Confidential and Privileged Communications – Part 3

A Texas court, applying California law, ruled that the clergy-penitent privilege did not apply to a conversation between a murder suspect and a minister.

Church Law and Tax2001-07-01

Confidential and Privileged Communications

Key pointThe Clergy-Penitent Privilege 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 pointThe Clergy-Penitent Privilege 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.

A Texas court, applying California law, ruled that the clergy-penitent privilege did not apply to a conversation between a murder suspect and a minister because the minister’s church did not have a tenet or practice requiring confidential communications with ministers to be kept secret. A man (“Gary”) and his girlfriend traveled from California to Texas hoping to find work. After they arrived in Texas, the couple stayed in a hotel. During this time, Gary met another man (“Stacy”) at a bar. The two men struck up a friendship and, one week later, Stacy invited Gary and his girlfriend to stay at his apartment. They accepted his invitation and moved to his apartment. A few days later a neighbor went to check on Stacy because he had not reported to work for several days. The neighbor found Stacy’s body covered by a blanket on the kitchen floor. When officers responded to the scene, they discovered Stacy with his skull shattered from, as the autopsy would later reveal, 13 blows to the head. Bloodstains were found throughout the kitchen, down the hallway, in the bathroom, and in the bedroom. Police later arrested Gary and his girlfriend, whom he had since married. The two were taken separately to a local police station where Gary gave a statement to police admitting that he killed Stacy but insisting that Stacy was attempting to rape his girlfriend and that the killing was done in her defense. Gary stated that after Stacy was dead, he and his girlfriend packed their belongings and left the scene. The couple, driving her car and Stacy’s truck, returned to California. Gary was charged with murder. During the trial his wife testified that Gary’s version of the story was false. She testified that Gary had attacked Stacy without provocation. When she was impeached with prior inconsistent statements about the attempted rape, she explained that it was a story that she and Gary had made up.

During the trial, to rebut Gary’s testimony that he killed Stacy in an attempt to prevent him from raping his girlfriend, the prosecution called a California pastor to testify. The trial judge determined that the clergy-penitent privilege of Texas (not California) applied, but that the Texas privilege did not apply to Gary’s conversation with the pastor and therefore the pastor could testify about it. The pastor testified that he met with Gary for spiritual counseling at the request of Gary’s mother. During their conversation, Gary announced that the had something “really bad.” The pastor then warned Gary that there were certain things he (the pastor) needed the freedom to share, such as if someone were a “victim or victimizing someone else,” and that he could not keep anything of that nature in confidence. Following this warning Gary confessed that he had killed someone without provocation. Gary was convicted of murder, and he appealed his conviction on the ground that the pastor should not have been allowed to testify about their conversation since it was protected from disclosure by the clergy-penitent privilege.

The appeals court began its opinion by noting that the California clergy-penitent privilege applied in this case since the conversation between Gary and the pastor occurred there. California law states that a “penitential communication” is privileged. A penitential communication is “a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a clergyman who, in the course of the discipline or practice of his church, denomination, or organization, is authorized or accustomed to hear such communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep such communications secret.” The pastor testified that the policy of his church allowed him to freely disclose to third persons the types of communications that Gary made. Specifically, he testified, “We as pastors at our church don’t keep any counseling appointments confidential when the areas cross into somebody being a victim or victimizing somebody else, and that is always the intent.” The prosecution showed that the discipline or tenets of the pastor’s church did not require him to keep the communication secret, and no evidence was introduced to the contrary. The court concluded, “Since [the pastor’s] church did not make a practice of keeping these communications confidential, no privilege existed, and allowing [his] testimony about [Gary’s] communication was not error.”

Application. This case is important for a couple of reasons. First, it illustrates that the clergy-penitent privilege of the state in which the pastoral communication occurred will apply rather than the privilege in the state where a defendant is being prosecuted for a crime. Second, it represents a very narrow definition of the clergy privilege. Several states, like California, have clergy privilege statutes or rules that apply only if a minister has a duty under the “discipline or tenets of his church” to keep such communications secret. As this case illustrates, this condition is very critical. The pastor was allowed to testify about his conversation with Gary because the prosecution was able to convince the court that the discipline or tenets of the pastor’s church did not require him to keep the communication secret. This conclusion was based in part on the pastor’s own testimony that “we as pastors at our church don’t keep any counseling appointments confidential when the areas cross into somebody being a victim or victimizing somebody else.” Ministers should be familiar with their state’s clergy-penitent privilege statute or rule. If it limits privileged communications to those made to pastors of churches or denominations whose “discipline or tenets” do not require pastors to keep confidential communications with counselees secret, then it is important to check to see if such a limitation exists. If it does not, then the possibility exists that no communications to a pastor will be deemed privileged. Gonzalez v. State, 21 S.W.3d 595 (Tex. App. 2000).

Resource. The actual text of the clergy-penitent privilege statute or rule of every state is set forth in appendix 2 of Richard Hammar’s book, Pastor, Church & Law (3rd ed. 2000), which is available from Christian Ministry Resources by calling 1-800-222-1840.

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