wives during custody disputes. If the allegations are proven, the perpetrator, usually the husband/father, is excluded from contact with his children …. Child psychiatrists are frequently used by both sides to evaluate the child and make a determination about the authenticity of the charges …. A mistake might jeopardize a child's future or destroy a man's family life and career ….

Given the foregoing, it should be readily apparent that when a professional becomes involved in a case where child sexual abuse is suspected, care must be taken in investigating and evaluating such a claim and in reaching the conclusion that such abuse did take place. Where the professional is involved in a therapeutic relationship with the child, it requires little imagination to see the harm that might result from a negligently and erroneously formed conclusion that sexual abuse had occurred, with subsequent treatment based on that "misdiagnosis". In such a situation there would be no dispute that a cause of action for malpractice (or ordinary negligence) would exist on the child's behalf against the professional …. A suspected abuser surely has the right to a reasonable expectation that such a determination, touching him or her as profoundly as it will, will be carefully made and will not be reached in a negligent manner …. [B]eing labeled a child abuser [is] one of the most loathsome labels in society ….

Thus, I conclude that, where the determination of sexual abuse is made by a professional treating a child, with subsequent actions taken based upon that determination and aimed, whether in whole or in part, at shaping not only the conduct and well-being of the child but also the conduct of the suspected abuser, or the relationship between them, a duty of care is owed not only to the child but also to the alleged abuser.

The court acknowledged that state law grants limited immunity to those who file charges of child abuse, but it noted that this protection did not apply to acts of "gross negligence." It noted that "it is at least arguable that a finding of gross negligence could result in this case which would undermine the requirement for immunity …." .

See Also: Clergy Malpractice | Failure to Report Child Abuse

Legal Developments

Court Rules Statements to Priest Not Protected by Penitent Privilege

Statements were made when minister was not acting as a spiritual advisor.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1995-09-01Recent Developments

Confidential and Privileged Communications

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

• Key point: Not all statements to clergy are protected by the clergy-penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in a professional capacity as a spiritual adviser.

• The Kentucky Supreme Court ruled that statements made by a murder suspect to a minister were not protected by the clergy-penitent privilege from disclosure in court. A man approached a farmhouse one night while the father and 2 daughters were away. Only the mother and an 11-year-old son were at home, and the son had gone to bed. The man abducted the woman, raped her, and then killed her with a knife. A subsequent investigation revealed blood under the man’s fingernails and smeared on his pants leg and shoes. He had a fresh scratch on his face and there was a large quantity of blood on the floor and passenger seat of his car. DNA tests showed that the blood on the man’s hands, pants, and shoes matched the victim’s blood, as did the blood in his car. The man was later convicted of murder and rape, and was sentenced to death. On appeal to the state supreme court, the man claimed that the trial court committed reversible error in allowing a minister to testify in violation of the clergy-penitent privilege. The Kentucky clergy-penitent privilege states:

No … ordained minister, priest, rabbi or accredited practitioner of an established church or religious organization [shall] be required to testify in any civil or criminal case or proceedings preliminary thereto, or in any administrative proceeding, concerning any information confidentially communicated to him in his professional capacity under such circumstances that to disclose the information would violate a sacred or moral trust, unless the person making the confidential communication waives such privilege herein provided.

The murderer met with a minister on several occasions following his arrest, at the request of his attorneys. These meetings were intended to prepare the minister for testifying at trial on behalf of the murderer. Specifically, the attorneys intended to have the minister testify concerning a theological opposition to the death penalty, and the “remorse” shown by the murderer. In the course of several meetings, the minister prayed with the murderer; expressed concern over the state of his soul; sought and obtained confessions from him; and urged the murderer to think of the victim’s 3 young children when he expressed “no remorse” over his actions. The minister was called to testify during the trial by the prosecution, and revealed the murderer’s statement to him that the victim was alive and screaming when he raped her. This testimony was crucial to the prosecution’s rape case, since the murderer’s attorneys claimed that the victim was already dead when he raped her. On appeal, the murderer argued that it was wrong for the trial court to permit the minister to testify since the information he shared was protected from disclosure by the clergy-penitent privilege. The state supreme court disagreed. It noted that “[f]or a communication to be covered under the [clergy-penitent] privilege it must be communicated to a member of the clergy when that person is acting as a spiritual advisor and the information is not meant to be transferred to anyone else.” The court added that “communications to a member of the clergy will not be privileged if they are to be relayed to a third party not covered by the privilege.” It pointed out that in this case the minister came in contact with the murderer “in contemplation of testifying at trial,” and that “such a fact alone mitigates against a situation invoking the priest-penitent privilege.” The court also stressed that

there is no testimony at all that the [murderer] used his contacts with the minister to obtain spiritual advice or to discuss his spiritual well-being. [The pastor] testified that his involvement with [the murderer] was for the purpose of preparation by him of a case study in connection with a seminary class which he was then taking …. When asked whether he was told that all his conversations with the [murderer] were confidential, he responded, “not that I can remember.” Due to these facts there was no violation of the priest-penitent privilege in allowing [the pastor] to testify.

In summary, the conversations between the murderer and the pastor were not privileged because (1) the conversations between the minister and the murderer were designed to prepare the minister to testify at trial concerning those communications; and (2) the murderer had not sought out the minister for spiritual counsel. Sanborn v. Commonwealth, 892 S.W.2d 542 (Ky. 1994).

See Also: Was the Communication Made in Confidence? | Was the Minister Acting in a Professional Capacity?

© Copyright 1995, 1998 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 c0595

Legal Developments

Children Cannot Revoke Parent’s Penitent Privilege

Massachusetts court makes surprise ruling.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax1995-09-01Recent Developments

Confidential and Privileged Communications

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

• Key point: The clergy-penitent privilege may not be waived by children of the penitent.

• A Massachusetts court ruled that the children of a deceased woman could not waive the clergy-penitent privilege with regard to documents given by their mother to her priest in the course of an ecclesiastical annulment proceeding. A wealthy attorney divorced his wife, and planned to marry another woman. The other woman refused to marry the attorney unless the marriage occurred in the Catholic Church, and this was not possible unless the attorney obtained an ecclesiastical annulment of his previous marriage. The attorney contacted his first wife, who agreed to cooperate in the annulment proceeding. The decision to cooperate was allegedly based on the husband’s oral promise to the first wife that he would leave two-thirds of his estate to their four children. The church granted the annulment, and the attorney remarried. In less than three years the first wife and the attorney died, and the attorney’s will was admitted to probate. The will left the attorney’s entire estate (amounting to nearly $3 million) to his second wife. The four children were disinherited. The children filed a lawsuit, seeking to enforce their father’s oral promise to their mother that he would leave two-thirds of his estate to them. The children argued that their mother would never have cooperated in the annulment without this assurance. Unfortunately, the children were unable to prove that the attorney in fact made such a promise to his first wife. In their attempt to prove that such a promise had been made, the children asked the local archbishop to release any documents submitted by their mother during the ecclesiastical annulment proceedings. The archbishop refused to release any of these documents on the ground that they were privileged. A trial judge agreed with the archbishop’s position, and the children appealed. A state appellate court upheld the trial judge’s ruling. The court began its opinion by quoting the Massachusetts clergy-penitent privilege:

A priest … shall not, without the consent of the person making the confession, be allowed to disclose a confession made to him in his professional character … nor shall a priest … testify asa to any communication made to him by any person in seeking religious or spiritual advice or comfort … without the consent of the other person.

The court acknowledged that it “had no indication of what a person such as [the first wife] would be expected to reveal in her participation in the [ecclesiastical] annulment proceedings.” Nevertheless, the court concluded that the process “may well have literally involved `seeking religious or spiritual advice or comfort,’ but, in any event, the process appears to fall within the scope of what the legislature was seeking to protect [by the clergy-penitent privilege].”

The court rejected the children’s claim that they could waive the privilege on behalf of their deceased mother. The court conceded that some privileges, including the attorney-client and physician-patient privileges, can be waived by a deceased person’s heirs. However, the court concluded that “[t]he legislative concern for the inviolability of the communications in this case is more substantial than that expressed in most [other privileges].” The court noted that the Massachusetts clergy-penitent privilege “contains no list of exceptions” as do other privileges. As a result, the civil courts should be “cautious in accepting any argument that the representatives of the [deceased wife], especially when they are not disinterested persons, may waive the privilege, a right that [the deceased wife] had but never exercised.” The court concluded:

[I]t is not possible to determine that [the deceased wife’s] interests would be served by permitting her [children] to waive the privilege. The information sought by the subpoena may well involve personal and confidential information that [she] would not have wanted revealed, or at least that she would not have wanted revealed when the sole benefit of disclosure would have been to aid in proving (a) that she performed her part of the bargain with [her former husband], an uncontested fact, and (b) the benefit to [the former husband] of her services in cooperating in the annulment proceeding, a fact that was capable of being shown by other evidence. Assuming that there is ever to be a case in which an executor or administrator may waive the priest-penitent privilege, this is not that case.

