The Clergy-Penitent Privilege: an Overview

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The Clergy-Penitent Privilege: An Overview

F. Robert Radel, II Andrew A. Labbe

I. Introduction The clergy-penitent privilege is one of the oldest and most well-recognized privileges in the United States. While other once-recognized privileges have since withered or fallen from the vine, there remains considerable support for the clergy-penitent privilege.1 How- ever, many debate the rationale behind this privilege, and some question whether it will survive. Nowhere is this controversy clearer than in the interplay between the privilege and mandatory child abuse reporting laws, which have limited, and in some instances abrogated, the privilege. Jurisdictions throughout the country have struggled with striking a balance between what many consider one of the most sacred privileges at law and the safety of children. Some argue that the privilege must be protected at all costs, some that it should be done away with completely, and others attempt to find a middle ground. This debate was reignited last year following a decision from the Supreme Court of Louisiana, which revived a lawsuit contending that a priest should have reported accusations of sexual abuse disclosed to him during a confession.2 This decision is discussed in this article. This article discusses the history of the clergy-penitent privilege, considers the interplay between the privilege and mandatory child reporting laws, and addresses the arguments for limiting or abrogating the privilege. Finally, this article suggests a workable balance between protecting confidential religious communications and protecting children from abusers.

1 Even the attorney-client privilege, which is undoubtedly the most well established privilege, has become more limited in its application. See, e.g., United States v. Jacobs, 117 F. 3d 82, 87 (2d Cir. 1997) (applying “crime-fraud” exception to attorney-client privilege), abrogated, Loughrin v. United States, 134 S. Ct. 2384 (2014). 2 [Parents of Minor Child] v. Charlet, 135 So. 3d 1177, 1181 (La. 2014).

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Rob Radel, a partner at Groelle & Salmon, P.A., in the firm’s Tampa office, devotes his practice to the defense of insureds and self-insureds. He handles various large-loss liability defense matters, including, premises liability; sexual mis- conduct; products liability; employment; long-term health facilities; and psychological and neuropsychological claims. He has defended lawsuits filed against churches and other religious and charitable organizations; hotels, bars and con- venience stores; restaurants and small businesses; long-term care facilities; and manufacturers. Mr. Radel is a member of the Federation of Defense and Corporate Counsel, where he has served as chairperson for the Healthcare Practice Section and Vice-Chairperson of the Pharmaceutical Litigation Section. He is also a member of the Defense Research Institute (DRI), serving as Co-Chairperson of the Trial Techniques Sub-Committee for the Product Liability Section. He often chairs and/or speaks at conferences for the FDCC, DRI and ABA, and gives presentations to insurance companies, self-insureds, and church and charitable entities. Prior to joining Groelle & Salmon, he was a partner at Butler Pappas, working in the Tampa office for 22 years.

II. The Clergy-Penitent Privilege A. History of the Clergy-Penitent Privilege The clergy-penitent privilege originated in the Canon law of the Roman Catholic Church, under which, “the seal of the confessional is ‘inviolable.’”3 A priest could be excommuni- cated for disclosing the contents of a confession.4 England recognized this privilege while the Roman Catholic Church was still prominent, but the privilege dissolved with the power of the Roman Catholic Church, and currently does not exist in England.5 The first known case in America recognizing the privilege isPeople v. Philips,6 which was decided in 1813. In Phillips, the New York court held that free exercise of religion provi- sions would not force a Catholic priest to testify as to a confession made to him regarding a

3 R. Michael Cassidy, Sharing Shared Secrets: Is It (Past) Time for a Dangerous Person Exception to the Clergy Penitent Privilege, 44 Wm. & Mary L. Rev. 1627, 1695-96 (2003). 4 Id. at 1696. 5 Id. at 1637. Cassidy notes that, “[c]onfession in the Anglican Church, unlike the Roman Catholic church, was voluntary and not compulsory.” Id. This distinction was likely of great importance in abolishing the privilege. 6 Id.

386 The Clergy-Penitent Privilege: An Overview

Andrew Labbe, an associate at Groelle & Salmon, P.A., handles every aspect of insurance coverage law, including first-party property disputes and third-party liability claims. Mr. Labbe also handles all facets of civil appeals and has directly handled numerous appeals throughout Florida. He also assists insurers in developing effective claim-handling strategies and advises insurers on coverage issues, bad faith exposure and best practices. Mr. Labbe is a member of the Florida Defense Lawyers Association and is licensed to practice in Florida and Massachusetts.

theft.7 The court stated that to do so would infringe upon the priest’s right to freely practice his religion.8 This first recognition of the privilege was followed by People v. Smith9 in 1817, in which the court distinguished a confession made to a Catholic priest, which is required by the Catholic Church, and those made to a Protestant minister, where it was not required but merely made for spiritual guidance. The latter was not afforded protection.10 Based on this decision, it seems clear that the early versions of the clergy-penitent privilege focused not on whether the communications were private or made for spiritual advice/counseling, but whether such “confessions” were mandated by a particular religion. The Smith decision prompted New York to enact the first clergy-penitent privilege statute in 1828, which provided the privilege to priests, ministers, and similar religious denomina- tions.11 By enacting the statute to include other religions, New York took an approach (now the “Model” approach) to the privilege to include communications that are not required by the mandates of a specific religion, but that were made in confidence to a religious leader.

B. The Modern Privilege Today, every one of the fifty U.S. states, as well as the District of Columbia, has some version of a clergy-penitent privilege.12 Jurisdictions differ on their definitions of clergy and/

7 Id. 8 Id. 9 Id. 10 Id. 11 See Cassidy, supra note 3, at 1638-39. 12 See Claudia G. Catalano, Annotation, Subject Matter and Waiver of Privilege Covering Communications to Clergy Member or Spiritual Adviser, 93 A.L.R. 5th 327, 350 (2001).

387 FDCC Quarterly/Summer 2015 or confidential communications, as well as who holds the privilege. However, the majority of states have substantially similar clergy-penitent privilege statutes. These same jurisdictions also have child abuse reporting laws, which can alter the effect of the clergy-penitent privilege or, in some cases, abrogate the privilege in its entirety. Similar to the clergy-penitent privilege, these reporting laws, while similar, vary from state-to-state. An attorney must be aware that there are differences, sometimes subtle, in the clergy- penitent privilege and child reporting laws of a particular jurisdiction as compared to others. Also, there is usually case law in each jurisdiction dealing with such issues as the presence of third parties, who holds the privilege, and whether the privilege can be waived. Practitioners should advise their clergy clients of the law in their jurisdiction. The clergy need to be aware of when they must disclose information regarding child abuse, when they may disclose such information, when they may not, and the legal ramifications for failing to comply with whatever their duty may be. To aid in this endeavor, this article addresses the different approaches to the clergy-penitent privilege and mandatory reporting laws, and it includes a national survey of the clergy-penitent privilege and child abuse reporting laws. See Appendix A for reference to a particular jurisdiction’s statutory scheme.

