Confidential and Privileged Communications

Church Law and Tax 1990-07-01 Recent Developments Confidential and Privileged Communications Richard R. Hammar, J.D.,

Church Law and Tax 1990-07-01 Recent Developments

Confidential and Privileged Communications

A bishop who confessed to church leaders that he had committed adultery sued his church when church leaders disclosed the confession without the bishop’s consent. Here are the facts. In 1983, a bishop of the Evangelical Orthodox Church confessed to two church leaders that he was involved in an extramarital affair with a church member. The bishop asked his church leaders to keep his confession in confidence, and they promised to do so. A short time later, the female church member who was the other party to the affair confessed to a church leader who promised to keep her confession in confidence. The church leaders allegedly disclosed these confidences to the church’s board of elders, and to numerous other persons. One of the church leaders allegedly disclosed the confidences to the assembled congregation in a Sunday worship service, and then proceeded to “excommunicate” the bishop and “cast his spirit” from the church. A family counselor to whom the female member had also made a confession and obtained a promise of confidentiality also allegedly disclosed the information to others. And, the bishop alleged that one of the church leaders disclosed his confession to a “gathering of local priests, ministers, pastors, and guests.” As a result of these disclosures, the bishop and the female church member were shunned by friends, family, and members of their local church and denomination. The two sued the church and various church officials, alleging invasion of privacy, breach of fiduciary duty, false imprisonment, emotional distress, and malpractice. The church countered by arguing that the civil courts lacked jurisdiction over the controversy since “the conduct complained of is ecclesiastical in nature.” A trial court agreed with the church’s position, and dismissed most of the claims. On appeal, a state appeals court ruled that the church could be sued for emotional distress and related claims, and it ordered the case to proceed to trial. The court began its opinion by noting that “religious disputes can take a number of forms … and do not always result in immunity from liability.” The court acknowledged that the civil courts may not intervene in disputes over church doctrine, but it was not willing to accept the trial court’s summary conclusion that this dispute in fact involved church doctrine. It observed: “The trial court was not told, and we do not know, whether it is a canon of [the church’s] belief that confessions (penitential or not) are revealed to the congregation …; whether it is church practice for the substance of a confession to be shared among church officials; or whether it is consistent with church doctrine to reveal the substance of a confession to anyone outside the church, and if so, under what circumstances.” Even if church doctrine prescribed the disclosure of confidences, this would not end the analysis, for certain types of behavior may be regulated or subjected to legal liability by state law, even if rooted in religious doctrine, so long as the state has a compelling interest that justifies the burden on religious conduct. For example, “under the banner of the first amendment provisions on religion, a clergyman may not with impunity defame a person, intentionally inflict serious emotional harm on a parishioner, or commit other torts.” In other words, the first amendment guaranty of religious freedom does not necessarily insulate clergy from liability for their actions. The court acknowledged that “apparently there are no generally reported opinions where a counselee or communicant has sought to hold a religious officer liable in tort for [an unauthorized disclosure of confidential communications].” However, it saw no reason why clergy and church leaders should not be held legally accountable for injuries they inflict when they disclose confidential information to others without consent. What is the significance of this case to church leaders? Simply this—clergy must recognize that a failure to maintain confidences may lead to personal legal liability. It is universally acknowledged that unauthorized disclosure of confidential information is unethical; but this case indicates that such disclosures may also result in legal liability. The lesson is clear—clergy should avoid disclosures of confidential information without the express consent of the counselee (one exception that will apply in some states is the legal duty to report known or reasonably suspected incidents of child abuse). Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 1989).

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