This case is noteworthy for two reasons. First, the court reached the incredible conclusion that documents in the possession of the archbishop were protected from disclosure by the clergy-penitent privilege—without knowing their contents! The court assumed that the documents contained information protected by the privilege. Second, the court concluded that the heirs or executors cannot waive the clergy-penitent privilege on behalf of a deceased person, at least where the heirs or executors are not disinterested and the position they are attempting to establish can be proven by other evidence. Ryan v. Ryan, 642 N.E.2d 1028 (Mass. 1994).

See Also: Who May Assert the Privilege? | Waiver of the Privilege

© Copyright 1995, 1998 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 c0595

Legal Developments

Court Denies Lawsuit Regarding Potential STDs

No evidence that husband’s girlfriend suffered from any sexually transmitted disease.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-05-01 Recent Developments

Marriage and Divorce

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

• Key point: A woman cannot sue her former husband as a result of her fear of contracting AIDS because of the former husband’s adulterous relationship.

• In a case that will be of interest to ministers who counsel with divorced persons, an Idaho court ruled that a woman could not sue her former husband on the basis of her fear of contracting AIDS and other sexually transmitted diseases because of his extramarital affairs while the two were married. During the last several months of the couple’s marriage, the husband was engaged in an extramarital affair without the wife’s knowledge. When she discovered the affair, the husband filed for divorce. After learning of her husband’s affair, the wife experienced great distress over the possibility that she may have contracted AIDS or some other sexually transmitted disease as a result of her husband’s actions. She sued her former husband, and his girlfriend, for money damages to compensate her for her distress. A trial court dismissed the case and the former wife appealed. A state appeals court began its opinion by noting that many other courts have allowed persons to sue for emotional distress resulting from a fear of developing a disease in the future that has an incubation period (such as cancer, tuberculosis, and AIDS). Such courts have permitted victims to sue only if their mental distress is genuine and their fear reasonable. The court concluded that the former wife’s fear was genuine, and then addressed the issue of whether or not her fear was reasonable. It concluded that it was not. The court observed that in order to sue, a person’s fear of contracting a sexually transmitted disease “must be based on more than the mere possibility of exposure to a disease or disease-causing agent.” It must be based on actual and proven exposure to the disease in question. The court noted that “[t]o hold otherwise would invite claims, and allow recovery, for the fear of AIDS where the plaintiff had undergone a blood transfusion, for the fear of developing tuberculosis based on evidence that a person had coughed in the plaintiff’s face, or for fear of cancer where the plaintiff had inhaled or ingested an unknown substance, all without any proof that a disease-causing agent was present.” The court noted that the basis of the former wife’s fear of contracting a sexually transmitted disease was not actual exposure, but rather the possibility of exposure if the woman with whom her husband was having an affair was infected with such a disease. The court concluded that “we decline to extend the law to recognize emotional injuries on so remote and tenuous a basis, where there is no showing that [the husband’s girlfriend] actually was infected with or suffers from any sexually transmitted disease.” However, the court also ruled that “emotional distress resulting from a fear of contracting a disease may constitute a compensable injury in Idaho” if the victim can demonstrate genuine emotional distress and actual exposure to the disease that is the basis for concern. Neal v. Neal, 873 P.2d 881 (Idaho App. 1994).

© Copyright 1995, 1998 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: m55 c0395

Legal Developments

Penitent Privilege When Pastors Are ‘Off-Duty’

Court rules penitent privilege rules do not apply if minister is not acting as spiritual adviser.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-05-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: Confidential statements made to a minister are not privileged from disclosure in court unless they are made to a minister acting in a professional capacity as a spiritual adviser.

• The Vermont Supreme Court ruled that statements made by a burglary suspect to a minister were not protected by the clergy-penitent privilege since they were not made to the minister acting in his professional capacity as a spiritual adviser. The suspect was charged with burglarizing his former girlfriend’s home. He was tried and found guilty, and appealed his conviction. He argued that the trial court erred by admitting into evidence a statement made by the suspect to a minister. During a telephone conversation initiated by the suspect, the former girlfriend’s minister informed the suspect of the burglary to which the suspect replied, “Well, to tell you the truth, I was only trying to scare the hell out of her.” The suspect sought to have this statement excluded from evidence on the basis of the Vermont clergy-penitent privilege, which provides that “a person has a privilege to … prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser.” The court concluded that this privilege did not apply to the statement made by the suspect to the minister: “[The suspect] bore the burden of demonstrating that his statement to [the minister] was a privileged one. However [he] failed to show he made this statement to [the minister] acting in a capacity as [the suspect’s] spiritual adviser. Neither the fact that [the suspect] initiated the telephone call nor that the communication could be construed as a penitent statement in confession to a crime overcomes the absence of this essential element of the privilege.” This case illustrates the difficulty the civil courts experience in deciding whether or not a statement to a minister is privileged. The suspect in this case very well could have intended for his statement to the minister to be protected by the privilege. Ministers who find themselves involved in a discussion with a person who confesses to a crime should ask the person if he or she is seeking out the minister in a professional capacity as a spiritual adviser. If the answer is yes, the minister can later testify to that statement and thereby increase significantly the likelihood that a civil court will find the conversation to be protected by the privilege. State v. Nunez, 647 A.2d 1007 (Vt. 1994).

See Also: Was the Minister Acting in a Professional Capacity?

© Copyright 1995, 1998 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 c0395

Legal Developments

Penitent Privilege and Identity Disclosure

Some states allow clergy to keep confessor identities a secret.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-03-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: In some states, the clergy-penitent privilege is broad enough to protect clergy from disclosing the identities of persons they speak with in confidence, as well as the content of their conversations.

• A Texas court ruled that a minister did not have to disclose the identity of a person who spoke with him in confidence about the cause of an accident that injured a young child on church premises. The facts of this case are tragic. Officials of a local Methodist church caused the legs of a monkey-bar set to be cut and the set to be laid on its side on the church playground. The monkey bars were not chained to a fence to prevent their use, nor were church personnel warned not to use them until the set could be anchored safely in the ground. Unknown persons stood the monkey bars upright on a Saturday night. On the following Sunday morning, teachers and aides took a Sunday school class to the playground and allowed the children to use the monkey bars without realizing that they were unsecured. A 3-year-old girl was swinging on the monkey bars when they collapsed upon her. The child suffered a broken neck and was rendered quadriplegic and respirator-dependent for life. The child’s parents sued the church, and settled the case out of court. They later sued the Annual Conference (a regional denominational body of the United Methodist Church). In preparing for trial, the parents’ attorney took the deposition of the church’s pastor. The attorneys asked the pastor if he had any information as to who stood up the monkey bars on the evening before the accident. The pastor replied that he had some information but invoked the clergy-penitent privilege and refused to disclose what information he had or who gave it to him. The parents asked the trial court to compel the pastor to answer their question. The court refused, concluding that the clergy-penitent privilege protected the pastor from disclosing the identity of a counselee as well as what the counselee said. The parents appealed.

A state appeals court agreed with the trial court that the clergy-penitent privilege protected the pastor from disclosing the identity of the person who spoke with him about the monkey bars. The court began its opinion by quoting the Texas clergy-penitent privilege:

Rule 505. Communications to Clergymen. (a) Definitions. As used in this rule: (1) A “clergyman” is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting him. (2) 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. (b) General rule of privilege. 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 spiritual advisor. (c) Who may claim the privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

During the pastor’s deposition he admitted that someone had spoken with him about the monkey bars, but insisted that “when it was told to me, it was told in the confidence of the confessional—informal confessional that we Methodists use, and [I was] asked that our conversation be kept confidential. And it came to me as a burden and a pain; and I prefer that—that I not answer any questions concerning it.” Based on this response the court concluded that the conversation the pastor had with the unidentified individual was privileged, since the conversation was confidential and the pastor had been sought out in his professional capacity as a spiritual advisor. In support of its conclusion, the court observed:

Communicant-clergyman confidentiality benefits the individual communicant, the clergy, and society. The individual benefits from unfettered freedom of religion in his use of the confessional; his perceived ability to communicate with God through an emissary; the therapeutic value in obtaining psychological and physical relief from fear, tension, and anxiety; and in his exercise of a fundamental right to privacy. The clergy benefits in being able to safely draw out a communicant’s innermost thoughts and feelings with the assurance that confidences are protected by public policy. Id. The church as an institution benefits in enjoying recognition of its prestigious place in society. The judiciary benefits by avoiding direct confrontations with the clergy. There is the realization that requiring the clergy to testify will not necessarily produce testimony. “The concept of jailing a clergyman for adhering to the absolute duty imposed upon him by deep religious beliefs is offensive.”

