Sharing sacred secrets: is it (past) time for a dangerous person exception to the clergy-penitent privilege?

• Author: Cassidy, R. Michael

TABLE OF CONTENTS INTRODUCTION I. PURPOSE AND HISTORY OF THE CLERGY-PENITENT PRIVILEGE A. Rationale for the Privilege B. History of the Privilege II. STATE STATUTES TODAY A. The Discipline Enjoined Requirement B. Types of Protected Communications C. Who Holds the Privilege? D. Who Constitutes a Cleric? III. THE EVOLVING FEDERAL PRIVILEGE IV. CLERGY OBLIGATIONS WITH RESPECT TO DANGEROUS PERSONS: LESSONS LEARNED FROM THE MANDATED REPORTING STATUTES V. LESSONS LEARNED FROM THE OTHER PROFESSIONS: THE "HOMICIDAL SPOUSE" EXAMPLE A. Responsibilities of the Psychotherapist B. Responsibilities of the Attorney C. Responsibilities of the Clergy VI. CLOSING THE GAP VII. CONSTITUTIONAL CONSIDERATIONS A. The Free Exercise Clause B. The Establishment Clause CONCLUSION Nothing is concealed that will not be revealed, and nothing hidden that will not become known. (1)

INTRODUCTION

The growing crisis of pedophilia in the Roman Catholic Church (2) has cast renewed focus on the clergy-penitent privilege in America. (3) As many state legislatures scramble to consider proposed amendments to their child abuse reporting statutes that would designate clergy as mandated reporters, (4) the scandal has prompted widespread debate about whether information learned from otherwise privileged communications should be excluded from the statutory obligation to report. (5) This debate has highlighted the tension between respecting clergy confidences and protecting the public welfare. In this Article, I suggest that it is time to revisit the clergy-penitent privilege, and to question seriously whether its presently broad application truly serves the public interest.

The clergy-penitent privilege is deeply engrained in American culture. (6) Although the privilege has its origins in the seal of the confessional of the Roman Catholic Church, (7) statutory forms of the privilege in most states now protect any confidential communications with a clergy member for the purposes of "penitential confession or spiritual advice" from compelled disclosure. (8) In recent years, another area of growth in the doctrine has been in the expanding definition of who constitutes a cleric for purposes of the privilege. (9) Many nonhierarchical religions rely on peer counseling rather than counseling by ordained ministers. (10) Other churches are experiencing a scarcity of ordained clergy, and increasingly are relying on lay ministers to perform certain spiritual functions previously performed only by the officially ordained. (11) Just as courts and legislatures over the past several decades have expanded the definition of what constitutes a protected communication, many states have taken a similarly broad view of who constitutes a clergy member for purposes of their clergy-penitent privilege statutes. (12)

As a consequence of this interpretive growth, more types of religious officers and functionaries are now recognized as ministers, and more types of communications, such as marital counseling sessions, are recognized as falling within the ambit of spiritual counseling or advice. (13) This expanding application of the privilege during the twentieth century has been motivated in part by a growing respect for the diversity of religious affiliation and spiritual belief in our society, if not an explicit concern for potential collision with the Free Exercise and Establishment Clauses of the First Amendment. (14)

The doctrinal creep of the clergy-penitent privilege described in this Article has come with serious collateral costs. (15) Whenever more types of conversations with more types of religious or quasi-religious functionaries are protected from disclosure, society pays a price in terms of relevant and highly probative evidence being excluded from the fact-finding process. (16) Because ministers are often intimately involved in the lives of many citizens, they frequently have relevant and highly probative evidence to offer a judicial tribunal on a wide variety of subjects including, among others, paternity, domestic violence, child abuse, child custody, and will contests.

In this Article, I scrutinize one highly problematic yet previously unexamined issue raised by the clergy-penitent privilege: Whether the doctrine should protect a parishioner's disclosure to a clergy member that the parishioner intends to commit a future violent act against another individual. I argue that a member of the clergy who learns that a parishioner intends to commit a crime involving death or serious bodily injury should be required to disclose this conversation. The pivotal question is: How should our society enforce this duty of disclosure? Should it be through tort law, through canons of ethics, or through the rules of evidence? After analyzing each of these options, I conclude that the rules of evidence offer the best possible vehicle for reform, and I propose that the law should recognize a limited exception to the clergy-penitent privilege for certain conversations pertaining to future dangerous crimes.