1. Definition of “clergy” The first step in analyzing the application of the clergy-penitent privilege is to determine who qualifies as “clergy” in the jurisdiction. The definition of “clergy” can vary from state- to-state and completely alter the effect of the privilege. Uniform Rule of Evidence 505 defines “clergy” as “a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting him.”13 The Uniform Rule provides a broad definition; in fact, the privilege would even apply to an individual who is not “clergy,” as long as the parishioner reasonably believed he or she was serving in that capacity. While many jurisdictions have used the Uniform Rule as a guideline, most have altered the definition in one way or another. For example, Michigan defines “clergy” broadly, to include a “minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner.”14 Conversely, Georgia adopted a much more narrow definition and does not appear to extend the privilege to any religions other than Christianity and Judaism.15

13 Unif. R. Evid. § 505 (1999). 14 Mich. Comp. Laws § 600.2156 (2015). 15 Ga. Code Ann. § 24-5-502 (2015) (“Every communication made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to any Protestant minister of the Gospel, any priest of the Roman Catholic faith, any priest of the Greek Orthodox Catholic faith, any Jewish rabbi, or any Christian or Jewish minister or similar functionary, by whatever name called, shall be deemed privileged.”).

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2. Definition of “confidential communications” After determining to whom the privilege applies, the next step is determining what communications are covered. In this respect, most jurisdictions provide that communications to the clergy member, made privately and not intended for further disclosure, in his or her capacity as spiritual adviser, are privileged. While the precise wording may differ, this is the baseline requirement for all jurisdictions. Some states provide for a stricter construction of what communications are protected by the privilege. For example, some states, such as Montana and Wyoming, limit the privilege to “confessions.”16 California only applies the privilege if the clergy member has a duty to keep the communication secret under the discipline or tenets of the church.17 Conversely, some states, such as New Jersey, cover a broader range of communications, applying the privilege to any confidential communications made to a clergy member in his or her professional character.18 This expands the privilege beyond the bounds of “spiritual” communications, and would apply to any number of professional services a clergy member may provide, such as marriage or addiction counseling.

3. Holder of the privilege The next question is, who holds the privilege? There are three possible answers to this question: the penitent, the clergy member, or both. The vast majority of jurisdictions provide that the penitent is the holder of the privilege. Many of these jurisdictions allow the clergy member to claim the privilege on behalf of the penitent, and provide that such authority is presumed in the absence of evidence to the contrary. A few jurisdictions hold that both the clergy member and the penitent hold the privilege.19 In these jurisdictions, both the penitent and the clergy member have the right to refuse to disclose, or prevent another from disclosing, the contents of the privileged communications. Only one jurisdiction, Virginia, provides that the clergy member is the sole holder of the privilege.20 Some jurisdictions seek to strike a balance between the interests underlying the privilege and those favoring disclosure in certain circumstances. For example, in Ohio, the penitent is the holder of the privilege and can waive it unless: (1) the confidential communication was made directly to the cleric, and (2) the confidential communication was made in the manner and context that places the cleric specifically and strictly under a level of confidentiality that is considered inviolate by canon law or church doctrine.21 Similarly, in Oregon, the penitent

16 Mont. Code Ann. § 26-1-804; Wyo. Stat. Ann. § 1-12-101(a)(ii). 17 Cal. Evid. Code §§ 1030-1034. 18 N.J. Stat. § 2A:84:A-23. 19 See Ala. R. Evid. § 505; Cal. Evid. Code §§ 1030-1034; Colo. Rev. Stat. § 13-90-107(1)(c); 735 Ill. Comp. Stat. 5/8-803; N.J. Stat. § 2A:84:A-23. 20 See Va. Code Ann. § 8.01-400 (2015). 21 Utah Code Ann. § 78B-1-137(3) (2015).

389 FDCC Quarterly/Summer 2015 holds the privilege and may waive it. However, even if the penitent consents, the clergy member may not be examined on the communication if he or she has an absolute duty to keep such communication confidential under the discipline or tenets of the religion.

4. Who is a “Mandatory Reporter,” and is the Privilege Abrogated? After a determination as to what is covered under the privilege, the next step is to analyze the jurisdiction’s mandatory reporting statute with regard to cases of child abuse. These mandatory-reporting laws can alter, or eliminate, the jurisdiction’s clergy-penitent privilege, so knowledge of the interplay between the two is essential. All fifty states and the District of Columbia have mandatory reporting laws for suspected child abuse or neglect. (See the attached survey.) Most states provide a list of specific professionals who are “mandatory reporters,” while some states provide that “any person” who has reason to believe a child is being abused or neglected has a duty to report. Twenty-six states specifically provide that members of clergy are “mandatory reporters.”22 In these states, and those that make “any person” a mandatory reporter,23 a clergy member may have an obligation to disclose privileged communications he or she would not otherwise be obligated (or permitted) to disclose under the tenets of his or her religion, or the law of the jurisdiction. Thus, the next question is whether the information must be disclosed even if learned in a privileged and confidential manner. Most jurisdictions have taken steps to clarify a clergy member’s duty in these situations. The majority of jurisdictions expressly maintain the privilege or maintain the privilege con- ditionally upon meeting certain factors, such as the clergy member being bound to maintain the confidentiality under the tenets of his or her religion. Only six jurisdictions have expressly abrogated the privilege with regard to mandatory reporting laws.24 The remaining jurisdictions do not specify whether the privilege continues to apply in these situations, leaving clergy members in limbo as to their duties under the law in such situations. Regardless of one’s opinion as to whether the privilege should survive in mandatory reporting situations, a jurisdiction’s statutory scheme should expressly provide whether or not the privilege remains intact so members of the clergy can be certain of whether or not such disclosure is mandated by the law. While most jurisdictions have amended their statutes to address this issue, many statutes are still ambiguous, placing members of clergy in an untenable situation.

22 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Maine, Massa- chusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Vermont, West Virginia, and Wisconsin. 23 Delaware, Florida, Indiana, Kentucky, Maryland, Nebraska, New Jersey, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, Utah, and Wyoming. 24 New Hampshire, North Carolina, Rhode Island, Tennessee, Texas and West Virginia.

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C. [Parents of Minor Child] v. Charlet In 2014 the Louisiana Supreme Court addressed the interplay between the clergy-penitent privilege and mandatory reporting laws. In Charlet, the parents of a minor daughter brought suit against George Charlet (the alleged perpetrator), the child’s priest, the Diocese of Baton Rouge, and others for damages caused by alleged sexual abuse.25 The alleged perpetrator was a long-time parishioner at the church.26 The complaint alleged that on three separate occasions the minor child sought “spiritual guidance through confession” with the defendant priest, and informed the priest that Charlet had inappropriately touched her, kissed her, and told her he wanted to make love to her.27 The minor child testified at deposition that the priest told her to “sweep it under the floor and get rid of it.”28 The alleged abuse continued after these three confessions.29 Prior to trial, the church filed a motion in limine to preclude any reference to the alleged confessions.30 The trial court denied the motion, finding that the minor child was the holder of the privilege and had the right to waive it.31 The Louisiana Court of Appeal reversed the trial court’s decision and, sua sponte, determined that no cause of action existed against the priest. The court dismissed the claims against the priest and the church and concluded that the priest was not a mandatory-reporter and any testimony or evidence regarding the alleged confessions was “wholly inadmissible.”32 The Louisiana Supreme Court reversed the Court of Appeal and reinstated the trial court’s order. First, the Supreme Court addressed the language of the relevant statute which provides in pertinent part:

B. General rule of privilege. A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser. C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person.33

25 135 So. 3d 1177,1178 (La. 2014). 26 Id. 27 Id. 28 Id. at 1179. 29 Id. 30 Id. 31 135 So. 3d 1177, 1179. 32 Id. 33 Id. at 1180 (emphasis in original).

