Privileged and Confidential Communications

The South Dakota Supreme Court ruled that statements made by a pastor to a denominational official concerning his wife’s sudden death in a bathtub were not protected by the clergy-penitent privilege.

Church Law and Tax2002-07-01

Privileged and Confidential Communications

Key point 3-07.4. 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.

Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.

The Clergy—Penitent Privilege

* The South Dakota Supreme Court ruled that statements made by a pastor to a denominational official concerning his wife’s sudden death in a bathtub were not protected by the clergy-penitent privilege and therefore could be used in a murder prosecution of the pastor. Early one morning a pastor called 911 for emergency assistance. Sharon, his wife of 33 years, lay naked and unconscious in the bathtub of their home. The first persons to respond found her face down in the empty tub. The pastor (“Pastor Tim”) was “on his hands and knees sobbing and asking for help.” Two paramedics pulled her out and moved her to a nearby hallway to perform CPR. Sharon was taken to a local hospital where she regained some heart activity in the emergency room, but never breathed on her own and never recovered any brain function. She was pronounced dead the next day.

A forensic pathologist performed an autopsy and determined that Sharon had ingested enough Temazepam capsules (a sedative) shortly before her death to render her unconscious. She drowned “because she was incapacitated from the Temazepam dose.” The pathologist concluded that Sharon’s death was not natural and not accidental, but from the autopsy alone he could not resolve whether it was suicide or homicide.

The police immediately launched an investigation. They interviewed Pastor Tim, who claimed that on the morning of the accident he had walked to the church, which was located next to his residence, to pray and read his Bible as was his custom. Upon returning home he noticed that the hallway floor was wet. He opened the bathroom door and found his wife. He tried to remove her from the tub, but she was too heavy. He drained the water and called for help. Witnesses at the scene recalled that he was not wet or that only his knee was wet. Furthermore, he had no shoes or socks on when the paramedics arrived, which was peculiar since he said he had just arrived home from devotions at the church.

The police investigation revealed that Temazepam had been prescribed for Pastor Tim as a sleeping aid. Additionally, they discovered that Pastor Tim had been involved with another woman. When the police first confronted him about the affair, he denied it, but he soon conceded it was true. Pastor Tim and Sharon had three adult daughters who told police that they knew their father was unhappy in the marriage. He had told one of his daughters that he no longer loved Sharon and planned to obtain a divorce after another daughter’s wedding. For six or seven years he repeatedly told his youngest daughter not just that he wanted a divorce, but that he “hated” Sharon, that she was “fat and ugly,” and that “she so disgusts me that I cannot force myself to touch her.”

Pastor Tim’s adulterous affair spanned five years. It began while he was serving as a pastor in another state. Despite efforts to keep it secret, rumors of his illicit relationship with a married woman (“Barbara”) who served as an elder in the church ultimately prompted a denominational officer to suggest that it would be best for him to find another position. Pastor Tim relocated his family to South Dakota where he began serving as pastor of a church, and where an appreciative congregation heard “the best sermons that we had ever heard.” But the affair continued. On the pretext of attending “meetings” he and Barbara met in motels in Kansas and Nebraska. Over the years they talked “about him at some point being single” so they could be together. Barbara eventually got a divorce. Pastor Tim was hesitant to do so, however, because a divorce with revelations of an affair and his lies about it could affect “my future in the ministry.” Eventually Barbara became “tired of sneaking around.” Not long before Sharon’s “accident,” Barbara told Pastor Tim that their relationship was over. It was time to start seeing other people, she said, but she left open the possibility that if he ever left Sharon, they “could date and see how it went.” In the months before the drowning, Pastor Tim continued to talk with her on the telephone two or three times a week. They were intimate on one more occasion. A week after the funeral, he tried to reconnect with her, but she declined. Rebuffed, he told her that it had not taken her long to betray him.

Several curious mishaps occurred in the months before Sharon’s death. In one case, a cord had been stretched across the steps to the basement. In reporting the incident, Sharon told family members that Pastor Tim wanted her to come downstairs. She told her daughter, “Somebody tried to kill me.” The daughter telephoned her father. Angry that his daughter had learned of the incident, Pastor Tim said he had told Sharon not to tell anybody about it because he was going to discuss it with the sheriff. The next day, however, he told his daughter that Sharon “had stepped on her shoelace.” The daughter’s husband examined the stairs a few days later. Two steps down he saw shavings like somebody had drilled a hole and there were fresh wood shavings on the carpet. On the other side of the wall there was a place where it looked like something had been glued and then pulled off.

