Chapter 4 - §11. Clergy-penitent privilege

• Jurisdiction: United States

§11. Clergy-penitent privilege

§11.1. Overview. The term "clergy-penitent privilege" is shorthand for two related but distinct privileges: the penitent's privilege and the clergy member's privilege. See Evid. C. §§1033, 1034; 2 Witkin, California Evidence (5th ed.), Witnesses §244. The penitent's privilege permits a person (the "penitent") who made a confidential communication to a clergy member acting in the role of spiritual adviser to refuse to disclose the communication, and to prevent the clergy member or a third person from disclosing the communication. See Evid. C. §1033; 2 Witkin, California Evidence (5th ed.), Witnesses §244. The clergy member's privilege permits a clergy member, who received a confidential communication from a penitent while acting in the role of spiritual adviser, to personally refuse to disclose the confidential communication. See Evid. C. §1034. Unlike the penitent privilege, the clergy member's privilege does not give the clergy member any right to prevent the penitent or a third person from disclosing the communication. See Evid. C. §§1033, 1034. The basis for the two privileges centers on public policy and societal interests in encouraging penitential communication and the development of religious institutions by securing the privacy of communications between penitents and clergy members. People v. Edwards (1st Dist.1988) 203 Cal.App.3d 1358, 1362.

§11.2. Elements of clergy-penitent privilege. The applicability of the clergy-penitent privilege requires (1) a clergy-penitent relationship and (2) a penitential communication. See Evid. C. §§917(a), 1030 to 1034; Roman Catholic Archbishop v. Superior Ct. (2d Dist.2005) 131 Cal.App.4th 417, 442.

1. Clergy-penitent relationship. The clergy-penitent privilege applies when a penitential communication is made in the course of a clergy-penitent relationship. See Evid. C. §§917, 1032, 1034.

(1) Penitent. A "penitent" is a natural person who has made a penitential communication to a member of the clergy. See Evid. C. §1031. There is no requirement that the penitent be a congregate of the church or faith represented by the clergy member. Doe 2 v. Superior Ct. (2d Dist.2005) 132 Cal.App.4th 1504, 1517. However, if the tenets of a particular faith, church, or denomination restrict the authority to receive penitential communications exclusively from its members, the prerequisite of church membership may be required. See id. at 1517 n.13.

Note
Although Evid. C. §1031 defines a penitent as a "person," it is unlikely that the Legislature intended the term to include an artificial entity such as a firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity as specified under Evid. C. §175. First, the clergy-penitent privilege is based on the "human need" to disclose confidences to and receive consolation from a spiritual counselor. People v. Thompson (4th Dist.1982) 133 Cal.App.3d 419, 427. Second, when the Legislature intends for an artificial entity to be included within the definition of a "person" for purposes of a privilege, it has expressly stated that intention in the statutory language. See, e.g., Evid. C. §1014(c) (defining "person" for purposes of psychotherapist-patient privilege to include partnerships, corporations, limited liability companies, associations, and other groups and entities). And third, this interpretation is further supported by the fact that a penitent is not required to be a "member of any particular church." See Doe 2, 132 Cal.App.4th at 1517. In this context, a "member of any particular church" does not contemplate a business entity but a person in her individual capacity.

(2) Clergy member. A member of the clergy means a priest, minister, religious practitioner, or similar functionary of...