Confidential and Privileged Communications – Part 2

The Montana Supreme Court ruled that statements made by a child molester to a deacon and the deacon’s spouse were not protected by the clergy-penitent privilege.

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. The Clergy-Penitent Privilege

Key point 3-07.3. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister. 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 Clergy-Penitent Privilege

The Montana Supreme Court ruled that statements made by a child molester to a deacon and the deacon's spouse were not protected by the clergy-penitent privilege. A man ("Brian") sexually molested his stepdaughter over a period of years. Brian and his family began attending a church, and he informed two members of the church about his prior acts of molestation. One of these church members was a "nonordained deacon," and the other was his wife, who held no official church office. The first meeting between Brian and the deacon occurred at the church. Brian sought the help of an associate minister, and the deacon sat in on their meeting. In the following months, Brian met with the deacon and his wife in their home to discuss his problems associated with his conduct toward his stepdaughter. The deacon and his wife were both present for some of these meetings. However, Brian would talk to the wife alone when the deacon was not available.

The local police began an investigation into Brian's alleged acts of molestation. They interviewed the deacon and his wife, who disclosed that Brian had confessed to them that he had molested his stepdaughter. Brian later opposed the introduction of this testimony in court on the ground that it was privileged under the state "clergy-penitent privilege." The trial court ruled that the testimony was not privileged, and the prosecution then called the deacon's wife to testify about the conversations with Brian. A jury found Brian guilty, and sentenced him to 30 years in a state penitentiary. Brian appealed his conviction on the ground that the deacon's wife should not have been allowed to testify. In particular, Brian argued that he considered the deacon to be a "representative" of his church and a spiritual advisor and he believed conversations held at the deacon's house would be kept confidential.

The state supreme court quoted the Montana clergy-penitent privilege: "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 discipline enjoined by the church to which he belongs." The court made the following conclusion:

Although we have never clarified the definition of "clergy" under [the clergy-penitent privilege], nothing in the record suggests that [a deacon's wife] is a clergy person. [The wife] testified that she was not a minister, clergyman, or deacon of the [church]. She stated that the church does not ordain women. She also stated that she did not have any special counseling role within the church. Therefore, the [trial court] did not abuse its discretion in admitting statements [Brian] made to [the deacon's wife].

The court also concluded that statements made to the deacon in his wife's presence were not privileged "even if we were to conclude that [the deacon] met the definition of clergy." The statute states that "a clergyman or priest cannot … be examined as to confessions made to him." The statute "clearly creates a testimonial privilege for a clergyman or priest; the statute does not expressly create a testimonial privilege for a nonclerical church member for statements made in his or her presence. In interpreting a statute, we cannot add what has been omitted."

The court noted that the other requirements of the clergy-penitent privilege were not met. In particular, there was substantial evidence that Brian's statements "were not made to clergy persons acting in their professional character." While Brian considered the deacon to be "a representative of my church and my spiritual adviser," he did not claim that the deacon's wife fulfilled the same functions. Moreover, while the deacon suggested that Brian approached him as "somebody to lean on … to talk to and confess out [his] sins," his wife testified that Brian approached them because "he was concerned about his conduct and about going to jail."

Application. It is common for church members to seek direction and solace from board members and other church officials. While the motivation in seeking out a board member may be to obtain spiritual counsel, this fact does not mean that the conversation is protected by the clergy-penitent privilege. As this case illustrates, the privilege applies only to conversations with a minister. Further, the minister must be sought out in his or her professional capacity as a spiritual adviser, and the communications must be confidential. So, despite Brian's belief that he was seeking out the deacon and his wife for spiritual counsel and he assumed their conversations would not be disclosed to anyone else, the couple were legally able to testify about those conversations. Church board members should keep this in mind when they are sought out by church members for spiritual counsel, especially if someone confesses to criminal activity. Board members should consider directing such persons to a member of the pastoral staff so that their conversation may be protected by the clergy-penitent privilege. State v. Gooding, 989 P.2d 304 (Mont. 1999).

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