What is the Clergy-Penitent Privilege?

Introduction

This article covers the topic of the clergy confidentiality privilege.

Executive Summary

Most communications made to ministers in confidence, are considered "privileged," Meaning that the minister can't be forced to testify about the communications in court. Ministers are often asked to testify in criminal trials and divorce cases regarding conversations they had with one of the parties, so you had better be familiar with the fundamentals of the "clergy-penitent" privilege.

Privilege

Just what does this "privilege" mean? A privilege is evidence that isn't admissible in court. There are many examples, including communications between an attorney & client, a doctor & patient, a husband & wife, and a minister & penitent. it is necessary for people to be able to communicate freely with their minister without fear of having their conversations made public in court. After all, without this guarantee few would be willing to share incriminating information with their minister, and this is not a good result.

Requirements

Not every communication made to a minister is privileged. In most states, the clergy-penitent privilege applies only to the following:

(1) communication

The privilege applies only to "communications" between an individual and a minister. Some courts have ruled  a minister's impressions of a counselee's demeanor are not communications because such is not a communication. Statements made over the telephone, or in a letter, generally are considered "communications."

(2) confidential

A communication must be made in confidence to be privileged. This means that it was made under circumstances indicating that it would remain secret. Statements made to a minister in the presence of other persons generally cannot be privileged.

(3) to a minister

In order to be privileged, a communication must be made to a minister. Communications made to elders, a minister's spouse, or "lay ministers" are not privileged.

(4) acting in a professional capacity as a spiritual adviser

If a statement is made merely as a  friend, the privilege doesn't apply. Most communications made to ministers won't be made to them in a professional capacity. They're made by members and nonmembers at church functions (such as pot-lucks), after or before church services, in committee rooms, hospital rooms, etc. These communications are usually not privileged, since other people typically are usually present, and it's therefore difficult to prove the "counselee" sought to speak with the minister in his  capacity as a spiritual adviser. Of course, it is possible that such conversations, even when they began as a social exchange, could become spiritual in nature.

A minister and the court will need to understand the objective of a conversation before determining whether it is privileged. Were you sought out primarily for spiritual advice? Were the statements kind of statements that could have been made to anyone, not just a preacher? Where did the conversation occur? Was it a scheduled appointment? What is the relationship between the minister and the individual?  These are types of questions which demonstrate the purpose of a conversation, thereby determining the propriety of the privilege. Do you want the conversation to have a higher chance of being privileged? Simply ask the person during a counseling session whether he or she desires the conversation to be privileged and confidential. If the counselee says yes, then there is virtually no doubt that the courts will conclude that the privilege applies. Ministers should remember this in the course of their counseling. During a conversation with a member (wherever it may occur), if it appears to you that the other person may intend for the conversation to be confidential and/or privileged, you should confirm this verbally. If you are ever called to testify concerning this conversation, this verbal confirmation should resolve most questions regarding the clergy-penitent privilege in this instance.

Who asserts the privilege

In most states, either or both the person who was part of the counseling session the communication and/or the minister who was the advisor, may claim the privilege. Rule 505 of the Uniform Rules of Evidence, which is now adopted by several states, specifies  “the privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.” However, in some states, only the "counselee" may assert the privilege, not the minister.

When to assert the privilege

The clergy-penitent privilege doesn't mean you be required to appear in court. Instead, it excuses ministers from disclosing privileged communication against their will. The proper time to assert the privilege is while you are in court (or at a deposition) when asked about conversations  protected by privilege. Of course, will probably not technically “object” to such a question. The attorney for one of the parties to the underlying legal action will be the one to object to the question, preventing you from disclosing the privileged communication. If no objection is made by the attorney, however, in such a case, ministers are free to inform the judge they prefer not to answer the question because it seeks privileged information.

Child abuse reporting

Ministers who are mandatory reporters of child abuse under state law (check state law to see if this is you) are under a serious ethical dilemma when they receive information about abuse in the during a confidential counseling session that's subject to the clergy penitent privilege. Now they must choose between fulfilling their legal obligation to report, or honoring their scriptural duty to maintain the confidentiality of privileged communications. A number of states have attempted to resolve this dilemma by exempting ministers from the duty to report child abuse if the abuse is disclosed to them in during a privileged conversation. Other states, while not excluding ministers from the duty to report, at least provide that information protected by the clergy-penitent privilege is not admissible in any legal proceeding regarding the alleged abuse.