Q: What is the difference between “privileged” communications and “confidential” communications?
The concepts of privilege and confidentiality are often confused.
The “clergy-penitent privilege” is a rule of evidence that protects clergy from having to testify in judicial proceedings about communications made to them in confidence while acting in their professional capacity as spiritual advisors.
CAUTION. Privileges like the clergy-penitent privilege pertain to testimony in judicial proceedings, including court-room testimony and depositions. The person who makes the communication to a clergy member holds the privilege, meaning the person decides whether to waive the privilege or keep it—not the clergy member.
“Confidentiality” is a much broader concept, and refers to a duty not to disclose to anyone the substance of communications shared in confidence. For clergy, this often arises when they become aware of highly sensitive or private information outside of a communication falling under the clergy-penitent privilege.
No law prevents clergy from sharing confidences. But caution must be exercised, as noted below.
NOTE. Clergy face a profound dilemma upon learning about a possible or reasonably suspected case of child abuse, whether through a privileged communication or a confidential one. In these instances, clergy are still strongly encouraged to follow their state’s child-abuse reporting law, due to the potential harm a child is experiencing.
Confidentiality
Confidentiality is distinguished from privilege in two ways:
First, the duty of confidentiality is not limited to judicial proceedings.
Second, it is generally considered to be an ethical matter, rather than a legal duty. While the impropriety of disclosing confidential information is universally acknowledged, few clergy have been found legally accountable for unauthorized disclosures. This is because the duty of clergy to preserve confidences has traditionally been considered to be a moral issue, rather than a legal obligation.
However, clergy members must remain mindful of the potential civil liability that can arise if they reveal private or sensitive information shared confidentially with them.
In the early 2000s, a few clergy members were sued for divulging confidences on the basis of an alleged “duty of confidentiality.” Only a handful of courts found clergy liable under such a duty.
But other types of “torts”—personal injury lawsuits—can be filed by a party who believes a confidential matter disclosed in some manner has caused them harm. Those types of claims can include defamation and invasion of privacy (also known as the public disclosure of private facts).
State laws govern these types of civil claims. Consultation with legal counsel is highly recommended before sharing confidential information in any manner.
An additional point
Churches and clergy also should exercise caution with counseling ministries they offer, whether professional or “lay person” in nature.
Depending on how the counseling is set up and administered, federal and state laws pertaining to counseling and health information likely apply. These laws often address patient-therapist relationships and the confidentiality that must be maintained through those relationships.