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The Supreme Court determined that, based on the plain language of the statute, the privilege belonged to the penitent-communicant, not the priest, and that the priest cannot claim the privilege in his own right.34 Thus, the court determined that the penitent was free to testify as to her own confession. The Supreme Court next determined that whether the priest had a duty to report the alleged abuse is a mixed question of fact and law to be determined by the jury.35 Under Louisiana law, a member of the clergy is included in the definition of “mandatory reporter,” though an exception is provided for confidential communications where the clergy member has a duty to keep the communication confidential.36 The court based its decision on Louisiana Children’s Code article 609, which provides that a mandatory reporter “who has cause to believe that a child’s physical or mental health or welfare is endangered as a result of abuse” has a duty to report, regardless of any claim of privileged communications.37 The court held that whether the priest had a duty to report under this statutory scheme (i.e., the “duty/risk” question) was a question of fact for the jury.38 It appears the Louisiana Supreme Court has held, despite the exception made in the mandatory reporting statute for confidential communications where the clergy member has a duty to keep the communication confidential, that a member of clergy has a duty to report if he or she “has cause to believe that a child’s physical or mental health or welfare is endangered as a result of abuse.”39 This holding will likely have the effect of abrogating the privilege in cases of child abuse, as it is difficult to imagine of a situation where a clergy member would not have “cause” to believe a child’s physical or mental health or welfare is endangered if he or she is being abused.

D. Case for keeping the privilege As articulated by the United States Supreme Court, the purpose of the clergy-penitent privilege 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.”40 Thus, the privilege was created and has remained intact because of the high value placed on religious freedoms and the ability to practice that religion and keep the privacy of the practices. Proponents of the clergy-penitent privilege argue that there are a number of societal benefits that stem from keeping the privilege intact, and that the importance of the privilege outweighs any benefits gained from mandating disclosure in cases of child abuse.

34 Id. 35 Id. at 1181. 36 Id. at 1180. 37 135 So. 3d 1177, 1180 (citing La. Child. Code. Ann. art. 609 (2014)). 38 Id. at 1181. 39 La. Child. Code. Ann. art. 609. 40 Trammel v. United States, 445 U.S. 40, 51 (1980).

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1. Deterrent Effect on Confessions The first issue generally raised by proponents of the privilege is that mandatory reporting will deter any child abusers or potential child abusers from seeking spiritual guidance. The effects of this are two-fold: the clergy will be unable to report any further child abuse because the perpetrators will stop talking to them about it, and those troubled perpetrators who do want to talk about it will be discouraged from seeking and receiving spiritual guidance and conversation of living their lives appropriately and by the dictates of their religion. Mandatory reporting requirements may have the effect of removing clergy from the equation in these situations, where oftentimes a member of clergy is the only individual to whom a perpetrator would feel comfortable talking. This could prevent a potential abuser from being talked out of engaging in the conduct, or an actual abuser from being convinced to stop the abuse and perhaps turn himself or herself in to the authorities. It would also prevent the clergy from reporting potential or existing abuse to the authorities if they deemed it necessary and law permitted it.41 Ultimately, leaving an abuser or potential abuser with no one to talk to will never have a positive effect on the situation and could possibly lead to further abusive behavior which may have been prevented had the clergy member been free to do his or her job. People cannot receive help without asking for it, and the knowledge that their communications will remain confidential may be the only thing to persuade a perpetrator to seek guidance.

2. Ineffectiveness of Mandatory Reporting Laws The actual effect of requiring clergy to report child abuse on preventing such abuse is difficult, if not impossible, to measure. This is particularly true when one considers that much of the evidence that would be reported by the clergy would not exist without the privilege. That is, as discussed above, perpetrators of child abuse would be much less likely to confess or discuss such abuse without the knowledge that the clergy member is bound to keep the information confidential. Proponents of the privilege argue that, when one considers the number of perpetrators who would never disclose the abuse to clergy, coupled with those who would be deterred from reporting the abuse in the face of mandatory reporting laws, the effectiveness of these laws is minimal. In addition to keeping such information out of the hands of the clergy, mandatory reporting laws may also be ineffective for another reason, as “even facing imprisonment, many religious leaders are not likely to disclose confidential information learned in confession or similar counseling.”42 Thus, rather than leading to more convictions for child abuse, these laws could lead to the prosecution and imprisonment of clergy who refuse to disclose confidential communications because of their religious beliefs.

41 In jurisdictions in which the penitent holds the privilege, the penitent must waive it to allow a clergy member to disclose the information. 42 Shawn P. Bailey, How Secrets Are Kept: Viewing the Current Clergy-Penitent Privilege through a Com- parison with the Attorney-Client Privilege, 2002 B.Y.U. L. Rev. 489, 507 (citing Lennard K. Whittaker, The Priest-Penitent Privilege: Its Constitutionality and Doctrine, 13 Regent U. L. Rev. 145, 168 (2000)).

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3. Deference to Religious Beliefs Although it may seem basic, respecting the religious beliefs of people is central to the clergy-penitent privilege. Many religions provide for some sort of confidential communications with their clergy, be it through formal confession in Catholicism or a counseling session with a clergy member in other faiths. Whether the communication is made confidential by the “Seal of the Confessional” or simply through an understanding that a person seeking spiritual guidance from their clergy member can do so in confidence, that confidentiality is central to the penitent being able to openly seek spiritual guidance. Proponents of the privilege argue that erosion of the confidentiality of these communications would inhibit an individual’s practice of religion. While an individual technically could still speak with the clergy, he or she could be discouraged from doing so, particularly if the individual has something questionable to confess or about which he or she seeks guidance. This would also impact individuals who have not engaged in any questionable behavior, as they will be aware that these communications are not “absolutely” confidential, and this situation could discourage them from seeking guidance on any personal matters they wish to keep private. Proponents further contend that abrogation of the clergy-penitent privilege violates the Free Exercise and Establishment Clauses of the Constitution. Even where a jurisdiction maintains the privilege subject to certain requirements, a question arises as to the unequal treatment of religions. The clearest example of this is the requirement that the clergy member be bound by the “disciplines, tenets, or traditions” of his or her religion to keep the communications secret. Should a confession made to a Catholic priest be given greater protections than those made to a member of clergy in a religion that does not necessarily impose a strict duty of confidentiality? Perhaps the more important question iscan those communications be treated differently under the Free Exercise and Establishment Clauses? According to proponents of the privilege, the answer to this question is no, and any restrictions placed on a individual’s ability to freely practice his or her religion is unconstitutional.

4. Slippery Slope While acknowledging the serious nature of child abuse, proponents fear that the same arguments that support enactment of these mandatory reporting laws could be asserted just as convincingly in a number of other situations, thereby creating a slippery slope that could lead to abrogation of the privilege in any number of instances. For example, there could be a movement for mandatory reporting of elder abuse, as that conduct outrages society and involves a vulnerable group unable to protect themselves. Similarly, there could be a movement to require mandatory reporting of homicides, rape, or any number of serious crimes that could ultimately lead to the destruction of the privilege in its entirety.43 The question is, where will the line be drawn?

