by Christian, civil trial attorney, RL Johnson
Occasionally, in pursuit of spiritual guidance, admonishment, or advice a congregant will admit to his or her pastor or minister that he or she committed a crime. Such a disclosure places the cleric in an extremely difficult legal, moral, and spiritual position. Namely, should the cleric notify the authorities? Or, is there an obligation to seek out and console the victim(s)?
The answer involves a two-part analysis, which is simple but certainly not easy. Part one involves ecclesiastical matters, which are beyond the secular law.[i] Part two involves constitutional protections and rules of evidence.
Part One: Ecclesiastical Matters. Ultimately, the bylaws, statement of faith, or governing document of the cleric’s church must guide his or her duty to congregants. Thus, where the rules of practice of ones’ denomination or the church’s governing documents are silent or ambiguous, a cleric must turn to church leadership for direction.
Part Two: Rules of Evidence. Every state in our Republic recognizes some iteration of the following general rule:
The Clergy-penitent Privilege aka the Cleric-Congregant Privilege
The following qoutes sum the state of the law concerning Cleric-Congregant Privilege.
“No minister of the gospel, or priest of any denomination
whatsoever, or duly accredited Christian Science practitioner,
shall be allowed to disclose any confessions made to him in
his professional character, in the course of discipline
enjoined by the rules or practice of such denomination.”[ii]
And,
“Any communications ... between members of the clergy
and the members of their respective churches …. are hereby
declared to be privileged and confidential when those
communications were necessary to … members of the clergy …
to serve as such member of the clergy[.]”[iii]
The privilege arose from the papal law of the Roman Catholic Church, under which the “seal of the Confessional” was sacrosanct and any priest’s violation of confidence was cause for excommunication.[iv] After the Protestant Reformation, however, the use of religious privileges in courts of law fell out of favor.[v]
Nonetheless, since 1813, American courts have recognized the privilege based on the First Amendment to the U.S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thus, “[b]y adopting a cleric-congregant privilege rule, the states and federal government have rendered unnecessary further inquiry into religious doctrine.”[vi]
Indeed, these old and sacrosanct rules are considered inviolable. Moreover, if an arrest results from a cleric breaking—for lack of a better term—the seal of the Confession, any evidence arising from this disclosure will be deem “fruit of the poisonous tree.”[vii] The fruit of the poisonous tree doctrine renders inadmissible in court any evidence that was obtained illegally. That is to say, if the evidential "tree" is tainted, so is its "fruit." The doctrine was established in 1920 by the United States Supreme Court in the case of Silverthorne Lumber Co. v. United States.[viii]
In other words, the penitent criminal would likely end up getting away with the crime precisely because the cleric broke the seal of the Confessional.”[ix]
For instance, in People v Bragg[x], where Defendant, Samuel Dale Bragg, was bound over for trial on a first-degree criminal sexual conduct charge, based in part on the testimony of Pastor John Vaprezsan, who shared with the district court defendant’s admission to having sexually assaulted defendant’s then nine-year-old cousin. The circuit court quashed defendant’s statement to the pastor under the cleric-congregant privilege, leading to the prosecution’s appeal. Because defendant’s communication to Pastor Vaprezsan was privileged and confidential under Michigan law,[xi] the Michigan Court of Appeals held that the circuit court properly excluded Pastor Vaprezsan’s statement as evidence at Defendant’s trial. This case illustrates how the cleric’s self-abrogation of the cleric-congregant privilege had the opposite effect of setting a child molester free.
When Does the Cleric-Congregant Privilege Apply?
The privilege applies where “a communication [is] made in confidence and for the purpose of obtaining spiritual guidance”[xii] or where a communication is “made in confidence and for the purpose of seeking or receiving religious guidance, admonishment, or advice . . . .”[xiii]
Does the Cleric-Congregant Privilege Thwart the Search for Truth?
Because of its purely religious foundations, the cleric-congregant privilege differs from other legal privileges that contain universally recognized exceptions. For instance, lawyers are able to disclose a confidential client communication, e.g.,“to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another[.]”[xiv] Additionally, most states required people working in professions that engage in regular contact with children—including clerics—to report suspected child abuse or neglect.[xv]
Nonetheless, apart from the Constitutional protection that the cleric-congregant privilege enjoys, the cleric-congregant privilege also promotes the social policy of fostering relationships of trust between the clergy and its congregants.
Consequently, while …
“The overwhelming majority of all rules of evidence
have as their ultimate justification some tendency to
promote the objectives set forward by the conventional
witness’ oath, the presentation of ‘the truth, the whole
truth, and nothing but the truth.’ . . . By contrast the rules
of privilege . . . are not designed or intended to facilitate
the fact-finding process or to safeguard its integrity.
