• Key point 3-07.5. In some states the clergy-penitent privilege only applies to communications made to a minister in the course of “discipline.” While most courts interpret this requirement broadly to cover statements made in the course of spiritual counsel and advice, others have interpreted it narrowly to apply only to confessions made to Catholic priests.
• Key point 3-08.11. The clergy-penitent privilege generally does not protect church records from being disclosed in response to a subpoena. However, some exceptions have been recognized by the courts. For example notes taken by a pastor in the course of a confidential pastoral counseling session may be protected from disclosure. In addition, in some cases subpoenas seeking church records may be opposed on the grounds that they are oppressive (they seek too much information), or relevance (they seek information that is clearly irrelevant).
The Clergy-Penitent Privilege
* An Illinois court ruled that a church had to turn over records it generated during an internal investigation into sexual misconduct charges made against a minister. Many churches and denominations have appointed internal committees to investigate allegations of sexual misconduct made against pastors, lay employees, or volunteers. While the minutes or reports of these committees are highly confidential, they may be requested by prosecutors in criminal cases or by attorneys in the event of litigation. Must a church turn over these confidential reports, or are they protected against disclosure by some privilege, much like the clergy-penitent privilege? This was the issue addressed in this case.
The State of Illinois brought sexual assault charges against a priest (the “defendant”) alleging that he molested a young girl while acting in a position of trust as her priest in the Roman Catholic Church (Church). The state served the diocese with a subpoena for “any and all records regarding defendant,” including “personnel files, transfer record, intervention team records, and misconduct officer records.” The diocese resisted the subpoena on several grounds.
A Catholic diocese implemented procedures for the internal investigation of sexual misconduct charges made against priests. A committee was established that investigated such charges and made recommendations to the bishop regarding the fitness of the priest for further ministry. The state subpoenaed all of the diocese’s internal records concerning the defendant, including the report made by the investigation committee. The diocese resisted this subpoena on the ground that it violated the clergy-penitent privilege. In rejecting this claim the trial court noted that “this privilege protects ‘priest-penitent’ communications; it does not protect information regarding the manner in which a religious institution conducts its affairs or information acquired by a church as a result of independent investigations not involving confidential communications between priest and penitent.” The trial court also held that the clergy privilege only applies to statements made by a party to a clergy member on a “one-to-one” basis, not to statements made “before a panel or group.” The trial court also rejected the diocese’s argument that requiring it to turn over its highly confidential, internal records would violate the first amendment’s guarantees of religious freedom and nonestablishment of religion. The diocese appealed.
A state appeals court agreed that the state’s subpoena did not violate the clergy-penitent privilege or the first amendment.
church autonomy doctrine
On appeal, the diocese’s primary argument was that an enforcement of the state’s subpoena would be “an intrusion by the state into the internal workings of the Catholic Church.” The diocese invoked the “church autonomy” doctrine, which “bars any secular court from involving itself in the ecclesiastical controversies that may arise in a religious body or organization.” A court oversteps its bounds when it intervenes in internal church disputes involving “a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” The court failed to see how this case could be so characterized:
We fail to see the relevance of these cases. The Diocese reiterates throughout its briefs that the State’s subpoena is an intrusion into the diocese’s religious activity that runs afoul of the bar against government review of decisions that were reached upon ecclesiastical considerations” and involvement in the inner workings of churches …. The diocese cites not one aspect of its administration that the state threatens to commandeer. The state seeks records from the diocese, defendant’s employer, for the purpose of gathering evidence in a criminal prosecution against defendant under the laws of Illinois. The state has neither expressed nor implied an aim to determine for itself whether defendant violated canon law, much less to override any determination of the diocese on that point ….
The subpoena in this case does not threaten … state involvement with religion …. There is no potential for state subversion of religious objectives. The state seeks diocesan records to determine whether defendant violated secular law. The state evinces no desire to co-opt any judgment of the diocese regarding defendant’s compliance with canon law, or even to examine canon law. There simply is no substance to the diocese’s assertion that the subpoena is an insidious attempt to “force upon the diocese the government’s view about how it should discipline priests accused of misconduct.”
The court concluded, “We reject the diocese’s attempt to conjure a right to secrecy, and with it immunity from the state’s subpoena power, simply by pointing to the veil it has cast over itself …. Where the only action required of a religious institution is the disclosure of relevant, non-privileged documents to an adversary in litigation, such action, without more, poses no threat of government interference with the free exercise of religion.”
clergy-penitent privilege
The diocese argues that all records of the investigation committee pertaining to the defendant were protected by the clergy-penitent privilege, defined under Illinois law as follows: “A clergyman … shall not be compelled to disclose in any court … a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.”
