Confidential and Privileged Communications – Part 2

A Military court of appeals ruled that a confession made by a soldier to his pastor was not protected by the clergy-penitent privilege since the pastor was acting as a marital counselor.

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.

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 Military court of appeals ruled that a confession made by a soldier to his pastor was not protected by the clergy-penitent privilege since the pastor was acting as a marital counselor at the time of the confession, and the soldier "waived" the privilege by repeating the confession to others. A soldier sexually molested his four-year-old daughter. The soldier's wife learned of the molestation, and contacted the family pastor. The soldier met with the pastor and a pastoral intern in a church office the following evening after his wife first reported their daughter's allegations. First, they prayed together, just as they did before discussing other matters. Then the pastor began the counseling by saying, "Now, something was done in your house. Your wife told me something and I want to know if you did it because it's serious and you can go to jail for it." The pastor asked for the truth, stating, "Christians don't tell lies, so I need to know." The soldier then admitted that he had engaged in sexual misconduct with his daughter.

The pastor responded to the soldier's confession by stating, "You really need to get with your wife; she needs to hear that from you because you lied to her. You know, you lied to her about it and she wants to know the truth." The soldier agreed that his wife needed to know what he did to their daughter. When the pastor asked him to go home and return to the church office with his wife to discuss the matter further, the soldier complied. He never asked the pastor or the pastoral intern to keep his comments in confidence, nor did he seek spiritual guidance or absolution.

Thirty minutes later, the soldier returned to the church with his wife. The pastor started the discussion by telling the soldier, "Well, you need to talk to her. Tell her exactly what happened." The soldier responded by telling his wife, "I did it. I did it. I'm wrong. I did it. That's not the way I want to be." He did not reveal to his wife the details of his misconduct. After this admission, they discussed how this would impact the couple's relationship and family life. The pastor concluded the meeting, stating that this was a serious matter, that the soldier could go to jail, and that by law crimes against children had to be reported.

A week later, the pastor asked the soldier's wife if she had reported the incident to the authorities. She had not, and the pastor said that "either you do it or I'll do it." He did not suggest who should be contacted or tell her what to say to authorities. The pastor had previously told his church members, including the soldier and his wife, "that if you come to me with a matter that you want me to keep as a confidence, you have to tell me." The pastor also informed church members that "by law" he was obligated to report any crime against a child, and that he had to report such information because otherwise it could damage his own reputation and the reputation of their church. A short time later, the wife reported her husband's misconduct to a military child abuse hotline that she found in the telephone book. This led to an investigation during which the soldier admitted to his offenses.

A military judge sitting as a general court-martial convicted the soldier, pursuant to his guilty plea, of indecent acts upon a female under sixteen years of age. A court of appeals affirmed the judge's ruling. It rejected the soldier's claim that the statements he had made to his pastor were protected by the clergy-penitent privilege and should not have been used in his trial.

The court noted that Military Rule of Evidence 503(a) expressly recognizes the clergy privilege: "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or as a matter of conscience." The court noted that three requirements must be met for the clergy privilege to apply: (1) the communication must be made either as a formal act of religion or as a matter of conscience; (2) it must be made to a clergyman in his capacity as a spiritual advisor or to his assistant in his official capacity; and (3) the communication must be intended to be confidential. The court concluded that none of these requirements was met in this case:

The defendant sought counseling and advice from the pastor on a secular matter. He was not seeking absolution or spiritual forgiveness. The communication was in the pastor's capacity as a marital counselor rather than in his official, religious capacity. The counseling was conducted in a manner similar to previous marital counseling sessions. Finally, the defendant did not intend his communication to be confidential, as demonstrated when he brought his wife to see the pastor and then disclosed his misconduct to her. His subsequent [confessions to military investigators] are further demonstrations of his intent to eschew confidentiality. Accordingly, we conclude that his admissions to the pastor were not privileged. A communication is not privileged, even if made to a clergyman, if it is made for emotional support and consolation rather than as a formal act of religion or as a matter of conscience.

Application. Note the following considerations:

1. The court reached the incredible conclusion that the defendant's confession to his minister, made in the course of a counseling session, was not privileged since the minister was acting as a marital counselor rather than in a "religious capacity." The court compounded its error by observing, "A communication is not privileged, even if made to a clergyman, if it is made for emotional support and consolation rather than as a formal act of religion or as a matter of conscience." Fortunately, very few courts share this crabbed interpretation of the clergy-penitent privilege.

2. The court was right about one thing. It correctly concluded that even if the confession had been privileged, the defendant "waived" it by repeating it to his wife in the presence of his minister, and by repeating it to military investigators. The court observed, "The clergy privilege is waived if a defendant voluntarily discloses or consents to disclosure of any significant part of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege. Once disclosure has been made, the waiver stands even if the disclosure was made without the holder realizing the impact of the disclosure. Since the holder has destroyed the privacy or security afforded by the privilege by disclosure, repair cannot be made."

3. The court conceded that pastors are not mandatory child abuse reporters under Washington law, as the pastor had stated to his congregation and to the defendant and his wife. However, it concluded that the pastor "did not improperly advise the defendant that authorities had to be notified of his admissions. Even if the defendant's communications to his pastor were confidential under Washington state law, the pastor was not prohibited from voluntarily reporting the defendant's admissions to law enforcement."

4. The court noted that "because the defendant is charged with a crime against a child of his spouse, his admission to his wife is not protected by the husband-wife privilege" according section 504(c)(2)(A) of the MRE. United States v. Shelton, 59 M.J. 727 (2004).

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