Key point 3-07.2. 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 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.
An Illinois court ruled that incriminating statements made to a pastor by a murder defendant’s former spouse were properly allowed in evidence by a trial judge because they were not made in confidence, and therefore, the clergy privilege did not apply. In 2009, the State of Illinois charged a defendant with the first degree murder of his third ex-wife (Kathleen) who had been found dead in a bathtub in her home. Because the defendant was a police officer in the same town, a separate, independent agency, the Illinois State Police, was called in to investigate the death. A pathologist performed an autopsy and concluded that Kathleen had drowned. An inquest was later held, and a coroner’s jury found that the death was accidental. No criminal charges were filed.
A few years later, the defendant’s fourth wife disappeared. At the time of the disappearance, the couple had been discussing a divorce. Following the disappearance, Kathleen’s body was exhumed and two additional autopsies were conducted. Both pathologists separately concluded that the death was a homicide.
The case proceeded to a jury trial in July 2012. At the time of the trial, the defendant was represented by a team of six attorneys. The trial lasted over seven weeks. The trial court allowed a pastor to testify about things the defendant’s missing fourth wife had shared with him that directly implicated the defendant in the death of Kathleen.
The trial court allowed the pastor to testify on the basis of its conclusion that the pastor’s conversation with the defendant’s fourth wife was not protected against disclosure by the clergy-penitent privilege. The jury found the defendant guilty of the first-degree murder of Kathleen, and the defendant appealed.
On appeal, the defendant argued that the trial court had erred in ruling that the clergy-penitent privilege did not apply to statements made by the defendant’s fourth wife to her pastor. The defendant claimed that the trial court’s ruling was based on: (1) an erroneous interpretation of the law on the clergy privilege—that the counseling session had to take place in private or at a private place, as compared to merely being confidential, and that the clergy privilege did not apply to marital counseling; and (2) an erroneous determination that the requirements for the privilege had not been satisfied because the counseling was not for the purpose of unburdening one’s soul and because the church in this case had no formalized process for doing so.
On appeal, the state argued that the trial court’s ruling was proper and should be affirmed. In support of this argument, the state asserted that: (1) the clergy privilege did not apply because the defendant’s fourth wife had no expectation of privacy in a conversation with the pastor that took place in a public place/public setting where it could have been overheard by a third person; (2) defendant failed to establish that the requirements necessary for invoking the privilege were present; (3) the nature of the counseling—marital counseling in which the fourth wife was not making an admission or confession for the purpose of unburdening her soul but, rather, was seeking marital advice—was such that it did not qualify for the privilege; (4) even if the fourth wife’s conversation with the pastor was a confession or an admission, no clergy privilege existed because the pastor’s church did not have any formalized rules or practices which would have governed him in hearing the wife’s statements; and (5) if any clergy privilege did exist, the wife waived that privilege when she told others the same information.
In response to those assertions, the defendant claimed that: (1) the clergy privilege does apply to marital counseling; (2) the crucial inquiry is whether the statement was given in confidence, not whether the statement was given in a public place or within possible hearing range of a third party; and (3) the defendant’s fourth wife asserted the privilege when she asked the pastor not to tell anyone about their conversation.
The court quoted the clergy privilege under Illinois law:
A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, 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 court then explained:
The clergy privilege belongs to both the individual making the statement and the clergy member … . The party seeking to invoke the clergy privilege bears the burden of showing that all of the underlying elements required for the privilege to apply have been satisfied … . To fall under the protection of the clergy privilege, the “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 privilege applies only to admissions or confessions made in confidence. In deciding whether the admission or confession was made in confidence, the perception of the person making the statement is not determinative in and of itself. Furthermore, an admission or confession is not privileged if it was made to a clergy member in the presence of a third person unless that person was indispensable to the counseling or consoling activity of the clergy member. If the clergy member does not object to testifying, the burden is on the person asserting the privilege to show that disclosure is prohibited by the rules or practices of the particular religion involved … . In addition, the person who made the statement may waive the privilege by communicating the admission or confession to nonprivileged parties.
The court concluded:
Upon a review of the record in the present case, we conclude that the trial court did not err in finding that the clergy privilege was inapplicable to the pastor’s testimony about what the defendant’s fourth wife had told him at her counseling session. The trial court found that the conversation … was not confidential and that finding was not against the manifest weight of the evidence. The meeting took place in public with at least one other person present, although not directly. At the end of the meeting the pastor asked her what she wanted him to do with the information she had given him, a question that would have been unnecessary if nondisclosure of the communication was mandated by the rules of the church. Indeed, the pastor himself eventually approached the police and revealed the conversation to them. In addition, he never asserted the privilege or refused to testify about the matter, and there is no indication that the church itself had any formalized rules or procedures prohibiting him from disclosing what the wife had told him. Thus, even if we assume for arguments sake that the privilege applies to marital counseling in general, it would not have applied to the conversation in this case because the conversation was not confidential. Therefore, we need not determine whether the privilege applies to marital counseling in general or whether defendant has standing to assert the privilege in this case.
What This Means For Churches:
This case is instructive for two reasons.
First, clergy privilege only applies to confidential communications between a member of the clergy and a penitent seeking spiritual counsel. In most states, the clergy privilege statute does not define the essential element of confidentiality. But this court, and many others, have defined confidentiality to mean the absence of third parties during the counseling session.
The key point is this: clergy often provide spiritual counsel to a person in the presence of a third party. Examples include marital counseling with both spouses present; counseling a minor with a parent present; counseling a member of the opposite sex with a third party present for accountability purposes; and counseling someone who is accompanied by a friend for moral support. Clergy should know how “confidentiality” is defined in their state so they are able to inform counselees of the consequences of having a third party present during counseling sessions.
Note that the clergy privilege in some states defines “confidentiality” to mean the absence of third persons except those who are present “in furtherance of” the counseling. This would include some or all of the examples recited above.
Second, the Illinois clergy privilege only applies to “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.” The court noted that this requirement was met only if the pastor’s church had “formalized rules or practices which would have governed him in hearing the wife’s statements.” The court concluded that the pastor’s church had adopted no such formalized rules or practices and therefore statements made in confidence to the pastor in the course of spiritual counseling could not be privileged. This is an extremely narrow and technical interpretation of the clergy privilege that is not shared by any other state. In the meantime, it would be prudent for churches in Illinois to adopt a written policy recognizing the clergy privilege to ensure, as much as possible, its availability and application. People v. Peterson, 47 N.E.3d 1005 (Ill. App. 2015).