While acknowledging that few courts have addressed this issue, the court concluded that the privilege was broad enough to protect clergy from disclosing the identity of counselees as well as what counselees share. It pointed out that the child’s parents were “no worse off being denied the identity of the communicant since that information would not have existed but for the privilege …. Communications that are made because of the privilege and which the law assumes never could have been made without the privilege remain private. Nothing is hidden that the rest of the world would have reasonably expected to be available.”

The parents claimed that a person’s identity is not a “communication” at all, but a mere “observation” that is not privileged. The court conceded that other courts have ruled that a counselee’s demeanor and state of mind are not protected by the privilege, but it pointed out that “in all these cases, the communicant’s identity was already known. These cases are no authority for the proposition that the hitherto unknown identity of a communicant is discoverable as a mere observation.”

Finally, the court noted that the Texas clergy-penitent privilege is a broad one, and this fact bolstered its conclusion. It observed:

Our decision to uphold the trial court’s protection of the identity of [the pastor’s] communicant is consistent with what we believe to be the intent of the Texas legislature and Supreme Court to provide Texans with a strong communications-to-clergymen privilege. First, the Texas privilege is broader than in some jurisdictions in that a communication need not be strictly “penitential” to qualify for protection. Second, while other comparable Texas communications privilege rules contain express exceptions, the communications-to-clergyman privilege contains none at all. Third, and most significantly, when Rule 505 was adopted in 1983, it dropped a provision of the previous communications-to-clergymen statute that had given the trial court discretion to compel disclosure of a communications to a clergyman if necessary to a proper administration of justice. We perceive a clear intent to afford Texans the opportunity for spiritual counseling in “total and absolute confidence.”

This case will be useful precedent for other ministers to use when called upon to disclose the identities of persons who seek them out for spiritual guidance. Simpson v. Tennant, 871 S.W.2d 301 (Tex. App. Houston 1994).

See Also: Miscellaneous Considerations

© Copyright 1995, 1998 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 m58 c0295

Legal Developments

Waiving the Clergy-Penitent Privilege

Few states allow clergy to waive penitent privilege without counselee consent.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-03-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: In most states, ministers are not free to unilaterally “waive” the clergy-penitent privilege and disclose in court the contents of communications shared with them in confidence. They may do so only if the counselee consents. In a minority of states, ministers are free to waive the privilege and disclose privileged communications in court, whether or not the counselee consents.

• The New Jersey Supreme Court ruled that a minister was free to testify in court regarding a confession made to him by a murderer, even though the murderer did not consent to the disclosure. A retired fireman was ordained by a Baptist church as a minister of visitation. As a minister of visitation, he visited members of his church (as well as nonmembers) in hospitals, psychiatric wards, prisons, and nursing homes. The minister visited with the murderer (the “defendant”) in prison on 19 occasions. On one occasion the defendant confessed to the minister that he had killed 3 persons. The minister later testified at the defendant’s trial, and disclosed the defendant’s confession. The defendant claimed that his confession to the minister was protected by the clergy-penitent privilege and should not have been disclosed in court. The state supreme court ruled that the confession was privileged, but that the minister had the unilateral right to “waive” the privilege and disclose the confession in court. The court began its opinion by quoting the New Jersey clergy-penitent privilege:

[A] clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications between and among him and individuals, couples, families or groups with respect to the exercise of his professional counseling role. N.J. Evidence Rule 29.

The defendant argued that this language clearly prohibits ministers from ever disclosing a privileged communication in court. He stressed that the rule specifies that ministers “shall not be allowed” to disclose a privileged communication in court. The state argued that the language of the clergy-penitent privilege is unclear, and that the history and purpose of the privilege must be reviewed to clarify its present meaning. The court embarked upon a review of the history of the clergy-penitent privilege. Its review will be of interest to all ministers:

The priest-penitent privilege originated with the seal of confession. Under the Code of Canon Law of the Roman Catholic Church for a “confessor in any way to betray a penitent” was a crime. A confessor who directly violates the seal of confession incurs an automatic excommunication reserved to the Apostolic See. Traditionally, breaking the seal of confession “has been one of the most severely penalized offenses within the Code.” The sanctity of the confession was recognized in English law from the Norman Conquest in 1066 until the English Reformation in the Sixteenth Century. After the Reformation, hostility towards the Catholic Church in England resulted in a refusal to recognize the privilege. When this country was founded, therefore, the privilege did not exist at common law. Accordingly, American courts required that the privilege be conferred by statute. Where no privilege existed, clergypersons were often compelled to testify despite personal, moral, and religious objections. Although the Roman Catholic Church has the longest tradition of the sanctity of the confessional, for many other Christian denominations their “sincere dedication to secrecy is equally apparent.” In the Episcopal Church, for example, the new Book of Common Prayer’s rite, “The Reconciliation of a Penitent,” warns that the secrecy of a confession is morally absolute for the confessor, and must under no circumstances be broken. Violators are subject to church discipline. The governing body of the American Lutheran Church also has adopted a resolution that the pastor hold inviolate and disclose to no one the confessions and communications made to him as a pastor without the specific consent of the person making the communication. Similarly, the Presbyterian Church in the U.S., the United Presbyterian Church, and the American Baptist Convention have adopted policy statements strongly affirming the inviolability of religious confidentiality.

The prospect of clergy going to jail to comply with their religious beliefs rather than disclosing a penitent’s confession resulted in various religious groups bringing pressure on state legislatures to enact a clergyperson privilege. Thus, the origin of the priest-penitent privilege as well as the moving force behind the enactment of the statutory privilege was to protect the clergyperson from being forced against his or her will to reveal confidences. Now almost all states have clergyperson-penitent privileges.

The court concluded that the history of the clergy-penitent privilege revealed that its purpose was to protect ministers from being forced to disclose confidential communications in court, and “to curb the potential manipulations of a penitent who, through waiver, could compel a clergyperson to reveal communications that were given purposely to mislead.” The court concluded:

We find the plain waive language of the statute … and the origin of the privilege to be persuasive evidence that the clergyperson is the only person who can waive the privilege ….

The principle underlying both the seal of confession and the statutory privilege was not concern for the penitent but rather concern that the clergyperson would be compelled in violation of his or her religious vows to disclose such confidences. Because the principal rationale was to recognize and protect the religious vows of the clergy, to include the penitent as the holder of the privilege was not necessary. Although we recognize “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,” we are not persuaded that the comfort of the penitent was the compelling motive for Evidence Rule 29.

The numerous state clergy-privilege statutes are not identical and they provide varying treatment of the privilege. As such, states are split on the issue of who holds the power to waive the clergyperson-penitent privilege. Most states do not confer the power of waiver on the clergyperson alone. States also differ on which persons qualify under the definition of “clergy” as well as on which situations qualify as confidential communications. Those various options are all interrelated and may affect who should hold the privilege and who should have the power to waive the privilege. We, however, are construing not those statutes but only Evidence Rule 29. In view of the legislative history of the priest-penitent privilege in New Jersey … we hold that the clergyperson is the sole holder of the privilege. The decision whether to reveal confidential communications rests with the clergyperson alone.

Only 4 of the court’s 7 justices joined in this opinion. The remaining 3 justices dissented vigorously from the court’s ruling. Perhaps most importantly, the dissenting justices observed:

Although most penitents still trust their priests, ministers, or counselors, they would be utterly shocked to find that they have no right to privacy in the confessional. Can one conceive of the reaction that would have followed in this state if someone in the legislature … had stood up and said, “I want the clergy to be able to disclose confessions at will, no matter what the person giving the confession wants, because the sanctity of religious confessions must give way to the needs of a lawsuit.” I doubt that any legislator would have taken such an extreme position. Given common notions of what is right, what is permissible, and what is, to some, sacred, most people, not just members of one sect or another, would have regarded such a proposal as unthinkable, or at least as an affront to religion and religious people …. We should not interpret the language of an act to reach a result we are convinced the legislature did not intend …. If the purpose of the cleric-penitent privilege is to foster the relationship between a confider and a spiritual counselor, that purpose is not served when the cleric becomes a witness for the prosecution. State v. Szemple, 640 A.2d 817 (N.J. 1994).

