Made in Confidence
Key point 3-07.02. 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.
The clergy-penitent privilege only protects confidential communications. This requirement can be traced back to the original formulation of the clergy privilege, when it was restricted to confessions. However, as the privilege evolved beyond the confines of a confession, the requirement of confidentiality was retained. This makes sense, since if a person is willing for others to overhear a conversation he or she is having with a minister, then there is little reason why jurors should be denied access to the contents of that conversation.
State clergy-penitent privilege laws define confidentiality in two ways. First, most state laws have adopted the Uniform Rules of Evidence (quoted above) which defines confidentiality in the context of the “religious privilege” as “a communication … made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” There are two points to note about this definition. First, the communication must be “private,” and second, it must not be intended for further disclosure except to “other persons present in furtherance of the purpose of the communication.” According to this definition, other persons can be present, and listening, when a person seeks out a minister for spiritual counsel so long as their presence is “in furtherance of the purpose of the privilege.” Consider the following situations in which a court might conclude that one or more persons, in addition to the minister and penitent, were present in furtherance of the purpose of the communication:
- A minister engages in marital counseling with a husband and wife, and often all three are present during counseling sessions.
- An adolescent female informs her youth pastor that she is being sexually abused by a relative. The youth pastor urges the victim to seek out the senior pastor for spiritual advice. She agrees to do so, and later that day she and the youth pastor meet with the senior pastor.
- An adolescent male confesses to his youth pastor that he has committed a crime. The youth pastor encourages him to seek spiritual counsel from the senior pastor, and he agrees to do so. The youth pastor, and the minor, both meet with the senior pastor.
- Same facts as the previous scenario, except that the minor’s parents attend the meeting.
- A church adopts a policy prohibiting the senior pastor from engaging in opposite sex counseling without the presence of a third person.
- A state penitentiary has a policy prohibiting clergy from visiting incarcerated persons without the presence of a guard.
- A man confesses to his neighbor that he committed an unsolved crime. The neighbor encourages him to confess to her pastor. He agrees to do so, but only if the neighbor accompanies him “for moral support.” The two of them meet with the pastor, and he confesses to the crime and seeks spiritual guidance.
These examples illustrate some of the ways that other persons may be present during a pastoral counseling session “in furtherance of the purpose of the communication.” There is no compelling reason why the clergy-penitent privilege should not apply in any of these scenarios, if the other requirements for privilege are satisfied. This is the position adopted by the Uniform Rules of Evidence, and of several state laws.
A minority of state clergy-penitent privilege laws define confidentiality more narrowly to mean that a communication was made in private in the presence of no other persons besides the minister. This is a very different view of confidentiality than the more expansive view taken by the Uniform Rules of Evidence and a majority of states. In each of the scenarios summarized above involving the presence of one or more persons during a pastoral counseling session, the privilege likely would not apply. This illustrates the importance of ministers being familiar with their state’s clergy-penitent privilege.
To illustrate, in each of the following situations the communication was not confidential and therefore not privileged: statements made by a murder suspect to his minister in the presence of a church elder; Perry v. State, 655 S.W.2d 380 (Ark. 1983). statements made by a church member to his minister in the presence of his minister's wife; State v. Melvin, 564 A.2d 458 (N.H. 1989). The Melvin case involved a confession of child abuse. In permitting the prosecutor to compel the testimony of the minister regarding the member's confession, the court observed that "generally, the presence of a third party during a privileged conversation operates to destroy the privilege" because the communication is not "confidential." The father argued that the clergy-penitent privilege should apply in cases where a third party is present (such as a pastor's spouse) who is "assisting or working under the supervision of the licensed minister." The court disagreed, noting that the state law recognizing the privilege did not recognize such an exception. See also State v. West, 345 S.E.2d 186 (N.C. 1986) (confession made by rapist to pastor in presence of pastor's wife was not privileged). a confession by a church member to his minister in the presence of two other persons; State v. Berry, 324 So.2d 822 (La. 1975). and a confession made to a minister by a prisoner in the obvious presence of a prison guard. United States v. Webb, 615 F.2d 828 (9th Cir. 1980).
Statements made by a suspected rapist to a minister immediately following a Sunday morning worship service three days before the rape were not privileged since they were not made in confidence. The minister testified that the conversation had occurred while "many people were hanging around as they usually do" following a service, and that "we [the minister and the accused] talked with quite a number of people." The accused claimed that the prosecution erred in allowing the statements made by the accused to the minister to be introduced in court, since such statements were the product of the "clergy-penitent" privilege. The court rejected this claim, noting that only confidential communications made to a minister acting in his or her professional capacity as a spiritual adviser are privileged from disclosure in a court of law, and that the statements made by the accused in this case were not privileged. It concluded that "the record supports the trial court's finding that the conversation had not taken place in private and therefore was not a privileged confidential communication." State v. Hedger, 768 P.2d 1331 (Ida. 1989).
