Most of the reported cases have addressed only whether the Penitent Privilege, sometimes labeled otherwise, such as the Confessional Privilege, applies to a particular communicant or to a church leader that is not clergy. Once the Penitent Privilege attaches, it is unusual for it to be revisited.
In Church of Latter-Day Saints v Cardinal, Slip Op. (Az. App. 2022), the claimants in the underlying case, in their claim for damages for the abuse, sought a copy of the church disciplinary file and testimony from one of the church leaders present during the disciplinary hearing. The communicant had been excommunicated by the church. The trial court held the privilege was waived by the communicant because he posted video of his abuse of his children on social media. The communicant was arrested, may have confessed to law enforcement, but committed suicide. The trial court ordered the church leader to testify for reasons that were unclear. It could have been because the church leader’s title was unclear or changed. In any event, the appellate court vacated the trial court’s order. The appellate court held the communicant may have confessed to police and placed video of the despicable acts on social media, but the communicant was not shown to have placed the contents of his penitent confession in the public sphere, and therefore the privilege was not waived. The appellate court held the record did not support the trial court’s conclusion the church leader did not qualify as clergy or a similarly empowered church leader under Arizona’s Penitent Privilege statute.
The reported case is specific to the Arizona Penitent Privilege statute and can be used as authority in any other state only with caution. But, it does suggest a reading of such a statute that may not as yet have occurred to a court in another state because the issue has not been present. Nevertheless, no waiver of confessional privilege should ever be assumed effective by any church leadership to be effective without a written opinion from church counsel. Generally, clergy cannot waive the statutory privilege.
Setting aside for this report the idea that revealing a member’s sin from the pulpit might be insensitive or even cruel, the question presented is whether it is actionable in a lawsuit. For non-church entities like businesses and government, unless there is a duty to speak, and even if truth was a valid defense, the conduct might still be sufficiently outrageous to constitute a Tort of Outrage claim, in those states that have such claims.
In Hullibarger v Archdiocese of Detroit, Slip Op. (Mich. App. 2021) the Plaintiff’s child committed suicide. (The opinion does not disclose whether the child was an adult or a minor.) The family did not disclose this outside of the family and a few close friends. Somehow, the priest learned of it and at the funeral service revealed it during the homily. The priest proceeded to “preach about suicide as a grave sin and specifically how it endangered the immortal soul of the plaintiff’s son.” The Plaintiff complained to the Archbishop but the Archbishop would not grant an audience. The Plaintiff sued alleging infliction of emotional distress, misrepresentation, invasion of privacy and claims against the church for negligent supervision. The trial court dismissed the case under the Ecclesiastical Abstention Doctrine. The appellate court affirmed.
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.
There is in some states a conflict between confessional privilege and statutes that require clergy to report suspected child abuse. The obvious conflict is between the religious duty of confessional secrecy and the legal duty to report child abuse. In some states failure to report suspected child abuse is a crime. In some states, the confessional privilege is also preserved by statute and the question presented by those statutes is who may claim the confessional privilege? Is the confessional privilege capable of being invoked only by “recognized” clergy?
In Ivy Hill Congregation v Pennsylvania, Slip Op. (Penn. 2021), the church sought a declaratory judgment that “Elders” of the church could invoke confessional privilege. Clergy were specifically named as mandatory reporters in the child abuse reporting statute. The church plaintiff did not have “clergy.” Rather, male members that were deemed qualified were nominated in the local church but had to be confirmed by an “Elder” responsible for all of the churches in a designated area to be Elders. The Supreme Court of Pennsylvania overruled the state’s various objections to the declaratory judgment action. However, the Court refused to decide the central question of whether “Elders” were “clergy” as anticipated by the mandatory reporting statute or the confessional privilege. The Court sent the case back to the trial court for development of a factual record that might answer whether “Elders” qualified under either.
Many independent congregations with no denominational hierarchy may face similar questions. In such churches, the ordination of the clergyman comes with the first paycheck and ends with the last. Some have formal religious training and many do not. Many confessional privilege statutes exclude “lay” or “self-appointed” clergy. The church governing documents may be the only source of authority describing the role and authority of the pastor or minister sufficiently to trigger the confessional privilege or the mandatory reporting statute, or both. Independent churches should engage counsel to consider the governing documents in the light of both types of statutes in those states that have them.