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 Massachusetts Supreme Judicial Court ruled that the clergy-penitent privilege did not apply to incriminating statements made by a father to a pastor concerning allegations of child abuse since the statements were not made in the course of seeking spiritual counsel. A man (the “defendant”) sexually abused his two minor daughters for several years. When the older daughter was in college, she returned home for Thanksgiving. The defendant again attempted to molest her, but she resisted and threatened to call the police. He became angry, showed her a nine millimeter handgun, and said, “I could kill you if you ever open your mouth.” Although the defendant did not touch this daughter after this incident, she continued to fear for her safety and for that of her mother.
When the defendant’s younger daughter was a senior in high school, she disclosed the abuse to one of the pastors at her church (“Pastor Ron”). She told Pastor Ron that she had not disclosed the abuse previously because she did not think that anyone would believe her and because the defendant had threatened her if she did so. Pastor Ron suggested alternative actions that the daughter could take, including contacting the police or confronting her father, but she decided that the best option would be to leave home to attend college. However, after a long weekend home from college, she informed Pastor Ron that she wanted to confront the defendant.
A family meeting was held at the church. The defendant’s two daughters, their mother, Pastor Ron and two other pastors, and the defendant attended the meeting. During the meeting, the defendant made incriminating statements to Pastor Ron and the other pastors. He apologized to his daughters for “what he did” and asked for forgiveness. The meeting ended without agreement concerning any future action.
The defendant was asked to leave the family home. He initially agreed to do so, but then refused to move. He became angry and verbally abusive. His wife and one of the daughters went to the police to report the defendant’s actions, and he was arrested a few days later. The defendant was charged with two counts of rape of a child, four counts of indecent assault and battery on a child under 14, and one count each of assault and battery and threatening to commit a crime. At his trial the prosecutor sought to have Pastor Ron testify concerning the incriminating statements made by the defendant during the church meeting. The defendant objected to Pastor Ron’s testimony. He insisted that the statements he made during the church meeting were in the context of seeking spiritual advice, and therefore they were protected by the clergy-penitent privilege.
The prosecutor countered that the statements made during the church meeting were not privileged since they were not in the course of seeking spiritual advice, and in addition, that the presence of the defendant’s daughters at the meeting precluded it from being “confidential” and therefore the clergy-privilege did not apply.
The trial court ruled that the defendant’s statements to Pastor Ron at the church meeting were not made in the process of seeking “spiritual advice or comfort,” and were not “motivated by a religious or spiritual purpose.” Based on this conclusion, the judge declined to address the prosecutor’s argument that any privilege was waived due to the presence of the defendant’s daughters when some of the statements were made. Partly due to Pastor Ron’s testimony, the defendant was found guilty and sentenced to prison. He appealed to the state supreme court.
The Massachusetts clergy-penitent privilege statute states:
A priest, rabbi or ordained or licensed minister of any church or an accredited Christian Science practitioner shall not … testify as to any communication made to him by any person in seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character, without the consent of such person.
The state supreme court agreed with the trial judge that the defendant’s statements to Pastor Ron at the church meeting were not protected by the clergy-penitent privilege:
The evidence clearly supports the judge’s conclusion that the defendant did not attend the meeting for a spiritual or religious purpose, but rather attended at the urging of his wife and his wife’s pastor to discuss a “family issue.”
That the defendant was not a member of the church, and did not attend services regularly, is not dispositive, since the statute plainly applies to “any person … seeking religious or spiritual advice.” Nonetheless, the defendant’s prior sporadic contact with the pastors and lack of regular attendance at church services is relevant to his purpose in attending the family meeting. The defendant’s angry demeanor and denials of the allegations, as well as his repeated statements that he wanted to leave the meeting, further support this conclusion …. The defendant’s question to Pastor Ron about what he should do to make things “better,” and Pastor Ron’s suggestion that the defendant follow his “conscience,” are not inconsistent with the judge’s conclusion that the defendant was seeking pragmatic advice rather than spiritual guidance.
Since the defendant’s statements were not made in the course of seeking spiritual guidance or support, the court did not address “whether any privilege was waived by the presence of third parties not covered by the statute.”
Application. This case illustrates that not all conversations with clergy are protected by the clergy-penitent privilege. Such conversations are protected only when clergy are sought out in their professional capacity as spiritual advisers. The court cited the following factors in concluding that the defendant’s statements to Pastor Ron were not privileged: (1) the defendant’s sporadic church attendance (which, while not precluding the application of the privilege, made it less plausible that his comments to Pastor Ron were in the course of seeking spiritual advice); (2) the defendant’s angry demeanor at the church meeting, and his initial denials of the allegations of abuse; (3) the defendant’s repeated requests to leave the meeting. The court declined to address the question of whether the privilege applies when third persons are present. Commonwealth v. Kebreau, 909 N.E.2d 1146 (Mass. 2009).
This Recent Development first appeared in Church Law & Tax Report, March/April 2010.