Key point 3-08.01. The courts have not required that a counselee be a church member in order for communications to a minister to qualify for the clergy-penitent privilege. However, church membership is a factor that the courts have considered in deciding if the privilege applies to a particular communication.
Most courts that have addressed the question have concluded that a person need not be a member of a minister's church in order to invoke the clergy-penitent privilege. Kohloff v. Bronx Savings Bank, 233 N.Y.S.2d 849 (1962). As a result, even though the person making the communication is not a member of the minister's church, his or her confidential communications to the minister generally will be privileged. This certainly is the correct view, since the purpose underlying nondisclosure of confidential communications made to clergy applies with equal force to all who seek out a minister ...
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