Michigan Court of Appeals judges will hear arguments Thursday on a case that could have serious repercussions for church members: Can what you confess to your pastor be used against you in a court of law?
A three-judge panel of the court is being asked to decide whether a Baptist pastor in Belleville violated Michigan’s priest-penitent privilege by testifying against a church member in a rape case.
“This is a very dangerous case because it could have very serious repercussions for religion,” the rape suspect’s lawyer, Raymond Cassar of Farmington Hills, said Tuesday. “If a pastor is allowed to testify against a member of his church about privileged communications, no one will want to confess their sins to their pastors anymore.”
Assistant Wayne County Prosecutor Toni Odette argued in court documents that the privilege doesn’t apply in this case.
The thing is that Protestant pastors (and their denominations generally) don’t have the same understanding about the confessional since penance isn’t regarded as a sacrament. And even though many evangelical and low-church Anglicans don’t regard penance as such either, at least there is the understanding of the seal of the confessional implicit in the older Prayer Books and the Tradition of the Church.
Ian–The fact that is a sacrament or not is totally irrelevant to this issue. It a legal issue, not a church issue. It is one of the two absolutely inviolate principles of common law, and actually even before common law. You may recall that O.J. Simpson confessed the two murders to Rosie Grier. The confession was even recorded by the jail surveillance system. But because Grier was visiting O.J. in his capacity as an ordained minister, it was excluded–a total no brainer even for Lance Ito. The privilege would apply to a rabbi, imam, unitarian, druid etc.
It is hard to see what the legal issue is here. Privileges are generally statutory and therefore are clear. They are the exception to the general evidence rules and are strictly enforced. These include statements made to lawyers, accoutants and psychologists. They have very little to do with Christian doctrine.
33–There are only two universal privileges, attorney/clinet and preist/penitent. The others vary by state. For example, many states have a privilege for doctor/patient communication, but in other states those statements are only confidential and can be revealed under the proper circumstances.
I get all that. The point I was getting at was that the pastor should have stuck to his guns and remained silent. My training was that there is no exception to the seal– no crime too heinous to remain silent about. However, the confessor is obligated to do what he can to get the person to make it right.
Ian-I can’t oenn the entire article, so I don’t know what he testified to or why he did it; but your understanding is consistent with everything I have ever known about a privilege. I am a lawyer and there are certain things I know, not criminal or even bad things, that I can’t even tell my wife. A legal priovilege is inviolate. I can’t understand why the judge even let the pastor testify at all.
David,
In the Simpson case, OJ was speaking with Grier over a visitor’s telephone (direct connection, no dialing needed). At one point Grier put down the phone and raised his voice to the level of shouting, and so did OJ. A guard OUTSIDE the visiting area (which had 1″ thick glass) was able to clearly hear what was being said because of the shouting. The legal question was one of whether or not he [the guard] could be allowed to testify as to what he heard.
Judge Ito’s decision was incorrect according to California law. The Clergy-Penitent relationship is voided by the presence of a third party; the third party is not bound by any religious precepts, and his/her presence clearly jeopordizes what the penitent is saying. The third party is under no legal obligation to say “excuse me, I might be able to hear what you’re saying, so you’d better be careful” – it is presumed that the mere presence of a third party is sufficient reason for a penitent to be aware that the privacy privilege no longer holds [insofar as the third party is concerned]. By shouting in front of the guard, OJ waived his privacy. (If it was clear that Grier and OJ could hear each other through the glass, it was also clear that the plainly visible guard could also hear them through the glass.) Ito’s decision on this was way off base, much like his decision to allow the topic of race (Mark Fuhrmand and the “n” word) to be introduced.
And priest/penitent is not absolute – at least not in Texas. Anyone who is informed that a child has been abused must, by law, report it to the authorities. Other states have similar laws:
“New Hampshire, North Carolina, Oklahoma, Rhode Island, Texas, and West Virginia disallow the use of the clergy-penitent privilege as grounds for failing to report suspected child abuse or neglect. For a more complete discussion of the requirement for clergy to report child abuse and neglect, see the Information Gateway’s Clergy as Mandatory Reporters of Child Abuse and Neglect at http://www.childwelfare.gov/systemwide/laws_policies/statutes/clergymandated.cfm.”
The article is now [url=http://www.freep.com/article/20120208/NEWS06/202080394/Judges-to-decide-Can-religious-confessions-be-used-against-you-?odyssey=tab|topnews|text|FRONTPAGE]here[/url].
#7–I honesltly don’t profess to know California law, I just remember Ito questioning Rosie Grier about the context of the confession. I seem to recall he ruled that the confession was not made in the presence of another but that it was inadvertantly overheard. That said, the privilege is so compelling I wonder if Ito’s ruling would have been overturned had the State appealed it. I confess I don’t even know if the State could have made such an appeal in Cal. Now, I just read the news story and all I can say is “hard cases make bad law”. If I were on the Court I believe I would be compelled to rule in favor of the privilege because of the potential long term effects. For instance, what would keep the State from coercing a pastor or preist into saying it wasn’t a confession when it really was? I would not go behind the privilege. But that’s just me. I am probably very old school on stuff like this.
Even in the current 1979 BCP, the language in the rubrics is very clear:
“The content of a confession is not normally a matter of subsequent
discussion. The secrecy of a confession is morally absolute for the
confessor, and must under no circumstances be broken.”