What is Clergy/Penitent Privilege?

A priest, a rabbi, and a bishop walk into a bar exam...

the examiner says, "What is this, some kind of joke?"


AKA: clergyman-communicant

or

ecclesiastical privilege












Clergy/Penitent

Privilege

makes clergy members

unable to testify in court

to confidential communication


unless communicant

waives this right (Donley, 2018)

Privileges protect relationships

  • the law considers important (Donley, 2018)

  • assuming society also considers the relationships' protection important


Clergy/penitent privilege protects

  • (1) confidential communication between "a (2) minister of an organized church" and (3) a person seeking his/her spiritual guidance (Donley, 2018)

  • not to enable bad behavior but to allow trust to grow between the parties

  • presumably because clergy's spiritual guidance benefits society by helping people make more moral choices

CLICK TERMS

BELOW

FOR DETAILS

(1) confidential

Meant only for those participating in the communication.

(2) minister

  • Usually does not apply to assistants and teachers or charity-group leaders

  • Some states require the minister to be "ordained"

  • Some states apply the privilege as long as the communicant believes the person they communicated with is a clergy member

(Donley, 2018)

(3) a person

Presence of multiple clergy members would not waive the privilege, but the presence of a non-clergy third party does.

Group meeings and CCed emails are examples of communications that include third parties, thereby nullifying the privilege.

(Donley, 2018)

Tensions inherent in this privilege:

  • Federal Rules of Evidence 501 says privilege should be applied according to "reason," "experience," and the history of "[t]he common law" (Donley, 2018).

State histories and laws vary, so clergy/penitent privilege varies from state to state.

  • Because clergy/penitent communication often includes confessions of guilt for wrongdoing, some people question the wisdom of preserving the privilege, saying that it creates a loophole for mandatory reporting of abuse. Proponents of this view say that clergy members should help people make moral choices but not hide immoral choices.

How are these tensions playing out in Utah?

Under current statute, Utah clergy members are not required to report abuse, even when the victims are children (Winslow, 2019). In 41 states, clergy members are required to report known or suspected child abuse (AGFinancial, 2022).

In 2020, Rep. Angela Romero, D-Salt Lake City, introduced a bill to remove clergy/penitent privilege as an exception to the mandatory reporting of child abuse codified in section 62A-4a-403 (Romero et al., 2020). The bill did not pass.

References

AGFinancial (2022). Church Liability: Clergy Privilege, Confidentially, and Reporting. https://www.agfinancial.org/resources/article/church-liability-clergy-privilege-confidentially-and-reporting

Donley, R. M. (2018). Criminal Evidence. Pearson.

Romero, A., Evans, E. A., Lence, C. T. (2020) H.B. 90 Child Abuse Reporting Amendments. Utah State Legislature. https://le.utah.gov/~2020/bills/static/HB0090.html

Winslow, B. (2019, July 16). A Utah lawmaker wants to force clergy to report confessions of child sex abuse to police. Fox 13 Salt Lake City. https://www.fox13now.com/2019/07/16/a-utah-lawmaker-wants-to-force-clergy-to-report-confessions-of-child-sex-abuse-to-police/?utm_source=tbiqryvirel&utm_medium=rznvy