Clergy-Penitent Privilege Does Not Extend to Email in Sexual Harassment Case

A key email between an investigator and an archbishop falls outside the ‘cleric-congregant’ privilege.

Key point 3-07.1. In order for the clergy-penitent privilege to apply there must be a “communication.” A communication includes verbal statements, but it also may include nonverbal acts that are intended to transmit ideas. Mere observations generally are not considered to be communications.

Are email communications between ministers and church members protected from disclosure by the clergy-penitent privilege?

It’s a question a federal court in Michigan recently addressed.

Archdiocese seeks ‘clergy-penitent’ privilege protection for key email exchange

Two men (the “Plaintiffs”) sued a priest and parochial school for: assault; retaliation; negligent hiring, supervision, and retention; and intentional infliction of emotional distress. The men alleged the priest sexually harassed them while they were employed by the school operated by their church and archdiocese. They also alleged the priest retaliated when they rejected his advances.

One man said the priest’s behavior caused him to resign. The other claimed he was fired for reporting the priest’s conduct to the school’s board of regents.

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Before the plaintiffs’ lawsuit, a representative of the archbishop who investigated sexual abuse crimes on behalf of the archdiocese emailed the archbishop to report that a school board member had raised concerns about the priest’s sexuality and behavior.

Court: Email exchange did not involve spiritual matters

The representative asked the archbishop for spiritual guidance on how to proceed “given the other concerns we’ve had about [the priest].”

The plaintiffs later asked the archdiocese to turn over the email. The archdiocese asked the court to seal the email under the “cleric-congregant” privilege.

The court observed:

Under Michigan law, communication between “members of the clergy and the members of their respective churches” are privileged “when those communications were necessary to enable” the members of the clergy to serve as such. … The cleric-congregant privilege applies “when the communication: (1) serves a religious function, such as providing guidance, counseling, forgiveness, or discipline, (2) is conveyed to the cleric in his or her capacity as a spiritual leader within the denomination, and (3) [is] considered privileged under the discipline or practices of the denomination.” All three elements are required to establish invocation of the privilege. … And for the privilege to apply, the congregant must have spoken to the cleric as part of the cleric’s job as a cleric and not in the cleric’s role as a relative, friend, or employer.

The archdiocese argued the email was privileged because “it exclusively concerns seeking counsel from a church leader and an internal discussion between two church leaders … as to the appropriate next step in an internal church investigation,” and contended the email contained a board member’s private communication about her spiritual concerns.

The court ruled that the key email was not privileged. The investigator “was not seeking spiritual advice from the archbishop, and the archbishop was not serving a religious function.” Rather, “the representative was acting as an investigator for the archdiocese seeking direction from the archdiocese about an employment matter.”

What this means for churches

It is common for ministers to provide spiritual guidance or solace during cell phone and email conversations. Are such conversations protected by the clergy-penitent privilege? This case suggests they are if the requirements for a privileged conversation under state or federal law are met. However, since the requirement that a conversation with a minister serving in his or her professional capacity as a spiritual advisor was not met, the conversation was not privileged.

Again, in Michigan, the requirements for a conversation to be protected by the clergy-penitent privilege are as follows:

(1) The communication serves a religious function, such as providing guidance, counseling, forgiveness, or discipline,

(2) is conveyed to the cleric in his or her capacity as a spiritual leader within the denomination, and

(3) [is] considered privileged under the discipline or practices of the denomination.

Very few courts have addressed electronic communications and the clergy-penitent privilege, so a definitive answer is not possible. On the other hand, the opinion of those few courts that have addressed an issue often constitutes a stronger precedent.

Many states require a communication to be made in confidence, meaning there is an expectation that it will not be revealed to a third party. The presence of a third party often negates the privilege. This is important to remember in situations involving electronic communications, and whether other parties are present for a cell phone call or receive a copy of an email sent.

Doe v. Orchard Lake School, 2022 WL 1262547 (E.D. Mich. 2022).

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