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.
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.