43 See generally Cassidy, supra note 3.

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E. Case for limiting and/or abrogating the privilege As with proponents of the clergy-penitent privilege, the privileges’ opponents – or, rather, proponents of mandatory reporting - are unwavering in their belief that these laws and the abrogation or limitation of the privilege in cases of child abuse are absolutely necessary. Those in favor of abrogation rely first and foremost on an argument even the opposi- tion will concede: child abuse is a heinous crime, repugnant to our society, and it must be curbed. One of the biggest problems with child abuse is that only 38% of the victims report the abuse,44 meaning that the vast majority of these abuses are never reported to authorities. With the justifiable reluctance of a child to report abuse, these mandatory reporting laws may be the only viable way to prevent these crimes over time. Opponents of the privilege argue that the harm caused by allowing clergy members to withhold information regarding abuse far outweighs any tangible benefits provided by the privilege. The benefit of requiring mandatory reporting of abuse is immediate and tangible, in that the abuse is reported to the proper authorities who are able to put a stop to it. Any benefits derived from maintaining the secrecy of clergy-penitent communications are, by and large, speculative. The opponents argue that the deterrent effect is likely not as signifi- cant as it seems, as the perpetrators of these crimes may choose to confess regardless of the existence of mandatory reporting statutes or may not even be aware of their existence. The argument is also raised as to why the clergy-penitent privilege is entitled to greater deference than other privileges, such as the attorney-client privilege or the psychotherapist- patient privilege.45 These two privileges, for example, are subject to various exceptions, while the clergy-penitent privilege is generally deemed “absolute.”46 Yet, both the attorney- client and psychotherapist-patient privileges have many of the same benefits found in the clergy-penitent privilege, and it can be argued that a client or patient would be more likely to disclose the abuse if he or she knew it would be kept confidential, thus allowing the attorney or therapist to attempt to dissuade the perpetrator from engaging in such behavior. However, the attorney-client, psychotherapist-patient, and clergy-penitent privileges are not treated equally under the law. While many jurisdictions provide exceptions to mandatory reporting laws where the clergy-penitent or attorney-client privilege applies, none do so for the psychotherapist-patient privilege. Again, those in favor of abrogation argue that all of the justifications for maintaining the privilege, discussed supra, are equally applicable to the psychotherapist-patient privilege. Maintaining the confidentiality of these communications would encourage the

44 Darkness to Light, Child Sexual Abuse Statistics, http://www.d2l.org/site/c.4dICIJOkGcISE/b.6143427/ k.38C5/Child_Sexual_Abuse_Statistics.htm (last visited June 16, 2015). 45 While six states have expressly abrogated the clergy-penitent privilege with regard to mandatory reporting of child abuse, only one, Mississippi, appears to have abrogated the attorney-client privilege for the same reason. 46 See Bailey, supra note 42, at 1673-1686.

395 FDCC Quarterly/Summer 2015 patient to disclose the abuse or potential abuse, thereby allowing the therapist to treat or counsel the patient in an effort to stop future abuse. Abrogating this privilege has the same deterrent effect on disclosures as when dealing with the clergy-penitent privilege. Even outside the realm of mandatory reporting statutes, opponents argue that privileges are always subject to exceptions in certain circumstances. For example, the attorney-client privilege is subject to the “crime-fraud” exception, which removes the privilege when such communications are “in furtherance of contemplated or ongoing criminal or fraudulent conduct.”47 This exception applies regardless of the severity of the “criminal or fraudulent conduct” at issue. Similarly, every other privilege is subject to certain exceptions, so the question becomes, what makes the clergy-penitent privilege any different? This is particularly true given that the clergy-penitent privilege did not exist at common law, but rather is a creature of statute that must be narrowly construed.48 As the United States Supreme Court has held, “exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”49 Opponents argue that the clergy-penitent privilege, like all privileges, is in “derogation of the search for truth,” and, as such, is properly subject to limitations in certain circumstances. One such circumstance is the reporting of child abuse, where clergy members are often uniquely situ- ated to obtain information that may help prevent such atrocious crimes.

III. Conclusion The continued applicability of the clergy-penitent privilege in the face of mandatory reporting statutes remains a hotly contested issue and is an area of the law which continues to evolve. Both sides of the debate remain steadfast in their beliefs and continue to push for changes in legislation. It is of the upmost importance that a practitioner know the law in his or her jurisdiction and remain cognizant of any changes in order to properly guide clergy member clients as to their duties and any client in a child abuse situation of the scope of the privilege impacting production of evidence.

47 United States v. Jacobs, 117 F. 3d 82, 87 (2d Cir. 1997). 48 See Christopher R. Pudelski, The Constitutional Fate of Mandatory Reporting Statutes and the Clergy- Communicant Privilege in a Post-Smith World, 98 Nw. U. L. REV. 703, 708 (2004). 49 United States v. Nixon, 418 U.S. 683, 709-710 (1974).

396 The Clergy-Penitent Privilege: An Overview

State Code/Statute Summary

AL Ala.R.Evid. § 505 Clergy: any duly ordained, licensed, or commissioned minister, pastor, priest, rabbi, or prac- Ala. Code §26-14-3(a), (f) titioner of any bona fide established church or religious organization; the term “clergyman” includes, and is limited to, any person who regularly, as a vocation, devotes a substantial portion of his or her time and abilities to the service of his or her church or religious organization.

Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his or her professional capacity. Penitent and Clergy hold the privilege. Clergy are considered mandatory reporters unless the information was learned solely from confidential communications. (This reporting requirement does not abrogate the privilege).

AK Alaska R. Evid. § 506 Clergy: a minister, priest, rabbi, or other similar functionary of a religious organization, or an Alaska Stat. § 47.17.020 individual reasonably believed so to be by the person consulting the individual. Protects confidential communications (made in private and not intended for further disclosure) to a member of clergy in that individual’s professional character as spiritual adviser. Penitent holds privilege but the Clergy may claim the privilege on behalf of the penitent. Clergy are not considered mandatory reporters of child abuse.

AZ Ariz. Rev. Stat. § 12-2233 Clergy: clergyman, priest or Christian Science Practitioner

397 FDCC Quarterly/Summer 2015

State Code/Statute Summary

Ariz. Rev. Stat. In a civil action a clergyman or priest shall not, § 13-3620(A), (L) without the consent of the person making a confession, be examined as to any confession made to him in his character as clergyman or priest in the course of discipline enjoined by the church to which he belongs. Penitent holds the privilege. Clergy are considered mandatory reporters but may withhold reporting of the confidential communication or confession if they determine it is reasonable and necessary within the concepts of the religion. This exemption does not apply to personal observations of the minor. A member of the Clergy cannot be compelled to testify without his or her consent.

AR Ark. R. Evid. § 505 Clergy: a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar Ark. Stat. functionary of a religious organization, or an § 12-18-402(a)(29) individual reasonably believed so to be by the person consulting him. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his professional character as spiritual adviser. Penitent holds the privilege but the Clergy may claim the privilege on behalf of the penitent. Clergy are mandatory reporters unless knowledge gained acquired through communications required to be kept confidential pursuant to his or her religious discipline or the knowledge was received from the alleged offender in the context of a statement of admission.

