Confessional privilege is not particularly in doubt in most states except at the outer boundaries. Typically, the boundaries waiver among the states depending on the role of the person claiming the confessional privilege. Priests, ministers, rabbis, pastors and other clergy are usually identifiable by licensure, ordination, or church governance documents that describe their duties as ecclesiastical. But, when non-clergy exercise some of the duties ordinarily thought of as ecclesiastical, whether the confessional privilege extends so far is unclear in most states and in others clearly does not apply.
In Caekaert v Watchtower Bible and Tract Society, et al, Order Motion to Compel Hardin Congregation’s Subpoena, (D. Mont., Billings Div., 2021) the federal trial court had before it a motion to compel various entities including the local church to comply with a Subpoena. The Plaintiff’s claim was that she was subjected to serial child sexual abuse by two members of the local church. The Plaintiff complained to church leaders, but because she could not produce a second witness, her complaint could not proceed. Meanwhile, the sexual abuse allegedly continued. In the lawsuit that followed, Plaintiff sought copies of reports by the local church Elders both internally and to the denomination. The Defendants objected to the Subpoena arguing that members were promised that confession of sin to Elders would remain confidential. Because Montana was a mandatory reporting statue state, the tension with the confessional privilege was inevitable. The trial court enforced the subpoena by requiring that the documents be submitted for review by the Court for a determination of whether the confessional privilege applied to any one of or all of the documents. The trial court held merely labeling the documents sought as “confidential” did not make them cloaked by the confessional privilege. Further, the court would not extend the confessional privilege to “nonclerical church member statements.”
Ecumenical churches will face these questions regarding the scope of the confessional privilege that may be asserted by the diaconate. Evangelical churches also often have “Elders,” and may describe their office or duties in governance documents sufficiently to trigger a confessional privilege. Questions also will arise when recognized clergy counsels with a member and present also is a member of the diaconate or an “Elder.” Unless the statutes defining confessional privilege or mandatory reporting are amended to avoid conflicting duties, these questions will persist in arising.