• 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 Missouri court ruled that statements made by a child abuse victim to a minister at her church were not protected by the clergy-penitent privilege since they were not made in the course of spiritual counseling. An adult male (Gary) was charged with four felony counts of statutory rape after his 13-year-old daughter (the “victim”) disclosed that Gary had raped her on several occasions. Gary was found guilty and sentenced to 40 years in a state prison. During the trial, Gary sought to attack the credibility of his daughter’s allegations by having a church member (Mary) testify that the victim had informed her during a telephone conversation that she had miscarried after becoming pregnant with Gary’s child. This evidence, Gary insisted, was false and he wanted Mary to testify in order to show that his daughter was not truthful. The prosecutor argued that the victim’s statement was protected by the clergy-penitent privilege, meaning that it was not admissible in court.

The Missouri clergy-penitent privilege statute specifies, “The following persons shall be incompetent to testify … (4) Any person practicing as a minister of the gospel, priest, rabbi or other person serving in a similar capacity for any organized religion, concerning a communication made to him or her in his or her professional capacity as a spiritual advisor, confessor, counselor or comforter.” The trial court found that Mary was a minister in the church and that she was acting in that capacity and providing the victim with counseling and comfort during the telephone conversation in which the victim made the comment about her prior pregnancy. The trial judge concluded, “The evidence on that point is that Mary was a minister in the church, that she was a counselor to children in the church, that she had called up and talked to the victim under these circumstances in a counseling mode, inquiring as to how she was getting along with regard to these problems that she was experiencing because of the alleged sexual intercourse with Gary and that she was engaged in prayer for her tended to support what the victim states under oath was her belief, that the conversations were part of counseling and comfort with someone she reasonably believed to be a minister or comforter or counselor with regard to the church congregation in which she and her family was involved.” As a result, this conversation was covered by the clergy-penitent privilege and could not be admitted into evidence.

Gary appealed his conviction on the ground that his daughter’s statements to Mary were not privileged and should have been allowed as evidence at the trial. He based this claim on two considerations. First, Mary was not a minister; and second, the telephone conversation between Mary and his daughter was a normal, casual conversation between members of the same church, i.e. friends or acquaintances, and was not the type of communication covered under the statute.

A state appeals court reversed Gary’s conviction on the ground that Mary’s testimony was improperly excluded by the trial court. The court found that the statements the victim made to Mary during their telephone conversation were not privileged even if it were assumed that Mary was a minister. The court concluded:

The record does not support a finding that the conversation between the victim and Mary was a communication made to her in her “professional capacity as a spiritual advisor, confessor, counselor or comforter.” Both the victim and Mary described their conversation as a casual telephone conversation. Mary testified that she had called the victim’s home in response to a message left by [the victim’s mother]. She stated that after the victim answered the phone and told her that her mother was not home, she and the victim began to have a general conversation in which she generally asked her, “How are you?” According to Mary, the victim responded that it had been an extremely rough day and then went on to tell Mary that [a few years previously] she had miscarried a child, fathered by Gary, after a five-month pregnancy. Mary ended the conversation by telling the victim that she would pray for her, the manner in which she often ended conversations with other members of the congregation. Mary testified that she was not trying to solicit any spiritual conversation when she spoke with the victim and that it was simply a “Hi, how are you” type conversation. Mary further testified that the victim had never come to her for advice or asked for spiritual guidance …. The victim stated that she did not discuss anything of a spiritual nature with Mary during that conversation … and that Mary was not someone that she would ever go to for advice.

The court concluded that this evidence was insufficient to support a finding that the victim’s comments to Mary were made to her in her “professional capacity as a spiritual advisor, confessor, counselor or comforter.” The trial court’s ruling that Mary was acting in her professional capacity as a member of the clergy to provide the victim with counseling and comfort ” is simply not supported by the record.”

Since the state’s case against Gary “hinged almost entirely upon the credibility of the victim,” and Gary’s “lone theory of defense was that his daughter’s testimony was not credible,” the conviction had to be reversed.

Application. This case demonstrates the importance of pastors being familiar with the clergy-penitent privilege in their state. It also shows the dramatic difference that can occur in a criminal trial depending on a judge’s conclusions regarding the applicability of the privilege. State of Missouri v. Gerhart, 129 S.W.3d 893 (Mo. App. 2004).

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