If the presence of a third person is legally required (e.g., a prisoner who cannot communicate with a minister unless a guard is present) the privilege may apply, even in states that define confidentiality to mean the absence of any third person. People v. Brown, 368 N.Y.S.2d 645 (1974). In the Brown case, a prisoner refused to confess to a murder during interrogation, but then telephoned his minister, in the presence of a guard, and blurted out "Bishop Hicks, praise the Lord, I need your prayers, I have killed a man." A few courts have concluded that communications made to a minister in the presence of elders, deacons, or other church officers are privileged if the communication involved a confession of sin made in the course of a disciplinary proceeding. See, e.g., Reutkemeier v. Nolte, 161 N.W. 290 (Iowa 1917). Such decisions are of questionable value, and no reliance should be placed on them. Statements made to a minister by a spouse during marriage counseling may be privileged despite the presence of the other spouse, and a few state laws specifically so provide. In other states, the same will be true because of liberal interpretations of state law. See, e.g., Spencer v. Spencer, 301 S.E.2d 411 (N.C. App. 1983). Certainly, the objective of the privilege (as noted above) applies to marital counseling involving one or both spouses perhaps as much as in any other context.
One court addressed the effect of third parties on the availability of the clergy-penitent privilege as follows:
Confidentiality cannot be expected in public facilities or large groups; e.g., when the penitent addresses the cleric on the steps of the church following worship in the presence of other members of the congregation. … It is frequently said that the presence of third persons is a circumstance that destroys confidentiality . … However, these positions may be reconciled on the basis of differing views of the concept of presence; for example, when courts hold that there is no confidentiality for statements made in the presence of a police officer, but there is when the officer listens in on a confession; this can be explained on the basis of a special notion of presence–that is, that the third person must be in on the conversation rather than simply eavesdropping. It has been sometimes suggested that a rigid application of the third person rule would bar dual confessions; e.g., where a husband and wife both consult the cleric about common marital problems. . . . It might be better said that it is the presence of extraneous, non-clergy, third parties that destroys confidentiality. Thus, a confession in the presence of the penitent's employer is not confidential because the presence of the latter is extraneous to the purpose of the communication. On the other hand, where an incarcerated person has no choice but to make a confession in the presence of a prison guard, this should be confidential if the prisoner can show that the authorities would not allow him to speak to the confessor in the absence of a guard. State v. Gray, 874 So.2d 893 (La. App. 2004), reversed on other grounds, State v. Gray, 891 So.2d 1260 (La. 2005).
Similarly, a Washington state court ruled the presence of 18 persons at a church disciplinary hearing did not prevent statements made during the hearing from being privileged. Washington law specifies that for the clergy-penitent privilege to occur, a statement must be made to a minister in confidence without the presence of third parties except those whose presence is necessary for the communication to occur. The court noted that the presence of each of the 18 persons comprising the disciplinary council was necessary for the communications to occur. It concluded: "The presence of a third party does not automatically vitiate the clergy-penitent privilege. Privilege is not vitiated when the presence of the third person is necessary for the communication to occur or . . . when the third person is another member of the clergy. … Church doctrine mandates the attendance and participation of [each member] at the disciplinary council in cases of alleged child abuse." Doe v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 90 P.3d 1147 (Wash. App. 2004).
Ordinarily, however, statements made to a minister in the presence of deacons, elders, church members, or any other persons will not be privileged, unless the state clergy-penitent privilege law defines confidentiality to include the presence of others in furtherance of the purpose of the communication. Milburn v. Haworth, 108 P. 155 (Colo. 1910). Statements made to a minister in the course of friendly, informal conversation ordinarily are not privileged, since the circumstances do not suggest that the conversation will be kept in confidence. Angleton v. Angleton, 370 P.2d 788 (Idaho 1962). Communications made to a minister with the understanding that he or she will transmit them to a third party obviously lack confidentiality, and are not considered privileged. United States v. Wells, 446 F.2d 2 (2nd Cir. 1971); Bottoson v. State, 443 So.2d 962 (Fla. 1983) (murder suspect handed written confession to two ministers intending that it be relayed to the prosecutor's office); Naum v. State, 630 P.2d 785 (Okla. App. 1981).
It is important to remember that the concept of confidentiality has two components. First, no third person is present, or, in several states, no other persons are present except those in furtherance of the purpose of the communication. Second, the communication must be private, which generally means that there was an expectation, on the part of the penitent, that the substance of the conversation would remain secret. These two elements are related, but distinct, aspects of confidentiality.
- 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. 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.” State v. Archibeque, 221 P.3d 1045 (Ariz. App. 2009).
