Recent Developments in Montana Regarding Confidential and Privileged Communications

The Montana Supreme Court ruled that statements made by a child molester to lay leaders in his church were not protected from disclosure by the clergy-penitent privilege.

Church Law and Tax1999-01-01

Confidential And Privileged Communications

Key point. 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.

The Montana Supreme Court ruled that statements made by a child molester to lay leaders in his church were not protected from disclosure by the clergy-penitent privilege. A father (the “defendant”) was charged with sexually abusing his nine-year-old stepdaughter. He pleaded not guilty to the charge, and a trial date was set. While awaiting trial, the defendant and his wife divorced, but both began attending the same church. The church allows its members to confess their sins to one another, but no church member has the authority to formally forgive sins. Rather, the church believes forgiveness only comes from God. After an evening church service which both the defendant and his former wife attended, the two of them and the stepdaughter encountered each other in a restaurant parking lot. The defendant began talking with his stepdaughter, and apologized to her, presumably in an attempt to prevent her from testifying against him.

Concerned with the nature of this conversation, the former wife suggested that they continue the conversation inside the restaurant in the presence of a married couple from church who were also present. This couple served as “lay leaders” in the church, although they were not ordained ministers. The conversation continued in the back of the lobby area of the restaurant with everyone sitting on chairs. During this conversation the defendant admitted to sexually molesting his stepdaughter. At the defendant’s criminal trial, the court allowed the lay leaders to testify concerning the defendant’s comments during their conversation in the restaurant. Largely as a result of this evidence, the defendant was convicted of child molestation. He appealed his conviction, claiming that the statements he made in the restaurant were protected from disclosure by the clergy-penitent privilege, and that the lay leaders should not have been allowed to testify regarding them. He insisted that the lay leaders were functioning in their professional character as clergy during the conversation at the restaurant, and in the course of discipline enjoined by the church. Further, because of the “religious setting” of the meeting, he assumed that his statements would be kept confidential.

The state supreme court ruled that the conversation was not protected by the clergy-penitent privilege. The Montana clergy-penitent privilege specifies that “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 discipline enjoined by the church to which he belongs.” The court concluded that even if the lay leaders were “clergy” (it declined to resolve this question), the statements made in their presence by the defendant were not privileged since they were not directed at them in their “professional character” as clergy “acting in their religious roles … pursuant to the practice and discipline of the church.” To the contrary, the defendant “was not making a confession to [them] for the purpose of receiving forgiveness or for spiritual or religious counseling, guidance, admonishment or advice.”

The court pointed out that the restaurant meeting was a continuation of the defendant’s conversation with his former wife and stepdaughter which began after evening church services. Since the former wife felt uncomfortable facing the defendant by herself as he attempted to “set things right” with his former stepdaughter, she asked him to continue their conversation inside the restaurant and she also asked the two lay leaders (without explaining the subject of their conversation) to serve as “facilitators” while she and the defendant and stepdaughter talked. The court noted that the conversation continued in the back of the lobby area of the restaurant, a public place, with everyone sitting on chairs. No representations of confidentiality were made during the conversation.

The court concluded:

Even assuming that [the two lay leaders] were clergy persons in the church, nothing in the record suggests that they were acting as ministers or counselors at the time they facilitated the [restaurant] conversation. [The defendant], not yet a church member at the time … had not previously sought spiritual advice or counseling from either [of the lay leaders]. Further [he] did not ask to meet with [the two lay leaders] for the purpose of confession or for religious guidance, counseling, admonishment or advice. Rather, [his former wife] requested that [the lay leaders] be present … but only to serve as facilitators. Moreover [the defendant] did not ask for, and the [lay leaders] did not give, any spiritual advice or forgiveness. No prayers were given and nothing was said about forgiveness. Rather, [the defendant] volunteered his statements without apparent encouragement in order to set things right with his stepdaughter so that she would not have to testify at court proceedings. In this regard, [the defendant’s] statements were directed at [his former wife and stepdaughter], not the [lay leaders]. Finally, [the defendant] had no reasonable expectation that his statements would be held in confidence. [He] did not seek and the [lay leaders] did not make any representations of confidentiality. Instead, [he] made his statements in a public place to his ex-wife and stepdaughter in the presence of the [two lay leaders].

Application. This case illustrates an important aspect of the clergy-penitent privilege. The privilege generally applies only to statements made to ministers acting in their professional capacity as spiritual advisers. It is often difficult to determine whether or not this requirement is met. However, this ruling provides some useful insights. Conversations begun between two persons, and which later are expanded to include a minister, may not be privileged. As the Montana court concluded, such conversations may be viewed as a continuation of a private conversation, rather than as an effort to seek out a minister for spiritual counsel. Second, the court mentioned on a number of occasions that the conversation took place in a restaurant, and that such a public setting made it less likely that the conversation was privileged. This certainly does not mean that privileged communications cannot occur in public settings. The ultimate test is one of confidentiality, and this can be met as easily in a restaurant as in a pastor’s office-assuming that the conversation cannot be overheard by others. Ministers who have any doubts as to the privileged status of a particular conversation should ask the counselee the following question: “Are you speaking with me in my professional capacity as a spiritual adviser?” If the answer is yes, then the minister will be able to share this answer if a question later arises regarding the privileged nature of the conversation. State v. MacKinnon, 957 P.2d 23 (Mont. 1998). [The Clergy-Penitent Privilege ]

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