398 The Clergy-Penitent Privilege: An Overview

State Code/Statute Summary

CA Cal. Evid. Code Clergy: a priest, minister, religious practitioner, §§ 1030-1034 or similar functionary of a church or of a recognized denomination or religious organization. Cal. Pen. Code Protects confidential communications (made in §§ 11165.7(a)(32); 1166(d) the presence of no third parties known to penitent) to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret. Both penitent and clergy hold the privilege. Penitent can prevent another from testifying as to the confidential communication. Neither can be compelled to disclose the communication. Clergy are mandatory reporters unless the information was learned from a penitential communication.

CO Colo. Rev. Stat. Clergy: a clergy member, minister, priest, or § 13-90-107(1)(c) rabbi. Colo. Rev. Stat. Protects confidential communications made to § 19-3-304(1)(aa) him or her in his or her professional capacity in the course of discipline expected by the religious body to which he or she belongs. Both penitent and clergy hold the privilege. Consent from both parties required for waiver. Clergy (defined as a priest, rabbi, duly ordained, commissioned, or licensed minister of a church, member of a religious order, or recognized leader of any religious body) are mandatory reporters unless the information was learned

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from a privileged communication. Exemption does not apply if clergy acquires reasonable cause to know or suspect that a child has been subjected to abuse or neglect from a source other than the communication.

CT Conn. Gen. Stat. § 52-146b Clergy: a clergyman, priest, minister, rabbi or practitioner of any religious denomination Conn. Gen. Stat. accredited by the religious body to which he § 17a-101(b) belongs who is settled in the work of the ministry. Protects confidential communications made to the clergy in his or her professional capacity. Penitent is the holder of the privilege and may waive it. Clergy are mandatory reporters; no exception is noted and the privilege is likely abrogated.

DE Del. R. Evid. § 505 Clergy: a minister, priest, rabbi, accredited Christian Science practitioner, or other similar Del. Code Ann. Title 16, functionary of a religious organization, or an §§ 903, 909 individual reasonably believed so to be by the person consulting him. Protects confidential communication (made privately and not intended for further disclosure to a clergyman in his professional character as a spiritual adviser. Penitent holds the privilege but the clergy can claim it on penitent’s behalf. Mandatory reporting applies to “any person, agency, organization or entity who knows or in good faith suspects child abuse or neglect.” The privilege is not abrogated.

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State Code/Statute Summary

D.C. D.C. Code Ann. § 14-309 Clergy: a priest, clergyman, rabbi, or other duly licensed, ordained, or consecrated minister of D.C. Code Ann. a religion authorized to perform a marriage § 4-1321.02 ceremony in the District of Columbia or duly accredited practitioner of Christian Science. Protects: (1) confession or communication made to him in his professional capacity in the course of discipline to which he belongs; (2) communication made to him in his professional capacity in the course of giving religious or spiritual advice; and (3) communication made to him in his professional capacity by either spouse or domestic partner, in connection with an effort to reconcile estranged spouses or domestic partners. The penitent holds the privilege and may waive it. Clergy are not mandatory reporters.

FL Fla. Stat. Ann. § 90.505 Clergy: a priest, rabbi, practitioner of Christian Science, or minister of any religious organiza- Fla. Stat. Ann. tion or denomination usually referred to as a §§ 39.201(d); 39.204 church, or an individual reasonably believed so to be by the person consulting him or her. Protects confidential communications if made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication. Penitent holds the privilege, but the clergy can claim it on penitent’s behalf. Mandatory reporting applies to “any person” who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected.

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However, an exception is made where the clergy-penitent privilege applies.

GA Ga. Code § 24-9-22 Clergy: any Protestant minister of the Gospel, any priest of the Roman Catholic faith, any Ga. Code § 19-7-5(c)(1) priest of the Greek Orthodox Catholic faith, any Jewish rabbi, or to any Christian or Jewish minister, by whatever name called. Protects communications made by person professing religious faith, seeking spiritual guidance, or seeking counseling. The clergy cannot disclose any protected communication and is not competent to testify as to any such communication. The penitent holds the privilege; it remains unclear whether this privilege may be waived. See Alternative Health Care Systems, Inc. v. McCown, 514 S.E.2d 691 (Ga. Ct. App. 1999). Clergy are not mandatory reporters.

HI Haw. Rev. Stat. §626-1 Clergy: a minister, priest, rabbi, Christian Sci- (Haw. R. Evid. §626-1-506) ence practitioner, or other similar functionary of a religious organization, or an individual Haw. Rev. Stat. reasonably believed so to be by the communi- §§ 350-1; 350-5 cant. Protects confidential communication made privately and not intended for further disclosure to a clergyman in his professional character as a spiritual adviser. Penitent holds the privilege, but the clergy can claim it on penitent’s behalf. Clergy are not mandatory reporters, and the privilege is not abrogated.

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State Code/Statute Summary

ID Idaho Code § 9-203(3) Clergy: a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar Idaho R. Evid. 505 functionary of a religious organization, or an individual reasonably believed to be a clergy- Idaho Code § 16-1605 man by the person consulting. Protects confidential communication (made privately and not intended for further disclosure to a clergyman in his professional character as a spiritual adviser. Penitent holds the privilege, but the clergy can claim it on penitent’s behalf. Mandatory reporting applies to any “person having reason to believe that a child under the age of eighteen (18) years has been abused, abandoned or neglected.” Clergy are mandatory reporters unless all three (3) of the following are met: (a) the church qualifies as tax-exempt under 26 U.S.C. section 501(c)(3); (b) the confession or confidential communication was made directly to the duly ordained minister of religion; and (c) the confession or confidential communication was made in the manner and context which places the duly ordained minister of religion specifically and strictly under a level of confidentiality that is considered inviolate by canon law or church doctrine. A confession or confidential communication made under any other circumstances does not fall under this exemption.

IL 735 Ill. Comp. Stat. 5/8-803 Clergy: a clergyman or practitioner of any religious denomination accredited by the religious 325 Ill. Comp. Stat. 5/4 body to which he or she belongs.

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State Code/Statute Summary

Protects confessions or admissions made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes and any information which has been obtained by him or her in such professional character or as such spiritual advisor. Held by both penitent and clergy. Both must consent to waiver. Clergy are mandatory reporters but may claim the clergy-penitent privilege.

IN Ind. Code § 34-46-3-1 Clergy: clergymen. Ind. Code Protects confessions or admissions made to a § 31-33-5-1, 31-32-11-1 clergyman in the course of discipline enjoined by the clergyman’s church and confidential communications made to a clergyman in the clergyman’s professional character as a spiritual adviser or counselor. Privilege held by the penitent and can be waived by the penitent. Mandatory reporting applies to “anyone who has reason to believe a child is being abused,” but the clergy-penitent privilege is not abrogated.

IA Iowa Code § 622.10(1) Clergy: member of the clergy. Iowa Code Protects any confidential communication §§ 232.69(1), 232.74 properly entrusted to the person in the person’s professional capacity, and necessary and proper to enable the person to discharge the functions of the person’s office according to the usual course of practice or discipline. Privilege held by the penitent and can be waived by the penitent.

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State Code/Statute Summary

Clergy are not mandatory reporters and the privilege is not abrogated.

KS Kan. Stat. Ann. § 60-429 Clergy: “duly ordained minister of religion” (a person who has been ordained, in accordance Kan. Stat. Ann. § 38-2223 with the ceremonial ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his or her regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization); “regular minister of religion” (one who as his or her customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he or she is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister). Does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his or her church, sect, or organization.

