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.
Key point 3-07.4. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.
A federal court in California ruled that the clergy-penitent privilege did not apply to a criminal defendant’s conversation with a church elder since the presence of a second elder in the room negated the essential requirement of confidentiality and the purpose of the conversation was more in the nature of marital than spiritual counseling.
A woman contacted her local police department because she suspected that her husband’s private computer contained child pornography. Six months earlier she walked into their bedroom and her husband was on the computer. She observed several thumbnail photos of “young girls . . . engaged in sexually suggestive poses while wearing bra and panties.” The girls appeared “between the ages of 13–15 years old,” and some “were . . . as young as 10 years of age.” When the wife confronted her husband about the photos, he told her they “had been attached to an email he had received and he was trying to identify the sender.”
The husband was “always using his computer and even attached a mirror next to it so he would know if someone was entering the bedroom.” He kept its password protected and did not allow anyone else to use it. A few days before contacting the police, the wife found two pairs of young girls panties concealed in a drawer next to his computer.
The husband explained that he had seen “a girl throwing items into a trashcan” and, after she walked away, “he retrieved the items from the dumpster . . . and kept them.” The wife suspected that this behavior had been going on for years. She believed that he “had confessed his activities to two of the elders at their church in an attempt to keep her from moving out of their residence.” The elders “would not elaborate on the conversation other than to say the information he disclosed ‘was horrible.’” The wife turned over her husband’s computer to the police, and they booked it into evidence.
The police obtained statements from the two elders who had met with the husband. Based on the information from the wife and elders, a judge issued a warrant to search the computer. As a result of the search, police recovered thousands of pornographic images of “young children and teenage girls,” in addition to over 200 videos. The police also recovered video of the husband molesting a 10-year-old girl. Based on this evidence, the police requested, and the trial court granted, a search warrant for the husband’s vehicle, home, and camera. The husband was convicted of one count of a lewd act on a child and one count of possession of child pornography.
The trial court sentenced him to a prison term of six years. The husband sought habeas corpus relief in a federal district court in California. The husband claimed that the police had violated his right to “due process” by securing a search warrant based on information procured in violation of the clergy-penitent privilege. The court rejected the husband’s request for habeas corpus relief based on the state court’s alleged violation of the clergy-penitent privilege, noting that “to the extent that the husband’s argument is simply that the police and trial court violated the state-created clergy-penitent privilege, his claim fails [since] the United States Supreme Court has long recognized that a mere error of state law is not a denial of due process.” Even assuming California’s clergy-penitent privilege could provide a basis for a due process claim, the husband “has not shown the evidence contained in the search warrant affidavit was privileged.”
The court observed:
For purposes of the clergy-penitent privilege, California’s Evidence Code defines “penitential communication” as “a communication made in confidence, in the presence of no third person so far as the penitent is aware.” California courts have found the privilege does not apply in circumstances where third persons are present during an allegedly privileged conversation or where it is to be expected the statements will be shared with a third party, even where the third party is another clergyman. In addition, California’s clergy-penitent privilege does not apply “to communications made to a religious or spiritual advisor acting as a marriage counselor.”
Here, the detective stated in the statement of probable cause that the husband made admissions during a meeting with two religious elders. In addition, his wife informed police that he sought the assistance of the elders to prevent her from moving out of their home, not for the purposes of religious repentance. Where the husband’s statements were made in the presence of a third party, albeit another religious elder, and were made in the context of marital counseling, it is unlikely that his statements to his elders were privileged under California’s clergy-penitent privilege.
What This Means For Churches:
The court defined the clergy privilege’s requirement of confidentiality to mean the absence of any third persons. State clergy-penitent privilege laws define confidentiality in one of two ways.
- Most state laws have adopted the Uniform Rules of Evidence which defines confidentiality in the context of the “religious privilege” as “a communication . . . made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” There are two points to note about this definition: (1) the communication must be “private,” and (2) it must not be intended for further disclosure except to “other persons present in furtherance of the purpose of the communication.” According to this definition, other persons can be present, and listening, when a person seeks out a minister for spiritual counsel so long as their presence is “in furtherance of the purpose of the privilege.”
- A minority of state clergy-penitent privilege laws define confidentiality more narrowly to mean that a communication was made in private in the presence of no other persons besides the minister. This is a very different view of confidentiality than the more expansive view taken by the Uniform Rules of Evidence and a majority of the states. The California clergy privilege is not based on the Uniform Rules of Evidence, and specifically precludes the presence of third parties.
The takeaway point here is that ministers need to understand that the presence of a third person in the course of providing spiritual counsel to a counselee can negate the privilege. This is so under the Uniform Rules of Evidence if the third person’s presence is not “in furtherance of the privilege.” But it is also the case in states in which the clergy privilege’s requirement of a “confidential” communication is construed to mean the absence of third persons.
Also, the court concluded that in deciding if the defendant’s confession to the elder was made in the course of seeking spiritual counsel, the key consideration is why the conversation started rather than how it ended. The court was convinced that the defendant’s initial purpose in speaking with the elder had nothing to do with seeking spiritual advice, and therefore the conversation was not privileged even though at some point later in the conversation the defendant may have sought such advice. Lindhorst v. Sullivan, 2018 U.S. Dist. LEXIS 151257 (C.D. Cal. 2018).