In Part I of this Article, I review the purposes of the clergy-penitent privilege and trace its historical roots. In Parts II and III, I analyze the evolution and expansion of the privilege in state and federal courts in the United States since its adoption in the early nineteenth century. In Part IV, I look at the clergy-penitent privilege through the lens of child abuse reporting statutes, and discuss the implications of these laws for a clergy member's duty to report future dangerous behavior. In Part V, I hypothesize a scenario in which a parishioner discloses to his clergy member an intention to murder his spouse, and I use this fact pattern as a vehicle to compare the ethical and legal responsibilities of a clergy member with those of an attorney and a psychotherapist facing a similar dilemma. In Part VI, I explore the possible avenues for closing the gap that presently exists between the responsibilities of each of these professionals with respect to dangerous clients, and ultimately recommend a model clergy-penitent privilege statute that contains an exception for conversations involving threats of death or serious bodily harm to a reasonably ascertainable individual. Finally, in Part VII of this Article, I conclude that such a carefully crafted dangerous person exception to the clergy-penitent privilege would not violate either the Free Exercise or the Establishment Clauses of the First Amendment.

1. PURPOSE AND HISTORY OF THE CLERGY-PENITENT PRIVILEGE

   A. Rationale for the Privilege

   Testimonial privileges contravene the general principle that "the public ... has a right to every man's evidence." (17) Because privilege rules tend to hinder litigation and make the accurate ascertainment of the truth more difficult, they have been strictly construed. (18) The most generally accepted rationale for the adoption of privileges, and the one recognized by the United States Supreme Court in several opinions, is the utilitarian justification. (19) Privileges are recognized only when necessary to preserve relationships that society values above the truth-finding functions of its courts. (20) "Their warrant is the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice." (21) Even Wigmore, a general critic of privileges, made a strong argument for recognizing the clergy-penitent privilege on utilitarian or instrumental grounds. (22)

   Under the utilitarian view, the privilege protecting confidential communications with clergy, like the attorney-client and psychotherapist-patient privileges, is grounded in a policy of preventing disclosures that would tend to inhibit the development of a confidential relationship that society has decided is socially desirable. (23) Relationships with clergy are thought to be socially desirable because they may lead to repentance and spiritual salvation, a nonsecular goal, and because they may lead to reform of errant conduct, a secular goal. (24) Apart from the individual's interest in spiritual health and redemption, society has an interest in fostering a morally-grounded and well-behaved citizenry. Denying the clergy-penitent privilege may not only chill confidential communications with clergy, (25) but it may also hamper activities of religious groups that perform important social functions, such as, among others, education and works of charity. (26) For these reasons, respect for clergy confidences can be seen as instrumental in safeguarding the important role that religion plays in a civil society. (27)

   Empirical studies (28) and scholarly comment (29) suggest that there may be reasons to doubt the utilitarian justification for the professional privileges, which claims that individuals will be inhibited from confiding in attorneys, psychotherapists, or clergy members unless they know that such private conversations are shielded from disclosure in court. But the clergy-penitent privilege, like the other professional privileges, is motivated by more than instrumental concerns--it is also motivated by concerns for privacy. (30) The privilege "is based in part upon the idea that the human being does sometimes have need of a place of penitence and confession and spiritual discipline. When any person enters that secret chamber, this [privilege] closes the door upon him, and civil authority turns away its ear." (31) The privacy rationale for privileges suggests that there is intrinsic value to confidences apart from their instrumental ends, and that it would be fundamentally indecent for the law to intrude upon certain intimate relationships. (32)

   A third justification for the clergy-penitent privilege, unrelated to the concern for fostering confidences or protecting privacy, is a practical one. (33) Society pays a cost collateral to the inhibition of the clergy-penitent relationship by not...