A New York court issues an important ruling- Lightman v. Flaum, 687 N.Y.S.2d 562 (1999) [The Clergy-Penitent Privilege ]
Article summary. In a landmark case that should be reviewed by every minister and seminary student, a New York court ruled that a woman could sue two rabbis for disclosing extremely confidential information that she had divulged to them separately in the course of confidential marital counseling. This case illustrates the importance of clergy maintaining the confidentiality of information shared with them in the course of conversations protected by the clergy-penitent privilege. A failure to do so may result in civil liability for breach of a fiduciary duty to preserve confidential information.
A recent New York court ruling makes it more likely that clergy who disclose information shared with them in confidence will be subject to civil liability. This feature article will review the facts of this important ruling, summarize the court's opinion, and evaluate the significance of the case to clergy and lay church leaders.
In 1995, a married woman (the "plaintiff") sought counseling from two different rabbis. She shared with each of them, in separate counseling sessions, information of an extremely personal and confidential nature. The rabbis were employed by congregations that the plaintiff and her husband attended. A few months later, the plaintiff sued her husband for divorce. She also asked the court to award her custody of the couple's four minor children. In response, the husband submitted affidavits in support of his claim to the custody of his children. These affidavits were prepared by the two rabbis, and they disclosed some of the confidential information that the plaintiff had shared with them during the counseling sessions.
The affidavit of one of the rabbis stated:
[The plaintiff] admitted to me that she stopped engaging in our religious purification laws since September 1995 and hence, all sexual activity has stopped by her own decision. [She also] admitted to me that she was seeing a man in a social setting and admitted, "I am doing the wrong things." I spoke to her and counseled her against this.
The affidavit of the second rabbi stated:
[The plaintiff] admitted to me that she freely stopped her religious bathing so that she did not have to engage in any sexual relations with [her husband]. She told me she was not getting fulfillment. When I inquired what that meant, she simply answered, he doesn't relate to me. Nothing was stated that amounted to cruel conduct by [the husband]. Her religious behavior has changed. She does not want to adhere to Jewish law despite the fact that she is an Orthodox Jew and her children are being raised Orthodox as well. She has engaged in bizarre behavior. I have no loyalty to either party except to state what I observed and to issue an opinion based on those observations from a religious point of view.
Based on these affidavits, the plaintiff sued both rabbis, claiming that they violated the clergy-penitent privilege and committed intentional infliction of emotional distress. She also sued one of the rabbis who submitted the second affidavit for defamation. The plaintiff claimed that the rabbis should be found legally liable and pay money damages for disclosing privileged and sensitive communications they had received from her.
The rabbis insisted that they were compelled by Jewish law to reveal the confidences to plaintiff's husband, his attorney, and the court for the protection of both the husband and the children. Additionally, one of the rabbis asserted that the plaintiff was not seeking spiritual counseling or advice when she met with him, and both rabbis insisted that a third person was present when they met with her. One of the rabbis alleged that the plaintiff described "the most intimate details of her marriage" when he met with her in the presence of her friend, which surprised him. The other rabbi alleged that the husband had informed him that he and his wife were having marital problems, that she was deviating from Orthodox tradition, and that she was in "adulterous relationships." Weeks later, the plaintiff and her mother appeared at his office and berated him for speaking to the plaintiff's husband. In the course of the heated exchange, plaintiff admitted "she had stopped engaging in religious purification laws" and was "seeing men in social settings even though she was still married to [her husband]."
Both rabbis admitted notifying the husband and claimed that, in doing so, they were acting in accordance with their obligation as rabbis and spiritual advisers and, further, that this was to protect the four "innocent" children of the marriage.
The rabbis claimed that the plaintiff's request for damages because of the alleged violation of the clergy-penitent privilege must be dismissed since no private cause of action existed for violating the privilege. They claimed that breach of the privilege is merely a violation of a rule of evidence, and that the sole remedy is the exclusion of the communication from evidence.
