The Clergy-Penitent Privilege: Acting as a Spiritual Advisor

Court rules protection does not apply to statements made to a former minister acting as a psychiatrist.

Church Law & Tax Report

The Clergy-Penitent Privilege: Acting as a Spiritual Advisor

Court rules protection does not apply to statements made to a former minister acting as a psychiatrist.

Key point 3-07.4. 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 Rhode Island Supreme Court ruled that the clergy-penitent privilege did not apply to conversations between a pastor and a criminal defendant who was charged with child molestation, and therefore the pastor could testify at the defendant’s criminal trial regarding the conversations. A man was charged with sexually molesting his stepdaughter over the course of two years. The victim told no one of the abuse while it was occurring because the defendant told her “not to tell anybody. It was our secret.” However, the pastor at the church that the victim’s family attended began to notice that the victim was “manifesting some real angry behavior.” She asked the child why she was so angry, and eventually the child revealed that the defendant had sexually abused her. The pastor informed the defendant of the victim’s accusations and, at first, he denied that anything improper had occurred between them. Eventually, however, he acknowledged that on one occasion the victim had approached him while he was sleeping on the couch and reached into his underwear. When he realized what was happening, he scolded the victim. The pastor referred the defendant to a psychiatrist for counseling. The psychiatrist was also a pastor. Before becoming a psychiatrist, he had served as a pastor for 20 years. The pastor often referred persons to him for counseling because “he’s a Christian psychiatrist and former pastor and very good in that. He works with people with addictive problems, sexual abuse, and the whole bit.” The psychiatrist described his meeting with the defendant as a “consult … to see if there was any interest in getting into therapy for the alleged problem.” At the defendant’s trial, the psychiatrist testified about his conversations with the defendant.

A jury convicted the defendant of three counts of first-degree sexual assault and three counts of first-degree child molestation. He was sentenced to concurrent terms of 40 years on each count. The defendant appealed on several grounds. One of his arguments was that the psychiatrist should not have been allowed to testify because their conversations were protected by the clergy-penitent privilege. The court disagreed. The Rhode Island clergy-penitent privilege provided:

In the trial of every cause, both civil and criminal, no clergyman or priest shall be competent to testify concerning any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs, without the consent of the person making the confession. No duly ordained minister of the gospel, priest or rabbi of any denomination shall be allowed in giving testimony to disclose any confidential communication, properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office in the usual course of practice or discipline, without the consent of the person making such communication.

The court concluded that the clergy-penitent privilege did not apply to the communications between the defendant and the psychiatrist because the latter was not acting in the capacity of a pastor:

[The psychiatrist] undeniably was a pastor, but any information he received from the defendant was not properly entrusted to him in that capacity, nor was it “necessary and proper to enable him to discharge the functions of his office in the usual course of practice or discipline.” Simply because one communicates with a clergyman does not mean that every communication is properly entrusted to the individual in that capacity. There is no indication that the meeting, which the psychiatrist described as a “consult … to see if there was any interest in their getting into therapy for the alleged problem,” was conducted with him in his capacity as a pastor …. Indeed [the defendant] was referred to him because he possessed a greater level of expertise in therapeutic counseling than she could provide. Therefore [we] believe that the psychiatrist was not acting in his professional capacity as a pastor during his communications with the defendant, and thus the privilege did not apply to these discussions. Brown v. State, 964 A.2d 516 (R.I. 2009).

This Recent Development first appeared in Church Law & Tax Report, November/December 2009.

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