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State Code/Statute Summary

Protects any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or dis- charging the penitent’s moral obligations, or to obtaining God’s mercy or forgiveness for past culpable conduct. Held by the penitent but can be claimed by the clergy member on the penitent’s behalf. Clergy are not mandatory reporters, and the privilege is not abrogated.

KY Ky. R. Evid. 505 Clergy: a minster, priest, rabbi, accredited Christian Science practitioner, or other similar Ky. Rev. Stat. Ann. functionary of a religious organization, or an §§ 620.030; 620.050 individual reasonably believed so to be by the person consulting him. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his professional character as a spiritual adviser. Penitent holds the privilege, but the clergy can claim it on penitent’s behalf. Mandatory reporting applies to “any person who knows or has reasonable cause to believe” a child is being abused or neglected. The privilege is not abrogated.

LA La. Code Evid. Ann. Clergy: a minster, priest, rabbi, accredited Art. 511 Christian Science practitioner, or other similar functionary of a religious organization, or an La. Child Code individual reasonably believed so to be by the art. 603(17)(c) person consulting him.

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State Code/Statute Summary

La. Child Code art. 609 Protects confidential communications (made pri- ately and not intended for further disclosure) La. Rev. Stat. Ann. to a clergyman in his professional character as § 14:403(B) a spiritual adviser. Penitent holds the privilege, but the clergy can claim it on penitent’s behalf. Clergy are mandatory reporters unless the clergy, in the course of the discipline or practice of that church, denomination, or organization, is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of the church, denomination, or organization has a duty to keep such communications confidential. In that instance, he shall encourage that person to report the allegations to the ap- propriate authorities in accordance with Article 610. However, notwithstanding the above, it appears the privilege may be abrogated if the clergy member “has cause to believe that a child’s physical or mental health or welfare is endangered as a result of abuse or neglect or that abuse or neglect was a contributing factor in a child’s death.” See [Parents of Minor Child] v. Charlet, 135 So. 3d 1177 (La. 2014).

ME Me. R. Evid. 505 Clergy: a minster, priest, rabbi, accredited Christian Science practitioner, or other similar 22 Me. Rev. Stat. Ann. functionary of a religious organization, or an §§ 4011-A(1)(A)(27); 4015 individual reasonably believed so to be by the person consulting him. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman acting as spiritual adviser. Penitent holds the privilege, but the clergy can claim it on penitent’s behalf.

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State Code/Statute Summary

Clergy are mandatory reporters unless the information was received during confidential communications. The privilege is not abrogated.

MD Md. Code Cts. and Clergy: a minister of the gospel, clergyman, or Jud. Proc. § 9-111 priest of an established church of any denomination. Md. Code, Family Law Protects any confession or communication made § 5-705(a)(3) to him in confidence by a person seeking his spiritual advice or consolation. Penitent holds the privilege. Mandatory reporting applies to any person. Clergy are mandatory reporters unless the information is privileged and: i) the communication was made to the clergyman in a professional character in the course of discipline enjoined by the church to which the clergyman belongs; and (ii) the clergyman is bound to maintain the confidentiality of that communication under canon law, church doctrine, or practice.

MA Mass. Gen. Laws Clergy: a priest, rabbi or ordained or licensed Ch. 233, § 20A minister of any church or an accredited Christian Science practitioner. Mass. Gen. Laws Protects any confession made to him in his Ch. 119, § 51A professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs and any communication made to him by any person in seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character. Penitent holds the privilege.

408 The Clergy-Penitent Privilege: An Overview

State Code/Statute Summary

Clergy are mandatory reporters but need not report information solely gained in a confession or similarly confidential communication in other religious faiths.

MI Mich. Comp. Laws Clergy: a minister of the gospel, priest of any § 600.2156 denomination whatsoever, or duly accredited Christian Science practitioner. Mich. Comp. Laws §§ 722.623(1)(a); 722.631 Protects any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination. Penitent holds the privilege. Clergy are mandatory reporters but the privilege is not abrogated.

MN Minn. Stat. § 595.02(1)(c) Clergy: a member of the clergy or other minister of any religion. Minn. Stat. §§ 626.556(3)(a)(2), Protects any confession made to the member (8); 595.02(2) of the clergy or other minister in a professional character, in the course of discipline enjoined by the rules or practice of the religious body to which the member of the clergy or other minister belongs and any communication made to the member of the clergy or other minister by any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the member of the clergy’s or other minister’s professional character. Penitent holds the privilege. Clergy are mandatory unless the clergy-penitent privilege applies. The privilege is not abrogated.

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State Code/Statute Summary

MS Miss. Code § 13-1-22 Clergy: a minster, priest, rabbi, or other similar functionary of a church, religious organization, Miss. R. Evid. 505 or religious denomination. Miss. Code § 43-21-353 Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his professional character as spiritual adviser. Penitent holds the privilege, but the clergy must claim it on penitent’s behalf unless it is waived by the penitent. Also applies to a clergyman’s secretary, stenographer, or clerk regarding any fact acquired in that capacity, without the consent of the clergyman. Clergy are mandatory reporters. The privilege is not addressed in the reporting laws and is likely abrogated.

MO Mo. Rev. Stat. Clergy: any person practicing as a minister of § 491.060(4) the gospel, priest, rabbi or other person serving in a similar capacity for any organized religion. Mo. Rev. Stat. §§ 210.115(1); 210.140; Protects communication made to him or her in 352.400(2) his or her professional capacity as a spiritual advisor, confessor, counselor or comforter. Statute does not address who holds the privilege. Clergy are mandatory reporters, but the privilege is not abrogated.

MT Mont. Code Ann. Clergy: a member of the clergy or priest. § 26-1-804 Protects any confession made to the individual Mont. Code Ann. in the individual’s professional character in the §§ 41-3-201 (2)(c), (2)(h), course of discipline enjoined by the church to (6)(b), (6)(c) which the individual belongs. Penitent holds the privilege.

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State Code/Statute Summary

Clergy are mandatory reporters unless the knowledge came from a statement or confession made to the member of the clergy or the priest in that person’s capacity as a member of the clergy or as a priest; the statement was intended to be a part of a confidential communication between the member of the clergy or the priest and a member of the church or congregation; and the person who made the statement or confession does not consent to the disclosure by the member of the clergy or the priest. A member of the clergy or a priest is not required to make a report if the communication is required to be confidential by canon law, church doctrine, or established church practice.

NE Neb. Rev. Stat. § 27-506 Clergy: a minister, priest, rabbi, or other similar functionary of a religious organization, or an Neb. Rev. Stat. individual reasonably believed so to be by the §§ 28-711(1); 28-707(2); person consulting him. 28-714 Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his professional character as spiritual adviser. Penitent holds the privilege, but the clergy must claim it on penitent’s behalf. Mandatory reporting applies to “any person” who has reasonable cause to believe that a child has been subjected to child abuse or neglect or observes such child being subjected to condi- tions or circumstances which reasonably would result in child abuse or neglect. The privilege is not abrogated.