See Also: Miscellaneous Considerations

© Copyright 1995, 1998 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 c0295

Legal Developments

When Are Statements to Clergy Confidential and Privileged?

Recent case highlights some statements that may or may not be protected by penitent privilege.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: Not all statements to clergy are protected by the clergy-penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in his or spiritual capacity as a spiritual adviser.

• Key point: A minister’s observations of a counselee’s demeanor is not protected by the clergy-penitent privilege.

• Key point: The presence of a third party during an otherwise confidential counseling session between a minister and counselee may prevent the conversation from being privileged.

• A Minnesota court ruled that most statements made by a murder suspect to two ministers at a public hospital were privileged. An unemployed psychologist (the “defendant”) lived with a woman and her 23-month-old son. Late one night, while the infant’s mother was at work, the defendant brought the child into a hospital emergency room. The child was not breathing and exhibited multiple bruises and other evidence of abuse. Hospital personnel revived the child and placed him in intensive care. The hospital chaplain was present in the emergency room that night, and met with the defendant in a hallway. She identified herself as the chaplain, and escorted the defendant to the hospital’s family room where they spoke. The defendant recounted to the chaplain his financial difficulties, and asked about the child. During this conversation, the child’s grandmother entered the room and the three of them remained in the room and conversed for several more minutes. Hospital personnel later called a local Baptist pastor to meet with family members. The pastor was introduced to the defendant, and he asked the defendant if he “wanted to talk.” The two went to a hospital waiting area for several minutes and spoke. The defendant explained to the pastor his financial difficulties and stress, and also explained that he was trying to teach the child to be a “polite, little boy” by withholding food until the child said “thank you.” The defendant also stated that he wanted to be a better father than his own father had been. During this conversation a hospital orderly entered the room briefly to get something to drink, and then left. A few days later the child died. A pathologist concluded that the child had died from abuse and malnutrition. The defendant was convicted of second degree murder. He appealed his conviction on the ground that the chaplain and Baptist pastor had been permitted to testify at his trial in violation of the clergy-penitent privilege. The appeals court upheld the conviction. While it agreed with the defendant that the conversations with the chaplain and pastor were privileged under state law, it concluded that this testimony was not prejudicial to the defendant since the evidence against him was overwhelming even without this testimony.

The court began its opinion by noting that the Minnesota clergy-penitent privilege states that “[a] member of the clergy or other minister of religion shall not … be examined as to any communication made to the … minister by any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the … minister’s professional character, without the consent of the person.” The court observed that the purpose of this privilege “is to allow individuals freedom to unburden themselves by seeking spiritual healing without the threat of incriminating themselves.” It further noted that there are three requirements to raising the privilege: (1) the communicant spoke with a minister; (2) the communicant intended for the conversation to be private; and (3) the communicant was seeking spiritual help. The court concluded that these 3 requirements were met in this case with regard to most of the statements made by the defendant to the chaplain and pastor. First, the chaplain and pastor were both ministers. Second, the defendant’s conversations with both individuals were intended to be confidential:

After [the defendant] met [the chaplain] in the hospital hallway, the two went to a hospital reception room and talked for ten to fifteen minutes. When [the grandmother] arrived, the three of them remained in the room talking together for a while longer. The state argues that this three-way conversation indicates that the original conversation between [the defendant and the chaplain] was not private. We draw an opposite inference. The circumstances leading up to the conversation between [the two] and the fact that they retired to a room away from others, support a reasonable belief that they engaged in a confidential conversation prior to being joined by [the grandmother].

The conversation between [the Baptist pastor and the defendant] took place in the hospital waiting room. The state correctly notes that one person entered to get something to drink and then left. This, without more, however, does not undermine the private character of their conversation.

Third, the defendant was seeking spiritual help when he spoke with the chaplain and pastor. The court noted that “these clergy were called to aid a family in crisis. There was no reason for [the defendant] to speak with them about his life other than that they were religious figures, and he was in need of comfort.” Accordingly, the court concluded that most of the statements made by the defendant to the chaplain and pastor were protected from disclosure in court by the clergy-penitent privilege.

However, the court concluded that conversations between the defendant and chaplain while the grandmother was in the room “fall outside of the privilege” since the defendant “could not have intended confidentiality at that moment.” Further, the court concluded that the chaplain’s testimony in court regarding the defendant’s “general demeanor,” observable by all at the hospital, was not based on confidential information and is unprotected by the privilege.” While most of the conversations between the defendant and the chaplain and pastor were privileged, the court concluded that the defendant was not “prejudiced” by the introduction of this evidence in court since there was ample evidence to convict the defendant even without this evidence. Accordingly, it upheld the defendant’s conviction for second degree murder. State v. Orfi, 511 N.W.2d 464 (Minn. App. 1994). 3G2

See Also: Was the Communication Made in Confidence?

© Copyright 1995, 1998 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 c0195

Legal Developments

Confidential and Privileged Communications Between Members and Clergy

Court rules clergy-penitent privilege not limited to “confessions.”

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: In most states, the clergy-penitent privilege is not limited to “confessions” but includes any conversation in which the penitent is seeking spiritual counsel from a member of the clergy.

• The Utah Supreme Court ruled that a bishop did not have to disclose in a civil trial information shared with him by a father who was guilty of abusing his adopted child. An adult woman sued her adoptive father, alleging that he had sexually abused her throughout her childhood. As a result of his conduct, the father sought advice from a bishop of his church. The church later convened a disciplinary hearing at which the father was excommunicated. The daughter subpoenaed documents from the church pertaining to any communications her father had with the bishop regarding his conduct. The bishop opposed this request on the ground that the information sought by the daughter was protected from disclosure by the clergy-penitent privilege. The daughter insisted that any communications made by her father to the bishop were not privileged since they were not made in the context of a “confession” as required by the Utah clergy-penitent privilege. The Utah clergy-penitent privilege provides: “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of the discipline enjoined by the church to which he belongs.” The Court agreed with the bishop that the statements made by the father were privileged. It refused to narrowly interpret the word “confession” to mean a penitential confession to a member of the clergy, since such an interpretation would limit the privilege to the Catholic Church. The Court observed that such an interpretation would favor one sect over all others, making it unconstitutional. Further, the Court noted that the word “confession” is used in several ways, including to simply “disclose or acknowledge” something, and it insisted that this broader interpretation is more sensible and realistic:

[A] constricted interpretation of the privilege does not take into account the essential role that clergy in most churches perform in providing confidential counsel and advice to their communicants in helping them to abandon wrongful or harmful conduct, adopt higher standards of conduct, and reconcile themselves with others and God …. In counseling parishioners in religious and moral matters, clergy frequently must deal with intensely private concerns, and parishioners may be encouraged, and even feel compelled, to discuss their moral faults. As one commentator has stated, “Because most churches do not set aside formal occasions for special private encounters labeled ‘confession,’ less formal consultation must be privileged if the privilege is not in effect to be limited to Roman Catholics.”

The Court concluded that “the term ‘confession’ need not be construed to apply only to penitential communications and that a broad construction of that term is necessary to take into account the essential religious role clergy play in dealing with the wrongdoing of parishioners.”

While the Court interpreted the word “confession” broadly, it did caution that the clergy-penitent privilege still requires that the communication be confidential and in the course of discipline. In deciding if a conversation with a minister is “confidential” and in the course of “discipline” the Court suggested that the following factors be considered:

[W]hether the [location] of the communication indicates an intent that the communication be confidential, whether the conversation was casual in nature or undertaken by the cleric and the parishioner with a sense that the parishioner’s moral conduct was at issue, and whether persons not concerned with the subject matter were present. A communication that does not take place in private or that is made in the presence of others not intimately and directly concerned with the issue may indicate that the parties involved did not intend the conversation to be confidential …. Likewise, statements made to a cleric in a social context are not privileged because the statements are not made to the cleric in the course of his or her professional responsibilities or in a religious context.

