Church Law and Tax 1997-07-01

Confidential and Privileged Communications

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

• Key Point. Confidential communications made to a minister are not protected from disclosure by the clergy—penitent privilege if the person making the communications consents to their disclosure.

• The West Virginia Supreme Court ruled that statements made by an imprisoned pastor to another pastor were not protected by the clergy—penitent privilege. The facts of this case are tragic. In 1991, seven—year—old Joshua, his two sisters, and his parents began attending a local church after Joshua’s mother had received counseling from the church’s pastor. The pastor and his wife soon became friends with Joshua’s family, and the two families often visited in each other’s homes and had dinner together. The pastor also befriended Joshua and one of his sisters, taking them places and inviting them to spend the night at his apartment that he shared with his wife. After a period of time, the pastor began inviting only Joshua to spend the night. These overnight visits progressed from one night per week to approximately two nights per week. During these visits, Joshua slept on a mattress on the pastors basement floor. Joshua told his mother that the pastor often slept on the mattress with him and sexually molested him on at least three or four occasions. Joshua also indicated he was afraid to report this abuse earlier because the pastor told him he would regret revealing this information. Joshuas mother immediately reported the information to the local sheriffs department. The pastor was later charged with several counts of molestation, and was imprisoned awaiting trial. While in prison, he was visited by another local pastor who met with him in order to provide comfort and solace. The two prayed together.

At the pastors trial, the visiting pastor testified regarding the conversation that occurred in prison. He related that he and the accused pastor spoke about the allegations that the pastor had sexually assaulted male children who attended his church. While speaking of these charges, the pastor allegedly stated that “he knew what was happening was wrong, [but he] couldn’t quit.” The visiting pastor also testified that the accused pastor gave him permission to “use [their conversation in] any way that [he thought] would be helpful” to others. The pastor was found guilty of several counts of molestation, and sentenced to not less than 50 years or more than 110 years in prison. The pastor appealed his conviction, in part because his conversation with the visiting pastor was protected by the clergy—penitent privilege and therefore should not have been disclosed. With regard to his conversation, he testified at his trial that he believed that “what I talked to [him] about would be between us.” He admitted that he had never before sought spiritual guidance or forgiveness from the visiting pastor and that he did not “confess to [the visiting pastor] as a communicant confesses to a priest when [he] talked to [him] that day.” The pastor also testified that he could not remember whether he gave the visiting pastor permission to disclose their conversation to others, but that he may have granted such permission. Nevertheless, he insisted that he spoke with the visiting pastor in his professional capacity as a minister, and believed that he had visited him for the sole purpose of providing comfort and strength during his confinement.

The state argued that the clergy—penitent privilege was not available in this case because the pastor failed to show that he spoke with the visiting pastor in his role as a professional counselor. The state pointed out that the pastor admitted that he did not attend the visiting pastors church and that he had never before confided in him as a pastor. More importantly, the state contends that the pastor waived any privilege by granting permission for the visiting pastor to use the information in “any way that [he thought] would be helpful” to others.

The state supreme court concluded that the clergy—penitent privilege was not available, and it affirmed the pastors conviction and sentence. It quoted the West Virginia clergy—penitent privilege statute:

No priest, nun, rabbi, duly accredited Christian Science practitioner or member of the clergy authorized to celebrate the rites of marriage in this state … shall be compelled to testify in any criminal or grand jury proceedings or in any domestic relations action in any court of this state: (1) With respect to any confession or communication, made to such person, in his or her professional capacity in the course of discipline enjoined by the church or other religious body to which he or she belongs, without the consent of the person making such confession or communication …. W. Va. Code § 57—3—9.

The court noted that the rationale for such a privilege “seems to be the demands of religious liberty, the need for individuals to be able to disclose sinful acts to a spiritual counselor, and the desire to avoid confrontation with clergy who refuse to divulge communications they feel ethically and religiously obligated to keep secret.”

The court concluded that a communication is privileged if four tests are met:

(1) the communication must be made to a clergyman; (2) the communication may be in the form of a confidential confession or a communication; (3) the confession or communication must be made to the clergyman in his professional capacity; and (4) the communication must have been made in the course of discipline enjoined by the rules of practice of the clergyman’s denomination.

