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.