• Key point. Not all statements to clergy are protected by the clergy—penitent privilege. To be privileged, a statement must be made to a minister, in confidence, while acting in his or spiritual capacity as a spiritual adviser.

A federal court in Utah ruled that statements made by a church member to three church officials were not protected by the clergy—penitent privilege. Two adults drowned during a tragic accident while camping with another adult and five minors in a national park. A lawsuit was brought against the United States government by the families of the victims. The government later asked for a copy of a tape recording that was made in a church shortly after the accident, in which the sole surviving adult gave an account of the accident to three church leaders. The church leaders called for the meeting in order to obtain a first hand account of the trip so they could respond properly to the media and address the needs of family members. The church refused to provide the government with a copy of the tape on the ground that it was protected from disclosure by the clergy—penitent privilege. Utah law provides for a privilege to refuse to disclose a “confidential communication to a cleric in the cleric’s religious capacity and necessary and proper to enable the cleric to discharge the functions of the cleric’s office according to the usual course of practice or discipline.” The court noted that “not all confidential communications to a cleric are protected.” Rather, the communication “must be in the cleric’s religious capacity and must be pertinent to religion and not just church administration or information.” The court concluded that the statements made by the adult survivor to the three church officials did not meet this test. The court acknowledged that the survivor believed that the meeting was in part for “counseling,” and that it occurred on church premises and involved three ministers. While these facts suggested that the statements were privileged, they were outweighed by a number of other facts, including the following: (1) the survivor did not seek out the counseling but was invited to share his account of the accident with church officials; (2) church officials considered the meeting to be an “information exchange” rather than a confession or personal counseling session; and (3) there was evidence that some of the comments shared during the meeting were later disclosed to others. The court concluded:

An examination of the transcript … aided the court in a resolution of the privilege claim. Based on the Utah clergy privilege … the communication of [the survivor] is not privileged. The communication is a narrative of the events of the [camping trip]. It is a clear statement of [his] knowledge and perceptions. Although the communication is at times moving and in some places poignant and stirring, it was not ecclesiastical or religious. It was not a communication for doctrinal, spiritual, or religious purposes. It was a communication to impart and report about an event for purposes of informing and acquainting the listener to what had happened. The church leaders did not receive the communication within the religious role of clerics, but as clerics performing an attendant executive function. The communication is not within the clergy privilege and must be disclosed.

This case illustrates an important pointnot every confidential communication made to a minister is protected by the clergy—penitent privilege. The minister must be acting in a professional capacity as a spiritual advisor. Here is a helpful tipif there is any doubt regarding the purpose of a particular communication, a minister should ask a counselee if he or she is seeking out the minister in a professional capacity as a spiritual advisor. If the answer is yes, then this information will be helpful should a question later arise regarding the privileged nature of the conversation . Ellis v. United States, 922 F. Supp. 539 (D. Utah 1996). [ The Clergy-Penitent Privilege]

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