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State Code/Statute Summary

NV Nev. Rev. Stat. § 49.255 Clergy: a member of the clergy or priest. Nev. Rev. Stat. Protects any confession made to the member §§ 432B.220(4)(d); of the clergy or priest in his or her professional 432B.250 character. Penitent holds the privilege. Clergy are mandatory reporters unless the knowledge of the abuse or neglect was acquired from the offender during a confession. Privilege has been abrogated with regard to “any person required to make a report pursuant to 432B.220.” Thus, unless the knowledge is acquired “from the offender during a confession,” the clergy must report the suspected abuse or neglect.

NH N.H. R. Evid. 505 Clergy: a priest, rabbi or ordained or licensed minister of any church or a duly accredited N.H. Rev. Stat. Ann. Christian Science practitioner. § 169-C:29, C:32 Protects a confession or confidence made to him or her in his or her professional character as spiritual advisor unless waived by the penitent. Penitent holds the privilege. Clergy are mandatory reporters, and the privilege is abrogated. See State v. Willis, 75 A.3d 1068 (N.H. 2013).

NJ N.J. Stat. § 2A:84:A-23 Clergy: a priest, rabbi, minister or other person or practitioner authorized to perform similar N.J.S.A. § 9:6-8.10 functions of any religion. Protects any communication made in confidence to a cleric in the cleric’s professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to

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State Code/Statute Summary

which the cleric belongs or of the religion which the cleric professes, and confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric’s professional or spiritual counseling role. Both the penitent and clergy hold the privilege. Privilege can only be waived if both parties consent or the communication pertains to a future criminal act, and the clergy waives the privilege. Mandatory reporting applies to “any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse.” The privilege is not addressed, and it is unclear whether it is abrogated.

NM N.M.R. Evid. 11-506 Clergy: a minister, priest, rabbi or similar functionary of a religious organization, or an N.M. Stat. Ann. individual reasonably believed so to be by the §32A-4-3(A) person consulting that person. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman for the purpose of seeking spiritual advice. Penitent holds the privilege, but the clergy must claim it on penitent’s behalf. Clergy are mandatory reporters unless the information was learned from privileged communication.

NY N.Y. C.P.L.R. 4505 Clergy: a clergyman, or other minister of any religion or duly accredited Christian Science N.Y. Soc. Serv. Law § 413 practitioner.

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State Code/Statute Summary

Protects confession or confidence made to him in his professional character as spiritual advisor. Penitent holds the privilege. Clergy are not mandatory reporters (except Christian Science practitioners). The privilege is not abrogated.

NC N.C. Gen. Stat. § 8-53.2 Clergy: a priest, rabbi, accredited Christian Sci- ence practitioner, or a clergyman or ordained N.C. Gen. Stat. minister of an established church. §§ 7B-301, 7B-310 Protects any information which was communicated to him and entrusted to him in his professional capacity and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipliner, where the person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted. Penitent holds the privilege and can be waived by the penitent in open court. Mandatory reporting applies to “any person or institution” that has cause to believe any juvenile is abused or neglected. The privilege is abrogated.

ND N.D. R. Evid. 505 Clergy: a minister, priest, rabbi, accredited Christian Science practitioner, or other similar N.D. Cent. Code functionary of a religious organization, or an §§ 50-25.1-03; 50-25.1-10 individual reasonably believed so to be by the person consulting the cleric. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his or her professional character as spiritual adviser.

414 The Clergy-Penitent Privilege: An Overview

State Code/Statute Summary

Penitent holds the privilege but the clergy must claim it on penitent’s behalf. Clergy are mandatory reporters unless the information was learned in their capacity as spiritual adviser.

OH Ohio Rev. Code Clergy: a member of the clergy, rabbi, priest, § 2317.02(C) Christian Science practitioner, or regularly ordained, accredited, or licensed minister of Ohio Rev. Code an established and legally cognizable church, §§ 2151.421 (A)(4)(a)-(d) denomination, or sect, when the cleric remains (eff. 09/17/14) accountable to the authority of that cleric’s church, denomination, or sect, concerning a confession made, or any information confidentially communicated, to the cleric for a religious counseling purpose in the cleric’s professional character. Protects a confession made or any information confidentially communicated to the cleric for a religious counseling purpose in the cleric’s professional character. Penitent holds the privilege and can be waived by the penitent unless disclosure is in violation of a “sacred trust.” Sacred trust means: (1) the confession or confidential communication was made directly to the cleric; and (2) the confession or confidential communication was made in the manner and context that places the cleric specifically and strictly under a level of confidentiality that is considered inviolate by canon law or church doctrine. Clergy are mandatory reporters unless the communication is received in a cleric-penitent relationship. However, even if the cleric-penitent relationship applies, the clergy must report if all of the following apply: (i) the penitent,

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State Code/Statute Summary

at the time of the communication, is either a child under eighteen years of age or a mentally retarded, developmentally disabled, or physically impaired person under twenty-one years of age; (ii) the cleric knows, or has reasonable cause to believe based on facts that would cause a reasonable person in a similar position to believe, as a result of the communication or any observations made during that communication, the penitent has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the penitent; and (iii) the abuse or neglect does not arise out of the penitent’s attempt to have an abortion performed upon a child under eighteen years of age or upon a mentally retarded, developmentally disabled, or physically impaired person under twenty-one years of age without the notification of her parents. However, regardless of the circumstances outlined above, a clergyman is not required to report if disclosure of the communication would violate the sacred trust.

OK 12 Okla. Stat. Ann. §2505 Clergy: a minister, priest, rabbi, accredited Christian Science practitioner or other similar 10A Okla. Stat. Ann. functionary of a religious organization, or any §1-2-101(B)(1), (3) individual reasonably believed to be a cleric by the person consulting the cleric. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his or her professional capacity. Penitent holds the privilege, but the clergy must claim it on penitent’s behalf.

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State Code/Statute Summary

Mandatory reporting applies to “every person having reason to believe that a child under the age of eighteen (18) years is a victim of abuse or neglect.” The privilege is abrogated.

OR Or. Rev. Stat. § 40.260 Clergy: a minister of any church, religious denomination or organization or accredited Or. Rev. Stat. Christian Science practitioner who in the course § 419B.010(1) of the discipline or practice of that church, denomination or organization is authorized or accustomed to hearing confidential communications, and under the discipline or tenets of that church, denomination or organization, has a duty to keep such communications secret. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his or her professional character. Penitent holds the privilege and may waive it. However, even if the penitent consents, a member of the clergy may not be examined as to any confidential communication made to the member in the member’s professional character if, under the discipline or tenets of the member’s church, denomination or organization, the member has an absolute duty to keep the communication confidential. Clergy are mandatory reporters, but the privilege is not abrogated.

PA 42 Pa. C.S.A. § 5943 Clergy: a clergyman, priest, rabbi or minister of the gospel of any regularly established church 23 Pa. C.S.A. §§ 6311, or religious organization, except clergymen 6311.1 ministers, who are self-ordained or who are member of religious organizations in which members other than the leader thereof are deemed clergymen or ministers.

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State Code/Statute Summary

Protects information acquired secretly and in confidence while in the course of his duties. Penitent holds the privilege. Clergy are mandatory reporters, but the privilege is not abrogated.