The Court's Ruling
the clergy-penitent privilege imposes a fiduciary duty of confidentiality
The plaintiff's primary claim was that the clergy-penitent privilege imposes a "fiduciary duty of confidentiality" upon clergy, and that this duty is breached when clergy disclose, without authorization, information that is shared with them in the course of a privileged conversation.
The court began its opinion by acknowledging that New York courts have allowed physicians to be sued for breaching the physician-patient privilege, and attorneys for violating the attorney-client privilege. The plaintiff conceded that no court in New York, or in any other state, had ever ruled that a member of the clergy can be sued for violating the clergy-penitent privilege. She insisted, however, that if physicians and attorneys can be sued for disclosing privileged information, then clergy should be held to the same standard. She pointed to the "care and diligence by most responsible members of the clergy in safeguarding confidences" as the reason the issue had never arisen.
The rabbis insisted that holding clergy personally liable for disclosing information shared with them in a communication protected by the clergy-penitent privilege would "impinge upon the free exercise of their religious rights, preserved by the first amendment." The court agreed that
the imposition of liability … for conduct or activities of a religious society or its members, in furtherance of religious beliefs, is barred where the imposition of liability would result in the abridgement of the free exercise of religion, in violation of the first amendment. The same holds true where the court would be required to become excessively entangled with religious doctrine and its standards. In such instances, it has been recognized that a court must refrain from determining ecclesiastical questions.
However, the court continued:
[W]hile the first amendment does prohibit the intrusion upon the exercise of religious beliefs, the conduct of a religious entity remains subject to regulation for the protection of society. This is especially so where the imposition of liability or sanctions for the conduct complained of is secular in nature, namely, where liability is imposed equally, for religious institutions and parties, as well as for others, and where the basis for such liability may be determined without examination into religious law or policies. Thus, the free exercise clause is not an absolute defense where, as here, liability for tortious conduct is sought to be imposed upon members of the clergy. It may only serve as a defense where the alleged tortious conduct was undertaken pursuant to religious principles or doctrine.
Even where the conduct is predicated upon religious beliefs, it may nevertheless form the basis for liability where significant societal interests are involved. Thus, it has been held that the intentional torts of the clergy may be actionable, notwithstanding the allegation that they are incidents of religious beliefs. Other courts have sustained causes of action against religious organizations for negligent supervision and retention, upon the ground that a liability determination would not require examination of any religious doctrine, nor would it inhibit any religious practice. In such instances, the first amendment will not serve as a defense because it is not implicated.
Based upon the foregoing legal principles, in determining whether the first amendment is a viable defense, the threshold inquiry must be whether the complained of conduct is actually motivated by or involves religious practices or beliefs. If it is not, liability may be imposed without raising any constitutional inhibition or restriction. In such case, plainly, there is no entanglement with religion.
The court concluded that both rabbis could be sued for breach of the fiduciary duty of confidentiality on the basis of disclosing confidential information that was communicated to them in the course of a conversation protected by the clergy-penitent privilege. The court noted that "absent any religious or first amendment implication, there is no compelling reason here to shield these Rabbis from liability in tort for revealing such sensitive, personal communications, when other similarly situated professionals are subject to potential liability under statutory provisions analogous in scope and purpose to that at issue here."
The court concluded,
It is beyond peradventure that, when one seeks the solace and spiritual advice and guidance of a member of the clergy, whether it be a priest, rabbi or minister, on such sensitive, personal matters as those involved in our case, this is not done as a prelude to an announcement from the pulpit. On this record, it is equally clear that these protectors of the faith, under the guise of religious necessity, the protection of the children and the sanctity of the marital institution, have taken upon themselves the disclosure to others of what, from its very nature and subject, was imparted in confidence, unless the privilege was waived by the presence of some third party or, from the nature of the meeting, the disclosure and communication was not made to the rabbis in their spiritual capacity. And, not only were disclosures made to [the husband], both [rabbis] readily acceded to his request that they be repeated to counsel and to the court in the matrimonial action, so as to influence the issue of temporary custody and/or visitation.
