Key point 3-08.09. Clergy can be liable for disclosing communications shared with them in confidence to others without the permission of the counselee.
The concepts of privilege and confidentiality are closely related. Generally, "confidentiality" refers to a duty not to disclose to anyone the substance of communications shared in confidence. While the impropriety of disclosing confidential information is universally acknowledged, few clergy have been found legally accountable for unauthorized disclosures. This is because, until recently, the duty of clergy to preserve confidences was considered to be moral rather than legal in nature. However, in recent years some clergy have been sued for divulging confidences.
Tip. Be sure to distinguish between the concepts of privilege and confidentiality. The clergy-penitent privilege provides that clergy cannot be compelled to disclose in court the content of communications shared with them in confidence while acting as a spiritual adviser. The related concept of confidentiality imposes upon clergy a duty not to disclose to others any communications shared with them in confidence.
To illustrate, a bishop who confessed to church leaders that he had committed adultery sued his church when church leaders disclosed the confession without the bishop's consent. Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 1989). The bishop had specifically asked his church leaders to keep his confession in confidence, and they promised to do so. A short time later, the female church member who was the other party to the affair confessed to a church leader who promised to keep her confession in confidence. The church leaders allegedly disclosed these confidences to a local church's board of elders, and to numerous other persons. One of the church leaders allegedly disclosed the confidences to the assembled congregation in a Sunday worship service, and then proceeded to "excommunicate" the bishop and "cast his spirit" from the church. A family counselor to whom the female member had also made a confession and obtained a promise of confidentiality also allegedly disclosed the information to others. And, the bishop alleged that one of the church leaders disclosed his confession to a "gathering of local priests, ministers, pastors, and guests."
As a result of these disclosures, the bishop and the female church member were shunned by friends, family, and members of their local church and denomination. The two sued the church and various church officials, alleging invasion of privacy, breach of fiduciary duty, false imprisonment, emotional distress, and malpractice. The church countered by arguing that the civil courts lacked jurisdiction over the controversy since "the conduct complained of is ecclesiastical in nature." A state appeals court ruled that the church could be sued for emotional distress and related claims, and it ordered the case to proceed to trial. The court began its opinion by noting that "religious disputes can take a number of forms … and do not always result in immunity from liability." The court acknowledged that the civil courts may not intervene in disputes over church doctrine, but it was not willing to accept the trial court's summary conclusion that this dispute in fact involved church doctrine. It observed:
The trial court was not told, and we do not know, whether it is a canon of [the church's] belief that confessions (penitential or not) are revealed to the congregation … ; whether it is church practice for the substance of a confession to be shared among church officials; or whether it is consistent with church doctrine to reveal the substance of a confession to anyone outside the church, and if so, under what circumstances.
Even if church doctrine prescribed the disclosure of confidences, this would not end the analysis, for certain types of behavior may be regulated or subjected to legal liability by state law, even if rooted in religious doctrine, so long as the state has a compelling interest that justifies the burden on religious conduct. For example, "under the banner of the First Amendment provisions on religion, a clergyman may not with impunity defame a person, intentionally inflict serious emotional harm on a parishioner, or commit other torts." In other words, the First Amendment guaranty of religious freedom does not necessarily insulate clergy from liability for their actions.
The court acknowledged that it could find no previous case in which "a counselee or communicant has sought to hold a religious officer liable in tort for [an unauthorized disclosure of confidential communications]." However, it saw no reason why clergy and church leaders should not be held legally accountable for injuries they inflict when they disclose confidential information to others without consent.
Tip. Clergy who disclose confidential information shared with them in counseling sessions may be exposing themselves, as well as their church, to legal liability on the basis of malpractice, invasion of privacy, breach of fiduciary duty, and infliction of emotional distress. This conclusion may apply even when clergy share confidential information in order to discipline a member for violating church standards. The point is this—would members disclose confidential information if they suspected that their minister would report it to the church board or congregation in order to discipline them? Clearly, the answer is "no." Therefore, it is essential for clergy to refrain from disclosing information obtained during confidential counseling sessions—even if it relates to a person's qualifications or eligibility for membership. Of course, the church board can still discipline the individual, but not on the basis of any information shared with the minister in the course of a confidential counseling session. Another alternative is for a minister to obtain the permission of the counselee to share confidential information with the board or with some other person. If this permission is obtained (in writing), this will serve as a defense in the event that the minister is later sued for disclosing the information.
Table 3-1 contains a summary of the leading cases involving the liability of clergy for unauthorized disclosure of information obtained in the course of a confidential counseling session.