Key point 3-08.02. The clergy-penitent privilege may apply to communications made to a minister in the course of marriage counseling, even when both spouses are present.
Some courts have had difficulty deciding whether the clergy-penitent privilege applies to statements made to clergy in the course of marriage counseling when both spouses are present. Most courts have assumed that statements made to a minister in the course of marriage counseling are made to the minister in his or her professional capacity as a spiritual adviser, and in the course of discipline.126 People v. Pecora, 246 N.E.2d 865 (Ill. 1969), cert. denied, 397 U.S. 1028 (1970); Kruglikov v. Kruglikov, 217 N.Y.S.2d 845 (1961), appeal dismissed, 226 N.Y.S.2d 931 (1962).The problem is whether or not such communications can be “confidential” when both spouses are present.
Some courts have concluded that such communications can be privileged so long as all of the requirements of the privilege are satisfied. One court observed that the presence of both spouses during marital counseling with a minister “did not destroy the confidential nature of the admissions the husband made during marriage counseling-to attempt reconciliation of the parties in a troubled marriage reinforces the confidential nature of communications made during those sessions.”127 Spencer v. Spencer, 301 S.E.2d 411 (N.C. App. 1983).Some courts have reached the opposite conclusion.128 Simrin v. Simrin, 43 Cal. Rptr. 376 (Cal. 1965).A few state laws specifically extend the privilege to marital or family counseling sessions even if both spouses are present.
Rule 505 of the Uniform Rules of Evidence, which has been adopted by several states, specifies that “a communication is confidential if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” This language can be interpreted to preserve the privilege despite the presence of both spouses during marriage counseling. To illustrate, one court concluded: “Defining ‘confidential’ to include communications made in the presence of ‘other persons present in furtherance of the purpose of the communication’ makes it clear that under appropriate circumstances the privilege may extend to revelations made in the presence of each other by a husband and wife who together seek marital counseling, and similar joint consultations.”129 State v. Gray, 874 So.2d 893 (La. App. 2004), reversed on other grounds, State v. Gray, 891 So.2d 1260 (La. 2005).