Category: Confessional Privilege


The amount of intensely personal information safely distributed to the “church family” is not clear in all cases and jurisdictions.  In some jurisdictions, the “confessional privilege” is recognized and not in others.  In some jurisdictions, mandatory child abuse reporting statutes make the extent of confessional privilege unclear.  Can the pastor or priest inform the hierarchy of a confession?  In congregational churches, is there a “confessional privilege” at all and does it extend beyond clergy?  If a small group ministry is involved in drug, alcohol, or marriage counseling, does the “confessional privilege” extend to such a group?  If a member of a church is accused of child abuse, to what extent must other parents be informed or warned, and can they be warned of allegations not confirmed judicially?  Can warnings be given to non-members at all?

In Koster v Harvest Bible Chapel, Slip Op. (Iowa, 2021), the Supreme Court of Iowa affirmed dismissal by the trial court of breach of fiduciary duty and defamation claims against a church and pastor.  Allegations of child abuse were made by a wife against a husband on multiple occasions.  However, subsequent investigations by law enforcement did not confirm the allegations.  The family court hearing divorce proceedings awarded “physical care of the children” to the husband.  Before the family court decision, however, the pastor circulated email to various church leaders and church members, and one non-member that was active in the church, regarding the wife’s allegations and recommended staff, members and the non-member to refrain from accepting the husband’s version of events.  The trial court held the circulation of the emails to staff, members and the non-member fully involved in the church did not constitute publication sufficient to sustain a defamation claim.  The trial court also held there were no facts presented that the pastor knew the allegations were false or recklessly disregarded the truth.  The defamatory statements were potentially linked to internal church disciplinary processes.  Some of the disclosures were by the wife and some arose in small group marriage counseling sessions.  The trial court also held that the fiduciary duty claim required intrusion into church internal management to determine the parameters of such a duty and whether it was breached by the pastor.  The Ecclesiastical Abstention Doctrine, the Court held, deprived the Court of jurisdiction to make such an inquiry into internal church management.

The case reported was alluring because a non-member was informed.  The exact extent of the involvement of the non-member in the church was not specified but the inference in the opinion was that it was sufficient to reach the need-to-know plateau.  Also, the opinion had to deal with the confidentiality that could be expected from small group counseling.  The opinion seemed to indicate little confidentiality could be demanded.  The Court expressly noted the participants did not sign a confidentiality agreement.  The lesson might be that small group members must expect candor not to be cloaked in confidentiality.  In other words, what is revealed in church may not be cloaked by privacy.


The most expensive components of a lawsuit revolve around the briefing phases necessitated by motions, discovery and discovery disputes, and trial. Discovery, which includes written questions under oath in the form of interrogatories and written depositions, actual forensic depositions before court reporters, and document searches and production. In church litigation, due to First Amendment issues briefing is usually the predominate expense. Also, the matters at issue are often non-economic, or economically fragile, and the parties quickly reach financial exhaustion. Financial exhaustion can cause abandonment of even a good claim and certainly makes non-economic claims, battles over principal, increasingly less attractive. One of the cost elements may be that the money spent on an expert witness may not result in useable testimony. FRCP Rule 702, sometimes referred to as a Daubert challenge because of the case from which the modern application of the rule for the most part emerged, requires a court to act as a gatekeeper to preclude “junk science” and opinions without material basis from contaminating the trial.

In Stevens v Brigham Young University – Idaho, Memorandum Decision and Order (D. Idaho, September 24, 2019), the federal trial court issued another decision regarding discovery disputes. In our May 4, 2019 post we reported the court’s decision regarding certain discovery disputes which included: whether the denomination and the church university had a common interest attorney client privilege, the university’s demand for a psychiatric examination of the Plaintiff because of her claim of emotional injury, and the university’s demand the Plaintiff waive the priest – penitent privilege. In May the court did not find evidence of a common interest, permitted the psychiatric examination, and refused to abate the priest – penitent privilege. In the September order, the court held the denomination, which was a third-party intervenor and not the defendant, was still subject to discovery. In a role reversal, instead of protecting her priest – penitent privilege, the Plaintiff waived it to force “an ecclesiastical leader” of the denomination to answer deposition questions but the denomination sought to impose it to bar the deposition. The Court held the priest – penitent privilege in this situation could only be imposed by the penitent, the Plaintiff, and not the church denomination. The Plaintiff demanded to know the precise amount of financial support the university received from the denomination, but this request was denied by the Court because the university and the denomination stipulated the denomination would pay any judgment against the university making precise answers irrelevant. However, the Court did order the denomination to produce copies of notices to church members of the denomination’s financial support to the university. Also, a friend and confidant of the Plaintiff was prepared for deposition by the denomination and university and they also apparently selected and paid for the friend’s lawyer. The Plaintiff sought discovery of the engagement of the lawyer and the source of funds to pay the lawyer, both of which the Court permitted for whatever impeachment value it might have. Plaintiff’s expert was also vetted by the Court and the expert’s testimony limited to his studies of the denomination’s hierarchal structure. The expert was prohibited from issuing an opinion in Court testimony that the hierarchal structure of the denomination, or its religious teachings, caused the Plaintiff to be sexually manipulated and abused by a university professor. Though this is our second report on this case, it does not appear to be at an end.

The lesson for denominations is that intervention in litigation in which a subordinate church or parachurch organization is a party may subject the denomination to the broader discovery permitted against parties. Also, the Court was applying the newest version of the federal priest – penitent privilege, which can only be asserted by the priest on behalf of the penitent but not on behalf of the priest. Further clash with certain denominations can be expected. The last lesson is about expensive experts in church litigation. Even if they are allowed to report on studies the expert conducted or wrote about the denominational structure or polity, making the inferential leap to causation of the specific harm alleged will likely be deemed speculative or not within the scope of the expert’s credentials.