Counselors and the Clergy-Penitent Privilege

After a minister disclaims a counseling relationship, further communications are not privileged.

Church Law and Tax 1992-11-01 Recent Developments

Taxation – Church Property

An Illinois appeals court ruled that statements made by a criminal defendant to a minister could not be protected by the “clergy-penitent” privilege if the minister informed the defendant that he would not be his counselor. A man was prosecuted for criminal sexual assault against his 11-year-old stepdaughter. The stepdaughter testified that her stepfather had sexual intercourse with her more than 100 times, on virtually every occasion when the child’s mother “left the house.” The child was so traumatized that she attempted suicide. The stepfather was found guilty and sentenced to 28 years in a state penitentiary. At the trial, the prosecution relied in part on the testimony of a minister. The minister testified that the stepfather had contacted him three times by telephone, seeking counsel and advice. The minister told the stepfather during their second conversation that he would not be his counselor, since the stepfather had lied to him. Under the minister’s theology, these lies prevented him from entering into a counseling relationship with the stepfather. The minister testified that during their third conversation, the stepfather admitted to having had sexual intercourse with his stepdaughter on 25 to 50 occasions. The stepfather argued on appeal that the minister should not have been permitted to testify because of the clergy-penitent privilege. Specifically, her claimed that the privilege applied (and therefore the minister should not have been permitted to testify) because he contacted the minister “to confess and for spiritual guidance, and the conversation was in confidence as no third party was present.” A state appeals court ruled that the conversations with the minister were not covered by the clergy-penitent privilege, and accordingly that it was appropriate for the minister to testify. The court observed: “It is clear from the record that the privilege did not apply under the statute. [The minister] testified that [the stepfather] was disqualified from his counsel. He told [the stepfather] that prior to the conversation regarding the number of incidents that he would not be his counselor. Thus [the stepfather’s] statements to the minister were not obtained by the minister in his professional character or as a spiritual adviser.” The stepfather had argued that the confessions he made to the minister should be privileged even if the minister did not consider himself to be a spiritual adviser at the time, since “it is the perception of the penitent which is determinative.” In other words, if the penitent believes that he is making a confession to a minister acting as a spiritual adviser then the privilege applies even if the minister does not believe he is acting in such a role. In rejecting this claim, the court noted that it was not supported by the language of the Illinois clergy-penitent privilege statute. The court continued: “Furthermore, [the stepfather’s] perception of the privilege existing is not supported by the record. [The minister] told him he would not act as his counselor in the second conversation. The fact the minister accepted the stepfather’s third phone call and agreed to talk to him fails to establish the stepfather’s claim that an ‘illusion of being [his] counselor’ was created in view of the minister’s admonishment to [the stepfather]. The stepfather asserts that he approached the minister only in his capacity as a minister; however, this point does not create the privilege where [the stepfather] was told by the minister that the minister was not his counsel.” This case suggests that if a minister specifically disclaims a counseling relationship with a particular “counselee,” then any further communications to the minister are not privileged even if the counselee believes they are. People v. Bole, 585 N.E.2d 135 (Ill. App. 2 Dist. 1991).

See also Child abuse, Walstad v. State, 818 P.2d 695 (Alaska App. 1991), and Church records, Hutchison v. Luddy, 606 A.2d 905 (Pa. Super. 1992), in the recent developments section of this newsletter.

See Also: The Clergy-Penitent Privilege

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