• Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

• 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 Clergy-Penitent Privilege

* An Arizona court ruled that a woman’s confession of a crime, communicated to a volunteer music minister at her church in an email, was not protected by the clergy-penitent privilege since the music minister was not a “clergyman” as required by the privilege. An adult female (Gwen) was indicted on one count of sexual conduct with a minor (a 16-year-old boy). While her criminal case was pending, Gwen sent an email to “Minister” Paula, the volunteer music director at her church and a close personal friend. Gwen and Paula sang together on the church’s “worship team.” In her email, Gwen wrote she missed the church, asked for forgiveness for the “choice” she had made, explained she wanted her life back and stated she was “hungry to hear the word.” She asked for advice on how to start over. Not knowing how to respond, Paula forwarded the email to the church’s senior pastor, and asked him what she should say. With guidance from the pastor, Paula responded to Gwen’s email and told her that to obtain deliverance she would need to “come clean” about what she had done. She wrote, “If you truly want deliverance in your life, total and complete deliverance, you have to come clean about what you did. Everything. Your first step is to tell me exactly what you did.”

Gwen replied with another email disclosing the details of her relationship with the 16-year-old boy in graphic detail. Paula forwarded this and other emails from Gwen to the senior pastor, who handed them over to the boy’s parents. The parents turned the emails over to the local prosecutor who charged Gwen with child molestation.

Gwen’s attorney asked the court to bar Paula from testifying in Gwen’s criminal trial about the content of the emails, on the ground that they were protected from disclosure by the clergy-penitent privilege. The Arizona clergy-penitent privilege statute prohibits the examination in court of “a clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.”

During trial, Paula testified that she was not an ordained minister, did not receive confessions and referred questions regarding church doctrine and policies to her senior pastor. As the church’s music director, she directed the choir, selected and arranged worship service music and occasionally delivered the “message” or “teaching” during worship services when the pastor was out of town. She acknowledged her past friendship with Gwen, but explained that Gwen had never before asked her for advice about “something like deliverance from sin.” She also stated this was the first time anyone had ever asked her for this type of advice.

Gwen testified that she believed Paula was a minister and had confided in her as a minister, believing her emails would remain private (except from the senior pastor) because Paula was a minister. She asserted that in the past she had confided in Paula about her marriage and had sought her counsel as a minister.

The trial court ruled Gwen was not entitled to claim the privilege, finding Paula’s “honorary title, job description and volunteer status [did not fit] the definition of clergy” contained in the statute. The court held there “must be a more formal religious recognition of status, such as an ordained minister, priest, rabbi, etc. A volunteer musical director and non-ordained minister does not fit into this category.”

Gwen appealed, insisting that the term “clergyman” in the clergy-penitent privilege statute should be defined in a functional manner, and ministerial status should be accorded to members of a religious organization who engage in functions akin to or customarily performed by members of the clergy. Calling such individuals “functionaries,” she also contended that functionary and thus ministerial status should be extended to individuals the communicant reasonably believes are acting as functionaries. Under her functionary equals clergyman definition, Gwen’s communications with Paula would be privileged because she sought religious advice from Paula; Paula responded with spiritual counsel; and Gwen reasonably believed that Paula was acting as a member of the clergy in providing that advice.

In support of her argument, Gwen relied on clergy-penitent privilege rules or statutes from other states that include functionaries within the privilege. For example, the Texas clergy-penitent privilege defines “member of the clergy” as a minister, priest, rabbi, accredited Christian Science Practitioner, or “other similar religious functionary of a religious organization or an individual reasonably believed so to be by the person consulting with such individual.” Similar or identical to the Texas rule are those in Alaska, Arkansas, Delaware, Hawaii, Kentucky, Oklahoma, and Wisconsin.

The Texas definition of “member of the clergy” is modeled after the definition of clergyman in the clergy-penitent privilege rule included in the original draft of the Federal Rules of Evidence. Congress did not codify the draft privilege rules. Instead, it substituted a single rule generally providing that “privileges shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”

The Arizona appeals court concluded:

The approach to clerical status taken by the drafters of the proposed federal rule and by the states adopting that approach has been criticized by some commentators as being “imprecise.” We agree. Indeed, almost anyone in a religious organization willing to offer what purports to be spiritual advice would qualify for clergy status. Such an expansive construction is contrary to how Arizona courts interpret privilege statutes. Generally, such statutes are to be restrictively interpreted. This is because they impede the truth-finding function of the courts. Further, such an approach is not sufficiently linked to achieving the societal benefits justifying the existence of the clergy-penitent privilege.

The clergy-penitent privilege recognizes the “human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” As we have recognized, the privilege is a “legislative response to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one’s self and others can be realized.” Thus, the privilege exists because of a belief that people should be encouraged to discuss their “flawed acts” with individuals who, within the spiritual traditions and doctrines of their faith, are qualified and capable of encouraging the communicants to abandon and perhaps make amends for wrongful and destructive behavior. The privilege should not be expanded to include communications with individuals who are not qualified to provide such advice. As this case demonstrates, Paula’s honorific title and activities in the church did not qualify her to render this type of counsel and encouragement or to even advise on issues of transcendent belief, repentance and forgiveness. Therefore, we decline to adopt Gwen’s functional test for determining the meaning of clergyman.

The court did agree with Gwen that the term “clergyman” in the clergy-penitent privilege statute is not limited to members of religious organizations having an ordained clergy. Such a restrictive definition “would raise serious concerns” under the first amendment nonestablishment of religion clause, which prohibits the government from preferring some religions over others. As a result, “we hold that whether a person is a clergyman of a particular religious organization should be determined by that organization’s ecclesiastical rules, customs and laws. Such an approach avoids denominational favoritism and is consistent with the aims of the clergy-penitent privilege.”

The court ruled that the “in the course of discipline enjoined by the church” requirement in the clergy-penitent privilege statute was not limited to formal confessions but also encompassed “communications anchored in the ecclesiastical rules, customs and laws of the applicable religious group.”

The court concluded that Paula was not a clergyman under this analysis: “She was not, in accordance with the church’s ecclesiastical rules, customs and laws, a clergyman. She served as the church’s music director. She did not serve as its pastor. With the sole exception of Gwen, members of the church did not go to her for spiritual advice. They did not seek her religious counsel. She did not handle questions of church doctrine and policy, and instead, referred all such matters to the senior pastor.”

The court rejected Gwen’s argument that Paula should be considered a clergyman because Gwen believed her to be so. It noted that given the facts in this case, it would have been unreasonable for anyone to assume that Paula was a minister.

Application. This case represents one of the most extended and helpful discourses on the clergy-penitent privilege. Note the following points.

1. The court’s analysis of the privilege’s history and purpose is especially helpful.
2. The court acknowledged that the term “clergy” for purposes of the clergy-penitent privilege is defined broadly in some states to include “functionaries” who are not credentialed ministers. In such a state, Gwen’s emails to Paula may have been considered privileged.
3. The court rejected a “functionary” definition of clergy (when not imposed by statute). It regarded a functionary rule as “imprecise” and contrary to the essential purpose of the clergy privilege, which is rooted in the “human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”
4. The court concluded that the term “clergyman” in the clergy-penitent privilege statute is not limited to members of religious organizations having an ordained clergy.
5. The court ruled that the “in the course of discipline enjoined by the church” requirement in the clergy-penitent privilege statute was not limited to formal confessions but also encompassed “communications anchored in the ecclesiastical rules, customs and laws of the applicable religious group.” Waters v. O’Connor, 103 P.3d 292 (Ariz. 2004).
   

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