The Court concluded that statements made by the father to the bishop were privileged, even though some of them occurred in the father’s home, since “the bishop communicated with [the father] in the bishop’s clerical role with regard to spiritual or religious matters.” Scott v. Hammock, 870 P.2d 947 (Utah 1994).

See Also: Was the Communication Made in the Course of Discipline?

© Copyright 1995, 1998 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 m10 c0195

Legal Developments

Confidential Communications with More than One Person

Clergy-penitent privilege may be revoked if information has been shared with others.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: The clergy-penitent privilege may be “waived” when a counselee shares the same information with another person.

• A New York court ruled that a murderer did not “waive” the clergy-penitent privilege when he disclosed to police a confession he had made to two ministers. A drug dealer murdered his girlfriend in New York, and then took a bus to Miami. A clerk at the bus station in Miami noticed that the murderer was “in deep need” and asked him to come over to the ticket counter. The clerk spoke with the murderer and repeatedly assured him that God loved him. The murderer related to the clerk that he had grown up in the church and had become involved in drugs after leaving the church. He also admitted that he had killed someone. The clerk called his pastor, and a few minutes later the pastor, along with another pastor (a former police detective), arrived at the station. The ministers took the murderer to a church service, and following the service they spoke with him further. The murderer confessed to the ministers that he had murdered a woman in New York, and the ministers urged him to turn himself in to the police. The murderer later contacted the police and confessed to the killing. At the murder trial, the court concluded that the statements the murderer made to the ministers were covered by the clergy-penitent privilege. But, the court also ruled that the murderer had “waived” the privilege by telling the police the same thing he had told the ministers. As a result, the court let the ministers testify regarding the murderer’s confession. The murderer was convicted, and he appealed his conviction in part because the trial court had permitted the ministers to disclose his confession.

The New York Court of Appeals (the highest state court in New York) agreed with the trial court that the statements made by the murderer to the two ministers were protected by the clergy-penitent privilege from disclosure in court, and it reversed the trial court’s ruling that the murderer had waived the privilege. The New York clergy-penitent privilege states: “Unless the person confessing or confiding waives the privilege, a clergyman … shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor.” The court noted that the privilege protects clergy and counselees from being forced to testify in court regarding communications made in confidence in the course of spiritual counseling. The court noted that the purpose of the privilege was to recognize “the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance.” The court acknowledged that “not every communication between a cleric and a congregant will justify application of the privilege,” and that “the privilege may not be invoked to enshroud conversations with wholly secular purposes solely because one of the parties to the conversation happened to be a religious minister.” However, the court concluded that the murderer’s confession to the two ministers in this case was privileged since his contact with the ministers “had been initiated for the purpose of obtaining spiritual guidance and solace” and he “had bared his soul only after attending a church service” and “discussing his standing under religious laws with the two ministers.”

The court ruled that the murderer had not waived the privilege by repeating to the police the same confession he had made to the ministers. However, it based this ruling on a legal technicality. When the murderer made his confession to the police he was speaking without the benefit of legal counsel and accordingly his comments to the police were not admissible in court under the so-called “exclusionary rule”. The court concluded that the prosecutor could not avoid this rule by allowing the ministers to testify regarding the same confession, since “any waiver defendant may have made would be inconsistent with the principles and purposes underlying the exclusionary rule.” In summary, were it not for the improper questioning of the murderer without the presence of an attorney, the court likely would have agreed with the trial court that the murderer “waived” the privilege by disclosing to the police the same information he had disclosed to the ministers. People v. Carmona, 606 N.Y.S.2d 879 (Ct. App. 1993).

See Also: Waiver of the Privilege

© Copyright 1995, 1998 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 c0195

Legal Developments

Counseling Session Notes and the Clergy-Penitent Privilege

Personal notes made by ministers during counseling sessions may be privileged.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Personal notes ministers make during counseling sessions may be privileged.

A federal court in Virginia ruled that the clergy-penitent privilege applied to a pastoral counselor, and that as a result the counselor did not have to disclose notes she took during counseling sessions.

A woman was injured when she was struck by a can falling from the top shelf in a grocery store. She later sued the grocery store for personal injuries and emotional distress. At the time of the accident and thereafter the woman sought counseling from a pastoral counselor at a local nonprofit, multidenominational counseling center operated by 8 churches. All of the counselors at the center are ordained ministers.

During the woman's counseling sessions, her counselor followed her usual practice of taking notes. The grocery store learned of the counseling relationship and issued a subpoena seeking disclosure of all of the counselor's notes in an attempt to verify the woman's injuries. The counselor claimed that her notes were protected from disclosure by the clergy-penitent privilege, and refused to disclose them.

The grocery store argued that the clergy-penitent privilege only applied to "testimony [given] as a witness in any civil action," and accordingly did not apply to a request for notes or other documents. The court ruled that the counselor's notes were protected from disclosure by the privilege. It began by quoting the Virginia clergy-penitent privilege:

No regular minister, priest, rabbi or accredited practitioner over the age of eighteen years, or any religious organization or denomination usually referred to as a church, shall be required in giving testimony as a witness in any civil action to disclose any information communicated to him in a confidential manner, properly 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. Va. Code Ann. § 8.01-400.

The court rejected the grocery store's claim that the privilege applied only to in-court testimony by ministers and not to subpoenas demanding the disclosure of documents. It acknowledged that the privilege protects ministers from "giving testimony as a witness in any civil action," and that this language could be interpreted to limit the privilege to in-court testimony. However, in rejecting this interpretation the court observed:

Although a close question, this court concludes that to compel the production of these "documents" would render meaningless the clear protection against disclosure of confidential communications as to clergy provided by [the privilege. The counselor's] notes would reveal the substance of [the woman's] confidential communications to [her]. Consequently [the counselor's] testimony as a witness in the civil trial would no longer be needed …. Moreover [the grocery store] could use the notes to cross-examine [the woman], thereby placing into evidence the substance of the notes. Thus, a party seeking disclosure of such confidential communications could easily subvert the protections provided by the statute in cases in which a prudent clergyperson had documented the counseling. This court holds, therefore, that the protection … given to the clergy, "in giving testimony as a witness in any civil action," against compelled disclosure of "any information communicated to them in a confidential manner" also extends to their disclosure, in any civil action, of documents that contain the substance of that testimony.

There are a few additional aspects of the court's ruling that are of interest. First, the court ruled that the privilege could only be asserted by the minister-counselor and not by the pastoral counseling center. Second, the court noted that the woman herself sought to obtain her counselor's notes in order to verify her injuries, but could not do so since the privilege (under Virginia law) can be asserted or waived only by the minister and not by the counselee. The court observed:

This situation exposes a peculiar feature of the privilege …. The statute grants the privilege only to the clergyperson, not to the communicant. Vesting the clergyperson with the privilege without regard to the wishes of the communicant, however, serves no apparent purpose. In fact, in this case it has frustrated the needs of the communicant, the person whose confidences such statutes have traditionally sought to protect. Moreover, by giving the clergy the exclusive right to assert the privilege, the statute actually discourages candid disclosure in that the clergyperson can choose to reveal a confidential communication without the consent of the communicant.

Finally, the court noted a number of problems with the language of the privilege and encouraged the Virginia legislature to address them:

First, the statute leaves unclear whether, in a civil action, it protects against all compelled disclosure, regardless of its form, or whether it protects only against compelled testimonial disclosure. Second, the statute inexplicably grants the privilege exclusively to the clergy, regardless of whether the communicant consents to disclosure. Third, the statute does not address whether the privilege extends to counseling services provided by the clergy, for a fee, in cases which those counseling services differ from secular counseling only by their emphasis on "spiritual" issues rather than psychopathological issues.

This is the first court ruling to question the propriety of applying the clergy-penitent privilege to pastoral counselors who charge a fee for their services and whose counseling services differ from secular counseling only by an "emphasis on spiritual issues."

The court's concern was misplaced. The purpose of the privilege—encouraging persons to unburden their souls to the clergy—is in no way diminished by the fact that a person pays a fee, or that the minister-counselor's services are similar to secular counseling except for an emphasis on spiritual issues. Indeed, the whole point is that the minister-counselor's services emphasis the spiritual. This is the very distinction that makes pastoral counseling unique and that supports the clergy-penitent privilege.

Blough v. Food Lion, Inc., 142 F.R.D. 622 (E.D. Va. 1992).

