A conversation with a religious leader is not protected from being revealed in court unless it occurred in private and the leader was acting as a spiritual adviser, a New Jersey appeals court ruled Wednesday.
A unanimous three-judge panel of the New Jersey Appellate Division ruled that a pastor’s testimony should be allowed at a trial in which a father is facing charges of sexually molesting his two daughters.
While the conversation occurred in private, the pastor did not offer to keep it confidential. Nor did he purport to be acting in the role of a spiritual adviser, and he explicitly refused to counsel the man.
“The conversations between defendant and (the pastor) are not protected by the privilege,” wrote Judge Lorraine Parker.
Prosecutors, who had sought to have the pastor’s testimony included at an upcoming trial, said they were happy with the decision.
Are we to give up any notion of the spiritual importance of acknowledging one’s sins without fear of secular consequence before a person ordained as a special representative of Christ?
The reason this is a bad decsion is it opens the door to letting the government decide when a conversation with a priest/cleric was done in the capacity of “spiritual advisor”. Although the NJ Court of Appeals is partially correct, the issue isn’t that the priest didn’t want to counsel the man, but what the defendant thought. For instance, if I am sitting next to Kendall at at football game and tell him I committed a crime, that’s not protected. But if I am asking for his help as a priest, what he thinks about the conversation is not what should be focused on, but the content of what I am asking for should be the focus. Otherwise, one day the government could show up and make a priest testify about my confession beacuse they can define political or anti-goverment activity as “non-spiritual”. It is a dangerous and slippery slope; and as we Episcopalinas all know, you can’t just let one cow out of the barn.
[#2] David Keller wrote:
[blockquote] the issue isn’t that the priest didn’t want to counsel the man, but what the defendant thought. [/blockquote]
How can we know what the defendant thought? He will out of self-interest say what is best for his legal defense. Something besides the self-interested testimony of the defendant must be used to establish the nature of the conversation. What else can be used but the testimony of the pastor, who can be presumed to possess a much greater degree of independence.
carl
If anyone would like to read the decision itself, the link is here
http://www.judiciary.state.nj.us/opinions/a2539-07.pdf.
I understand the impetus to hem in the privilege because it does hinder the truth-seeking process. But it seems to me that the test the New Jersey court articulates is awfully narrow. In fact, the test only seems to fit the Roman Catholic model of priest and penitent in a closed space with a well-defined, sacramental purpose. In reality, people approach spiritual leaders in more complicated ways. Here, for example, the defendant only began revealing things to the pastor after the pastor reached out to him. How the defendant was supposed to know that none of this was for his own spiritual benefit, as the pastor claims, eludes me. Rather, I would expect that someone in the defendant’s position would view a pastor reaching out to him as an invitation to talk about what happened and receive some sort of counsel.
As important as it is the keep the privilege from expanding too far, it seems to me that giving people a safe space in which to seek spiritual advice–even in a circuitous or non-traditional manner–is of substantial value.
In the Catholic Tradition, what a penitent says to a priest under ‘seal of the confessional’ is confidential, and that is always upheld.
However, if a priest is not acting as a confessor (and the person can ask at any time for that role), then the conversation is NOT confidential. That’s been my understanding.
As Hal says, this seems to be limited to the RC role, as I’m not aware of any other Chrisitan denomination (except perhaps the ‘big O’ Orthodox Churches) that have this confessional understanding.
As I read the NJ Appeals Court decision I side with the nun and not with the pastor. I think clergy have an obligation to regard all private communications as confidential and made in the capacity of spiritual advisor unless the situation is clearly understood by both persons as not confidential. The Hippocratic rule, “first do no harm” implies “first keep confidence.”
Tom Rightmyer in Asheville – and right now on vacation in Brooksville, Maine.
In one of my seminary classes (at Seattle University, which is an ecumenical school) the professor touched on this question. If someone confesses a crime to you, are you legally obligated to reveal it to the authorities, or only to testify about it if summoned, or are you instead legally obligated to keep silent even on the stand?
He said that the legal status of the RC confessional is pretty well established, but for everyone else it is in fact pretty murky — as this decision illustrates. I presume it varies from state to state as well. In some cases, he said, the legal aspect comes down to the question, “Which decision would you rather be prosecuted for?”
And legality aside there’s also the wee matter of pastoral ethics, which ideally take precedence in the heart of the pastor.
[blockquote]. . . this seems to be limited to the RC role, as I’m not aware of any other Chrisitan denomination (except perhaps the ‘big O’ Orthodox Churches) that have this confessional understanding.[/blockquote]
From the BCP, p. 446: “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.”
Thanks, Crypto!
Of course if Joe Schmo wanted to chat with the defendant about his sex life, the defendent would nave known to “take the fifth”.
It is only because Joe Schmo was the Reverend Joe Schmo that the confession was made.
Schmo is playing it safe legally, however morally I think the priest was wrong. If he wasn’t acting in his capacity as a priest, he should have said so up front. I think the defendent is guilty of child molestation and should go to jail. However the priest could probably be successfully sued for breach of promise/failure to maintain confidentiality.
You’re welcome, libraryjim! And I think it should be clarified that “the content of a confession is not normally a matter of subsequent discussion” assumes that any “subsequent discussion” is between the penitent and the priest [i]only[/i]. The penitent is generally discouraged from returning to sins that have been absolved, unless some further counsel is needed; and then it is up to the [i]penitent[/i] to bring the subject up. The priest may not, and indeed he has probably forgotten all about it!
as a non-ordained person, i have some questions…do the canons of TEC talk about pastoral privilege and the consequences of violating that?…how is pastoral privilege taught in seminary?…and, outside of very emotional and difficult situations such as the example in this article, what are the repurcussions of violating pastoral privilege?
Hold on. In 2000, the girls informed their mother of the alleged abuse, which had been taking place for the past four years. The mother informed the clergyman of the alleged abuse by a third party (their father). At that point, the law in some/many states requires him to report that information to the proper authorities. (If she had told him to keep it in confidence, then that might be another story. I would not want to be placed in such a predicament. The girls needed protection.)
The man was not a member of the church. However, he and the pastor knew each other from their native Jamaica. The pastor admittedly was angry at what the man had done. The man MAY have expected confidentiality in his conversation with the pastor — in which case the clergy-penitent exception applies. However, when the pastor told the man he could not counsel him, that ended the clergy-penitent legal exception. Anything the man said after that was NOT protected speech. He went on anyway to confess what he had done. The testimony is in.
Why it has taken this long to get this case to trial, I know not.
w.w.