Church Liability: Clergy Privilege, Confidentially, and Reporting

When any person enters that secret chamber, this statute closes the door upon him, and civil authority turns away its ear.

The statement above is from a 1931 Minnesota Supreme Court ruling that provided justification for the clergy penitent privilege, upheld in all 50 states today. This privilege renders conversations between ministers and counselees non-admissible in a court of law, allowing ministers to offer spiritual guidance without fear they will be called upon to testify regarding the matter. A privileged conversation is defined by the law as any confidential communication given to a minister acting in his or her professional capacity as a spiritual advisor. Let's look at what each part of that definition means:

1. Communication. The definition of communication includes any act intended to transmit an idea, whether verbal or nonverbal. This includes speech, letters, phone calls, actions, and even the minister’s observations of a person’s demeanor.
2. Confidential. There are two views held by state courts regarding confidentiality as it pertains to clergy privilege. In two-thirds of the states, a communication is considered confidential if made privately and not intended for further disclosure except to other persons present for the purpose of the communication. In one-third of the states, privileged communication means a communication made in confidence only to the minister, with no third person present.
3. To a minister. Communication is not privileged if it’s made to a deacon, board member, secretary, the pastor’s spouse, or any other non-clergy person. Interestingly, more than half of the states define a minister to include a person whom the counselee believes to be a minister. For example, if a counselee has a confidential conversation with a church’s youth pastor who happens not to be a credentialed minister but was believed by the counselee to be a minister, most states would consider the conversation privileged. In general, however, the minister must be officially licensed as such.
4. Acting in a professional capacity as a spiritual advisor. This is perhaps the most important requirement. For a conversation to be privileged according to the law, the minister cannot be acting as a friend or social acquaintance at the time of the conversation. When a conversation takes place in public or any context outside of a traditional church setting, it’s recommended that a minister always ask why the counselee is speaking to them. Simply ask, “Are you speaking to me as a minister acting in my professional capacity as a spiritual advisor?”

Common questions:

Does the counselee have to be a church member for the privilege to apply?

No. As long as the above four requirements apply, the conversation is privileged.

If you’re providing marriage counseling, does the privilege apply if one of the individuals wants you to testify in court?

Yes, in most cases. There may be some argument that could be made that the conversation isn’t privileged if you’re in one of the states where a third person present negates the privilege. This also brings up the question of who may assert the privilege. In every state a counselee may assert the privilege, and in half the states, a minister can assert the privilege.

When might it be appropriate to report something given in confidence?

It’s important to understand the difference between clergy privilege and the duty of confidentiality. Privilege simply means the information cannot be shared in court. The duty of confidentiality applies in all contexts and is an ethical matter every minister must navigate carefully. A minister’s duty of confidentiality is breached when they disclose confidences to anyone, anywhere. However, there may be times when it is appropriate to share confidential information, under extreme circumstances where people may be killed or severely injured. There are only nine cases in the history of this country where a minister was sued for breaching the duty of confidentiality. Of those, only three of the cases found the minister civilly liable for sharing confidences. In the other six cases, the courts concluded there was no duty under the circumstances for the minister to keep the confidentiality. So it can be concluded that ministers who decide to share confidential information should not in most cases be held personally liable from a legal standpoint, but they certainly won’t be held legally liable for not sharing. The exception to this rule is child abuse. In 41 states clergy are mandatory reporters of suspected or known child abuse.

For more information about church risk and the role of insurance, call AGFinancial Insurance Solutions at 866.662.8210.