- A California court ruled that the clergy-penitent privilege did not apply to statements made to a pastor by victims of child sexual abuse at a church-sponsored retreat. The California clergy-penitent privilege applies only to statements "made in confidence, in the presence of no third person so far as the penitent is aware." The court concluded that "to the extent any participant in that retreat made statements to the pastor in the presence of other participants, such statements would not be protected from disclosure by virtue of the clergy-penitent privilege because of the presence of other persons." Doe v. Superior Court, 34 Cal.Rptr.3d 458 (Cal. App. 2005).
- The Connecticut Supreme Court ruled that statements made by family members in their pastor’s office were not protected by the clergy-penitent privilege since the circumstances precluded any reasonable expectation of confidentiality. State v. Mark R., 17 A.3d 1 (Conn. 2011).
- The Florida Supreme Court ruled that incriminating statements made by a murderer to a pastor were not protected from disclosure in court by the clergy-penitent privilege, since they were not confidential. The court noted that the Florida clergy-penitent privilege statute specifies that “a confidential communication made to a member of the clergy in his or her capacity as spiritual advisor” is privileged, and defines confidential as “made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy . . . and not intended for further disclosure except to other persons present in furtherance of the communication.” The court noted that the pastor’s wife and children, along with the killer's girlfriend and her children, were present in the room at the time of the conversation concerning the crime. The court concluded that the statute "explicitly defines confidential communications for the purpose of clergy privilege as those communications that are 'made privately.' Thus, we find no abuse of discretion in the trial court's ruling against any claim to clergy communications privilege . . . because [the killer's] statement to [the pastor] was made in the presence of others." Fernandez v. State of Florida, 730 So.2d 277 (Fla. 1999). Accord Monroe v. State, 14 So.3d 1205 (Fla. App. 2009).
- The Louisiana Supreme Court ruled that a man’s confession to a minister that he had committed a murder was admissible at trial because it was not protected by the clergy-penitent privilege. The court noted that there were two other persons present in the hotel room when the defendant made his confession to the pastor–his mother, and his cousin. The court concluded that the mother's presence was "in furtherance of the purpose of the communication" and so her presence did not negate the privilege. However, the same could not be said for the presence of the man’s cousin. The court observed, "He did not say a word and did not seek spiritual guidance. Furthermore, the fact that he was an alleged participant in the act . . . does not cause this communication to be considered private. His presence was not in furtherance of the purpose of the communication." State v. Gray, 891 So.2d 1260 (La. 2005).
- A Minnesota court ruled that statements made by a murder suspect to a hospital chaplain were privileged, but not statements made by the suspect after his grandmother entered the room because he "could not have intended confidentiality at that moment." State v. Orfi, 511 N.W.2d 464 (Minn. App. 1994).
- The Mississippi Supreme Court ruled that a pastor's confession to another pastor that he was guilty of rape was not protected by clergy-penitent privilege since five other persons were present when the confession was made and so it was not confidential. Rogers v. State, 928 So.2d 831 (Miss. 2006).
Several states have clergy privilege statutes or rules that apply only if a minister has a duty under the "discipline or tenets of his church" to keep such communications secret. Such a provision may preclude some otherwise confidential counseling sessions from being privileged.
• The Illinois clergy privilege only applies to "a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes." A state court noted that this requirement was met only if a pastor's church had "formalized rules or practices which would have governed him” in counseling. The court concluded that the pastor's church had adopted no such formalized rules or practices and therefore statements made in confidence to the pastor in the course of spiritual counseling could not be privileged. People v. Peterson, 47 N.E.3d 1005 (Ill. App. 2015). This is an extremely narrow and technical interpretation of the clergy privilege that is not shared by any other state. In the meantime, it would be prudent for churches in Illinois to adopt a written policy recognizing the clergy privilege to insure, as much as possible, its availability and application.
• A Texas court, applying California law, ruled that the clergy-penitent privilege did not apply to a conversation between a murder suspect and a pastor because the pastor’s church did not have a tenet or practice requiring confidential communications with ministers to be kept secret. California law states that a "penitential communication" is privileged. A penitential communication is "a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a clergyman who, in the course of the discipline or practice of his church, denomination, or organization, is authorized or accustomed to hear such communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep such communications secret." The pastor testified that the policy of his church allowed him to freely disclose statements made to him in counseling sessions that involved “somebody being a victim or victimizing somebody else.” The court concluded, "Since [the pastor's] church did not make a practice of keeping these communications confidential, no privilege existed, and allowing [his] testimony about [the defendant’s] communication was not error." Gonzalez v. State, 21 S.W.3d 595 (Tex. App. 2000). See also State v. Glenn, 62 P.3d 921 (Wash. App. 2003) (youth pastor's confession to a church elder that he had molested members of the church youth group was protected by the clergy-penitent privilege despite a church policy requiring the reporting of allegations of child abuse, based on testimony of several church members that this policy did not apply to confidential information shared with pastors or elders).