In my view, this was not only improper, it was outrageous and most offensive, especially considering the stature of [the rabbis] within the community, a standard which they readily abdicated here. From what was done, it is palpably clear why this determination is one of apparent first impression-no member of the clergy … would dare breach the sanctity of his or her office to make public the type of confidential, private disclosures at issue in this case. And, while both profess that religious law "compelled" disclosure, to the contrary, both were bound by civil law, which mandated strict confidentiality. After all, the privilege belongs to the penitent, not the clergy, and must be honored.
Moreover, to violate such basic rights under the guise of religious necessity, conviction or the protection of the Torah is not only wrong, it is outrageous. Under the factual scenario admitted by these [two rabbis], disclosure was not required to prevent [the husband] from violating Jewish law or tradition. Both [rabbis] knew that the couple was experiencing marital difficulties when they were told that plaintiff was no longer going to the Mikvah, the ritual bathing to purify the woman during her menstrual period. Clearly, this is a peculiarly sensitive matter, not readily discussed with others, nor in open, public exchanges. Notwithstanding that future marital relations would cause [the husband] to violate Jewish law, neither [rabbi] had a "religious obligation as a rabbi" to make public what had been imparted to them. In lieu of such, all that they had to do was ask the husband whether, notwithstanding their marital difficulties, the parties were still having normal relations. If so or, in the alternative, without such an inquiry, [they] could have emphasized to the husband the importance of ensuring that his wife was still going to the Mikvah. This, however, was not done. Moreover, as is apparent from [one rabbi's affidavit] the disclosure was palpably unrelated to any religious doctrine, since what had been told to [him] was that "plaintiff admitted that she had stopped engaging in religious purification laws (which resulted in the cessation of all sexual activity with her husband)." Thus, since he had been told there was no sexual relationship, there was no need for disclosure, especially under the pretext of preventing any violation of religious doctrine, unless this was to serve some other male, Orthodox, but equally irrelevant role.
Notwithstanding the foregoing, disclosure in this case hardly equates with the overwhelming public and societal interest in preserving the sanctity of such confidential communications. Plainly, there is no justification, religious or otherwise, for disclosing that plaintiff had been seeing men outside the marriage. The alleged negative impact upon the four children, in terms of "their level of religious observance as well as their general well being" is so general that, in terms of importance, it cannot possibly measure against the overriding state and public interest in preserving confidentiality. The same holds true with respect to the alleged "religious obligation" to prevent the husband from having relations with a woman "who admittedly socialized with other men" or, in terms of the children, "to shield them from their mother's improper conduct." To acknowledge such would improperly and unwisely create a standard for these defendants, as Orthodox rabbis, different from that followed by the rest of society.
Did the clergy-penitent privilege apply in this case?
The court then addressed the rabbis' defense that their conversations with the plaintiff were not subject to the clergy-penitent privilege, and so no fiduciary duty of confidentiality arose. In particular, they asserted that a third person was present during their conversations with the plaintiff, and one rabbi insisted that he had not been sought out by the plaintiff in his capacity as a spiritual adviser.
The court conceded that the fiduciary duty of confidentiality only arises in the course of communications that are subject to the clergy-penitent privilege, and therefore such a duty would not exist if the plaintiff's statements to the rabbis were made in the presence of a third person or if the plaintiff did not consult with the rabbis as spiritual advisers. However, the court concluded that it lacked sufficient information to resolve these issues, and decided to let a jury decide whether or not the privilege applied to the plaintiff's conversations with each rabbi.
infliction of emotional distress
The plaintiff claimed that the rabbis' unauthorized disclosure of information she had shared with them in confidence amounted to an intentional infliction of emotional distress for which she was entitled to money damages. The court noted that
to state a cause of action for intentional infliction of emotional distress, the conduct complained of must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. The conduct must be of such a nature that it so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society. More must be involved than hurt feelings; mere insults, indignities, threats or annoyances are insufficient. Intent or recklessness is an essential element of the cause of action.