Legal Developments

Sexual Misconduct and Insurance Coverage

Insurance policies may not cover sexual misconduct by employees.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1994-07-01 Recent Developments

Sexual Misconduct by Clergy and Church Workers

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

• Key point: Church insurance policies may not provide a legal defense of lawsuits brought against pastors by victims of sexual seduction. Further, any money damages awarded by a court against a pastor may not be covered by the church’s policy.

• An Illinois appeals court ruled that a liability insurance policy maintained by a counseling center did not necessarily exclude coverage for a counselor who sexually seduced a counselee. A psychotherapist who was employed by a secular counseling center initiated sexual contact with her. The two engaged in sexual intercourse on several occasions over a two-year period. The woman later sued her counselor, and the counseling center. She alleged that the counselor was guilty of breach of his fiduciary duties, assault and battery, and intentional infliction of emotional distress. She claimed that the counseling center was responsible for the counselor’s conduct on the basis of the legal doctrine of respondeat superior (under which an employer is liable for the negligent acts of its employees committed within the scope of their employment). The center was dismissed from the lawsuit on the ground that the counselor was not acting within the scope of his employment when he had sexual relations with the counselee. The center’s insurance company sent a letter to the center informing it that the insurance policy did not “afford coverage” for any of the claims against the counselor. It relied on the following language in the insurance policy:

We’ll pay amounts you or others protected under this agreement are legally required to pay as damages for covered professional liability claims …. Your employees are protected against covered claims while working for you within the scope of their duties.

The insurance company claimed that the center had been dismissed from the case on the ground that the counselor was not “working for the center within the scope of his duties” when he engaged in sexual contact with the counselee, and therefore the insurance policy provided no coverage for him. The insurance company asked a court for a “declaratory judgment” agreeing with its interpretation of the insurance policy. A court agreed with the insurance company’s interpretation. It noted that the sexual misconduct of a counselor in the course of a counseling relationship could be viewed as occurring within the scope of employment. It based this conclusion on the “transference phenomenon” which often occurs in the context of counseling. Counselees often develop a deep emotional dependence upon a counselor. The emotional dependence is called “transference” and is a typical reaction characterized by a counselee unconsciously attributing repressed feelings to the counselor. A counselor must be capable of properly responding to these feelings in order to avoid emotional involvement with the counselee and to assist the counselee in overcoming problems. The court observed that “[t]he mishandling of this phenomenon, which generally results in sexual relations or involvement between the psychiatrist or therapist and the patient, has uniformly been considered as malpractice or gross negligence ….” Since the transference phenomenon is so closely associated with the counseling relationship, the court noted that “the sexual misconduct of a therapist could be viewed as inside the scope of treatment under the guise of therapy.” However, it agreed with the insurance company that such a conclusion was not possible in this case since the lawsuit against the center had already been dismissed on the ground that the counselor’s acts did not occur within the scope of his employment. Accordingly, the counseling center’s insurance policy did not apply to the counselor’s acts, and he was not entitled to a legal defense or payment of any verdict or settlement against him.

The possible application of this case to churches and clergy is apparent. It suggests that church insurance policies may not cover clergy who engage in sexual relations with a counselee if the church is found to be free from responsibility on the ground that the minister’s acts were not within the scope of his or her employment. St. Paul Fire & Marine Insurance Company v. Downs, 617 N.E.2d 338 (Ill. App. 1 Dist. 1993). [PCL4K, PCL12A2, PCL12A4f]

See Also: Seduction of Counselees and Church Members | Negligent Selection | Liability Insurance

© Copyright 1994, 1998 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: m67 m50 m37 c0494

Legal Developments

Courts Can Limit Parent’s Right to Involve Children in Religious Activities

Such limitations based on best interests of the child.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1993-07-01 Recent Developments

Marriage and Divorce

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

• Key point: Civil courts can limit a noncustodial parent’s right to take his or her child to church or involve the child in religious activities, if such a limitation is in the best interests of the child and is the least restrictive means of protecting the child.

• A Maryland appeals court ruled that under some circumstances the civil courts have the authority to restrict a parent’s right to direct the religious training of his or her child. A couple was divorced in 1983, with custody of their 1-year-old child being awarded to the mother. The father was given liberal visitation rights. For the next several years, the parties had few disagreements working out the visitation rights of the father. This changed when the father began attending a fundamentalist Baptist church when the child was 10 years old. The mother noticed that following the father’s conversion to the fundamentalist Baptist faith (he previously had been a Catholic and then a Methodist) the child would return home from visiting her father with signs of anxiety, including anxiety attacks, insomnia and crying. The mother attributed these symptoms to the vigor with which the father pursued his new fundamentalist beliefs in his dealings with the child. For example, the father took the child with him on his door-to-door witnessing activities, insisted that the child’s mother was not “saved” and was therefore destined for eternal damnation, would not allow his daughter to wear a bathing suit her mother had given her since he found it too immodest, and condemned music that was permitted by the child’s mother. The mother discussed her concerns with the father and asked him not to take the child to church. The father refused this request. The child’s problems persisted for another year, at which time the mother took the child to a pediatric psychiatrist. The mother relied in part upon the testimony of this psychiatrist in seeking a court order barring the father from taking the child back to the Baptist church. The trial court agreed with this testimony, and issued an order prohibiting the father from having the child “participate in any church or church-related activity.” The father appealed this order, claiming that it was overly broad and violated his constitutional right to religious freedom. The appeals court acknowledged that “few areas of dispute in child custody and visitation cases are more fraught with difficulty than those involving differences in the religious beliefs of the divorced parents.” However, “when the welfare of the child is threatened, the task of intervention cannot be avoided, and under some circumstances actions based solely upon the sincerely held religious beliefs of one parent or both parents must give way to the safety and welfare of the child.” A state appeals court agreed with the father that the trial court’s order was too broad: “The order prohibits the father from having the child `participate in any church or church-related activity’ while in his custody. Quite apart from the problems of interpretation and enforcement that an order of this breadth will necessarily entail, the order clearly reaches activities such as church picnics, bicycle rodeos, and the like that this record does not show would be harmful to the child.” On the other hand, based on the testimony of the psychiatrist, the court concluded that participation by the child in some church activities did adversely affect the welfare of the child. The court observed that “it was the proselytizing by the father and the direct involvement of the child in his efforts to convert others that [the psychiatrist] found particularly harmful to the child, and thus the record would support a prohibition of activities of this type in the future.” Whether the father should be prevented from taking the child to church services was a more difficult question. In this regard, the court observed: “We do not suggest that under ordinary circumstances attendance at a noncustodial parent’s church, although of a different faith from that selected by the custodial parent, is improper. Indeed [as another court has noted] there may also be value in letting the child see, even at an early age, the religious models between which it is likely to be led to choose in later life. And it is suggested, sometimes, that a diversity of religious experience is itself a sound stimulant for a child.” The court noted however that in this case the child was suffering harm from conflicts between the faiths of his parents, and in such a case some limitation upon the noncustodial parent’s right to take the child to religious services may be in order. The court sent the case back to the trial court for further deliberations. Kirchner v. Caughey, 606 A.2d 257 (Md. App. 1992).

See Also: The Free Exercise Clause

© Copyright 1993, 1998 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: m55 c0493

Posted:

Legal Developments

Minister Cannot Testify to Alleged Demon Possession in Court

But a testimony regarding a defendant’s behavior in counseling is acceptable.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1993-07-01 Recent Developments

Confidential and Privileged Communications

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

• Key point: A minister’s observations of a counselee’s demeanor is not protected by the clergy-penitent privilege.

• The Idaho Supreme Court ruled that a minister was not qualified to testify in a murder trial regarding the defendant’s alleged demon possession, but he could testify regarding the defendant’s demeanor during a counseling session. A mother was charged with murdering her 9-year-old son by giving him a cup of hot chocolate in which she had intentionally placed a lethal dose of poison. During her trial, she testified that she was a devoted mother who loved her child, but that she had been told by a “demon” that her son must die. In support of her defense of demon possession, the mother called a pastor to the witness stand who had engaged in counseling sessions with her in the past. The pastor described one counseling session as follows: “After a period of prayer there was a definite change in [the defendant’s] whole demeanor. Her facial expressions changed. Her personality changed. Her voice inflection changed.” He further testified that the voice he heard was much deeper and gruffer than the defendant’s normal voice, and that at the end of the hour-long counseling session the defendant “slumped into a semi-conscious state.” He concluded that he had “encountered a different person in that room.” The trial judge allowed the pastor to testify regarding his personal observations of the defendant during counseling, but ordered the jury to disregard all of the pastor’s testimony suggesting that the defendant was demon possessed. The judge reasoned that demon possession was similar to insanity, and was not a permissible defense to criminal liability. The jury convicted the defendant of first degree murder, and she appealed her conviction in part because of the trial judge’s refusal to permit the jury to consider the pastor’s testimony. The state supreme court upheld the conviction. The court observed: “To the extent [the pastor] described personal observations of the defendant his testimony was properly admitted at trial. However, it was his testimony suggesting demonic possession which was excluded by the trial court. The witness was allowed to testify and describe personal observations, however any conclusions as to the cause of [the defendant’s] condition was excluded. In this there was no error.” State v. Winn, 828 P.2d 879 (Idaho 1992).

