The Priest-Penitent Privilege, or confessional privilege, has been a rule of law literally for thousands of years. Court decisions addressing it are rare and federal court decisions discussing it are of that tiny group the rarest. So, in the immortal words of Janine Melnitz, we can in this post say, “We got one!”

The case of Stevens v Brigham Young University-Idaho, Memorandum and Order (USDC Idaho, 2018) is an ongoing lawsuit about an alleged sexual predation upon a vulnerable student by a professor. The professor was deceased by the time the court proceedings reached the point at which the order discussed was issued and his estate settled with the plaintiff on undisclosed terms. The court’s opinion consumes fifty pages, mostly about attorney – client privilege and other discovery issues but starting on the thirteenth page was one of those rare discussions about the federal common law of priest – penitent privilege. The Court also allowed the parent denomination to intervene in the case to protect its claims of privilege because the church school defendant may not have been able to adequately assert the privileges. Another odd thing was that it was the defendant church school which was challenging Plaintiff’s assertion of the Priest-Penitent Privilege.

First, the court had to decide whether Idaho’s law on the privilege would apply or whether federal common law would apply because there is no federal statutory privilege for the confessional. The court held state law did not apply because the plaintiff’s theories of recovery raised federal question jurisdiction. Because state law was not the decisional framework for most of the claims in the case, state law privilege would not be applied as it might in a diversity jurisdiction case in which the federal court would be applying state law to the claims. Because of the lack of federal case law on the privilege, the federal court in this case relied on law from a circuit not its own. The court quoted the United States Court of Appeals in the Third Circuit’s opinion in In re Grand Jury Investigation, 918 F2d 374 (3rd Cir. 1990). From the Third Circuit came the “elements” of the privilege: “The privilege applies to protect communications made (1) to a clergyperson, (2) in his or her spiritual professional capacity (3) with a reasonable expectation of confidentiality.” The Third Circuit relied upon the 1973 Proposed Federal Rules of Evidence to define “clergyman,” “confidential,” and “who may claim the privilege.” However, those terms were not defined in any special way so for this post we will lighten the load by omitting them. However, the court did proceed to graft the Ninth Circuit’s (Idaho is in the 9th Circuit) “doctrine of implied waiver” onto the priest-penitent privilege. Implied waiver is a general doctrine that applies to all privileges and arises when the plaintiff’s claim necessarily puts the privileged information at issue in the case such that to deprive the other party of the information would result in an unfair trial. In bodily injury claims, for example, plaintiffs waive their right to medical record confidentiality although the extent of the waiver is often hotly contested.

In this case, because the Plaintiff was not trying to put forward a claim that implicated two instances of privileged confessional communication, the court enforced the privilege. Likewise, of course, the Plaintiff was foreclosed from putting forward the claim that would implicate the privileged confessional information. However, the Court applied the privilege on an instance by instance basis and ordered disclosure in the instance in which the Plaintiff “waived” the privilege by telling non-clergy third parties about the content details of the confessional conversation. In another instance the Court did not reach whether certain “lay ministers” qualified as clergy so that the privilege could be invoked because of waiver by disclosure to a third party.

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