On another occasion, a bathroom light was not working. Pastor Tim brought in a lamp so Sharon could wash her hair in the bathtub. The lamp fell over. As Sharon later recounted it, she believed the dog bumped the lamp. And Pastor Tim was there to catch it.

The police seized Pastor Tim’s computer pursuant to a court order, and a computer specialist examined the computer’s hard drive. He found that the computer had been used to conduct numerous Internet searches on topics such as “household accidents,” “bathtub accidents,” and “drug induced death.”

Pastor Tim was charged with the first degree murder of his wife, Sharon. He pleaded not guilty. Whether Sharon’s death was murder or suicide was the crucial issue. The state called various witnesses, including a denominational official who was Pastor Tim’s superior, and who described a number of conversation he had had with Pastor Tim. After two weeks of trial and five hours of deliberation, the jury found Pastor Tim guilty of murder in the first degree. He was sentenced to mandatory life in prison. He appealed his conviction on several grounds, including the testimony of the denominational official which Pastor Tim claimed should not have been allowed because it was protected by the clergy-penitent privilege.

The South Dakota clergy-penitent privilege specifies that confidential communications made to members of the clergy acting in their professional capacity as spiritual advisers are “privileged,” meaning that they are not admissible in court. Both Pastor Tim and the denominational official testified that they considered their conversations to be confidential. Further, there was no dispute regarding the denominational official’s status as a clergyman. The remaining question was whether Pastor Tim sought out the denominational official in his professional capacity as a spiritual adviser. The court observed,

In deciding if a communication was made to a cleric acting in a professional capacity as a spiritual advisor, other factors may be considered. For example, the fact that the communication was initiated by the clergyman rather than the penitent [may be] viewed as significant.” Similarly, the specific relationship between the communicants may be relevant. Our inquiry must be founded on the particulars of each case …. The substance of [the denominational official’s] testimony can be summarized as follows: communications where [the official] asked Pastor Tim whether he was having an affair, and the conversation with Pastor Tim when [the official] called him to offer his condolences after Sharon’s death …. The conversations about Pastor Tim’s affair and about Sharon’s death were not made to [the official] as a spiritual advisor …. To be classified as privileged such statements need not be a confession. Other factors, however, militate against interpreting these statements as privileged. [The official] made clear that he initiated the communications about Pastor Tim’s affair. His inquiry was made in his capacity as a superior …. Consequently, we conclude [the official’s] testimony about the affair was outside the clergy privilege.

After Pastor Tim moved to South Dakota, [the official] had much less contact with him. He spoke to Pastor Tim once during the first six months he was in South Dakota. He was informed of Sharon’s death from another source and then called Pastor Tim to offer his condolences. During this conversation, Pastor Tim described the circumstances surrounding the death …. Furthermore, this conversation was initiated by [the official] who called to offer his regrets as any other family friend might do. In light of these facts, Pastor Tim’s description of the circumstances surrounding Sharon’s death was not privileged.

However, the court concluded that an earlier conversation in which Pastor Tim disclosed to the official that he had been sexually assaulted was privileged because the official was contacted in his professional capacity as a spiritual adviser. But, the privilege had been “waived” by Pastor Tim’s disclosure of the same incident to third parties and the police. Therefore, it was permissible for the official to testify about this communication at Pastor Tim’s trial. The court noted that the South Dakota privilege statute provides that “a person upon whom this chapter confers a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter.”

Application. This case illustrates that not all conversations with clergy are protected by the clergy-penitent privilege. Such conversations are protected only when clergy are sought out in their professional capacity as spiritual advisers. Pastor Tim’s two most recent conversations with the denominational official were not privileged because they both were initiated by the official, and did not constitute an attempt by Pastor Tim to seek out the official in his professional capacity as a spiritual adviser. State v. Guthrie, 627 N.W.2d 401 (S.D. 2001).

© Copyright 2002 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided 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. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0402

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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