RI R.I. Gen. Laws § 9-17-23 [This statute has two distinct sections] R.I. Gen. Laws § 40-11-3 Clergy: (1) member of the clergy or priest; or and 40-11-11 (2) duly ordained minister of the gospel, priest, or rabbi of any denomination. Protects: (1) any confession made to him or her in his or her professional character in the course of discipline enjoined by the church to which he or she belongs; and (2) any confidential communication, properly entrusted to him or her in his or her professional capacity, and necessary and proper to enable him or her to discharge the functions of his or her office in the usual course of practice or discipline. Penitent holds the privilege. Mandatory reporting applies to “any person who has reasonable cause to know or suspect that any child has been abused or neglected.” The privilege is abrogated.

SC S.C. Code Ann. § 19-11-90 Clergy: a regular or duly ordained minister, priest or rabbi. S.C. Code Ann. §§ 63-7-310; 63-7-420 Protects any confidential communication properly entrusted to him in his professional capacity and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline of his church or religious body. Penitent holds the privilege.

418 The Clergy-Penitent Privilege: An Overview

State Code/Statute Summary

Clergy are mandatory reporters. The privilege is partially abrogated. A clergy member (including Christian Science Practitioner or religious healer) must report except when information is received from the alleged perpetrator of the abuse and neglect during a communication that is protected by the clergy-penitent privilege.

SD S.D. Codified Laws Clergy: a minister, priest, rabbi, accredited § 19-13-16 to 18 Christian Science practitioner, or other similar functionary of a religious organization, or an S.D. Codified Laws individual reasonably believed so to be by the §§ 26-8A-3; 26-8A-15 person consulting him. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his professional character as spiritual adviser. Penitent holds the privilege but clergy can claim it on penitent’s behalf. Clergy are not mandatory reporters, but a “religious healing practitioner” is. The privilege is not abrogated.

TN Tenn. Code Ann. Clergy: No minister of the gospel, no priest of § 24-1-206 the Catholic Church, no rector of the Episcopal Church, no ordained rabbi, and no regular min- Tenn. Code Ann. ister of religion of any religious organization or §§ 37-1-605(a) and denomination usually referred to as a church, 37-1-614 over eighteen (18) years of age. Protects any information communicated to that person in a confidential manner, properly entrusted to that person in that person’s professional capacity, and necessary to enable that person to discharge the functions of such office according to the usual course of that person’s practice or discipline, wherein such person so

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State Code/Statute Summary

communicating such information about such person or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted. Penitent holds the privilege and may waive it in open court or by affidavit. Mandatory reporting applies to “any person.” The privilege is abrogated.

TX Tex. R. Evid. 505 Clergy: a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar Tex. Fam. Code Ann. functionary of a religious organization or an §§ 261.101(c); 261.202 individual reasonably believed so to be by the person consulting with such individual. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his professional character as spiritual adviser. Penitent holds the privilege, but clergy can claim it on penitent’s behalf. Mandatory reporting applies to any person. The privilege is abrogated.

UT Utah R. Evid. 503 Clergy: a minister, priest, rabbi, or other similar functionary of a religious organization or an Utah Code Ann. individual reasonably believed so to be by the §§ 62A-4a-403(2), (3) person consulting with such individual. Protects any confidential communication to a cleric in the cleric’s religious capacity and necessary and proper to enable the cleric to discharge the functions of the cleric’s office according to the usual course of practice or discipline. Penitent holds the privilege.

420 The Clergy-Penitent Privilege: An Overview

State Code/Statute Summary

Mandatory reporting applies to “any person” and the privilege is partially abrogated. Clergy are not required to report with regard to any confession made to the clergyman or priest in his or her professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs if: (1) the confession was made directly to the clergyman or priest by the perpetrator; and (2) the clergyman or priest is, under canon law or church doctrine or practice, bound to maintain the confidentiality of that confession. If the information is obtained from any source other than confession of the perpetrator the clergy must report.

VT Vt. R. Evid. 505 Clergy: a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or 33 Vt. Stat. Ann. religious body, accredited Christian Science § 4913(h), (i) practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his professional character as spiritual adviser. Penitent holds the privilege, but clergy can claim it on penitent’s behalf. Clergy are mandatory reporters unless the information is received in a communication which is: (1) made to a member of the clergy acting in his or her capacity as spiritual advisor; (2) intended by the parties to be confidential at the

421 FDCC Quarterly/Summer 2015

State Code/Statute Summary

time the communication is made; (3) intended by the communicant to be an act of contrition or a matter of conscience; and (4) required to be confidential by religious law, doctrine, or tenet.

VA Va. Code Ann. Clergy: a regular minister, priest, rabbi, or ac- § 8.01-400 (civil) credited practitioner over the age of eighteen years, of any religious organization or denomi- Va. Code Ann. nation usually referred to as a church. § 19.2-271.3 (criminal) Protects any information communicated to him Va. Code Ann. in a confidential manner, properly entrusted §§ 63.2-1509; 63.2-1519 to him in his professional capacity and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted. The privilege is held by the clergy and can be waived only at their sole discretion. Clergy are not mandatory reporters if the clergy- penitent privilege applies or the information is required by the doctrine of the religious organization or denomination to be kept in a confidential manner.

WA Wash. Rev. Code Clergy: a member of the clergy, a Christian Sci- § 5.60.060(3) ence practitioner listed in the Christian Science Journal, or a priest. Wash. Rev. Code § 26.44.030(1) Protects any confession or sacred confidence made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.

422 The Clergy-Penitent Privilege: An Overview

State Code/Statute Summary

The privilege is held by the penitent. Clergy are not mandatory reporters, and the privilege is not abrogated.

WV W.Va. Code § 57-3-9 Clergy: a priest, nun, rabbi, duly accredited Christian Science practitioner or member of W.Va. Code §§ 49-6A-2; the clergy authorized to celebrate the rites of 49-6A-7 marriage. Protects any confession or communication, made to such person, in his or her professional capacity in the course of discipline enjoined by the church or other religious body to which he or she belongs; and any communication made to such person, in his or her professional capacity, by either spouse, in connection with any effort to reconcile estranged spouses. The privilege is held by the penitent. Clergy are mandatory reporters and the privilege is abrogated.

WI Wis. Stat. § 905.06 Clergy: a minister, priest, rabbi, or other similar functionary of a religious organization, or an Wis. Stat. § 48.981(bm) individual reasonably believed so to be by the person consulting the individual. Protects confidential communications (made privately and not intended for further disclosure) to a clergyman in his or her professional character as spiritual adviser. Penitent holds the privilege, but clergy can claim it on penitent’s behalf. The privilege does not apply to observations or information a member of clergy is required to report as suspected or threatened child abuse under s. 48.981(2)(bm).

423 FDCC Quarterly/Summer 2015

State Code/Statute Summary

Clergy are mandatory reporters, and the privilege is partially abrogated. A member of the clergy is not required to report information that he or she receives solely through confidential communications made to him or her privately or in a confessional setting if he or she is authorized to hear or is accustomed to hearing such communications and, under the disciplines, tenets, or traditions of his or her religion, has a duty or is expected to keep those communications secret. Those disciplines, tenets, or traditions need not be in writing.

WY Wyo. Stat. Ann. Clergy: a clergyman or priest. § 1-12-101(a)(ii) Protects confessions made to him in his profes- Wyo. Stat. Ann. sional character if enjoined by the church to §§ 14-3-205; 14-3-210 which he belongs. It is not clear who holds the privilege. Mandatory reporting applies to “any person who knows or has reasonable cause to believe or suspect that a child has been abused or neglected.” The privilege is not abrogated.

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