Confidentiality

What is the duty of confidentiality as it pertains to ministers?

The concepts of privilege and confidentiality are intimately connected.  Privilege prevents the compelled disclosure of communications, while the duty of confidentiality pertains to the voluntary disclosure of communications.  The duty of confidentiality refers to the general expectation and obligation not to reveal the substance of communications shared in confidence.  If a member of the clergy were to disclose a confidential communication, it could be alleged that the minister was negligent and failed to meet the standard of care, akin to malpractice.  This negligence arises from an implied agreement between the parties, based on their relationship, that the information would remain confidential.  It would further be argued that the role of a minister inherently includes a professional duty to maintain such communications in confidence.

Historically, the duty of ministers to preserve confidences was viewed as moral rather than legal.  However, in recent years, some ministers have faced lawsuits for divulging confidences.  The clear trend now is the recognition that without an enforceable expectation of confidentiality, few individuals would be willing to accept their organization’s invitation to disclose sensitive and sometimes embarrassing personal information in the pursuit of guidance and counseling.  This enforceable expectation is essential for maintaining the integrity and effectiveness of spiritual counseling.

Why do we have the clergy–penitent privilege?

Throughout history, society has acknowledged the significance of permitting individuals to converse privately with their clergy.  Today, every domestic jurisdiction, along with many foreign jurisdictions, recognizes this privilege.  Courts and legislatures have asserted that society gains when people have access to spiritual counseling, advice, and guidance.  The value of such spiritual communication would be significantly diminished if the communicant had to fear that their disclosures might be revealed to others.  Without a robust privilege, individuals would be less open about their worries and problems, clergy would be less free to offer advice, and the efficacy of spiritual counseling would be compromised.  Consequently, most courts will not compel either the person who received spiritual counseling or the clergy who provided it to disclose the contents of their discussions, except under limited circumstances.  This privilege holds even if the information sought might otherwise be relevant and admissible in a court proceeding.

Each jurisdiction interprets the limitations on the clergy–penitent privilege differently, but the primary questions to determine if a communication will be considered privileged are whether (1) it was given in a confessional setting and (2) it addressed spiritual matters or concerns.  Courts have declined to recognize certain communications as privileged if they were made in a setting where the individual did not appear to be seeking spiritual guidance or was discussing matters unrelated to spiritual counseling.  There are no specific or formal requirements to establish the privilege, but the individual’s intent in speaking to the clergy plays a crucial role.

What qualifies as a privileged communication?

Privileged communications can encompass both verbal and nonverbal forms.  However, not all interactions between an individual and a minister are eligible to invoke this privilege.  Generally, rules of evidence and state legislatures have uniformly defined a protected communication as one that is confidentially made to a minister acting in their professional capacity.

The laws governing the clergy–penitent privilege differ from state to state.  Typically, statutes stipulate that the communicant must have had a reasonable belief at the time of the communication that they were speaking with an actual member of the clergy, that the clergy member was acting in a confidential professional capacity, and that the communication was penitential in nature (i.e., akin to a confession).  Additionally, the communication must be pursuant to a religious duty as defined by the church’s doctrine.

The privilege that protects confidential ministerial communications can be waived if the same information is disclosed to a third party.  Further, the individual who made the communication may voluntarily waive the privilege.  In most jurisdictions, however, the privilege cannot be waived by the clergy without the consent of the communicant.

Typically, protected communications are made to clergy members, priests, and ministers.  In some instances where statutes allow for interpretation, courts have extended the privilege to include lay religious counselors who are necessary within a religious organization due to the high volume of people requiring counseling.  Additionally, in certain cases, the privilege has been extended to counselors in nonprofit organizations that are not specifically religious or affiliated with a religious organization.  Nevertheless, the privilege has been found not to apply in some jurisdictions under certain circumstances, such as communications made to nuns, deacons, and elders in the church, lay religious counselors, or non-ordained self-proclaimed ministers.

To whom does the clergy–penitent privilege belong, and how does one assert it?

The clergy–penitent privilege can be articulated in two ways: either (1) that the privilege belongs to a party, or (2) that a party has the right to claim the privilege.  Regardless of the phrasing, in the majority of states, both the individual who made the penitential communication (the counselee) and the clergy member, priest, or rabbi who received the communication (the counselor) are entitled to claim the privilege.  Nevertheless, the counselor is not permitted to independently assert the privilege if the counselee elects not to do so; the privilege can only be claimed by the counselor on behalf of the counselee.  Should the counselee waive the privilege and agree to testify, the counselor cannot assert the privilege.

In some states, only the counselee is allowed to assert the privilege, excluding the counselor from doing so.  Conversely, in other states, the counselor may assert the privilege independently of the counselee.  Given the variability in statutes across different states, it is imperative for religious organizations to thoroughly review the relevant statutes to understand if, when, and how the privilege may be asserted.  At Middlebrook | Group, we are fully prepared to assist your organization with matters that could impact its future.

It is crucial to delineate the appropriate circumstances under which the privilege should be asserted.  The privilege should be asserted in a court of law or during a deposition when there is a request to disclose communications protected by the privilege.  In criminal investigations and prosecutions, the privilege may be employed to challenge the legitimacy of charges if it was nullified prior to invocation and relied upon by the state.  The privilege can be invoked in two main ways: first, an attorney may object to questions posed to the counselee or counselor if the response would reveal privileged communications.  Second, if no objection is raised, the counselor can simply state a preference not to answer the question on the grounds that the response would divulge privileged information.