Spiritual Counsel and the Clergy-Penitent Privilege

When is a conversation protected?

Church Law and Tax 1992-03-01 Recent Developments

Confidential and Privileged Communications

A Tennessee appeals court concluded that statements made by a criminal suspect to his minister were privileged, and accordingly not admissible as evidence in a court of law. Tennessee law specifies that

no minister of the gospel … shall be allowed or required in giving testimony as a witness in any litigation, to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted.

A burglary suspect made incriminating statements to his minister, which were admitted at trial. The trial court reasoned that the statements to the minister were not privileged since they were not made to him in his professional capacity. Rather, they “emanated from the closeness of the relationship between them.” The suspect was convicted, and he appealed his conviction on the ground that the state’s clergy-penitent privilege was violated. A state appeals court agreed. It observed:

Under the statute, communications are privileges which are made to a clergyman in his professional capacity in the course of his practice or discipline, as established by the rules or customs of his religious organization or denomination when the communicator is seeking spiritual counseling and advice. We conclude that the requirements of the statute are met to establish the communications are privileged. [The minister] is a licensed minister of the gospel … and the information was communicated by the defendant in a confidential manner [to the minister] who was acting in his professional capacity in the furtherance and discharge of his functions as a minister. The minister initiated the contact and transported the defendant to a motel and inquired “are you having problems?” The minister accompanied the defendant to the motel room and explained he intended to give “comfort to him” since the defendant was “really burdened down.” [The minister] further testified he didn’t distinguish between being the defendant’s minister or friend on that occasion. He explained he counselled the defendant to put his trust in God and assured that “God will not fail.” The minister also testified he believed the defendant when defendant expressed his belief that the Lord had sent the minister to him …. While the evidence does not delineate the minister’s duties, it may be reasonably inferred that the minister’s “course of his practice or discipline” is highly informal in nature and this informality is reflected in his relationship with the defendant and other church members. Clearly, the minister inquired of defendant’s troubles, consoled him, and counseled him to put his faith in God and the defendant felt the minister was God’s emissary. The evidence [does not support] the trial judge’s determination that the [conversation] between the defendant and the minister was due to their friendship.

Accordingly, the court found the communications to the minister to be privileged under state law. The significance of this case is the recognition that a conversation between a minister and another individual can be privileged (and not admissible in court) even if the two are friends. Friendship does not automatically preclude conversations from being privileged. The question is whether a particular conversation was motivated by a person’s desire to obtain spiritual counsel. If so, the conversation ordinarily should be privileged whether or not the person is a friend of the minister. Clergy can help to ensure that conversations are privileged by simply asking the counselee whether or not the purpose of the conversation is to seek spiritual counsel. If the answer is yes, this is almost irrefutable evidence that the conversation is privileged. Because the purpose of some conversations is not clear, clergy should keep this simple suggestion in mind. State v. Boling, 806 S.W.2d 202 (Tenn. App. 1990).

See Also: The Clergy-Penitent Privilege

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