Confidential and Privileged Communications

A Washington state appeals court ruled that a youth pastor’s confession to a church elder that he had molested members of the church youth group was protected by 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 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister.

Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.
The Clergy-Penitent Privilege

A Washington state appeals court ruled that a youth pastor's confession to a church elder that he had molested members of the church youth group was protected by the clergy-penitent privilege and therefore could not be introduced in the youth pastor's criminal trial.

A church elder had a "vision" that the church's youth pastor (Pastor Tim) was involved with pornography. At the request of the senior pastor, the elder met with Pastor Tim to discuss the vision. During this meeting, Pastor Tim confessed to using pornography, and also admitted that he had molested specified children. The elder reported this information to the pastor. Church leaders later reported Pastor Tim's conduct to the police, and he was prosecuted. A trial court ruled that the elder was a "minister," and therefore Pastor Tim's confessions to him were not admissible in court as a result of the clergy-penitent privilege. The state appealed.

A state appeals court agreed that the elder was a minister for purposes of the clergy-penitent privilege since he claimed to be ordained. Further, the elder was acting as the pastor's representative when he met with Pastor Tim, and at his personal request. The court also concluded that Pastor Tim's confessions to the elder were privileged since the church's teachings encouraged confession of sin. The state contended that the clergy-penitent privilege only applies to "confidential" communications, and this requirement could not be met in this case since Pastor Tim did not have a reasonable expectation that his confessions of child abuse would be kept in confidence. The state also pointed out that the church had an official policy requiring the reporting of allegations of child abuse. The court relied on the testimony of several church members to the effect that the policy of reporting abuse did not apply to confidential information shared with pastors or elders.

The court also rejected the state's assertion that Pastor Tim "waived" the clergy-penitent privilege by attending a meeting where both ordained pastors and non-ordained members were present. At the meeting, Pastor Tim made general disclosures about having committed moral failures, but he did not reveal the specifics of the statements he made to the elder. He also drafted several letters to the victims' parents. The state argued that by doing so, Pastor Tim waived any privilege that may have attached to his conversation with the elder. The court agreed that statements made to the pastors and church members were not confidential and therefore not privileged, but it concluded that this did not apply to the confessions he made to the elder.

. There are three important aspects to this case. First, the court concluded that the church elder was a "minister" for purposes of the clergy-penitent privilege. It based this conclusion on the fact that the elder claimed to be "ordained." Many courts have ruled that church board members are not "ministers" for purposes of the clergy-penitent privilege, and the fact that the court based its decision on the elder's "ordained" status suggests that the court was breaking no new ground.

Second, the court rejected the state's argument that Pastor Tim could have no reasonable expectation that his confession of child abuse to the elder would have been kept in confidence, and therefore the confession was not privileged since it was not "confidential." If this argument had been accepted by the court, it would have meant that the clergy-penitent privilege could never apply to confessions of child abuse. The court rejected such a sweeping conclusion-even though the church had a policy requiring the reporting of child abuse.

Third, the court agreed that Pastor Tim "waived" the clergy-penitent privilege with respect to statements that he disclosed to a group of pastors and members of his church. However, this "waiver" did not apply to specific statements made to the elder that were not repeated to this informal group. This is an important point for pastors to bear in mind. Often, when they receive a confession of wrongdoing, they will encourage the confessor to repeat his or her statements to the church board. If the confessor repeats the statements to the board, the clergy-penitent privilege is waived, and so the pastor may be compelled to disclose the confession in court. Pastors should consider the ramifications of a waiver of the clergy-penitent privilege before encouraging a confessor to repeat his or her confession to the board or some other group within the church. State v. Glenn, 62 P.3d 921 (Wash. App. 2003).

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