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Who May Assert the Privilege

§ 3.08.03
Key point 3-08.03. In most states either the minister or counselee can assert the clergy-penitent privilege, although the minister can do so only on behalf of the counselee. This means that the minister cannot independently assert the privilege if the counselee chooses not to do so.

In most states, both the person who made the communication and the minister to whom it was made may claim the privilege. Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, specifies that "[t]he privilege under this rule may be claimed by an individual or the individual's guardian or conservator, or the individual's personal representative if the individual is deceased. The individual who was the cleric at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant."[130] UNIFORM RULES OF EVIDENCE (2005). These rules were first published in 1974, and were amended in 1986, 1988, 1999, and 2005. Many states have adopted one of the previous versions. None of the amendments made substantive changes to Rule 505.

Many states permit the person who made the communication to prevent the minister or any other person from disclosing the communication.[131] See, e.g., UNIFORM RULES OF EVIDENCE § 505. In some states, only the penitent or "counselee" may assert the privilege, not the minister.

Case study. A member of a church informed three church officials that he had sexually molested a number of children. The mother of one of the victims sued the church, arguing that its negligence in not reporting the molester to civil authorities and in carelessly counseling with him had contributed to the molestation of her daughter. The molester later confessed to at least 33 acts of child molestation, and freely disclosed to the police the confessions that he had made earlier to the church officials. The mother sought to compel the church officials to testify regarding the confessions as part of her attempt to demonstrate that the officials had been aware of the risks posed by the molester and had been negligent in failing to report him to the authorities. This request was opposed by the church officials, who claimed that the confessions made to them were shielded from disclosure in court by the clergy-penitent privilege. The court ruled that under Arizona law the clergyman-penitent privilege "belongs to the communicant, not the recipient of a confidential communication," and accordingly only the molester could assert it. The court rejected the church's claim that the church officials to whom the confessions were made could independently assert the clergy-penitent privilege as a means of avoiding the obligation to testify.[132] Church of Jesus Christ of Latter-Day Saints v. Superior Court, 764 P.2d 759 (Ariz. App. 1988).

Many state laws give the minister the right to claim the privilege only on behalf of the penitent, meaning that if the penitent waives the privilege and agrees to testify, the minister cannot assert the privilege independently. This is the approach taken by Rule 505 of the Uniform Rules of Evidence. In other states, the minister can assert the privilege independently of the penitent.

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