Key point 3-07.04. In order for the clergy-penitent privilege to apply there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.
Most clergy-penitent privilege laws require that the communication be made to a minister acting in a professional capacity as a spiritual adviser. Certainly there can be no expectation of confidentiality—and therefore no privilege—unless a statement is made to a minister acting in such a capacity.
To illustrate, a California court ruled that confidential statements made by a church treasurer to an Episcopalian priest were not “penitential communications” exempted by law from involuntary disclosure in a civil court. Late one night, the treasurer arranged a meeting with the priest after informing him that she “had done something almost as bad as murder.” The treasurer, after requesting that their conversation be kept confidential, informed the priest that she had embezzled nearly $30,000 in church funds from a church account. The priest, with the permission of the treasurer, sought the assistance of the church wardens and vestry. A short time later the vestry decided that the embezzlement had to be reported to the local police. Even though the treasurer reimbursed the church for the full amount taken, she was prosecuted for embezzlement and found guilty. The treasurer appealed her conviction on the ground that it had been based on her confidential statements to the priest, which she alleged were protected by the clergy-penitent privilege.
The court concluded that the statements made by the church treasurer to the priest were not privileged since they involved a “problem-solving entreaty” by the treasurer rather than “a request to make a true confession seeking forgiveness or absolution-the very essence of the spiritual relationship privileged under the statute.” That is, the treasurer sought out the priest not for spiritual counseling, but to disclose her embezzlement and to seek his counsel on how to correct the problem.107 People v. Edwards, 248 Cal. Rptr. 53 (Cal. App. 1st Dist. 1988).
A Pennsylvania court ruled that statements made by a murder suspect to a minister were not “privileged” since they were not made to the minister while acting in his professional role as a spiritual adviser.108 Commonwealth v. Patterson, 572 A.2d 1258 (Pa. Super. 1990).In 1966, a 10-year-old girl and her 6-year-old friend were playing by a creek near their homes. A man approached the children, and asked them to help him “catch minnows” around a bend in the stream. He offered them chewing gum if they would accompany him. The 6-year-old declined the invitation, but the 10-year-old girl went with the man. A search for the girl was launched when she failed to return home for lunch. Her body was discovered, with her throat slashed, behind some bushes a few hundred yards from where the children had been playing. A small, plastic “sheriff’s badge” was found under her body. An intensive search was conducted, and several suspects were questioned, but no arrests were made. Twenty-two years later, a man was arrested in the same community for indecent exposure. The court appointed a local minister to counsel with the individual. While he was not an active member of the minister’s church, he and his wife occasionally attended services there. During a counseling session, the individual informed the minister that he was guilty of the murder of the girl 22 years before, and he asked the minister to accompany him to the police station where he would confess to the crime. The minister also noticed that the individual had a plastic sheriff’s badge in his pocket. Largely on the basis of this new evidence, a murder prosecution was commenced, and the individual was convicted of first degree murder.
The murderer appealed his conviction on the ground that the statements he had made to the minister were protected by the clergy-penitent privilege, and accordingly should not have been introduced in evidence during the trial. A state appeals court rejected this claim, and upheld the murder conviction. The court concluded that the clergy-penitent privilege did not apply in this case since “the circumstances in which the statements were made were not religious, in that nothing spiritual or in the nature of forgiveness ever was discussed.” The court emphasized that “our legislature did not intend a per se privilege for any communication to a clergyman based on his status. We therefore look to the circumstances to determine whether [the murderer’s] statements were made in secrecy and confidence to a clergyman in the course of his duties.” The court noted that the minister had been appointed by the court to counsel with the murderer concerning his indecent exposure conviction, and that it was the minister who sought out the murderer. The court observed:
[The murderer] never sought [the minister] in a confessional role; further, there was no evidence that [the minister] was acting in any capacity other than that of counselor. Thus, the statements were not motivated by religious considerations or in order to seek the forgiveness of God. Accordingly, they were not made to [the minister] in the course of his duties as a minister. Instead, they were made because he was a court-appointed counselor. Further, [the murderer] never was a member of the church. Under these circumstances, we conclude that the fact that [the minister] is ordained was not relevant to [the murderer’s] statements to him and there is no basis to conclude that his statements were made confidentially or for religious, penitent purposes.109 Id. at 1262.
Accordingly, the clergy-penitent privilege did not apply, and the minister could testify regarding the murderer’s confession. Further, the court stressed that “we categorically reject the allegation that this privilege extends to openly-displayed objects, as was the toy sheriff’s badge.”
