Penitent Privilege When Pastors Are ‘Off-Duty’

Court rules penitent privilege rules do not apply if minister is not acting as spiritual adviser.

Church Law and Tax 1995-05-01 Recent Developments

Confidential and Privileged Communications

Key point: Confidential statements made to a minister are not privileged from disclosure in court unless they are made to a minister acting in a professional capacity as a spiritual adviser.

The Vermont Supreme Court ruled that statements made by a burglary suspect to a minister were not protected by the clergy-penitent privilege since they were not made to the minister acting in his professional capacity as a spiritual adviser. The suspect was charged with burglarizing his former girlfriend’s home. He was tried and found guilty, and appealed his conviction. He argued that the trial court erred by admitting into evidence a statement made by the suspect to a minister. During a telephone conversation initiated by the suspect, the former girlfriend’s minister informed the suspect of the burglary to which the suspect replied, “Well, to tell you the truth, I was only trying to scare the hell out of her.” The suspect sought to have this statement excluded from evidence on the basis of the Vermont clergy-penitent privilege, which provides that “a person has a privilege to … prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual adviser.” The court concluded that this privilege did not apply to the statement made by the suspect to the minister: “[The suspect] bore the burden of demonstrating that his statement to [the minister] was a privileged one. However [he] failed to show he made this statement to [the minister] acting in a capacity as [the suspect’s] spiritual adviser. Neither the fact that [the suspect] initiated the telephone call nor that the communication could be construed as a penitent statement in confession to a crime overcomes the absence of this essential element of the privilege.” This case illustrates the difficulty the civil courts experience in deciding whether or not a statement to a minister is privileged. The suspect in this case very well could have intended for his statement to the minister to be protected by the privilege. Ministers who find themselves involved in a discussion with a person who confesses to a crime should ask the person if he or she is seeking out the minister in a professional capacity as a spiritual adviser. If the answer is yes, the minister can later testify to that statement and thereby increase significantly the likelihood that a civil court will find the conversation to be protected by the privilege. State v. Nunez, 647 A.2d 1007 (Vt. 1994).

See Also: Was the Minister Acting in a Professional Capacity?

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