Mandatory Reporters and the Clergy-Penitent Privilege

What to do when a confession of child abuse is disclosed confidentially.

Church Law and Tax 1994-09-01 Recent Developments

Confidential and Privileged Communications

Key point: In some states the clergy-penitent privilege does not protect ministers from the legal duty to report child abuse. However, the privilege still may protect ministers from having to testify in a civil lawsuit arising out of the abuse.

A federal court in Utah ruled that a church official did not have to disclose in a civil trial information shared with him by a father who was guilty of abusing his adopted child. In many states ministers are mandatory reporters of child abuse. This means that they can be criminally prosecuted for failing to report known or reasonably suspected incidents of abuse. In most of these states the clergy-penitent privilege does not excuse ministers from their duty to report. As a result, ministers who are mandatory reporters under state law have a duty to report incidents of child abuse even if they learn of them in the context of a confidential counseling session. A federal court in Utah recently addressed a related question—does the clergy-penitent privilege protect a minister from testifying in a civil lawsuit brought by an adult survivor of child abuse against her adoptive father? The facts of this case are simple. An adult woman sued her adoptive father, alleging that he had sexually abused her throughout her childhood. As a result of his conduct, the father sought advice from a bishop of his church. The church later convened a disciplinary hearing at which the father was excommunicated. The daughter sought information regarding any communications her father had with the bishop regarding his conduct. The bishop opposed this request on the ground that the information sought by the daughter was protected from disclosure by the clergy-penitent privilege. The daughter insisted that any communications made by her father to the bishop were not privileged since they were not made in the context of a confession. The court agreed with the bishop that the statements made by the father were privileged. It noted that a federal court applies the clergy-penitent privilege available under state law, and that the Utah clergy-penitent privilege provides: “A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of the discipline enjoined by the church to which he belongs.” The court concluded that the bishop was a “clergyman,” and that the father’s statements to the bishop had been made in the course of “discipline.” The court rejected the daughter’s claim that the clergy-penitent privilege applies only to confessions. It reviewed several court rulings rejecting this narrow interpretation of the privilege, and then observed: “From these authorities it can be seen that the modern trend of cases construing the scope of the clergy privilege is to read it more broadly than merely being applicable to ‘confessions’ in the penitential sense, but to apply it to communications for religious counseling.” It further noted that “[i]n this case, it seems appropriate to use the term ‘confession’ to mean a confidential communication within the doctrine of the church involved.” Accordingly, the court rejected the daughter’s attempt to force the bishop to disclose in court the content of his conversation with her father. The father’s communications with his bishop were privileged since “they were for the religious purpose of receiving church counseling and ecclesiastical advice.”

Does this mean that the clergy-penitent privilege also excuses ministers from a duty to report child abuse to civil authorities? The court refused to address this related question, noting simply that “this court has no reason to develop this issue.” The court also noted that the father’s wife was present during his conversation with the bishop. However, this did not affect the court’s conclusion that the communications between the father and the bishop were privileged. It simply noted that “the parties have not raised any issue as to the defendant’s wife being present during one communication and the court will not [on its own initiative] consider the circumstances as affecting this case.” Finally, the court noted that the bishop had discussed the father’s statements regarding his conduct with another church official. The court concluded that this did not affect the privileged nature of the original conversation. Quite to the contrary, the court concluded that “[t]he intra-faith communications from one ecclesiastical officer to another for the purpose of carrying out church discipline are also protected.” The court continued:

It is appreciated that the communication in this case is different than one that involves a declaration by the church member to an assemblage of church officials. In this case, the communication was passed vertically from one religious authority up to another within the church hierarchy. Such communication was necessary as a part of the church sanction process and in carrying out church discipline. The need for the privilege to follow the communication in such circumstances is obvious and appropriate. Otherwise, the privilege would be destroyed and the confidence abridged. Therefore, the repeating of the defendant’s statement and its communication to superior religious authorities must be deemed cloaked with confidentiality and privileged from forced disclosure.

This last observation is an important one. Associate and youth pastors sometimes feel compelled to disclose privileged communications with a senior minister. Or, a senior minister feels compelled to disclose a privileged communication with a denominational official. According to this court, such disclosures do not affect the privileged status of the original communication. Scott v. Hammock, 133 F.R.D. 610 (D. Utah 1990). [PCL4H, PCL3G6h]

See Also: Failure to Report Child Abuse | Child Abuse Reporting

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