Their effect instead is clearly inhibitive; rather than
facilitating the illumination of truth, they shut out the light.”[xvi]
Conclusion
As a trial lawyer, I do appreciate the dilemma posed by legally recognized privileges. That is to say, attorneys are also bound by the same rules of confidentiality. Specifically, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent[.]”[xvii]
That said, in the end, however, the question comes down to faith. I trust that all Christian pastors are well apprised that it is written that …
"If any of you lacks wisdom, let him ask God,
who gives generously to all without reproach, and
it will be given him.”
~ James 1:5 (ESV)
And,
"Give your servant therefore an understanding mind
to govern your people, that I may discern between
good and evil, for who is able to govern this your
great people?” ~ 1 Kings 3:9 (ESV)
However, clerics as “fishers of men” [Mark 1:17 and Matthew 4:19] are best situated to call a penitent sinner to repentance. Indeed, is it not also written that …
“Lying lips are an abomination to the Lord, but those who
act faithfully are his delight.” ~ Proverbs 12:22 (ESV)
And,
“Those of crooked heart are an abomination to the Lord,
but those of blameless ways are his delight.”
~ Proverbs 11:20 (ESV)
And,
“Repent, for the kingdom of heaven is at hand.”
~ Matthew 3:2 (ESV)
And, finally
“if my people who are called by my name humble
themselves, and pray and seek my face and turn
from their wicked ways, then I will hear from
heaven and will forgive their sin and heal their
land.” ~ 2 Chronicles 7:14 (ESV)
May God guide you in your deliberations.
ENDNOTES
[i] See, e.g., Dixon v. Edwards ( 05/22/02 - No. 01-2337 ) holding that A decision by a bishop, declining to license a priest in the Diocese of Washington, must be given deference by a civil court, because church authorities shall determine essential qualifications of clergy and whether the candidate possesses them. [ii] MCL § 600.2156 [iii] MCL § 767.5a [iv] Mitchell, Must clergy tell? Child abuse reporting requirements versus the clergy privilege and free exercise of religion, 71 Minn L R 723, 735-736 (1987). [v] Wigmore, § 2394, pp 869-870; Mitchell, pp 736-737. [vi] Bragg, supra at 449. [vii] The phrase fruit of the poisonous tree was coined by Justice Frankfurter in his 1939 opinion in Nardone v United States, 308 U.S. 338 (1939). [viii] Silverthorne Lumber Co., Inc., et al. v United States, 251 U.S. 385 (1920). [ix] People v Bragg, 296 Mich App 433, 446-447; 824 NW2d 170 (2012). [x] People v Bragg, 296 Mich App 433, 824 NW2d 170 (2012). [xi] I.e., MCL 767.5a(2). [xii] Cox v Miller, 296 F3d 89, 102 (CA 2, 2002). [xiii] Scott v Hammock, 870 P2d 947, 956 (Utah, 1994). [xiv] American Bar Association Rule of Professional Conduct 1.6(b)(2). See, e.g., United States v Jacobs, 117 F. 3d 82, 87 (2d Cir. 1997) (applying “crime-fraud” exception to attorney-client privilege), abrogated, Loughrin v United States, 134 S. Ct. 2384 (2014). [xv] Twenty-six states make members of the clergy mandatory reporters of child abuse: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Maine, Massa- chusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Vermont, West Virginia, and Wisconsin. However—except for New Hampshire, North Carolina, Rhode Island, Tennessee, Texas and West Virginia—most of these states also yield to the cleric-congregant privilege where the cleric is bound to confidentially by the tenants of the cleric’s faith. See, Radel and Labbe, The Clergy-Penitent Privilege: An Overview, FDCC Quarterly/Summer 2015. [xvi] People v Warren, 462 Mich 415, 428; 615 NW2d 691 (2000), quoting 1 McCormick, Evidence (5th ed), § 72, pp 298-299. [xvii] American Bar Association Rule of Professional Conduct 1.6(a).
Helpful Links:
• Christian Legal Society
https://www.christianlegalsociety.org
• The Library of Congress’ website:
https://www.loc.gov/law/help/guide/states.php
• Civil Pro Se Forms
https://www.uscourts.gov/forms/civil-pro-se-forms
• Federal Rules of Civil Procedure
https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure
• Public Access to Court Electronic Records (“PACER”) system
Disclaimer: The information contained in this article is offered for educational purposes only and is not intended to substitute for legal advice and is not customized to your particular needs. Before undertaking self-representation, we urge you to consult with an attorney licensed to practice in your state.