The plaintiff insisted that the disclosure of privileged communications made to a rabbi by a penitent, done with malicious intent, meets this standard. The court agreed:
Bearing in mind the sanctity to be accorded such communications between clergy and penitent, and the necessity for confidentiality in conjunction with such spiritual counseling, without the fear of any reprisal or disclosure, it is both outrageous and intolerable that such communications would be revealed, even where, as here, this occurs in part in the context of a judicial proceeding. In my view, the conduct so transcends the bounds of decency as to be regarded as both intolerable and atrocious … .
The court cautioned that the plaintiff would have to persuade a jury that the rabbis' acts were intentional or reckless.
The plaintiff claimed that some of the statements contained in one of the rabbi's affidavits were defamatory. The court rejected this claim, noting that "a written statement in the course of a judicial proceeding is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation." The court concluded,
Clearly, the statements were pertinent to the litigation in that they were intended to reflect upon plaintiff's fitness to be a good mother. Plaintiff claims that the statements fall without the scope of the privilege, since they must have been discussed and, therefore, published to her husband and his attorney prior to their having been reduced to writing for submission on the motion. She contends that this publication is not subject to any privilege. However, it is patently clear from the complaint that the statements, whenever published, were made in connection with the above action for divorce. The absolute privilege is not limited to statements made or documents used in open court. Thus, the statements are absolutely privileged since made for the purpose of litigation and may not be the subject of a claim for defamation.
Significance of the case to clergy
What is the significance of this case to clergy? A decision by a New York court has limited effect. It is not binding in any other state, and it is subject to reversal by the New York Court of Appeals (the highest state court in New York). Nevertheless, the case represents one of the few extended discussions of clergy liability for divulging confidences. As a result, it may be given special consideration by other courts. For these reasons the case merits serious study by clergy in every state. With these factors in mind, consider the following:
1. The fiduciary duty of confidentiality. By far the most significant aspect of the court's decision was its conclusion that a "fiduciary duty of confidentiality" arises whenever confidential information is shared with a minister in a conversation that is protected by the clergy-penitent privilege. Ministers can be sued if they breach this duty by disclosing confidential information without authorization.
2. The fiduciary duty arises only in the context of privileged communications. The court ruled that the fiduciary duty of confidentiality arises only in the context of a communication that is protected by the clergy-penitent privilege. Every state recognizes this privilege, although the definition varies slightly from state to state. The clergy-penitent privilege in New York simply states that "unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed to disclose a confession or confidence made to him in his professional character as spiritual adviser." As in most other states, the clergy-penitent privilege in New York only applies to (1) communications; (2) made in confidence; (3) to a minister; (4) acting in a professional capacity as a spiritual adviser. Communications meeting these requirements are protected by the clergy-penitent privilege, and they give rise to a fiduciary duty of confidentiality.
Example. G, a married man, seeks out his pastor for counseling and confesses to adultery. The conversation between G and the minister was protected by the clergy-penitent privilege. The minister later discloses this information to the church board. In New York, or in any state that follows the decision of the New York court addressed in this article, the minister may be personally liable for breaching a duty of confidentiality by disclosing confidential information without consent. The minister also may be liable for intentional infliction of emotional distress.
Example. Same facts as the previous example, except that G was accompanied by a friend while meeting with the minister. In some states, the presence of a third person during a conversation with a minister will prevent the conversation from being privileged since it is not "confidential." In such a state (assuming that it follows the decision of the New York court addressed in this article) the minister would not liable for breaching a fiduciary duty of confidentiality, since this duty only arises in the context of a conversation protected by the clergy-penitent privilege.
Example. A church adopts a policy prohibiting its minister from engaging in opposite sex counseling without a third person being present. During an opposite sex counseling session in which a third person is present, a counselee discloses highly confidential information which the minister later shares with the church board. In many states, the clergy-penitent privilege is not destroyed by the presence of a third person so long as that person is present "in furtherance of the communication." A strong case can be made that the third person in this example is present "in furtherance of the communication." As a result, if the state clergy-penitent privilege applies even if such a third person is present during the conversation between the minister and counselee, then the minister may be liable for breaching the duty of confidentiality in New York or in any other state that follows the decision of the New York court addressed in this article.
