Key point 3-07.02 . In order for the clergy-penitent privilege to apply, there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.
Key point 3-08.05. In most states, a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.
A Florida appeals court upheld a criminal defendant’s child abuse conviction despite his argument that it was improperly based on the testimony of a pastor in violation of the clergy-penitent privilege.
Background
A young child’s stepfather (the “defendant”) sexually abused her for several years beginning at age seven.
The Florida appeals court summarized the events that lead to arrest and subsequent sentencing of the defendant:
The victim did not tell her mother because she trusted the defendant and did not know it was wrong. The defendant began to tell the victim that what they were doing was not right. The sexual abuse would stop for a few weeks and then start up again. The victim began to feel guilty about what was happening, but the defendant instructed her not to tell anyone. He told her that he would be sent away or something bad would happen if her mother found out.
The mother noticed the victim was depressed when she was eleven. When the mother attempted to talk to the victim about her depression, the victim insisted she was just stressed from schoolwork. The defendant offered to talk to the victim. That weekend, he took her to get ice cream and then bought her a pregnancy test. When the mother found out about the pregnancy test, the defendant told her the victim was depressed because she thought she was pregnant.
Sometime later, the mother “saw the victim come out of the bathroom crying,” the court stated. “The mother followed the victim into her room, begging her to tell her what was bothering her.” The victim acknowledged that she and the defendant were having sexual relations.
When the mother confronted the defendant, he admitted having sex with the victim. The defendant then called his pastor. “Although the mother was not present during the call,” according to the court, “the defendant told her that he ‘told [the pastor] everything.’”
The court further explained:
The defendant attempted to put the mother in contact with his pastor so she could speak with him. When the pastor didn’t answer the call, the defendant told the mother that they should go to the church closest to their house and find someone who could help them. The defendant organized a meeting at Dunkin Donuts with a volunteer from the local church. There, the mother and church volunteer listened as the defendant admitted having sex with the victim.
Later in the week, the defendant approached the mother and victim. He promised everything was going to be okay and that he would stop.
Nevertheless, the abuse ended up being reported to the police. The defendant was arrested and charged with three counts of sexual battery upon a person less than 12 years of age and three counts of lewd or lascivious molestation. He was found guilty on all charges and sentenced to two life terms in prison.
The defendant appealed his conviction on the ground that the trial court erred in allowing the pastor and church volunteer to testify regarding the defendant’s admissions of guilt, which the defendant insisted were protected from disclosure by the clergy-penitent privilege. The appeals court affirmed the defendant’s conviction.
The conversation with the pastor
The Florida clergy-penitent privilege statute states that “[a] person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.”
A communication is “‘confidential’ if made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication.”
The court noted:
This statute creates a four-part test to establish the existence of a privilege. First, the communication must be made to a “member of the clergy.” Second, the statement must be made for the purpose of seeking spiritual counseling or advice. Third, the information must be received in the usual course of the clergyman’s practice or discipline. And fourth, the communication must be made privately and not intended for further disclosure. . . .
The defendant first challenges the trial court’s determination that no privilege attached to his communication with his pastor because the clergy communications privilege provides for disclosure to persons “present in furtherance of the communication.” The State responds that the privilege does not apply because the mother was near the defendant during his conversation [with the pastor] and the defendant told her about the conversation immediately following it. We agree with the State.
The clergy communication privilege statute provides: “[a] communication between a member of the clergy and a person is ‘confidential’ if made privately . . . and not intended for further disclosure except to other persons present in furtherance of the communication.”
Here, the conversation with the pastor was not private. The pastor testified he could hear the mother over the phone during the conversation. And, the record reflects the defendant intended the conversation be communicated.
Nevertheless, the defendant argued that his disclosure to the mother was within the privilege’s protections because the mother was “present in furtherance of the communication.” We disagree.
The pastor testified he could hear the mother crying and talking in the background during the call. But the mother testified she was not present when the defendant called the pastor because she was inside her office.
Even if she was present, the defendant did not establish her presence was necessary to the furtherance of the communication. . . . (“[C]ommunications made in the presence of third parties not necessary to the furtherance of the communication . . . are not privileged.”)
The conversation with the church volunteer
In addressing the defendant’s conversation with the church volunteer, the court concluded:
[T]he communications privilege did not apply because the record does not establish the defendant reasonably believed the church volunteer was a “member of the clergy.” [The Florida clergy privilege] defines a “member of the clergy” as a “priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed so to be by the person consulting him or her.” . . .
[The defendant] testified on cross-examination that he sought “some sort of spiritual help” because the mother was going into a depressive episode and he wanted “someone“ to provide family counseling.”
[E]ven if the church volunteer could be considered a clergy member the communication was not private. . . . The church volunteer, defendant, and mother met at a Dunkin Donuts, a public area. . . . ([T]he clergy communications privilege does not protect communications made under circumstances “where confidentiality cannot be expected, e.g., in public facilities or large groups.”). And, the mother was present throughout the conversation.
What this means for churches
This case illustrates three points.
First, the clergy-penitent privilege only protects confidential communications. This requirement can be traced back to the original formulation of the clergy privilege when it was restricted to confessions.
However, as the privilege evolved beyond the confines of a confession, the requirement of confidentiality was retained. This makes sense. If a person is willing for others to overhear a conversation he or she is having with a minister, then there is little reason why jurors should be denied access to the contents of that conversation.
Most states have adopted the Uniform Rules of Evidence which defines confidentiality in the context of the clergy-penitent privilege as a communication “made privately . . . and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.”
There are two points to note about this definition. First, the communication must be “private,” and second, it must not be intended for further disclosure except to “other persons present in furtherance of the purpose of the communication.”
According to this definition, other persons can be present, and listening, when a person seeks out a minister for spiritual counsel so long as their presence is “in furtherance of the purpose of the privilege.”
Second, even if a conversation is privileged, the privilege can be waived because of the presence of a third party whose presence is not in furtherance of the communication.
Third, the privilege only applies to communications made to ministers. Conversations with nonministers, such as the church volunteer in this case, are not protected by the clergy privilege.
These considerations illustrate the importance of ministers being familiar with the clergy privilege in their state. If unclear, the assistance of legal counsel is imperative . Cuevas v. State, 310 So.3d 60 (Fla. App. 2021).
