Keeping a Secret

Counselee’s disclosure of information to third party may waive the clergy-penitent privilege.

Church Law & Tax Report

Keeping a Secret

Counselee’s disclosure of information to third party may waive the clergy-penitent privilege.

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 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

An Arizona court ruled that a criminal defendant waived the clergy-penitent privilege by sharing incriminating information that he had divulged to his pastor in a confidential counseling session. An adult male (the “defendant”) sexually molested his 8-year-old stepdaughter and a second child. She disclosed the abuse to her mother’s sister, who immediately informed the child’s mother. The mother and her child moved out of the home. Distraught that his wife had left him, the defendant contacted his pastor. The two met in the pastor’s office where the defendant disclosed that adults had forced him to engage in sexual activities when he was a teenager and that he was doing the same thing to his stepdaughter. The pastor, unsure of whether he was legally obligated to report this disclosure, called another pastor who informed him that he was required to report. That same day the pastor drove the defendant to the police station to turn himself in. The pastor was questioned privately by a detective, and disclosed the defendant’s confession. The defendant was taken into custody that day. While in prison awaiting trial, the defendant called his wife and admitted to the molestation, and informed her that he had confessed to their pastor.

The defendant was charged with two felony counts of child molestation, and was convicted in part because of the pastor’s testimony regarding the confession. The court concluded that the clergy-penitent privilege had been waived, and therefore the pastor was free to testify about his conversation with the defendant. The defendant was sentenced to two 10-year terms, to run consecutively. He appealed his conviction, claiming that the privilege had not been waived and therefore the pastor should not have been allowed to testify.

The clergy-penitent privilege

The Arizona clergy-penitent privilege states that a member of the clergy “shall not, without his consent, be examined as a witness concerning any confession made to him in his role as a member of the clergy.” Because the privilege belongs to the communicant, the “clergyman may not disclose the communicant’s confidences without the communicant’s consent.”

The court rejected the prosecutor’s argument that the pastor could testify about the defendant’s confession because his conversation with the defendant was not privileged:

There is evidence in the record indicating defendant’s confessions were directed to the pastor in his capacity as a spiritual leader. The pastor knew the defendant for eight years, married defendant and [his wife], and counseled the parties when they were experiencing troubles at the beginning of their marriage. Additionally, defendant testified that he contacted the pastor after the molestation allegations because his family was falling apart and he did not know what to do. Consequently, because defendant contacted the pastor in his capacity as a spiritual leader in the course of the pastor’s obligations in the church, we agree the parties’ conversation was privileged.

To allow a plaintiff to sue additional defendants after a default judgment would potentially allow the plaintiff to collect multiple damages for the same injury.

Child abuse reporting

The Arizona child abuse reporting law makes every citizen a mandatory reporter of child abuse. However, with regard to clergy, it provides:

A member of the clergy … who has received a confidential communication or a confession in that person’s role as a member of the clergy … may withhold reporting of the communication or confession if the member of the clergy … determines that it is reasonable and necessary within the concepts of the religion. This exemption applies only to the communication or confession and not to personal observations the member of the clergy … may otherwise make of the minor.

Waiver of the privilege through disclosure to third parties

The court noted that the clergyman-penitent privilege, like other privileges, “is susceptible to implied waiver through conduct inconsistent with the maintenance of conversational privacy.” Waiver may occur through “any course of conduct inconsistent with observance of the privilege.” As a result, “a minister maybe allowed to testify as to the communications made to him when the one making the privileged conversation tells the facts and substance of his communications with the minister to third parties.”

The court concluded that the defendant waived the privilege when he disclosed to his wife that he had told the pastor about the molestations:

After the defendant disclosed the molestations to his pastor, and during a recorded confrontation call [from prison] the defendant again admitted to sexually molesting [his stepdaughter]. He said that [the child] was not lying about the molestations …. The defendant said he said he was sick, needed help, and that he planned on turning himself in to police. He told his wife that he had told the pastor about the molestations because he wanted to be in trouble for his actions. He also told his wife, referring to the pastor, “Don’t you know that by law he’s gotta go down and tell ’em what I told him?”

The court concluded:

The defendant’s conduct shows he did not intend for his communications with the pastor to be privileged because he told his wife that he had told the pastor about the molestations. The defendant told his wife that he had told the pastor about the molestations. He also acknowledged that the pastor had to report the molestations to authorities. Because the defendant’s conduct was inconsistent with the maintenance of confidentiality … the defendant waived the clergyman-penitent privilege.

The court rejected the defendant’s argument that he did not waive the clergy-penitent privilege by making statements to his wife, because communications between spouses are protected by the “spousal privilege.” The court, in rejecting this argument, observed: “Statements by a party to a third person revealing the content and fact of otherwise privileged communications can amount to an implied waiver of the privilege.”

Application. In Arizona, as in many other states, a conversation between a minister and a counselee is protected by the clergy-penitent privilege only if it is made privately with no third persons present. Some state clergy-penitent privilege statutes extend the privilege to conversations in the presence of a third person who is present “in furtherance of the communication.” Obviously, it is essential for ministers to be familiar with the text and application of their state’s clergy privilege. The clergy privilege statutes of all 50 states are quoted in full in Appendix 2 to the fourth edition of Richard Hammar’s text, Pastor, Church & Law.

The court also addressed another question of first impression: Is the clergy-penitent privilege waived when a pastor shares with his or her spouse the substance of a previous confidential conversation with another person? The court concluded that the privilege is not preserved under these circumstances despite the possible application of the husband-wife or spousal privilege. While statements made between spouses generally are privileged, and therefore are not admissible in court, the spousal privilege does not preserve the clergy-penitent privilege when the substance of a conversation between spouses relates to confidential information shared with the minister-spouse in the course of counseling another person. State v. Baca, 2009 WL 5156236 (Ariz. App. 2009).

This Recent Development first appeared in Church Law & Tax Report, March/April 2011.

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