Counseling Session Notes and the Clergy-Penitent Privilege

Personal notes made by ministers during counseling sessions may be privileged.

Key point. Personal notes ministers make during counseling sessions may be privileged.

A federal court in Virginia ruled that the clergy-penitent privilege applied to a pastoral counselor, and that as a result the counselor did not have to disclose notes she took during counseling sessions.

A woman was injured when she was struck by a can falling from the top shelf in a grocery store. She later sued the grocery store for personal injuries and emotional distress. At the time of the accident and thereafter the woman sought counseling from a pastoral counselor at a local nonprofit, multidenominational counseling center operated by 8 churches. All of the counselors at the center are ordained ministers.

During the woman's counseling sessions, her counselor followed her usual practice of taking notes. The grocery store learned of the counseling relationship and issued a subpoena seeking disclosure of all of the counselor's notes in an attempt to verify the woman's injuries. The counselor claimed that her notes were protected from disclosure by the clergy-penitent privilege, and refused to disclose them.

The grocery store argued that the clergy-penitent privilege only applied to "testimony [given] as a witness in any civil action," and accordingly did not apply to a request for notes or other documents. The court ruled that the counselor's notes were protected from disclosure by the privilege. It began by quoting the Virginia clergy-penitent privilege:

No regular minister, priest, rabbi or accredited practitioner over the age of eighteen years, or any religious organization or denomination usually referred to as a church, shall be required in giving testimony as a witness in any civil action to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted. Va. Code Ann. § 8.01-400.

The court rejected the grocery store's claim that the privilege applied only to in-court testimony by ministers and not to subpoenas demanding the disclosure of documents. It acknowledged that the privilege protects ministers from "giving testimony as a witness in any civil action," and that this language could be interpreted to limit the privilege to in-court testimony. However, in rejecting this interpretation the court observed:

Although a close question, this court concludes that to compel the production of these "documents" would render meaningless the clear protection against disclosure of confidential communications as to clergy provided by [the privilege. The counselor's] notes would reveal the substance of [the woman's] confidential communications to [her]. Consequently [the counselor's] testimony as a witness in the civil trial would no longer be needed …. Moreover [the grocery store] could use the notes to cross-examine [the woman], thereby placing into evidence the substance of the notes. Thus, a party seeking disclosure of such confidential communications could easily subvert the protections provided by the statute in cases in which a prudent clergyperson had documented the counseling. This court holds, therefore, that the protection … given to the clergy, "in giving testimony as a witness in any civil action," against compelled disclosure of "any information communicated to them in a confidential manner" also extends to their disclosure, in any civil action, of documents that contain the substance of that testimony.

There are a few additional aspects of the court's ruling that are of interest. First, the court ruled that the privilege could only be asserted by the minister-counselor and not by the pastoral counseling center. Second, the court noted that the woman herself sought to obtain her counselor's notes in order to verify her injuries, but could not do so since the privilege (under Virginia law) can be asserted or waived only by the minister and not by the counselee. The court observed:

This situation exposes a peculiar feature of the privilege …. The statute grants the privilege only to the clergyperson, not to the communicant. Vesting the clergyperson with the privilege without regard to the wishes of the communicant, however, serves no apparent purpose. In fact, in this case it has frustrated the needs of the communicant, the person whose confidences such statutes have traditionally sought to protect. Moreover, by giving the clergy the exclusive right to assert the privilege, the statute actually discourages candid disclosure in that the clergyperson can choose to reveal a confidential communication without the consent of the communicant.

Finally, the court noted a number of problems with the language of the privilege and encouraged the Virginia legislature to address them:

First, the statute leaves unclear whether, in a civil action, it protects against all compelled disclosure, regardless of its form, or whether it protects only against compelled testimonial disclosure. Second, the statute inexplicably grants the privilege exclusively to the clergy, regardless of whether the communicant consents to disclosure. Third, the statute does not address whether the privilege extends to counseling services provided by the clergy, for a fee, in cases which those counseling services differ from secular counseling only by their emphasis on "spiritual" issues rather than psychopathological issues.

This is the first court ruling to question the propriety of applying the clergy-penitent privilege to pastoral counselors who charge a fee for their services and whose counseling services differ from secular counseling only by an "emphasis on spiritual issues."

The court's concern was misplaced. The purpose of the privilege—encouraging persons to unburden their souls to the clergy—is in no way diminished by the fact that a person pays a fee, or that the minister-counselor's services are similar to secular counseling except for an emphasis on spiritual issues. Indeed, the whole point is that the minister-counselor's services emphasis the spiritual. This is the very distinction that makes pastoral counseling unique and that supports the clergy-penitent privilege.

Blough v. Food Lion, Inc., 142 F.R.D. 622 (E.D. Va. 1992).

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