Example. A church member sees her minister at a high school soccer game. The two engage in a conversation at the end of the game while waiting to see some of the players. There are several people nearby. It is likely that a court would conclude that this conversation was not privileged since it was not "confidential" and the context of the conversation suggests that the member was not seeking out her minister in his professional capacity as a spiritual adviser. In New York, or in any state that follows the decision of the New York court addressed in this article, the minister would not be personally liable for breaching a duty of confidentiality by disclosing confidential information shared with him by the member during their brief conversation, assuming that a court would conclude that the conversation was not privileged.
Example. A minister counsels with J, a church member. J informs the minister that he committed an unsolved crime. The minister shares this information with the police. In New York, or in any state that follows the decision of the New York court addressed in this article, the minister may be personally liable for breaching a duty of confidentiality by disclosing confidential information without consent. The minister also may be liable for intentional infliction of emotional distress.
Example. A minister counsels with K, a church member. K informs the minister that her husband sexually molested their 6-year-old daughter. The minister is a mandatory child abuse reporter under state law, and so he promptly shares this information with the police. In New York, or in any state that follows the decision of the New York court addressed in this article, the minister may be personally liable for breaching a duty of confidentiality by disclosing confidential information without consent. However, the New York court did not address the question raised by this example-whether or not a mandatory duty to report child abuse prevents liability based on a breach of a duty of confidentiality.
Example. Same facts as the previous example, except that the minister is a "permissive" rather than a mandatory child abuse reporter under state law. In New York, or in any state that follows the decision of the New York court addressed in this article, the minister may be personally liable for breaching a duty of confidentiality by disclosing confidential information without consent. However, the New York court did not address the question raised by this example-whether or not a non-mandatory duty to report child abuse prevents liability based on a breach of a duty of confidentiality. It is less likely that a non-mandatory duty to report child abuse would prevent a minister from being found personally liable for breaching the fiduciary duty of confidentiality.
Example. A minister counsels with C, a church member. C informs the minister that he molested a child during a youth activity sponsored by the church. The minister promptly shares this information with the police. A state law makes ministers mandatory reporters of child abuse, except when they learn of abuse in the course of a conversation protected by the clergy-penitent privilege. In New York, or in any state that follows the decision of the New York court addressed in this article, the minister may be personally liable for breaching a duty of confidentiality by disclosing confidential information without consent. However, the New York court did not address the question raised by this example-whether ministers who are mandatory reporters of child abuse, except when they learn of abuse in the course of a privileged communication, may be personally liable for breaching a fiduciary duty of confidentiality when they elect to share with the police or civil authorities information concerning child abuse that they learned in the course of a privileged conversation. It is possible that the New York court would find the minister liable for breaching the fiduciary duty of confidentiality under these circumstances, since the disclosure is not required by law.
3. The importance of being familiar with the clergy-penitent privilege in your state. The examples presented above demonstrate the importance of ministers being familiar with their own state's clergy-penitent privilege.
4. Other precedent. The court concluded that this was only the second case in any state to address directly the liability of a minister for disclosing confidential information communicated in the course of a privileged conversation. The other case was a 1989 decision by a California appeals court. This decision, along with one other case cited by the New York court, are summarized below.
Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. App. 1989)
A bishop confessed to two denominational leaders that he was involved in an extramarital affair with a church member. The bishop asked the denominational leaders to keep his confession in confidence, and they promised to do so. A short time later, the female church member who was the other party to the affair confessed to a denominational leader, who promised to keep her confession in confidence. The denominational leaders allegedly disclosed these confidences to the local church's board of elders, and to numerous other persons. One of the denominational leaders allegedly disclosed the confidences to the assembled congregation in a Sunday worship service, and then proceeded to "excommunicate" the bishop and "cast his spirit" from the church. The bishop also alleged that one of the denominational leaders disclosed his confession to a "gathering of local priests, ministers, pastors, and guests."