Many, perhaps most, of the communications made to clergy are not made to them in their professional capacity as spiritual advisers. They are made by church members and nonmembers alike at church functions, following church services, in committee rooms, in hospital rooms, at funeral homes, in restaurants, on street corners, and at social and recreational events. Such communications ordinarily are not privileged, since other persons typically are present, and it is difficult to conclude that the “counselee” sought out the minister in a professional capacity as a spiritual adviser. This is not a necessary conclusion, since it is possible that such conversations, even if they begin as a purely social exchange, could become spiritual in nature. In other words, by the end of a conversation the counselee may well be communicating with the minister because of his or her status as a spiritual adviser. There is no reason why such a conversation should not be privileged, assuming that the other requirements are satisfied. On the other hand, even strictly private conversations may be made for purposes other than spiritual advice, and thus are not privileged.
A minister (or court) may need to ascertain the objective of a conversation in determining whether a communication is privileged. Was the minister sought out primarily for spiritual advice? Were the statements of a type that could have been made to anyone? Where did the conversation take place? Was the conversation pursuant to a scheduled appointment? What was the relationship between the minister and the person making the communication? These are the kinds of questions which help to clarify the purpose of a particular conversation, thereby determining the availability of the privilege.
Tip. The applicability of the clergy-penitent privilege can be enhanced if a minister simply asks a person during a counseling session whether he or she intends for the conversation to be privileged and confidential. If the counselee responds affirmatively, then there is little doubt that the courts will conclude that the privilege applies. Clergy should bear this point in mind in the course of their counseling. If, during a conversation with a member (wherever it may occur), it appears to a minister that the other person may intend for the conversation to be confidential and privileged, the minister should confirm this understanding verbally. If the minister is ever called to testify in court concerning the conversation, this verbal confirmation should resolve most questions regarding the applicability of the clergy-penitent privilege.
Case studies
• The Alabama Supreme Court ruled that communications between a pastor and a denominational official were not protected by the clergy-penitent privilege from compelled disclosure in court since the official was not communicating in his professional capacity as a spiritual advisor when speaking with the pastor. The court noted that the official initiated the communication with the pastor in response to a complaint of sexual misconduct he had received from a church member, and that the conversation was part of an investigation into this complaint rather than an attempt on the part of the pastor to seek spiritual counsel.110 Ex parte Zoghby, 958 So.2d 314 (Ala. 2006). Accord Kos v. Texas, 15 S.W.3d 633 (Tex.App.2000). In the Kos case, the court concluded: “Although it is true that [the clergyman-privilege rule] does not require for its application that the communicant be the one seeking, summoning, or soliciting the presence of the clergy, it nevertheless does require that the communications be made for the purpose of obtaining spiritual guidance or consolation. Because the communications at issue were not motivated by any religious or spiritual considerations, we conclude that [the accused priest’s] statements were not addressed to [the intervening priest] in his ‘professional character as a spiritual advisor.'”
• The Arkansas Supreme Court ruled that a child molester’s confession to a pastor was not protected by the clergy-penitent privilege, and therefore it was appropriate for the pastor to testify about the confession.111 Magar v. State, 826 S.W.2d 221 (Ark. 1992). But see People v. Burnidge, 664 N.E.2d 656 (Ill. App. 1996) (“The fact that the [counselee] did not instigate the counseling and that he was counselor for the youth group at the church did not destroy the privilege.”).The court observed: “We find it significant … that the pastor sought out the molester to confront him with the allegations of sexual abuse conveyed to him by the parents of two of the victims. Although the pastor had counseled with the molester on previous occasions … the pastor did not consider this to be a counseling session at all, but disciplinary in nature. The attendant circumstances support the trial court’s decision that this was an accusatory situation initiated by the pastor that did not encompass spiritual counseling, thereby precluding the molester from excluding the pastor’s testimony at trial. … The molester’s communication was not made to the pastor in his professional character as a spiritual adviser. …”
• A Missouri court ruled that statements made by a child abuse victim to a minister at her church were not protected by the clergy-penitent privilege since they were not made in the course of spiritual counseling. The court pointed out that both the victim and pastor described their conversation as a casual telephone conversation; the pastor testified that she was not trying to solicit any spiritual conversation when she spoke with the victim; the victim stated that she did not discuss anything of a spiritual nature during the conversation; and, that the pastor was not someone that she would ever go to for advice.112 State of Missouri v. Gerhart, 129 S.W.3d 893 (Mo. App. 2004).
• The Massachusetts Supreme Judicial Court ruled that the clergy-penitent privilege did not apply to incriminating statements made by a father to a pastor concerning allegations of child abuse since they statements were not made in the course of seeking spiritual counsel.113 Commonwealth v. Kebreau, 909 N.E.2d 1146 (Mass. 2009).
• A Texas court ruled that statements made by a church member to his pastor when confronted by the pastor about allegations of inappropriate behavior with children were not protected against disclosure in court by the clergy-penitent privilege. The court noted that “the privilege only extends to communications addressed to a clergyman in his professional capacity as a spiritual advisor, not to every private communication made to a clergy member. Thus, statements made during a disciplinary meeting are not communications made for the purpose of obtaining spiritual guidance or consolation and do not fall under the privilege.”114 Maldonado v. State, 59 S.W.3d 251(Tex. App. 2001).