• Key point 3-07.2. In order for the clergy-penitent privilege to apply there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.
• 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 3-08.01. The courts have not required that a counselee be a church member in order for communications to a minister to qualify for the clergy-penitent privilege. However, church membership is a factor that the courts have considered in deciding if the privilege applies to a particular communication.
The Clergy-Penitent Privilege
* A California court ruled that the clergy-penitent privilege did not apply to letters sent to a pastor, at her request, by several adults who had been sexually molested as minors by the same church worker. Three adult males (the ‘plaintiffs’) claimed that they had been sexually molested by a youth pastor when they were minors attending a church (‘Church B’) youth program, and that the acts of molestation persisted for several years. They also asserted that the youth pastor had molested minors in another church (‘Church A’) where he previously was employed, and that Church A provided Church B with a ‘misleading’ reference indicating that he was ‘a clergy member fit for employment.’ The youth pastor was arrested nearly 25 years after the molestations stopped. It was at this time that the current pastor of Church B learned of the acts of molestation for the first time. She sent a letter to members of the congregation that stated, in part:
I want everyone to know that my heart and my office are open to hear the concerns of anyone who was part of our fellowship [at the time of the acts of molestation]. In the interest of that goal, I hope to correspond with everyone who can be identified as youth and adult participants in our youth ministry [during that time]. If you can assist me in locating friends and family who have moved away from our fellowship in the intervening years, I would be most grateful. Additionally, I am assembling a response team that will lead those who choose to participate in a process for healing. The time for whispers is past. It is time for clear and compassionate conversation with one another and with our God. Please join me in prayer for everyone affected by this news. As always, I will keep your response in pastoral confidence. Also, as always, I encourage anyone with any knowledge of wrongdoing in any circumstance to contact the appropriate law enforcement and legal authorities. You have my complete support in so doing.’
Over the next few months, the pastor spoke with ‘about two dozen’ persons who responded to her letter, but she declined to discuss whether any possible victims had emerged, citing ‘confessional confidentiality.’
The plaintiffs sued Church A and Church B as a result of the youth pastor’s acts. While the lawsuit was pending, the plaintiffs asked Church B to identify the names of everyone who responded to the pastor’s letter, including persons who identified themselves as victims. The church declined to answer these questions on the ground that they were too vague. It was only later, in a letter, that Church B asserted that the responses to the pastor’s letter were protected against disclosure by the clergy-penitent privilege. The trial court ruled that the clergy-penitent privilege did not apply because it imposed a ‘protective order’ on the church’s responses that allowed them to be disclosed only with its permission. Church B appealed this ruling.
The California clergy-penitent privilege specifies that ‘a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege.’ The law defines ‘penitential communication’ as ‘a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.’
The appeals court issued a lengthy and helpful opinion addressing the clergy-penitent privilege. The main points are summarized below.
(1) Elements of the privilege
The court noted that ‘in order for a statement to be privileged, it must satisfy all of the conceptual requirements of a penitential communication: (1) it must be intended to be in confidence; (2) it must be made to a member of the clergy who in the course of his or her religious discipline or practice is authorized or accustomed to hear such communications; and (3) such member of the clergy has a duty under the discipline or tenets of the church, religious denomination or organization to keep such communications secret.’
(2) Protective orders
The appeals court rejected the trial court’s conclusion that privileged information can be turned over if a protective order is issued: ‘If the privilege applies, a court cannot compel disclosure, regardless whether a protective order is imposed.’
(3) Church membership
The court clarified that a penitent need not be a member of a minister’s church for the clergy-penitent privilege to apply: ‘Because [the statute] defines a penitent as any person who has made a penitential communication to a member of the clergy, and because [the statute] contains no special requirement regarding the person making the communication, it follows that the penitent is not required to be a member of any particular church or of the faith of the clergy member to whom he or she makes the penitential communication.’ As a result, the privilege could apply to communications made to the pastor of Church B who were not members of the church.
However, the court cautioned that ‘a requirement that a penitent be a member of the church of the clergy member might be imposed … if the discipline of that church limits the clergy member’s authority to receive penitential communications to church members only.’
