• Key point: Statements made to a nonordained church counselors are not protected by the clergy-penitent privilege.
• Key point: The clergy-penitent privilege has been limited in Washington state to statements made to clergy in the course of the sacrament of confession.
• In an unfortunate decision a Washington state court single-handedly repealed the clergy-penitent privilege outside of the context of penitents who make statements during the sacrament of confession. A woman served as a babysitter for a 3-year-old girl. One day the girl told her mother about sexual acts the babysitter had engaged in with her. The mother was shocked. She confronted the babysitter, who said that she had “not hurt” the child and that she had engaged in sexual acts “only a couple of times.” The babysitter was later convicted of rape of a child in the first degree. At the trial, a religious worker from the babysitter’s church testified that the babysitter had informed her that she had been “sexually involved” with the child. The babysitter appealed her conviction, claiming that the religious worker should not have been permitted to testify since the conversation she had with her was protected from disclosure by the clergy-penitent privilege. The religious worker was a nonordained “family minister” at her Catholic church who served as an assistant to a priest and, due to a priest shortage, helped carry out the work of the church. She provides a young adult ministry, a singles ministry, and other services. The trial court found that the babysitter’s statements to the religious worker were outside the clergy-penitent privilege because (1) the statements were not made in the course of the sacrament of confession but rather during a referral for counseling, and (2) the religious worker was not an ordained member of the clergy. A state appeals court agreed. It noted that Washington law contains the following clergy-penitent privilege: “A member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.” The crucial issue in this case, concluded the court, was whether or not “nonordained church counselors” satisfy the definition of “a member of the clergy.” The court concluded that they do not. It further concluded that the clergy-penitent privilege in Washington applies only to statements made by penitents to Catholic priests during the sacrament of confession. It noted that the clergy-penitent privilege statute (quoted above) applies only to statements that are a “confession … in the course of discipline enjoined by the church.” The religious counselor in this case “did not administer the Catholic sacrament of confession in the narrow, ecclesiastical sense,” and a narrow reading of “confession” or “course of discipline” in the clergy-penitent privilege statute “includes only the sacrament of confession, which did not occur.” The court continued:
By its terms, the statute is very narrow. Its language indicates that confessions must be in accordance with church discipline concerning confessions. Only confessions specifically authorized by particular churches seem to be included. Such confessions are authorized in relatively few religious denominations. The apparent purpose of the statute is to protect formal church doctrines and procedures by protecting confessors who are constrained by such doctrines to follow confession procedures. Nothing in the record suggests that [the babysitter] was constrained by her religious doctrines to disclose her criminal actions to [the religious counselor]. Extension of the privilege to [her] counseling is not consistent with either the wording or the purpose of [the privilege].
The court rejected the babysitter’s claim that restricting the clergy-penitent privilege to the Catholic church (and those few Protestant denominations that recognize a sacrament of confession) would demonstrate a preference for some religious faiths over others in violation of the Constitution. It concluded:
Such criticism, however well taken, does not answer the question of whether the legislature or the courts should remedy the situation. To the extent there is a public policy basis for protecting a broader variety of ministry-related confidential relationships, it is offset by an equally weighty policy of allowing (or in some cases requiring) disclosure of known child abuse. The legislature is the source of statutory privileges and we leave to that body the responsibility of determining whether church-related counseling activities should be privileged.
Clergy in the State of Washington may want to contact their state legislators to introduce legislation expanding the clergy-penitent privilege. As an example, Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, provides that
“[a] person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to the clergyman in his professional character as a spiritual adviser.” The term “confidential communication” is defined as a communication “made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” This is a much broader expression of the clergy-penitent privilege, since it is not limited to sacramental confessions. The full text of Rule 505 is set forth in chapter 3 of Richard Hammar’s text, Pastor, Church & Law (2d ed.). State v. Buss, 887 P.2d 920 (Wash. App. Div. 1 1995).[PCL3G3, PCL3G5]
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