Confidential and Privileged Communications – Part 1

The Iowa Supreme Court ruled that a conversation that a rapist had with a minister on the day of the rape was not protected by the clergy-penitent privilege.

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 Iowa Supreme Court ruled that a conversation that a rapist had with a minister on the day of the rape was not protected by the clergy-penitent privilege. A woman broke off her relationship with her live-in boy friend (the "defendant"). A few days later, the defendant appeared at the woman's residence, threatened her with a knife, and forced her to have sex. Afterwards the defendant stated, "I might as well call the police and turn myself in." He then began to talk to the woman about getting counseling. Later that day he later called a minister he had seen for counseling several months earlier. The minister, who was a part-time unlicensed marriage and family counselor, agreed to see the defendant that day. They met at the minister's church while no one else was present.

As a result of the attack, the defendant was charged with second-degree sexual abuse. At his trial, the minister was called as a witness by the prosecution and repeated what the defendant had related to him regarding the assault. The defendant was convicted, and he later appealed his conviction on the ground that the trial court erred in allowing the minister to testify about their conversation since the conversation was protected by the clergy-penitent privilege.

The supreme court ruled that the conversation between the defendant and the minister was not protected by the clergy-penitent privilege, and therefore it was proper for the minister to testify during the trial. The court observed:

Early statutory forms of the priest-penitent privilege limited the privilege to people whose faith recognized penitential communications as part of the discipline of their church. Such a restricted view no longer prevails. Many states have broadened their statutes to extend the privilege [to] "confidential communications by a person to a clergyman in his professional character as a spiritual advisor."

We have said that in order to determine whether a communication to a member of the clergy falls within the [privilege] the communication must be: (1) confidential; (2) entrusted to a person in his or her professional capacity; and (3) necessary and proper for the discharge of the function of the person's office. The state does not contest that the first element, confidentiality, has been met, but argues that [the defendant's] statements to [the minister] were not made in [the minister's] professional capacity as a minister, therefore there was no privilege. We agree there is a glaring hole in [the defendant's] claim that he directed his remarks to [the minister] in the latter's capacity as a minister. The record strongly supports the trial court's finding that [the defendant] did not consult [the minister] in his priestly capacity. [The defendant] himself concedes that it was not for any spiritual reason but for advice on his relationship with [his former girl friend]. [T]he minister testified he was under the same impression. The claim of priest-penitent privilege thus fails.

The court cautioned that its ruling in this case "should not be understood as an abandonment of a properly invoked claim of the priest-penitent privilege. It is highly risky for prosecutors to bolster a case by resorting to evidence that is subject to such a claim."

The court also rejected the defendant's claim that his conversation with the minister was protected from disclosure by a "counselor-client" privilege. The court noted that "we take a limited view on who qualifies as a counselor under the state counselor-client privilege, and are not anxious to expand on the category in the absence of legislative mandate. [The minister] did not offer his services as a certified professional."

This case is unfortunate, for it constitutes a far too narrow interpretation of the clergy-penitent privilege. The court concluded that the defendant's conversation with the minister was not privileged since the defendant had met with the minister for advice concerning his relationship with his former girl friend, and not "spiritual" advice. This is a completely unwarranted conclusion. After all, many of the confidential counseling sessions that ministers have with church members concern personal relationships. Yet, according to this case, such encounters are not for "spiritual" reasons and accordingly are not privileged.

Here is an important tip for ministers in Iowa (it applies to ministers in other states as well). Whenever you are counseling with a person about any matter that a civil court might later construe as "non-spiritual," ask the counselee during the counseling session if he or she has sought you out in your professional capacity as a spiritual adviser. If the answer is yes, as it almost always will be, then you will be able to inform a court at a later time of this important information if you are asked to testify about the conversation. This will make it much more likely that a civil court will consider the conversation to be privileged. State v. Richmond, 590 N.W.2d 33 (Iowa 1999). The Clergy-Penitent Privilege

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