§ 41.02 Clergy-Penitent Privilege

• Jurisdiction: United States

§ 41.02 Clergy-Penitent Privilege

Every jurisdiction has a clergyman-penitent privilege.¹ As drafted by the Supreme Court, proposed Federal Rule 506 recognized this privilege as well.² Although Congress deleted all the proposed privilege rules when it substituted the general federal rule on privileges (Rule 501),³ the federal cases continue to acknowledge this privilege.⁴ There are considerable variations in the states; the statutes differ in three principal respects: their definition of "clergy," their scope, and who is the holder—the cleric, the communicant, or both.⁵

The encouragement of the communicant to disclose troubling matters is the immediate goal of this privilege. The overarching aim is the recognition of "the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return."⁶

As with all confidential communication privileges, the issues can be broken down into the following components: (1) Who are the proper parties (e.g., who is a member of the clergy and who is a communicant?); (2) What constitutes a communication? Does conduct come within the scope of the privilege?; (3) Was the communication made incident to the clergy-penitent relationship? Everything said to the clergy is not privileged; (4) Was the communication intended to be confidential?; (5) What are the exceptions?; and (6) How is the privilege waived?

Holder. Proposed Federal Rule 506 made the communicant the holder of the privilege.⁷ Some state statutes permit the clergy member to refuse to testify even when the penitent has expressly consented, if "the disclosure of the information is in violation of his sacred trust."⁸ First Amendment free exercise of religion issues are obviously implicated in this context.

Clergyperson defined. The proposed rule defined "clergyman" as "a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him."⁹ The drafters noted that this definition was "not so broad as to include all self-denominated 'ministers.' A fair construction of the language requires that the person to whom the status is sought to be attached be regularly engaged in activities conforming at least in a general way with those of a Catholic priest, Jewish rabbi, or minister of an established Protestant denomination, though not necessarily on a full-time basis. No further specification seems possible in view of the lack of licensing and certification procedures for clergymen."¹⁰Favoring some religions over others quickly becomes a constitutional quagmire.

Professional relationship. The communication must be made for the purpose of obtaining spiritual guidance.¹¹ Consultations for other reasons do not fall within the privilege.¹²

Communications. "The privilege[] between priest and penitent . . . limit[s] protection to private communications."¹³ However, the modern privilege is not limited to "confessions" in the doctrinal religious sense.¹⁴ Restricting the privilege to confessions would raise First Amendment issues.¹⁵

In United States v. Mohanlal,¹⁶ a minister was asked whether the accused knew right from wrong in an insanity defense case. The court ruled that the responding answer did not violate the privilege:

Rev. Enquist did not testify to any communication to himself on the part of defendant, . . . His testimony concerning his conclusion as to defendant's mental state, although no doubt based upon communications to him by defendant, as well as observations of defendant, including observations as to the manner of defendant's communications, did not reveal, or suggest, the content of any communication by defendant.¹⁷

Confidentiality. Like other communication privileges, the privilege requires confidentiality.¹⁸ The presence of a third party cuts against an intent of confidentiality.¹⁹ Many courts use an objective test in determining whether the penitent intended a communication to be confidential.²⁰

Exceptions. The federal drafters saw no need to specify a crime- fraud exception because the "nature of what may reasonably be considered spiritual advice makes it unnecessary to include in the rule a specific exception for communications in furtherance of crime or fraud."²¹ Other jurisdictions recognize different exceptions, such as for child...