Key point 3-07.4. In order for the clergy-penitent privilege to apply, there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.
A Michigan appeals court ruled that a trial court did not err in allowing a pastor to testify concerning a criminal defendant’s confession.
The defendant communicated with his pastor “as a friend”
A young girl was repeatedly sexually molested by her stepfather (the “defendant”) beginning when she was 7 years old. The jury found the defendant guilty, and trial court sentenced the defendant to “three concurrent sentences of 25 to 50 years’ imprisonment,” according to the disposition of the court.
The defendant appealed, arguing that his pastor should not have been allowed to disclose a confession he had made to him. The pastor testified that the defendant admitted to him on two separate occasions that he had engaged in sexual intercourse with the victim. The first confession took place in the driveway of defendant’s mother’s house, and the second confession occurred at the office of defendant’s attorney.
The appeals court ruled that the clergy-penitent privilege did not apply. It concluded:
The pastor testified that he was a friend of defendant’s. . . . The trial court determined that defendant had not necessarily communicated with the pastor as a pastor, but instead as a friend from whom defendant sought “help . . . with his mounting serious legal predicament.” We discern no clear error from that conclusion. And . . . we note that . . . defendant’s pastor explicitly testified . . . that he had concluded with his church elders that communications are not considered confidential in their denomination when they involve “harm to anyone else or their immediate family,” or when the communication demonstrates that the congregant is a “threat to themselves or anyone else.” The trial court did not err when it determined that the cleric-congregate privilege was inapplicable.
What this means for churches
For statements to a minister to be protected against involuntary disclosure in a court of law by the clergy-penitent privilege, they must be made to a minister acting in a professional capacity as a spiritual adviser. In this case, the court concluded that this requirement was not met since the defendant was speaking to the minister as a friend rather than as a spiritual adviser.
Many, perhaps most, of the communications made to clergy are not made to them in their professional capacity as spiritual advisers. They are made by church members and nonmembers alike at church functions, following church services, in committee rooms, in hospital rooms, at funeral homes, in restaurants, on street corners, and at social and recreational events.
Such communications ordinarily are not privileged, since other persons typically are present, and it is difficult to conclude that the “counselee” sought out the minister in a professional capacity as a spiritual adviser. This is not a necessary conclusion, since it is possible that such conversations, even if they begin as a purely social exchange, could become spiritual in nature. In other words, by the end of a conversation the counselee may well be communicating with the minister because of his or her status as a spiritual adviser.
There is no reason why such a conversation should not be privileged, assuming that the other requirements are satisfied. On the other hand, even strictly private conversations may be made for purposes other than spiritual advice, and thus are not privileged.
A minister (or court) may need to ascertain the objective of a conversation in determining whether a communication is privileged.
Was the minister sought out primarily for spiritual advice? Were the statements of a type that could have been made to anyone? Where did the conversation take place? Was the conversation pursuant to a scheduled appointment? What was the relationship between the minister and the person making the communication? These are the kinds of questions which help to clarify the purpose of a particular conversation, thereby determining the availability of the privilege.
The applicability of the clergy-penitent privilege can be enhanced if a minister simply asks a person during a conversation, “Are you speaking to me in my professional capacity as a spiritual adviser?” If the counselee responds affirmatively, then there is little doubt that the courts will conclude that the privilege applies.
If, during a conversation with a member (wherever it may occur), it appears to a minister that the other person may intend for the conversation to be confidential and privileged, the minister should confirm this understanding verbally. If the minister is ever called to testify in court concerning the conversation, this verbal confirmation should resolve most questions regarding the applicability of the clergy-penitent privilege. People v. Foy, 2020 WL 3121164 (Mich. App. 2020).