Confidential and Privileged Communications

A Texas court ruled that statements made by a church member to his pastor when confronted by the pastor about allegations of inappropriate behavior with children were not protected against disclosure in court.

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.

The Clergy—Penitent Privilege

A Texas court ruled that statements made by a church member to his pastor when confronted by the pastor about allegations of inappropriate behavior with children were not protected against disclosure in court by the clergy-penitent privilege.

A church member ("Jerry") became involved in various activities with church members and their children. The pastor confronted Jerry about a complaint that he had kissed a minor girl. A short time later, the pastor confronted Jerry with another complaint that he was involved in "inappropriate behavior" with a church member's ten year old daughter. After the second incident, Jerry was told that he no longer had a leadership position with the church and was not welcome there. A few months later, Jerry was charged with two counts of child molestation. He was later convicted and sentenced to a prison term of 40 years as a habitual offender.

Jerry appealed his conviction, claiming that the trial court erred in allowing the pastor to testify. Jerry asserted that his conversations with the pastor were protected by the clergy-penitent privilege and should not have been disclosed in court. The Texas clergy-penitent privilege provides that "a person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as a spiritual advisor."

The court noted that "under the express language of the rule, the privilege only extends to communications addressed to a clergyman in his professional capacity as a spiritual advisor, not to every private communication made to a clergy member. Thus, statements made during a disciplinary/administrative meeting are not communications made for the purpose of obtaining spiritual guidance or consolation and do not fall under the privilege."

The court noted that the pastor initiated the meetings with Jerry; told Jerry the specific purpose of the meetings was to confront him about the allegations of his inappropriate behavior with children; the pastor did not indicate that the meetings were held for spiritual guidance; and, Jerry "did not present evidence that he made statements at the meetings with a reasonable expectation of confidentiality to a member of a clergy acting in his or her professional or spiritual capacity." Therefore, "the initial meetings were administrative in nature and not privileged, and the pastor "did not communicate with Jerry in his professional character as a spiritual adviser."

Maldonado v. State, 59 S.W.3d 251(Tex. App. 2001).

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