Confidential and Privileged Communications

The Washington Supreme Court ruled that the clergy-penitent privilege applied to confidential statements made to a pastor.

State v. Martin, 975 P.2d 1020 (Wash. 1999)

The Clergy-Penitent Privilege

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 3-07.5. In some states the clergy-penitent privilege only applies to communications made to a minister in the course of "discipline." While most courts interpret this requirement broadly to cover statements made in the course of spiritual counsel and advice, others have interpreted it narrowly to apply only to confessions made to Catholic priests.

The Washington Supreme Court ruled that the clergy-penitent privilege applied to confidential statements made to a pastor, and that the privilege was not waived when the pastor disclosed the communications to two others.

A distraught mother contacted a pastor and asked him to meet with her son. The pastor, who was not acquainted with either the mother or son, drove to the son's apartment where he was introduced by the mother as "the preacher." The mother remained in the apartment during the pastor's "spiritual" consultation with her son which lasted about an hour. The pastor met with the son on at least two other occasions before the son turned himself over to the police. One meeting took place at an army medical center, where the son was accompanied by his mother, wife, and several others, and the other at a friend's home. The pastor later shared the substance of the son's communications with two colleagues. The son was later charged with second degree murder for the death of his three-month-old son. The state alleged that the son caused the child's death by violently shaking him.

The prosecutor asked the trial court to determine whether the clergy-penitent privilege applied to the son's statements to the pastor. The trial court ruled that the privilege did not apply since the son had not sought out the pastor as a matter of church "discipline." The court then ordered the pastor to appear for a deposition so that he could be questioned about his meetings with the son. At the deposition, the pastor refused to answer questions regarding the content of those conversations based upon his constitutional right to religious freedom. The trial court ruled that the pastor had no constitutional right to refuse to testify, and informed him that he would be sent to prison for contempt of court if he refused to testify. A state appeals court reversed this decision and ruled that the clergy-penitent privilege protected the pastor from testifying against his will. The case was appealed to the state supreme court.

Availability of the clergy-penitent privilege

The Washington state clergy-penitent privilege states that

[a] member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.

The court ruled that the privilege applied to the conversation between the pastor and the son. In reaching this conclusion, the court made the following important rulings:

(1) Confession

The court concluded that the church, and not the courts, should decide what types of communications constitute "confessions" within the meaning of a particular religion.

(2) Presence of a third party

The state asserted that the son's conversations with the pastor were not privileged because they were not confidential. The state noted that the mother was in the apartment during the pastor's initial meeting with her son, and that other individuals were present during the pastor's other visits with him. Further, the pastor shared the contents of the son's communications with two of his colleagues. The court conceded that "confidentiality is a necessary factor in establishing a testimonial privilege," and that "the mere presence of third persons during a confidential communication in some instances may [nullify] the privilege" since "the privilege protects only successful confidences." However, the court concluded that "the privilege is not [nullified] when the presence of the third person is necessary for the communication to occur, or … when the third person is another member of the clergy."

(3) Waiver

Did the pastor's disclosure to two colleagues of a portion of the son's communications constitute a "waiver" of the clergy-penitent privilege? No, concluded the court. It pointed out that the son "did not consent to this disclosure" and that "the privilege belonged to him, although the statute imposes responsibility for maintaining confidentiality upon the clergy. There was no waiver of confidentiality in this instance."

(4) In the course of discipline

The Washington state clergy-penitent privilege requires that the confession be made to a minister "in the course of discipline enjoined by the church to which he or she belongs." The court rejected the state's argument that this language limits the privilege to penitential confessions that are mandated by church doctrine. It concluded that this language applies to any confidential communication made by a person to a minister while acting in a professional capacity as a spiritual adviser.

What is the significance of this case? Consider the following:

(1) Confessions. The court interpreted the word "confession" broadly. This is a positive development, since many state clergy-penitent privilege laws use this word. A narrow interpretation would limit the privilege to penitential confessions mandated by church doctrine, such as confessions in the Roman Catholic faith.

(2) Presence of third persons. Perhaps most importantly, the court addressed the effect of third persons on the privilege. The court made two significant conclusions. First, the presence of a third person does not affect the privilege if that person is another minister. This is the first case to have addressed this question, and so it will be a relevant precedent in other states. It is common for a counselee to speak with two ministers. For example, an adolescent speaks with her youth minister, who in turn asks the senior pastor to participate in the conversation. Such arrangements are common in churches with more than one minister on staff. This case can be used as support for the conclusion that the presence of two ministers does not affect the privilege. Second, the court concluded that the privilege is not affected by a third party whose presence is "necessary for the communication to occur." Several state clergy-penitent privilege laws extend the privilege to situations in which a third person is present "in furtherance of the communication." This language suggests that the privilege will apply in a number of situations involving the presence of a third person. An example would be a church policy requiring a third person to be present during any opposite sex counseling sessions. Another would be counseling involving both a husband and wife, or parent and child. The Washington state clergy-penitent privilege does not contain language preserving the privilege when a third party is present "in furtherance of the privilege," but the court interpreted the privilege to include such a provision. This is a very significant ruling. Many state clergy-penitent privilege laws, like that of Washington, do not contain language preserving the privilege in the presence of third persons whose presence is "in furtherance of the communication." This case can be used as precedent by clergy in such states to argue that the privilege should apply in such situations as a matter of judicial interpretation.

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