Pastor, Church & Law

The Clergy-Penitent Privilege—In General

§ 3.07

Every state has a statute or court rule making certain communications to clergy “privileged.” This generally means that neither the minister nor the “penitent” can be forced to testify in court (or in a deposition or certain other legal proceedings) about the contents of the communication. The history of the clergy-penitent privilege was summarized by one court as follows:

The priest-penitent privilege originated with the seal of confession. Under the Code of Canon Law of the Roman Catholic Church for a “confessor in any way to betray a penitent” was a crime. A confessor who directly violates the seal of confession incurs an automatic excommunication reserved to the Apostolic See. Traditionally, breaking the seal of confession “has been one of the most severely penalized offenses within the Code.” The sanctity of the confession was recognized in English law from the Norman Conquest in 1066 until the English Reformation in the Sixteenth Century. After the Reformation, hostility towards the Catholic Church in England resulted in a refusal to recognize the privilege. When this country was founded, therefore, the privilege did not exist at common law. Accordingly, American courts required that the privilege be conferred by statute. Where no privilege existed, clergypersons were often compelled to testify despite personal, moral, and religious objections. Although the Roman Catholic Church has the longest tradition of the sanctity of the confessional, for many other Christian denominations their “sincere dedication to secrecy is equally apparent.” In the Episcopal Church, for example, the new Book of Common Prayer’s rite, “The Reconciliation of a Penitent,” warns that the secrecy of a confession is morally absolute for the confessor, and must under no circumstances be broken. Violators are subject to church discipline. The governing body of the American Lutheran Church also has adopted a resolution that the pastor hold inviolate and disclose to no one the confessions and communications made to him as a pastor without the specific consent of the person making the communication. Similarly, the Presbyterian Church in the U.S., the United Presbyterian Church, and the American Baptist Convention have adopted policy statements strongly affirming the inviolability of religious confidentiality.

The prospect of clergy going to jail to comply with their religious beliefs rather than disclosing a penitent’s confession resulted in various religious groups bringing pressure on state legislatures to enact a clergyperson privilege. Thus, the origin of the priest-penitent privilege as well as the moving force behind the enactment of the statutory privilege was to protect the clergyperson from being forced against his or her will to reveal confidences. Now almost all states have clergyperson-penitent privileges.53 State v. Szemple, 640 A.2d 817 (N.J. 1994).

What is the current justification for this rule that “contravenes the fundamental principle that the public has a right to every man’s evidence”?54 United States v. Bryan, 339 U.S. 323, 331 (1950).

The United States Supreme Court has observed that “the priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.”55 Trammel v. United States, 445 U.S. 40, 51 (1980).A federal appeals court judge stated the justification for the privilege as follows:

Sound policy-reason and experience-concedes to religious liberty a rule of evidence that a clergyman shall not disclose in a trial the secrets of a penitent’s confidential confession to him, at least absent the penitent’s consent. Knowledge so acquired in the performance of a spiritual function … is not to be transformed into evidence to be given to the whole world. … The benefit of preserving these confidences inviolate overbalances the possible benefit of permitting litigation to prosper at the expense of the tranquility of the home, the integrity of the professional relationship, and the spiritual rehabilitation of a penitent. The rules of evidence have always been concerned not only with truth but with the manner of its ascertainment.56 Mullen v. United States, 263 F.2d 275, 280 (D.C. Cir. 1958) (Fahy, J., concurring).

A state court explained the privilege as follows:

Communicant-clergyman confidentiality benefits the individual communicant, the clergy, and society. The individual benefits from unfettered freedom of religion in his use of the confessional; his perceived ability to communicate with God through an emissary; the therapeutic value in obtaining psychological and physical relief from fear, tension, and anxiety; and in his exercise of a fundamental right to privacy. The clergy benefits in being able to safely draw out a communicant’s innermost thoughts and feelings with the assurance that confidences are protected by public policy. Id. The church as an institution benefits in enjoying recognition of its prestigious place in society. The judiciary benefits by avoiding direct confrontations with the clergy. There is the realization that requiring the clergy to testify will not necessarily produce testimony. The concept of jailing a clergyman for adhering to the absolute duty imposed upon him by deep religious beliefs is offensive.57 Simpson v. Tennant, 871 S.W.2d 301 (Tex. App. Houston 1994). See also Church of Jesus Christ of Latter-Day Saints v. Superior Court, 764 P.2d 759 (Ariz. App. 1988) (the clergy-penitent privilege is a response “to the urgent need of people to confide in, without fear of reprisal, those entrusted with the pressing task of offering spiritual guidance so that harmony with one’s self and others can be realized”).

Not every communication made to a minister is privileged and thereby protected from disclosure. The typical statute applies only to (1) communications (2) confidentially made (3) to a minister (4) acting in his or her professional capacity as a spiritual adviser. Some states add a fifth requirement-the communication made in confidence to a clergyman must be made “in the course of discipline.”

Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, defines the privilege as follows:


(a) Definitions. In this rule:

(1) “Cleric” means a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the individual consulting the cleric.

(2) A communication is “confidential” if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(b) General rule of privilege. An individual has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the individual to a cleric in the cleric’s professional capacity as spiritual adviser.

(c) Who may claim the privilege. The 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.58 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.

Note that the current version of the Uniform Rules of Evidence changes the name of the privilege from “clergy-penitent privilege” to “religious privilege.” This change in terminology is both more inclusive and ambiguous. This text retains the traditional and more descriptive “clergy-penitent privilege.”

Before addressing the five elements of the clergy-penitent privilege, it should be noted that there is some variation in the definition of the privilege from state to state. As one court has observed, “The numerous state clergy-privilege statutes are not identical and they provide varying treatment of the privilege.”59 State v. Szemple, 640 A.2d 817 (N.J. 1994).Clergy should be familiar with the terms of the privilege in their own state.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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