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.

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.

Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.

An Iowa court ruled that a pastor could testify concerning a church member’s confession that he had sexually molested a child since the confession was not in confidence and therefore the clergy-penitent privilege did not apply. The state of Iowa charged an adult male (“Brian”) with three counts of indecent contact with a child based on allegations from three minor boys, their parents, and their church pastor that he had engaged in indecent contact with the boys over the previous year. The trial court permitted Brian’s pastor to testify regarding a conversation.

A pastor was informed that three minor boys had been sexually molested by an adult church member (“Brian”). The pastor immediately spoke with the boys individually, and asked them to tell him what happened and they did so. After church services the following Sunday evening the pastor and one of the church deacons met with Brian to discuss the boys’ allegations.

The pastor and a different deacon met with Brian the following Saturday. During these meetings Brian made incriminating statements that the pastor repeated during Brian’s trial. Brian was found guilty, and he appealed his conviction on the ground that the pastor should not have been allowed to testify about their conversation since it was privileged.

A state appeals court began its opinion by quoting the Iowa clergy-penitent privilege statute: “A member of the clergy shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person’s professional capacity, and necessary and proper to enable the person to discharge the functions of the person’s office according to the usual course of practice or discipline.” Iowa Code § 622.10(1).

The court, applying this language, concluded that for a communication to a member of the clergy to be privileged it must be: “(1) confidential; (2) entrusted to a person in his or her professional capacity; and (3) necessary and proper for the discharge of the function of the person’s office.”

Confidential

The court concluded that Brian’s communications with the pastor were not confidential, and therefore failed the first requirement of privileged status:

First, the pastor testified he did not consider either of his meetings with Brian to be confidential and did not ever tell him, or lead him to believe, they were going to be confidential. The pastor testified he did not consider the meetings confidential because a third person was present. The pastor discussed the meetings with his wife, other deacons, his former pastor, and the boys’ family. He testified that if he believed the meetings to be confidential or privileged he would not have shared it with all of these people.

Second, the pastor made it clear to Brian that the scripture says the church falls under the legal system so if a law had been broken it was his responsibility to turn the matter over to the legal system and it would then be for the authorities to deal with this as need be.

Finally, the pastor testified that Brian himself generally knew of the church’s discipline procedure and the fact that if he were found to have done something “that brings public reproach to the name of Christ” the person either goes before the church to publicly apologize or the pastor makes a recommendation and the church as a whole votes on the matter. Thus, Brian was aware that his statements would not be kept confidential based on these church practices …. The pastor specifically told Brian that it was going to be a matter of church discipline and Brian continued to discuss the matter. Furthermore, the pastor told Brian the matter might be discussed with the police, the Department of Human Services, or both, also indicating to Brian the statements were not considered to be confidential.

Accordingly … Brian’s communications with the pastor were not confidential in nature and thus do not fall within the purview of the priest-penitent privilege.

Professional capacity

The court also noted that the meetings were initiated by the pastor, not Brian, and that Brian thought the pastor wanted to speak with him about a possible job. The pastor testified that the meetings were “not him coming to me to confess. It was me confronting him.” The meetings were to investigate the allegations that had been made by the boys. The pastor denied that “at least the first part of the meetings dealt with spiritual needs. Thus he did not intend, and Brian did not consider, the meetings to be for him to confess or to be for spiritual or pastoral purposes.”

Presence of a third party

The court noted that even if the privilege could somehow apply to Brian’s statements to the pastor, he waived the privilege when he made the statements in the presence of a third party:

Although all the necessary elements for a communication to be privileged may be met, the privilege may be lost if the otherwise privileged statements are made in the presence of a third person. However, the presence of a third person during an otherwise confidential communication does not automatically destroy the privilege. If the third person is present to assist in the discharge of another’s professional function or the third person’s presence is in some other way necessary, then the privilege will protect confidential communications made in the presence of the third person.

A deacon was present at the meetings with the pastor. Thus, unless it can be shown the deacons’ presence was to assist the pastor in the discharge of his pastoral functions or was otherwise necessary in order for him to discharge his pastoral duties, any priest-penitent privilege would have was waived. The pastor testified that none of the deacons in their church provide any kind of counseling services in an official capacity, they have no special responsibilities in the church, and that they were at the meetings simply as witnesses and not to aid in any kind of spiritual advisement. Further, the pastor testified he believed the presence of the deacons was fatal to any claim that the communications with him were privileged. We conclude the deacons’ presence at the meetings was not to assist the pastor in the discharge of his pastoral functions or otherwise necessary to the discharge of his pastoral duties. Thus, their presence at the meetings waived any potential priest-penitent privilege.

In summary, the court ruled that the communications between Brian and the pastor were not confidential and were not made to the pastor in a professional capacity, and that Brian had waived any potential privilege by making his statements in the presence of third persons.

Application. Not all conversations with a pastor are protected against future disclosure in court by the clergy-penitent privilege. While the definition of this privilege varies slightly from state to state, it is generally acknowledged that only confidential communications made to a pastor acting as a spiritual advisor can be privileged. Some states prevent the privilege from applying to conversations made in the presence of third parties, either because they are not confidential, or speaking to a pastor in the presence of third parties amounts to a waiver of the privilege. It is essential for pastors to be familiar with their state law to be sure they understand the significance of a third party being present when speaking with another. State v. Hesse, 767 N.W.2d 420 (Iowa App. 2009).

This Recent Development first appeared in Church Law & Tax Report, January/February 2010.