(4) Communications made in the presence of no third party
The California clergy-penitent privilege applies only to statements ‘made in confidence, in the presence of no third person so far as the penitent is aware.’ The pastor of Church B disclosed that she ‘held a weekend retreat to provide religious and spiritual healing to persons affected by [the perpetrator].’ The court concluded that ‘to the extent any participant in that retreat made statements to the pastor in the presence of other participants, such statements would not be protected from disclosure by virtue of the clergy-penitent privilege because of the presence of other persons.’
(5) Intended to be confidential
The court noted that for a statement to be privileged, ‘it must be intended to be in confidence.’ As a result, ‘even if third parties are not physically present at the time of the communication, the privilege may still be inapplicable if the penitent does not intend for the contents of the communication to be kept in confidence.’ The pastor of Church B asserted that everyone who communicated with her about the acts of child molestation did so ‘confidentially,’ but she ‘did not provide the factual basis for this assertion.’
(6) Flawed acts
The court pointed out that there is no requirement that a communication have as its purpose the confession of a ‘flawed act’ to ‘receive religious consolation’ in order to be privileged. All that is required is that the penitent is speaking to a minister in his or her professional capacity as a spiritual adviser.
(6) Other ways to obtain the information
The court concluded that ‘nothing in this opinion precludes the plaintiffs from seeking to obtain information about the alleged sexual abuse in a manner that would not implicate the clergy-penitent privilege. For example, plaintiffs could ask the church to provide them with the names of all persons who participated in the youth ministry while [the perpetrator] was involved in the ministry ….It would seem that such a request would not implicate the clergy-penitent privilege.’
(7) Privacy rights
Church B also invoked the privacy rights of the persons who communicated with the pastor as a basis for not responding to the plaintiffs’ request for information. The court conceded that privacy rights may be implicated, but stressed that the constitutional right to privacy is not absolute. To the contrary, the state’s ‘interest in discovering the truth in legal proceedings’ is sufficiently strong that ‘it may compel disclosure of confidential material.’ However, before a court can make such a determination, ‘it must give the parties whose privacy rights are at issue an opportunity to present their views.’
The court sent the case back to the trial court for further consideration, and noted that if the trial court rejected the church’s clergy-penitent privilege defense regarding the communications made to the pastor in response to her letter, then the persons who communicated with the pastor ‘must be formally notified of the proceedings and afforded a fair opportunity to assert their privacy interests by objecting to the disclosure—in whole or in part—or asserting possible alternative ways to protect their privacy rights.’
Application. There are a number of points in this ruling that are worth noting.
- First, and most important, this case demonstrates that the clergy-penitent privilege may apply to letters sent by a church to current or former members, or to written or oral responses to such letters, provided that the letters and responses are made in the context of confidential spiritual counseling.
- Second, the court ruled that court-issued ‘protective orders’ do not warrant the disclosure of communications protected by the clergy-penitent privilege. A protective order is a ruling by a court that specified items of evidence cannot be disclosed to anyone without court approval. The court concluded, ‘If the privilege applies, a court cannot compel disclosure, regardless whether a protective order is imposed.’
- Third, the court clarified that the clergy-penitent privilege is not limited to communications between clergy and members of their congregation. It applies to communications by anyone to a minister who is acting in a professional capacity as a spiritual adviser, even if the person communicating with the minister is not a member of his or her church.
- Fourth, in a minority of states, the clergy-penitent privilege applies only to communications with a minister that are made in confidence ‘in the presence of no third person so far as the penitent is aware.’ It is important for clergy to know if they are in such a state, since a third person’s presence during an otherwise confidential conversation can negate the privilege. The court noted that statements made to the pastor of Church B at a spiritual retreat would not be privileged ‘to the extent any participant in that retreat made statements to the pastor in the presence of other participants.’
- Fifth, the court suggested that churches and church members may have a right of privacy that in some cases may protect documents or conversations from being disclosed in response to a subpoena. However, before a court can make such a determination, ‘it must give the parties whose privacy rights are at issue an opportunity to present their views.’
- Sixth, the court noted that the church failed to raise the clergy-penitent privilege in its initial responses to interrogatories submitted by the plaintiffs, and suggested that this may have resulted in a waiver of the privilege had the plaintiffs raised the issue. This is an important point, since it suggests that the clergy-penitent privilege may be waived if a church fails to assert it in its initial response to an interrogatory or in a deposition. Doe v. Superior Court, 34 Cal.Rptr.3d 458 (Cal. App. 2005).
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