Clergy-Penitent Privilege and Confidentiality

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

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

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

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

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

What this means for churches

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

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