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.122 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 in confidence for spiritual guidance and help.123 Professor Wigmore has listed four preconditions to the existence of any privilege: (1) the parties assumed that the communication would forever be kept secret; (2) communications would often not be made if the privilege did not exist; (3) in the opinion of the community, the secrecy of a particular kind of communication (e.g., confidential communications to clergy) should be preserved; (4) the injury which would attend elimination of the privilege outweighs the benefits to justice. 8 J. WIGMORE, EVIDENCE § 2396 (4th ed. 1961 & Supp. 2017). These conditions would apply equally to church members and nonmembers.
One court observed: “Because [the statute] defines a penitent as any person who has made a penitential communication to a member of the clergy, and because [the statute] contains no special requirement regarding the person making the communication, it follows that the penitent is not required to be a member of any particular church or of the faith of the clergy member to whom he or she makes the penitential communication.”124 Doe v. Superior Court, 34 Cal.Rptr.3d 458 (Cal. App. 2005).However, the court cautioned that “a requirement that a penitent be a member of the church of the clergy member might be imposed … if the discipline of that church limits the clergy member’s authority to receive penitential communications to church members only.”
Case study. The Massachusetts Supreme Judicial Court observed: “That the defendant was not a member of the church, and did not attend services regularly, is not dispositive, since the statute plainly applies to ‘any person … seeking religious or spiritual advice.’ Nonetheless, the defendant’s prior sporadic contact with the pastors and lack of regular attendance at church services is relevant to his purpose in attending the meeting.”125 Commonwealth v. Kebreau, 909 N.E.2d 1146 (Mass. 2009).