As a result of these disclosures, the bishop and the female church member were shunned by friends, family, and members of their local church and denomination. The two sued the denomination and various officials, alleging invasion of privacy, breach of fiduciary duty, false imprisonment, emotional distress, and malpractice. The denomination countered by arguing that the civil courts lacked jurisdiction over the controversy since "the conduct complained of is ecclesiastical in nature."
A trial court agreed with the church's position, and dismissed most of the claims. On appeal, a state appeals court ruled that the church could be sued for emotional distress and related claims, and it ordered the case to proceed to trial. The court began its opinion by noting that "religious disputes can take a number of forms … and do not always result in immunity from liability." The court acknowledged that the civil courts may not intervene in disputes over church doctrine, but it was not willing to accept the trial court's summary conclusion that this dispute involved church doctrine. It observed,
The trial court was not told, and we do not know, whether it is a canon of [the church's] belief that confessions (penitential or not) are revealed to the congregation … whether it is church practice for the substance of a confession to be shared among church officials; or whether it is consistent with church doctrine to reveal the substance of a confession to anyone outside the church, and if so, under what circumstances.
The court recognized that any government action that burdens a religious practice, such as allowing a minister to be sued for disclosing confidential information, involves substantial constitutional considerations. It cautioned that various factors must be taken into account, including whether the religious practice is rooted in church doctrine, and whether a government interest outweighs any burden on religion.
The court applied a four-part balancing test to determine whether the government can interfere with religious practices: (1) the government action limiting a religious practice must be in furtherance of some compelling government interest; (2) the burden on religious practice must be essential to further the government's interest; (3) the type and level of the burden must be the minimum necessary to achieve the government interest; and (4) the burden must apply to everyone, not merely to those who have a religious belief.
In applying this four-part test, the court concluded that even if church doctrine required the disclosure of confidences, this would not end the analysis, since certain types of behavior may be regulated or subjected to legal liability by state law even if rooted in religious doctrine-so long as the state has a compelling interest that justifies the burden on religious conduct, the burden on religious practice is essential to the government interest, and the burden is the least restrictive means of achieving the government interest. The court noted that "under the banner of the first amendment provisions on religion, a clergyman may not with impunity defame a person, intentionally inflict serious emotional harm on a parishioner, or commit other torts." In other words, the first amendment guaranty of religious freedom does not necessarily insulate clergy from liability for their actions.
The court acknowledged that "apparently there are no generally reported opinions where a counselee or communicant has sought to hold a religious officer liable in tort for [an unauthorized disclosure of confidential communications]." However, it saw no reason why clergy and church leaders should not be held legally accountable for injuries they inflict when they disclose confidential information to others without consent.
Alexander v. Culp, 705 N.E.2d 378 (Ohio App. 1993)
A church member (the "plaintiff") met with his pastor for marital counseling. He confessed to having been involved in several affairs during his marriage, and that he was currently having an affair. The minister later disclosed these confessions to plaintiff's wife and, after noting that the plaintiff was a liar and not to be trusted, suggested that the wife obtain a restraining order, change the locks on the doors, and retain counsel to secure a divorce. Since the plaintiff also stated he intended to take the children to another state, the minister suggested that she keep them away from their father. The court allowed the plaintiff to sue his pastor for negligence. It observed:
Public policy supports an action for breach of confidentiality by a minister. There is a public policy in favor of encouraging a person to seek religious counseling. People expect their disclosures to clergy members to be kept confidential… . Whether a particular case interferes with first amendment freedoms can be determined on a case by case basis.
Although Ohio had a statute which prohibited clergy from testifying as to confidences communicated during religious counseling, the provision had no application to any disclosure outside any legal proceeding. In holding that the facts set forth a claim for ordinary negligence, not malpractice, the Ohio court observed, "Although the duty not to disclose arose from the clergy/parishioner relationship, the breach of the duty to preserve [the plaintiff's] confidences neither involved nor compromised any religious tenets."
