Church Law and Tax 1995-03-01 Recent Developments

Confidential and Privileged Communications

Richard R. Hammar, J.D., LL.M., CPA

• Key point: In most states, ministers are not free to unilaterally “waive” the clergy-penitent privilege and disclose in court the contents of communications shared with them in confidence. They may do so only if the counselee consents. In a minority of states, ministers are free to waive the privilege and disclose privileged communications in court, whether or not the counselee consents.

• The New Jersey Supreme Court ruled that a minister was free to testify in court regarding a confession made to him by a murderer, even though the murderer did not consent to the disclosure. A retired fireman was ordained by a Baptist church as a minister of visitation. As a minister of visitation, he visited members of his church (as well as nonmembers) in hospitals, psychiatric wards, prisons, and nursing homes. The minister visited with the murderer (the “defendant”) in prison on 19 occasions. On one occasion the defendant confessed to the minister that he had killed 3 persons. The minister later testified at the defendant’s trial, and disclosed the defendant’s confession. The defendant claimed that his confession to the minister was protected by the clergy-penitent privilege and should not have been disclosed in court. The state supreme court ruled that the confession was privileged, but that the minister had the unilateral right to “waive” the privilege and disclose the confession in court. The court began its opinion by quoting the New Jersey clergy-penitent privilege:

[A] clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes, nor shall he be compelled to disclose the confidential relations and communications between and among him and individuals, couples, families or groups with respect to the exercise of his professional counseling role. N.J. Evidence Rule 29.

The defendant argued that this language clearly prohibits ministers from ever disclosing a privileged communication in court. He stressed that the rule specifies that ministers “shall not be allowed” to disclose a privileged communication in court. The state argued that the language of the clergy-penitent privilege is unclear, and that the history and purpose of the privilege must be reviewed to clarify its present meaning. The court embarked upon a review of the history of the clergy-penitent privilege. Its review will be of interest to all ministers:

The priest-penitent privilege originated with the seal of confession. Under the Code of Canon Law of the Roman Catholic Church for a “confessor in any way to betray a penitent” was a crime. A confessor who directly violates the seal of confession incurs an automatic excommunication reserved to the Apostolic See. Traditionally, breaking the seal of confession “has been one of the most severely penalized offenses within the Code.” The sanctity of the confession was recognized in English law from the Norman Conquest in 1066 until the English Reformation in the Sixteenth Century. After the Reformation, hostility towards the Catholic Church in England resulted in a refusal to recognize the privilege. When this country was founded, therefore, the privilege did not exist at common law. Accordingly, American courts required that the privilege be conferred by statute. Where no privilege existed, clergypersons were often compelled to testify despite personal, moral, and religious objections. Although the Roman Catholic Church has the longest tradition of the sanctity of the confessional, for many other Christian denominations their “sincere dedication to secrecy is equally apparent.” In the Episcopal Church, for example, the new Book of Common Prayer’s rite, “The Reconciliation of a Penitent,” warns that the secrecy of a confession is morally absolute for the confessor, and must under no circumstances be broken. Violators are subject to church discipline. The governing body of the American Lutheran Church also has adopted a resolution that the pastor hold inviolate and disclose to no one the confessions and communications made to him as a pastor without the specific consent of the person making the communication. Similarly, the Presbyterian Church in the U.S., the United Presbyterian Church, and the American Baptist Convention have adopted policy statements strongly affirming the inviolability of religious confidentiality.

The prospect of clergy going to jail to comply with their religious beliefs rather than disclosing a penitent’s confession resulted in various religious groups bringing pressure on state legislatures to enact a clergyperson privilege. Thus, the origin of the priest-penitent privilege as well as the moving force behind the enactment of the statutory privilege was to protect the clergyperson from being forced against his or her will to reveal confidences. Now almost all states have clergyperson-penitent privileges.

The court concluded that the history of the clergy-penitent privilege revealed that its purpose was to protect ministers from being forced to disclose confidential communications in court, and “to curb the potential manipulations of a penitent who, through waiver, could compel a clergyperson to reveal communications that were given purposely to mislead.” The court concluded:

We find the plain waive language of the statute … and the origin of the privilege to be persuasive evidence that the clergyperson is the only person who can waive the privilege ….

The principle underlying both the seal of confession and the statutory privilege was not concern for the penitent but rather concern that the clergyperson would be compelled in violation of his or her religious vows to disclose such confidences. Because the principal rationale was to recognize and protect the religious vows of the clergy, to include the penitent as the holder of the privilege was not necessary. Although we recognize “the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return,” we are not persuaded that the comfort of the penitent was the compelling motive for Evidence Rule 29.

The numerous state clergy-privilege statutes are not identical and they provide varying treatment of the privilege. As such, states are split on the issue of who holds the power to waive the clergyperson-penitent privilege. Most states do not confer the power of waiver on the clergyperson alone. States also differ on which persons qualify under the definition of “clergy” as well as on which situations qualify as confidential communications. Those various options are all interrelated and may affect who should hold the privilege and who should have the power to waive the privilege. We, however, are construing not those statutes but only Evidence Rule 29. In view of the legislative history of the priest-penitent privilege in New Jersey … we hold that the clergyperson is the sole holder of the privilege. The decision whether to reveal confidential communications rests with the clergyperson alone.

Only 4 of the court’s 7 justices joined in this opinion. The remaining 3 justices dissented vigorously from the court’s ruling. Perhaps most importantly, the dissenting justices observed:

Although most penitents still trust their priests, ministers, or counselors, they would be utterly shocked to find that they have no right to privacy in the confessional. Can one conceive of the reaction that would have followed in this state if someone in the legislature … had stood up and said, “I want the clergy to be able to disclose confessions at will, no matter what the person giving the confession wants, because the sanctity of religious confessions must give way to the needs of a lawsuit.” I doubt that any legislator would have taken such an extreme position. Given common notions of what is right, what is permissible, and what is, to some, sacred, most people, not just members of one sect or another, would have regarded such a proposal as unthinkable, or at least as an affront to religion and religious people …. We should not interpret the language of an act to reach a result we are convinced the legislature did not intend …. If the purpose of the cleric-penitent privilege is to foster the relationship between a confider and a spiritual counselor, that purpose is not served when the cleric becomes a witness for the prosecution. State v. Szemple, 640 A.2d 817 (N.J. 1994).

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