The Clergy-Penitent Privilege: An Overview 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). 385 FDCC Quarterly/Summer 2015 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 jurisdic- tions 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.”). 388 The Clergy-Penitent Privilege: An Overview 2. Definition of “confidential communications” After determining to whom the privilege applies, the next step is determining what com- munications are covered.