The diocese claimed that this language not only specifically protects “admissions” or “confessions” made to a clergy member in his capacity as “spiritual advisor in the course of the discipline enjoined by the rules or practices of [the] religious body or of the religion which [the clergy member] professes,” but it also contains a “catchall phrase” protecting not only such “admissions” or “confessions” but also any information obtained by a clergy member in his “professional character.” The diocese argued that “it matters not whether those whom the [investigation committee] interviewed made confessions or admissions; so long as the diocese’s clergy and practitioners obtained ‘any information’ from witnesses or others in either their ‘professional capacities’ or as ‘spiritual advisers,’ the information is protected against compelled disclosure.”
The court disagreed with the diocese’s “broad interpretation” of the clergy privilege. In language that provides helpful guidance on the meaning of the clergy privilege the court observed:
In our view, the clergy member privilege extends only to information that an individual conveys in the course of making an admission or confession to a clergy member in his capacity as spiritual counselor. We reject the diocese’s suggestion that a clergy member’s “professional character” is broader than his role as “spiritual advisor …. The first clause of [the privilege statute] accords protection to any “admission” or “confession” made to a clergy member “in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of [the] religious body or of the religion which [the clergy member] professes.” Notwithstanding the disjunctive between “professional character” and “spiritual advisor,” we believe the requirement that a “confession” or “admission” to the clergy member be made “in the course of the discipline” applies to all confessions and admissions received by the clergy member.
“Course of discipline” is the crucial phrase. No Illinois case or statute defines it …. Several states have enacted a statutory clergy member privilege protecting confessions or admissions made to a clergy member “in the course of the discipline” imposed by the religion that the clergy member professes. Case law in several of these states has defined what it means for an admission or confession to be made in the “course of the discipline” imposed by the religion that the clergy member professes. For instance, the Minnesota Supreme Court has said: “Such ‘discipline’ is traditionally enjoined upon all clergymen by the practice of their respective churches. Under such ‘discipline’ enjoined by such practice all faithful clergymen render such help to the spiritually sick and cheerfully offer consolation to suppliants who come in response to the call of conscience.” The Washington court of appeals has said: “Discipline enjoined refers to the duties of the clergy member and to the rules of such clergy member’s faith. The clergy member must be constrained by his or her religious dictates to receive penitential communications and to provide spiritual instruction and guidance in return.” We agree with these authorities and hold that the “discipline” referred to in [the Illinois clergy-penitent privilege] is limited to the set of dictates binding a clergy member to receive from an individual an “admission” or “confession” for the purpose of spiritually counseling or consoling the individual. Therefore, to fall under the protection of [the privilege] a communication must be an admission or confession (1) made for the purpose of receiving spiritual counsel or consolation (2) to a clergy member whose religion requires him to receive admissions or confessions for the purpose of providing spiritual counsel or consolation.
The court conceded that the final sentence in the Illinois privilege prohibits disclosure of “any information which has been obtained by [the clergy member] in such professional character or as such spiritual advisor.” However, the court concluded that “the inclusion of ‘such’ is a reincorporation of the preceding definition of ‘professional character’ and ‘spiritual advisor,’ which as we have noted, is qualified by the phrase ‘in the course of the discipline enjoined by the rules of practices of such religious body or of the religion which [the clergy member] professes.’ ‘Any information’ communicated in the course of an admission or confession made for the purpose of receiving spiritual consolation or counseling is privileged.
The court noted that the Illinois clergy-penitent privilege only pertains to communications that are confidential, and therefore “an admission or confession is not privileged if made to a clergy member in the presence of a third person unless such person is ‘indispensable’ to the counseling or consoling activity of the clergy member.” As a result, the court ruled that the trial court erred in holding that the privilege “extends only to admissions or confessions made in a one-on-one setting.”
Application. This case is important for the following reasons. First, it suggests that internal investigatory memoranda and reports prepared by church boards and committees in sexual misconduct cases may be subject to the subpoena power in event of a criminal prosecution or civil litigation. Second, the court’s extended discussion of the clergy-penitent privilege provides helpful guidance on an important point. The clergy privilege statute in many states, like the one in Illinois, limits privileged communications to those that are made “in the course of discipline.” This court’s extended interpretation of this seldom-defined language will be useful in other jurisdictions. People v. Campbello, 810 N.E.2d 307 (Ill. App. 2004)
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