Know the law before you confess confidential information to your clergyperson

www.bethyam.orgOctober 26, 2013 

20101214 BALANCINGACT

What you confess to your clergyperson might not be privileged information when it comes to the justice system.

LARRAURI — McClatchy-Tribune News Service

Is confidential information you share with your clergy, in fact, confidential?

The answer, in short, is no.

When a matter reaches the courts, judges can limit the rights of the parishioner and the clergy to invoke the confidentiality privilege -- especially if the clergyperson refuses to testify.

Church and English common law developed guidelines on clergy-penitent confidentiality long ago. The single source of it all goes back to the Torah in the Book of Numbers chapter 5 verses 5-7: "And the Lord spoke to Moses saying: When a man or woman shall have committed any of all the sins that men are wont to commit ... they shall confess their sin and restore the principal itself, and the part over and above, to him against whom they have sinned."

From that point, Christianity established the doctrine that confession of a mortal sin was critical for salvation. The clergy or the priest was the instrument to hear the confession and provide forgiveness. In English common law many of the officials in government were bishops and priests, so it was unavoidable that church law would overlap with common law. By the 11th century documents showed that confessions to priests were to be kept secret and protected by the common law.

After the Protestant Reformation, the Anglican Church accepted confession, thereby protecting the privilege of the clergy-penitent relationship. Yet in the aftermath of the Reformation, British law reduced the clergy's right to refuse to testify in courts to the extent that -- in modern day England -- clergy do not enjoy this privilege anymore.

In the United States, the first case to explore this issue was People v. Phillips in 1813, in which a Catholic priest refused to divulge information he considered to be privileged. The court ruled in his favor because it reasoned that forcing him to reveal the information would have been a violation of the priest's First Amendment right to the free exercise of religion.

But four years later in People v. Smith, a New York court forced a Protestant minister to reveal confessional information because the Protestant minister was not bound by the seal of the confessional like a Catholic priest.

Seeing the problem ahead of them with the diversity of religions in America, the New York legislature enacted in 1828 the nation's first clergy confidentiality law, which said, "No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character."

The Supreme Court weighed in on the matter in Totten v. the United States in 1875, when ruling on the subject of national security and confidentiality issues, the justices wrote: "Suits cannot be maintained that would require a disclosure of the confessional ..."

From that point on, the principle of clergy-penitent confidentiality was established in federal law. At the same time, the courts also tried to diminish the clergy's right to privileged information until 1955 when a great campaign began to enshrine the clergy-penitent privilege. Today, 47 states have some sort of law protecting the right of clergy to retain privileged information on behalf of their parishioners.

Most courts and legislatures understand the need and benefit of protecting this privilege for religions and clergy who do not have a theological doctrine of confessions. The reasons reflect a deep-seated respect for religion in our society and the role it serves for protecting the welfare of our citizens. This law also protects the justice system, which would surely receive severe protest against judges if they were to abolish it. Some scholars argue that abolishing the confidentiality clause may violate the clergy's First Amendment right even though other constitutional experts are divided on this question.

It only gets more complicated when the courts tackle such questions as definitions of legitimate clergy and penitent. Other questions attempt to define the circumstances in which privileged information is shared with clergy in order to determine if it is considered to be protected. What if a person, for example, was planning to hurt another person or confessed to a violent crime to their clergyperson? Would a clergyperson be obligated to respect that privilege or be required to report it to the police and violate that previous commitment? What if the penitent is not a member of the religious institution -- or even of the same religion -- and seeks counseling? Is that relationship and the information between the person and the clergy considered confidential?

These questions indicate that while our judicial system and our society at large respect the idea of clergy-congregant confidentiality, it is not absolute. The same legal questions regarding the limitations of privileged information also are being litigated in the courts regarding physicians, psychotherapists and attorneys.

So one must be careful to ask and discuss this issue with one's clergy before bringing up the details of an issue, especially if it might involve the possibility of litigation.

Similarly, clergy also have a responsibility to be aware of the laws of their respective states on these issues and be prepared to inform the congregant who assumes that whatever they say is automatically protected. It may, to the contrary, turn out not to be the case.

Columnist Rabbi Brad L. Bloom is the rabbi at Congregation Beth Yam on Hilton Head Island. He can be reached at 843-689-2178. Read his blog at www.fusion613.blogspot.com and follow him at twitter.com/rabbibloom.

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