5. How clergy can respond. There are a number of steps that ministers can take to reduce the risk of liability based on unauthorized disclosures of confidential information. Consider the following:
Familiarity with your state's clergy-penitent privilege. Be familiar with the provisions of the clergy-penitent privilege in your state. Remember, according to the New York court, liability based on a breach of the fiduciary duty of confidentiality is based on the clergy-penitent privilege. In most states, the clergy-penitent privilege will apply to any communication made to a minister, in confidence, while acting in a professional capacity as a spiritual adviser. Unfortunately, it is not always easy to determine if a particular conversation is privileged. Consider the following circumstances:
- It is not always easy to determine if a person sought out a minister in his or her professional capacity as a spiritual adviser. The location of a conversation will be relevant, though not determinative, in resolving this question.
- Sometimes a counselee will share confidential information with a minister, and later disclose the same information to other persons. What effect do these subsequent disclosures by the counselee have on the privileged nature of the previous conversation with the minister? Does the previous conversation cease to be privileged, because it is no longer "confidential"?
Does the clergy-penitent privilege apply to child abuse reporting? To illustrate, if a church member confesses to a minister that he has molested his minor child, is this communication privileged? What if the applicable state child abuse reporting law makes clergy mandatory child abuse reporters? What if clergy are not mandatory child abuse reporters? What if the child abuse reporting law specifies that ministers are not required to report child abuse that they learn of in the course of a privileged conversation?
The New York court's decision addressed in this article presents clergy who are "mandatory" child abuse reporters under state law with a difficult dilemma: they may be criminally liable for not reporting known or reasonably suspected incidents of child abuse, and yet they may be liable for breaching a fiduciary duty of confidentiality if they do not report it. The New York court did not address this dilemma. It is possible, though not certain, that it would have concluded that ministers who are mandatory child abuse reporters under state law cannot be liable for breaching a fiduciary duty of confidentiality by complying with their legal duty to report child abuse, even if they learn of the abuse in the course of a privileged conversation. On the other hand, this conclusion is less certain in the case of ministers (1) who are permissive as opposed to mandatory child abuse reporters under state law, or (2) who are mandatory reporters in a state that excuses them from reporting child abuse they discover in the course of a conversation that is protected by the clergy-penitent privilege.
Does the clergy-penitent privilege apply when third persons are present? In some states, communications made to a minister in the presence of one or more "third persons" are not "confidential" and as a result are not privileged. In other states, the presence of a third person will not prevent a communication from being privileged, so long as the third person's presence is "in furtherance of the communication." Again, it is essential for ministers to be familiar with their state's clergy-penitent privilege.
Tip. If the presence of a third person prevents a conversation with a minister from being privileged in your state, then you may want to consider having a third person present in some situations to reduce the risk of liability based on a breach of the fiduciary duty of confidentiality.
Resist the urge to disclose confidential information. In some cases, a minister's disclosure of confidences is inadvertent, such as a spontaneous sermon illustration. In others, it is deliberate, such as a disclosure of confidential information to the church board. Ministers must realize that disclosing confidences may expose them to personal liability.
Obtain authorization in writing. In some cases, ministers may believe that they have a legitimate reason to disclose confidences. Consider the following examples: (1) A minister feels compelled to report child abuse; (2) a minister feels obligated to share a counselee's personal failings with the church board because they disqualify the counselee from membership according to the church's bylaws; or (3) a counselee informs a minister that he intends to kill or injure another person. Ministers can reduce the risk of liability in such cases by obtaining written consent from the counselee prior to disclosing the confidential information. One way to do this would be develop a written "counseling policy" that counselees must read and sign as a condition to any counseling relationship with a minister. The policy could state that counseling is provided subject to a number of conditions, including the consent of the counselee to the minister making disclosures under specified circumstances (in the case of child abuse, departures from the church's standard of membership, threats to injure or kill others, etc.). Any such policy should be prepared or reviewed by an attorney.
6. Education. The case discussed in this article addresses a question of fundamental importance to ministers. Denominational offices and seminaries should be educating ministers and students preparing for ministry about the clergy-penitent privilege and the potential personal liability of ministers for disclosing confidences without consent.