Key point 3-07.2. 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.
An Arizona court ruled that a conversation between a minister and a counselee may be covered by the clergy-penitent privilege even if the counselee’s wife is present. A woman contacted her pastor and informed him that her husband had confessed to her that he had sexually molested their minor daughter. The pastor met with the couple, and during this meeting the husband again confessed to the molestation. The husband was indicted on several counts of molestation of a child. The state gave notice that it intended to introduce the testimony of the pastor at trial. The husband filed a motion to suppress the testimony of the pastor “as privileged communications between communicant and clergy.” The trial court agreed that the conversation with the pastor was privileged, and that it had not been waived by the presence of the wife. The state appealed.
A state appeals court agreed with the trial court that the privilege had not been waived by the wife’s presence. It noted that the Arizona clergy privilege statute states that “a person shall not be examined as a witness in the following cases … a clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.”
The court noted that the privilege can be waived if a third person is present during a conversation between a minister and penitent on the ground that “confidentiality could not be intended with respect to communications that the speaker knowingly allowed to be overheard by others foreign to the confidential relationship.” However, this rule does not apply “when the presence of a third party does not indicate a lack of intent to keep the communication confidential.” The court added that the key question in such cases is “whether the communicant reasonably understood the communication to be confidential notwithstanding the presence of third parties.”
Applying these principles the court concluded that the clergy-penitent privilege was not waived in this case by the wife’s presence:
There is no evidence that the husband later disclosed the conversation with the pastor to an individual not present during the confession. The meeting took place in private. The husband received assurances from the pastor, in accordance with church policy, that their conversation would remain confidential. On these facts, the presence of the wife is not evidence of conduct inconsistent with a desire to maintain the privilege. The wife was not a foreign and uninterested third party. The husband’s conduct giving rise to this case and his participation in the repentance process through the church had a direct effect upon his wife. His statements to the pastor in his wife’s presence were made in furtherance of the confession and repentance process, and do not amount to “conduct inconsistent with observance of the privilege.” On this record, given the marital relationship and the spouse’s interest in her husband completing the repentance process, we do not believe the spouse’s presence constitutes an implied waiver of the privilege.
The court noted that courts in other states had reached similar conclusions when confronted with the question whether waiver should apply when a third party is present during the confession. And, while some courts have reached the opposite conclusion, the third party in these cases “was someone other than the communicant’s spouse and usually not a person the communicant could appropriately rely upon to keep statements confidential.”
The court rejected the state’s argument that the husband waived the privilege by confessing to his wife before meeting with the pastor. It observed: “Although the husband made statements to his wife in advance of confessing to the pastor, his wife was not a foreign third party. She sat through the entirety of her husband’s private confession with the pastor, and her participation was considered by the pastor and her husband as confidential. The pastor viewed part of his duties as helping both of them and their marriage, and the wife’s presence during the confession was permitted in furtherance of this purpose. Additionally, it would be inconsistent to hold that the wife’s presence during the actual confession with the pastor did not waive the privilege but that her husband’s statements to her prior to the privileged communication did result in waiver. Finally, the clergy-penitent privilege did not arise until the husband confessed to the pastor.”
Application. This case is significant for two reasons. First, it demonstrates that the presence of a third party during a confidential counseling session between a pastor and penitent will not necessarily prevent the conversation from being protected by the clergy-penitent privilege if “the presence of a third party does not indicate a lack of intent to keep the communication confidential.”
Second, the court concluded that the clergy-penitent privilege in this case was not nullified by the husband’s confession to his wife prior to meeting with the pastor, since the privilege did not arise until the husband confessed to his pastor, and prior to that time there was no privilege to waive. State v. Archibeque, 221 P.3d 1045 (Ariz. App. 2009).
This Recent Development first appeared in Church Law & Tax Report, March/April 2011.