Clergy-Penitent Privilege and Communication to a Third Party

When does the privilege apply?

Church Law and Tax 1994-07-01 Recent Developments

Confidential and Privileged Communications

Key point: A confession made to a minister may not be protected from disclosure by the clergy-penitent privilege if the confessor intended that the minister communicate the confession to a third party.

A New York court ruled that a confession made by a rapist to a minister was not protected by the clergy-penitent privilege since the rapist intended that his confession be communicated to a third party. A rapist, soon after raping a woman, contacted a minister and asked him to tell the woman that he “was sorry.” The minister disclosed this conversation during the trial of the rapist and was instrumental in his conviction. The rapist appealed his conviction on the ground that the statement he made to the minister was protected by the clergy-penitent privilege and should not have been disclosed in court. New York law specifies that “[u]nless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion … shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual advisor.” A state appeals court rejected this argument, noting that “[t]he apology, as an admission intended to be passed on to a third party, was excluded neither by the hearsay rule nor … the clergyman-penitent privilege ….” People v. Dixon, 604 N.Y.S.2d 604 (A.D. 2 Dept. 1993).

See Also: Fraudulent Practices

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