See Also: Were the Statements Intended to be Communications?

© Copyright 1993, 1998 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 c0493

Legal Developments

Proposed Legislation Prohibits Sexual Contact Between Clergy and Counselees.

Six states consider similar bills.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1993-05-01 Recent Developments

Legislation

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

• Key point: Courts and legislatures continue to take very seriously sexual contact between clergy and counselees, even if the contact is “consensual”. One manifestation of this tendency is the number of bills that have been introduced this year in state legislatures that would make it a crime for clergy to engage in sexual contact with counselees.

• Bills have been introduced in a number of states that would make sexual contact between clergy and counselees a crime. In at least five states (Iowa, Minnesota, North Dakota, South Dakota, Wisconsin) such bills already have been enacted. Here is a summary of the most recent wave of proposed legislation:

Connecticut: House bill 6437 would make sexual contact between clergy and counselees a felony. On January 21, 1993, Representative Tulisano introduced house bill 6437, which provides that a member of the clergy is guilty of sexual assault in the second degree if he or she “engages in sexual intercourse with a client during the time period of the professional relationship.” Sexual “contact” by a member of the clergy and a client would be sexual assault in the fourth degree. A victim’s consent would not be a defense. This bill has been referred to the house judiciary committee.

Seduction of Counselees and Church Members

Massachusetts: House bill 2768 would make sexual exploitation of counselees by clergy a felony. The bill also would permit victims to sue clergy (and in some cases a church) for money damages. The bill defines sexual exploitation to include (1) several forms of “sexual contact” ranging from touching to intercourse, whether or not the victim consented to the contact; (2) “therapeutic deception,” which is defined as any representation that sexual contact with the minister is consistent with or part of the victim’s “treatment”; and (3) any request made by a minister to a counselee for any type of physical contact (whether or not the contact ever occurs). Such conduct would constitute a criminal felony under the bill, subjecting an offending minister to “imprisonment in the state prison for a term of not less than two and one-half years nor more than five years or by a fine of not less than five thousand dollars nor more than ten thousand dollars or by both such fine and imprisonment.” In addition to criminal penalties, the bill would authorize victims to sue clergy for money damages if the sexual contact occurs (1) while the victim was receiving counseling, or (2) after the counseling relationship has ended if (a) the victim was “emotionally dependent” on the minister or (b) the sexual contact occurred by means of “therapeutic deception”. The bill clarifies that it is not a defense that sexual contact occurs outside of a scheduled counseling session or off the premises regularly used for counseling. Significantly, the bill specifies that a minister’s employer can be sued by the victim if (1) it “fails or refuses to take reasonable action” when it knows or has reason to know that the minister engaged in sexual contact with the victim or any other counselee; or (2) it fails or refuses to make inquiries of an employer or former employer that employed the minister within the last five years concerning the occurrence of sexual contacts by the minister with counselees. The bill further specifies that a current of former employer can be sued if it receives a request for information concerning incidents of sexual contact by a minister but refuses to disclose the existence of such contacts. This bill applies generally to any psychotherapist. However, the term psychotherapist is defined to include any “member of the clergy” who “performs or purports to perform psychotherapy.” The term psychotherapy is defined as “the professional treatment, assessment, or counseling of a mental or emotional illness, symptoms, or condition.”

Seduction of Counselees and Church Members

Pennsylvania: Senate bill 752 would make sexual offenses by clergy a crime. The bill would make some types of sexual contact with counselees a felony, and others a misdemeanor. The “consent” of the victim would not be a defense. The bill would permit a court to order an offending minister to pay the cost of “rehabilitative psychotherapy” for the victim. This bill applies generally to any psychotherapist. However, the term psychotherapist is defined to include any “member of the clergy” who “provides psychotherapy”. The term psychotherapy is defined as “the professional treatment of a mental or emotional distress, illness or disability through the creation of an ongoing therapeutic relationship between the therapist and the patient or client in which principles of clinical psychiatric or psychological treatment methodology are employed, regardless of whether or not the psychotherapist receives remuneration for the services from the patient or client.” It is interesting to note that a state-licensed psychotherapist who is convicted of a felony offense under the bill would automatically lose his license to practice psychotherapy and would be prohibited from applying for re-licensure for a period of five years from the date of conviction. If this bill becomes law, denominational and church leaders in Pennsylvania should pay special attention to the provision mandating the automatic revocation of a psychotherapist’s license following conviction of a felony offense. It is possible that a court would conclude that a religious organization acted negligently in not administering a similar penalty, if an offending minister engaged in repeat misbehavior during the five year period following a conviction for sexual misconduct with a counselee.

Seduction of Counselees and Church Members

South Carolina: House bill 3194 would make sexual offenses by clergy a crime. The bill would make sexual contact by clergy with counselees a crime. The “consent” of the victim would not be a defense.

Seduction of Counselees and Church Members

Texas: House bill 1774 would make sexual offenses by clergy a crime. The bill would make “sexual exploitation” by a psychotherapist a crime. The term psychotherapist is specifically defined to include a “member of the clergy” who engages in psychotherapy. The term psychotherapy is defined broadly to include “treatment of a patient by verbal means for a problem of an emotional nature in which a person engages in a therapeutic relationship with the patient, either individually or as part of a group, for the purpose of eliminating the patient’s suffering by changing the patient’s emotional state, attitude, or behavior.” The bill specifies that a psychotherapist commits an offense “if before the first anniversary of the date on which the professional relationship between the psychotherapist and a patient is terminated, intentionally: (1) engages in sexual contact with the patient; or (2) engages in sexually exploitive behavior with the patient.” The bill specifies that it is not a defense that the sexual contact occurred: “(1) with the consent of the patient; (2) outside the therapy or treatment sessions of the patient; or (3) off the premises regularly used by the psychotherapist for the therapy or treatment sessions of the patient.”

Seduction of Counselees and Church Members

• A bill (senate bill 1012) introduced in the Florida legislature would amend the current prohibition of the unauthorized practice of psychology. In general, the term “practice of psychology” would be expanded, and some current exemptions would be eliminated. The bill does retain the exemption of any person who “is a rabbi, priest, minister, or clergyman of any religious denomination or sect when engaging in activities which are within the scope of the performance of his regular or specialized ministerial duties and for which no separate charge is made, or when such activities are performed, with or without charge, for or under the auspices or sponsorship, individually or in conjunction with others, of an established and legally cognizable church, denomination, or sect, and when the person rendering service remains accountable to the established authority thereof.”

State Regulation of Psychologists and Counselors

• Have you ever wondered why Congress does not simply eliminate all exemptions and deductions and impose a flat 10 percent income tax on all Americans? Believe it or not, such a bill was introduced recently in Congress. House bill 1190 (called the “Crane Tithe Tax Act of 1993”), introduced by Representative Crane on March 3, 1993, would repeal the current income tax rate structure and replace it with a flat 10 percent income tax on all earned income in excess of $10,000. Unearned income (such as dividends, interest, annuities, and pension income) would not be taxed. The bill would also repeal the income taxation of corporations, repeal the estate and gift taxes, and provide amnesty for all tax liability for prior taxable years. In exchange for the flat 10 percent tax, the bill eliminates all exclusions, deductions, and credits. Sound appealing? If so, you may want to contact your representative to discuss this bill.