The court concluded that the communications in this case met the first three requirements of the privilege-they were made to a clergyman, they were confidential, and the clergyman was acting in his professional capacity. However, the court had trouble deciding if the fourth requirement was met-that the communications to the visiting pastor were “in the course of discipline enjoined by the church or other religious body to which he … belongs.” The court noted that “[n]owhere in this record do we find evidence demonstrating one way or another that there was a course of discipline enjoined by [the visiting pastors] church.” However, the court concluded that it did not have to resolve this issue since it was clear that the pastor “consented to the testimony and therefore waived the confidentiality of the communication” by giving the visiting pastor permission to use their conversation in any way that he thought would be helpful to others.

The court made two important clarifications. First, the privilege is not limited to “confessions” but also includes “communications”. The court observed that although the term “confession” ordinarily means “a penitential acknowledgment to a clergyman of actual or supposed wrongdoing while seeking religious or spiritual advice, aid, or comfort,” the term “communication” is not so limited and is not restricted to incriminatory statements. Second, “[i]t is only where the church of the clergyman requires that the communicant must belong or be a member of the … church that we find such a relationship necessary to invoke the privilege.”

Application. This case is important for the following reasons: (1) It demonstrates the severe consequences that can befall persons who molest children. The pastor was sentenced to a minimum of 50 years in prison for his actions. (2) It demonstrates the risk parents incur when they allow their children to spend time with adults. This of course is not to say that such relationships cannot be positive and nurturing. But they also can be highly destructive. Church leaders should be alert to such arrangements occurring among their members, and never allow minors to spend time in staff members homes unless at least two adults are present at all times. (3) The case contains an excellent four—step analysis to apply in determining whether or not the clergy—penitent privilege exists. (4) The case illustrates that communications with a pastor may not be privileged, even if all of the elements of the privilege are satisfied, if the person making the communications consents to their disclosure. State v. Potter, 748 S.E.2d 742 (W. Va. 1996). [ The Clergy-Penitent Privilege]

© Copyright 1997, 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 c0497

A local congregation that had been affiliated with the Original Glorious Church of God in Christ (the "national church") seceded from the national church, and established a new church. The church's trustees attempted to convey the church's assets to the new organization. This conveyance was challenged by the national church, which asserted that the church's assets belonged to it.

It cited a provision in the national church's constitution dictating that "no church group desiring to leave this body shall have any legal claim on church property if the property in question was purchased and paid for with general funds or if general funds were in any way used in the purchase thereof."

Since the national church produced a copy of a check in the amount of $300 that it had issued to the local church in 1964 to assist with church construction, the court concluded that the church's assets belonged to the national church and that the attempted conveyance by the local trustees was void.

This conclusion was reinforced by a state law specifying that "when an individual church has become extinct, or has dissolved, a suit may be instituted by the religious body that by the laws of the denomination to which such individual church belongs, has the charge or custody of the property, or in which it may be vested by the laws of the church."

The court further noted that with respect to hierarchical churches (such as the Original Glorious Church of God in Christ), the civil courts "should respect, and where appropriate enforce, the final adjudications of the highest church tribunals, provided that such adjudications are not procured by fraud or collusion. If a church has a hierarchical structure and its leaders have addressed a doctrinal or administrative dispute, the civil courts do not intervene, absent fraud or collusion."

Since the national church had addressed the issue of property disputes in its constitution (quoted above), the civil courts were bound to defer to that document and award the local congregation's assets to the national church. Finally, the court noted that title must be vested in the trustees of the national church, since under West Virginia law churches and religious denominations cannot incorporate or hold title to property in the name of the organization. The court's decision indicates that West Virginia has adopted the "compulsory deference" rule for resolving church property disputes.

This rule requires the civil courts to defer to the determinations of hierarchical church denominations in church property disputes. An alternative approach, approved by the United States Supreme Court, is the "neutral principles of law" approach, under which church property disputes are resolved on the basis of nondoctrinal language in deeds, state statutes, and the constitutions and bylaws of local congregations and national churches with which they are affiliated.

While most courts have adopted the neutral principles of law approach, the "compulsory deference" approach (adopted by the West Virginia court) has some appeal, since it avoids the prospect of a civil court resolving a church dispute on the basis of "neutral principles of law" despite a determination of a national church to the contrary. Original Glorious Church of God in Christ v. Myers, 367 S.E.2d 30 (W. Va. App. 1988).

West Virginia

The Clergy-Penitent Privilege and Consent to Disclosure

Confidential and Privileged Communications

Church Property Ownership Dispute Between a Church and the National Denomination