Clergy confidentiality

[rckwar]

In California, What laws govern the clergy in their divulging confidential matters when being subpoened into court in a civil case. Also a criminal case.

 

[I AM ALWAYS LIABLE]

In California, What laws govern the clergy in their divulging confidential matters when being subpoened into court in a civil case. Also a criminal case.

My response:

This is an excellent, and rare, question . . . so, I would like to thank you for writing to the Boards.

Absent a waiver (Ca Evid § 912), both clergy and penitent--whether or not parties to the action--have a privilege to refuse to disclose a "penitential communication." [Ca Evid §§ 1033, 1034]

However, only the penitent may assert the privilege to prevent others from disclosing the protected communication. [Ca Evid § 1033]

a. Clergy-penitent relationship: The privilege operates only as to "penitential communications" (below) between:

· A member of the clergy . . . meaning a priest, minister, religious practitioner "or similar functionary of a church or of a religious denomination or religious organization" (Ca Evid § 1030);

and

· A person who has made a penitential communication to a clergy (Ca Evid § 1031).

b. "Penitential communication": A "penitential communication" for purposes of the privilege is a communication made in confidence, in the presence of no third persons so far as the penitent is aware, to a member of the clergy who, incident to the tenets of his or her religious denomination, is authorized or accustomed to hear such communications and has a duty to keep such communications secret. [Ca Evid § 1032]

Thus, like the attorney-client, physician-patient and psychotherapist-patient privileges, the clergy-penitent privileges only protects confidential communications in the course of the protected relationship. [See Ca Evid § 1032, Comment--privilege not limited to "confessions" in denominational sense]

(1) Confidentiality presumed: Communications made in the course of a clergy-penitent relationship are presumed confidential. [Ca Evid § 917]

(2) Penitential intent: The penitent must intend to make a confidential communication to a clergy in the course of his or her religious practices/beliefs. [People v. Johnson (1969) 270 Cal.App.2d 204, 75 Cal.Rptr. 605, 607--D's nonpenitential statements to street-clothed clergy not protected where clergy and D were strangers]

(a) Pastoral counseling: The privileges do not protect any and all "confidential" conversations with the clergy. Where the conversation is not of a religious nature, there is neither the requisite penitential intent nor sectarian duty to keep the information secret, and the privileges do not apply. [People v. Edwards (1988) 203 Cal.App.3d 1358, 1364, 248 Cal.Rptr. 53, 57--embezzler who sought priest's help to prevent church checks from bouncing not communicating with priest as "penitent seeking God's forgiveness and absolution"]

(3) Knowing presence of third persons defeats privilege: The clergy-penitent privileges recognize no "reasonably necessary" disclosures: i.e., communications between clergy and penitent are not privileged if, to the penitent's knowledge, they are made in the presence of third persons. [Ca Evid § 1032]

(a) Eavesdroppers: On the other hand, penitential communications intercepted by eavesdroppers (persons as to whom penitent is unaware) remain protected. [Ca Evid § 1033]

(4) Authorization to hear penitential communications: Communications are not protected as "penitential" if made to a person neither authorized nor accustomed to hearing same by the discipline or practice of his or her denomination or religious organization. [Ca Evid § 1032; see People v. Thompson (1982) 133 Cal.App.3d 419, 426, 184 Cal.Rptr. 72, 76--D's confession to person who "studied some teachings" of Church of Scientology not privileged]

Independent privileges; waiver issues: Sections 1033 and Sections 1034 establish independent privileges for the penitent and the clergy, respectively. Thus, the clergy may claim the privilege, even if the penitent has waived it. [See Ca Evid § 1034, Comment--"the law will not compel a clergyman to violate--nor punish him for refusing to violate--the tenets of his church which require him to maintain secrecy as to confidential statements made to him in the course of his religious duties"]

And, conversely, the penitent may prevent the clergy from disclosing a protected communication even though the clergy is willing to waive his or her privilege. [Ca Evid § 1033]

(1) Clergy not bound to assert privilege on penitent's behalf: The clergy is under no legal duty to claim the privilege on the penitent's behalf. Thus, a penitential communication is admissible evidence if the clergy fails to claim the privilege and the penitent is now deceased, incompetent, absent or otherwise fails to assert his or her privilege (Ca Evid § 1033). [See Ca Evid § 1034, Comment--"The extent to which a clergyman should keep secret or reveal penitential communications is not an appropriate subject of legislation; the matter is better left to the discretion of the individual clergyman involved and the discipline of the religious body of which he is a member"]

Good luck to you, and thanks again for the question.

IAAL