See Also:

© Copyright 1993, 1998 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: m52 m37 c0393

Legal Developments

Counselors and the Clergy-Penitent Privilege

After a minister disclaims a counseling relationship, further communications are not privileged.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

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

• An Illinois appeals court ruled that statements made by a criminal defendant to a minister could not be protected by the “clergy-penitent” privilege if the minister informed the defendant that he would not be his counselor. A man was prosecuted for criminal sexual assault against his 11-year-old stepdaughter. The stepdaughter testified that her stepfather had sexual intercourse with her more than 100 times, on virtually every occasion when the child’s mother “left the house.” The child was so traumatized that she attempted suicide. The stepfather was found guilty and sentenced to 28 years in a state penitentiary. At the trial, the prosecution relied in part on the testimony of a minister. The minister testified that the stepfather had contacted him three times by telephone, seeking counsel and advice. The minister told the stepfather during their second conversation that he would not be his counselor, since the stepfather had lied to him. Under the minister’s theology, these lies prevented him from entering into a counseling relationship with the stepfather. The minister testified that during their third conversation, the stepfather admitted to having had sexual intercourse with his stepdaughter on 25 to 50 occasions. The stepfather argued on appeal that the minister should not have been permitted to testify because of the clergy-penitent privilege. Specifically, her claimed that the privilege applied (and therefore the minister should not have been permitted to testify) because he contacted the minister “to confess and for spiritual guidance, and the conversation was in confidence as no third party was present.” A state appeals court ruled that the conversations with the minister were not covered by the clergy-penitent privilege, and accordingly that it was appropriate for the minister to testify. The court observed: “It is clear from the record that the privilege did not apply under the statute. [The minister] testified that [the stepfather] was disqualified from his counsel. He told [the stepfather] that prior to the conversation regarding the number of incidents that he would not be his counselor. Thus [the stepfather’s] statements to the minister were not obtained by the minister in his professional character or as a spiritual adviser.” The stepfather had argued that the confessions he made to the minister should be privileged even if the minister did not consider himself to be a spiritual adviser at the time, since “it is the perception of the penitent which is determinative.” In other words, if the penitent believes that he is making a confession to a minister acting as a spiritual adviser then the privilege applies even if the minister does not believe he is acting in such a role. In rejecting this claim, the court noted that it was not supported by the language of the Illinois clergy-penitent privilege statute. The court continued: “Furthermore, [the stepfather’s] perception of the privilege existing is not supported by the record. [The minister] told him he would not act as his counselor in the second conversation. The fact the minister accepted the stepfather’s third phone call and agreed to talk to him fails to establish the stepfather’s claim that an ‘illusion of being [his] counselor’ was created in view of the minister’s admonishment to [the stepfather]. The stepfather asserts that he approached the minister only in his capacity as a minister; however, this point does not create the privilege where [the stepfather] was told by the minister that the minister was not his counsel.” This case suggests that if a minister specifically disclaims a counseling relationship with a particular “counselee,” then any further communications to the minister are not privileged even if the counselee believes they are. People v. Bole, 585 N.E.2d 135 (Ill. App. 2 Dist. 1991).

See also Child abuse, Walstad v. State, 818 P.2d 695 (Alaska App. 1991), and Church records, Hutchison v. Luddy, 606 A.2d 905 (Pa. Super. 1992), in the recent developments section of this newsletter.

See Also: The Clergy-Penitent Privilege

© Copyright 1992, 1998 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 c0692

Legal Developments

Sexual Misconduct of Counselors

The Iowa legislature passed a law regarding this matter.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-07-01 Recent Developments

Clergy – Legal Liability

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

• The Iowa legislature passed the following law addressing sexual exploitation of counselees by counselors and therapists. The law, which specifically applies to clergy, took effect July 1, 1991. Minnesota has enacted a similar law. It is likely that many other states will do so in the next few years.

709.15. Sexual Exploitation by a Counselor or Therapist

1. As used in this section:

a. “Counselor or therapist” means a physician, psychologist, nurse, professional counselor, social worker, marriage or family therapist, alcohol or drug counselor, member of the clergy, or any other person, whether or not licensed or registered by the state, who provides or purports to provide mental health services.

b. “Mental health service” means the treatment, assessment, or counseling of another person for a cognitive, behavioral, emotional, mental, or social dysfunction, including an intrapersonal or interpersonal dysfunction.

c. “Emotionally dependent” means that the nature of the patient’s or client’s or former patient’s or client’s emotional condition or the nature of the treatment provided by the counselor or therapist is such that the counselor or therapist knows or has reason to know that the patient or client or former patient or client is significantly impaired in the ability to withhold consent to sexual conduct, as described in paragraph “f”, by the counselor or therapist. For the purposes of paragraph “f”, a former patient or former client is presumed to be dependent for one year following the termination of the provision of mental health services.

d. “Former patient or client” means a person who received mental health services from the counselor or therapist.

e. “Patient or client” means a person who receives mental health services from the counselor or therapist.

f. “Sexual abuse by a counselor or therapist” occurs when either or both of the following are found:

(1) A pattern or practice or scheme of conduct to engage in any of the conduct described in subparagraph (2) or (3).

(2) Any sexual conduct, with a patient or client or emotionally dependent former patient or client for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the patient or client or emotionally dependent former patient or client, which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.17.

(3) Any sexual conduct with a patient or client or former patient or client within one year of the termination of the provision of mental health services by the counselor or therapist for the purpose of arousing or satisfying the sexual desires of the counselor or therapist or the patient or client or former patient or client which includes but is not limited to the following: kissing; touching of the clothed or unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals; or a sex act as defined in section 702.17. “Sexual abuse by a counselor or therapist” does not include touching which is part of a necessary examination or treatment provided a patient or client by a counselor or therapist acting within the scope of the practice or employment in which the counselor or therapist is engaged.

2. A counselor or therapist who commits sexual abuse in violation of subsection 1, paragraph “f”, subparagraph (1), commits a class “D” felony.

3. A counselor or therapist who commits sexual abuse in violation of subsection 1, paragraph “f”, subparagraph (2), commits an aggravated misdemeanor.

4. A counselor or therapist who commits sexual abuse in violation of subsection 1, paragraph “f”, subparagraph (3), commits a serious misdemeanor. In lieu of the sentence provided for under section 903.1, subsection 1, paragraph “b”, the offender may be required to attend a sexual abuser treatment program.

[The law also amends section 614.1 of the Iowa Statutes to specify that the “an action for damages for injury suffered as a result of sexual abuse by a counselor or therapist shall be brought within five years of the date the victim was last treated by the counselor or therapist.”]

See Also: Seduction of Counselees and Church Members

© Copyright 1992, 1998 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: m29 m37 c0492

Related Topics: Posted:

Legal Developments

Minister’s Liability for Youth Director’s Sexual Misconduct

Who is liable for a church worker’s misconduct?

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1992-05-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

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

• A Louisiana state appeals court ruled that a minister was not legally responsible for the sexual molestation of 4 children by a church youth director. The parents of the 4 children alleged that the pastor had counseled privately with the youth director, and had learned of previous incidents of child molestation. The parents asserted that the pastor had breached his “counselor’s duty” to warn them of “potential future criminal activity” by his counselee. They also asserted that the pastor had been aware of the youth director’s molestation of their children for more than a year without disclosing the fact to anyone. A trial court dismissed the lawsuit, and the parents appealed. A state appeals court upheld the trial court’s dismissal of the lawsuit. The court began its opinion by observing: “We further recognize the legal principle that [a person] has no duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless a special relationship exists between the [person] and the other so as to afford the other a right to protection …. Where such relationship exists, the law currently characterizes the duty as one to warn of risks of which the actor knew or should have known.” The court concluded that the pastor had no duty to warn the parents of the youth director’s dangerous propensities, since no “special relationship” existed between them which would “afford them a right of protection from [the youth director’s] criminal conduct.” The court continued: “There are no allegations that the alleged molestations occurred in connection with [the youth director’s] functions as youth director or that the parents and children are members of the [church]. The allegations … do not show that [the youth director] acted under the auspices of [the pastor]. Simply stated, the allegations do not state that a special relationship existed between [the pastor and the parents], therefore, [the parents] were owed no duty by [the pastor].” This case is important, for it is one of the few decisions to address the issue of a minister’s duty to warn potential victims of a counselee’s misconduct. According to this decision, such a duty does not exist unless a “special relationship” exists between the pastor and the potential victims. The court did not define a “special relationship” in the context of pastoral counseling, other than to say that such a relationship does not exist (in cases of child molestation) if the following elements are present: (1) the acts of molestation do not occur in the course of a church activity, (2) the victim (and the victim’s family) are not members of the church, and (3) the molester did not act under the authority of the pastor. Miller v. Everett, 576 So.2d 1162 (La. App. 1991).

See Also: Seduction of Counselees and Church Members | Negligent Selection

© Copyright 1992, 1998 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: m58 m67 m29 m10 c0392

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