Confidential and Privileged Communications Between Members and Clergy

Court rules clergy-penitent privilege not limited to “confessions.”

Church Law and Tax 1995-01-01 Recent Developments

Confidential and Privileged Communications

Key point: In most states, the clergy-penitent privilege is not limited to “confessions” but includes any conversation in which the penitent is seeking spiritual counsel from a member of the clergy.

The Utah Supreme Court ruled that a bishop did not have to disclose in a civil trial information shared with him by a father who was guilty of abusing his adopted child. An adult woman sued her adoptive father, alleging that he had sexually abused her throughout her childhood. As a result of his conduct, the father sought advice from a bishop of his church. The church later convened a disciplinary hearing at which the father was excommunicated. The daughter subpoenaed documents from the church pertaining to any communications her father had with the bishop regarding his conduct. The bishop opposed this request on the ground that the information sought by the daughter was protected from disclosure by the clergy-penitent privilege. The daughter insisted that any communications made by her father to the bishop were not privileged since they were not made in the context of a “confession” as required by the Utah clergy-penitent privilege. The Utah clergy-penitent privilege provides: “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of the discipline enjoined by the church to which he belongs.” The Court agreed with the bishop that the statements made by the father were privileged. It refused to narrowly interpret the word “confession” to mean a penitential confession to a member of the clergy, since such an interpretation would limit the privilege to the Catholic Church. The Court observed that such an interpretation would favor one sect over all others, making it unconstitutional. Further, the Court noted that the word “confession” is used in several ways, including to simply “disclose or acknowledge” something, and it insisted that this broader interpretation is more sensible and realistic:

[A] constricted interpretation of the privilege does not take into account the essential role that clergy in most churches perform in providing confidential counsel and advice to their communicants in helping them to abandon wrongful or harmful conduct, adopt higher standards of conduct, and reconcile themselves with others and God …. In counseling parishioners in religious and moral matters, clergy frequently must deal with intensely private concerns, and parishioners may be encouraged, and even feel compelled, to discuss their moral faults. As one commentator has stated, “Because most churches do not set aside formal occasions for special private encounters labeled ‘confession,’ less formal consultation must be privileged if the privilege is not in effect to be limited to Roman Catholics.”

The Court concluded that “the term ‘confession’ need not be construed to apply only to penitential communications and that a broad construction of that term is necessary to take into account the essential religious role clergy play in dealing with the wrongdoing of parishioners.”

While the Court interpreted the word “confession” broadly, it did caution that the clergy-penitent privilege still requires that the communication be confidential and in the course of discipline. In deciding if a conversation with a minister is “confidential” and in the course of “discipline” the Court suggested that the following factors be considered:

[W]hether the [location] of the communication indicates an intent that the communication be confidential, whether the conversation was casual in nature or undertaken by the cleric and the parishioner with a sense that the parishioner’s moral conduct was at issue, and whether persons not concerned with the subject matter were present. A communication that does not take place in private or that is made in the presence of others not intimately and directly concerned with the issue may indicate that the parties involved did not intend the conversation to be confidential …. Likewise, statements made to a cleric in a social context are not privileged because the statements are not made to the cleric in the course of his or her professional responsibilities or in a religious context.

The Court concluded that statements made by the father to the bishop were privileged, even though some of them occurred in the father’s home, since “the bishop communicated with [the father] in the bishop’s clerical role with regard to spiritual or religious matters.” Scott v. Hammock, 870 P.2d 947 (Utah 1994).

See Also: Was the Communication Made in the Course of Discipline?

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