I’m concerned about items where mere “possession” is potentially criminal, such as illegal firearms or narcotic drugs. If a pastor comes into possession of an item in a counseling setting (even if not in the course of confession, where the privilege would apply), how should they dispose of the item or turn it over?
A key issue is the application of the clergy-penitent privilege, which applies to communications with clergy in confidence and in the course of spiritual counsel. Such communications are “privileged,” meaning the minister cannot be compelled to divulge them in court. Note that the privilege extends only to actual communications between an individual and a minister. Communications obviously include verbal statements, but they also can include nonverbal forms of communication.
To illustrate, one court ruled that the delivery of a gun to a minister constituted a “privileged communication” that was not admissible in court. A New York City police officer who also served as assistant pastor of a church was approached one evening (while in civilian clothes on the church grounds) by an elderly man who addressed the minister by name and stated that he had something at home that he wanted to give him. A few minutes later, the individual returned, and was escorted into an office where he handed the minister a plastic bag containing a .38 caliber revolver.
Not wanting to the leave the gun on church premises overnight, the minister flagged a patrol car that was passing by the church, and handed the gun to the officer driving the vehicle. A few months later, the minister was accused of violating several police department regulations in the proper disposition of the gun. The minister claimed that the incident could not give rise to any disciplinary action since it was a “privileged communication” under New York law and therefore could not be used in any legal proceeding. A state appeals court reversed this ruling, and dismissed the charges. The court concluded that the gun had been delivered to the minister in his capacity as a minister, and that the manner in which the gun was delivered constituted a “confidential” nonverbal communication. Lewis v. New York City Housing Authority, 542 N.Y.Y.2d 165 (1989).
Another court ruled that the act of a murder suspect in displaying a gun to a minister was a “communication.” The court reasoned that the word communication is not limited to conversation but includes “any act by which ideas are transmitted from one person to another.” Commonwealth v. Zezima, 310 N.E.2d 590 (Mass. 1974).
According to this sparse precedent, it is possible that the act of transferring guns, narcotics, contraband, or child pornography to a minister would constitute a “communication” protected by the clergy-penitent privilege, depending on the circumstances surrounding the transfer. This means that the minister could not be compelled to testify about the transfer in a later criminal prosecution.
However, if a minister voluntarily turns over such items to the police or other civil authority, then this could be viewed as a waiver of the privilege, meaning that the minister could be compelled to testify about the transfer.
So, how should ministers respond in such cases? Consider the following points:
First, if the item is turned over to a minister in the presence of other persons, the privilege may or may not apply. The presence of third persons negates the requirement of confidentiality in some states; in others, the presence of third persons does not negate the privilege if their presence is in furtherance of the purpose of the privilege.
Second, if the person transferring possession of the item to a minister is not doing so in the course of seeking spiritual counsel, then the transfer will not be privileged and the issue of waiving the privilege does not arise.
Third, if the privilege clearly does not apply, then the minister can dispose of non-criminal items, such as alcohol.
Fourth, legal counsel should be consulted to ensure compliance with applicable local, state, and federal laws, and to assess the status of the clergy-penitent privilege. For example, the mere possession of child pornography is a serious felony under state and federal law.
Fifth, criminal defense attorneys face a similar problem when a client transfers contraband to them. Very few courts have addressed this issue. Some have ruled that an attorney’s duty to turn over contraband to the police outweighs the attorney-client privilege, and that the attorney can be subject to sanctions, including disbarment, for withholding the items.
In summary, courts have not adequately addressed this question. The safest and recommended course of action for ministers is to consult legal counsel for guidance. Because each case will be different, formulating a policy to cover all possible scenarios will be difficult.
Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.
