Checking Your Privilege, Part 4: Forgive Me Father, For I Have Testified

It’s another glorious Monday here on Lawyers & Liquor, and that means it’s time for me to shake off the relaxation of the weekend and get back to doing actual legal work while messing around on the internet and, finally, that it’s time to give a bit of a gift to all of those law students out there who may be studying for or getting ready to take their Evidence finals. That’s right, I see you kids out there, wired up on coffee and stress, thinking that you’re ready to go. I know you’re about two steps away from a complete and total breakdown. So to speed along your eventual collapse into insanity, I figured now would be just an awesome time to remind you of how much you don’t actually know by discussing the Priest-Penitent Privilege in the fourth and, for now, final installment in my practice guide to evidentiary and testimonial privileges.

Previously, on Boozy Explains Shit, we’d covered the basics of an evidentiary privilege, discussed the Attorney-Client Privilege, and ruminated on how a good marriage can avoid a conviction while talking about marital privileges. But this time we need to move ourselves on over to another form of privilege, one that may mean the Bishop can take Father Murphy’s confession and then never have to appear in court to face the accusing eyes of the altar boys, and that’s the Priest-Penitent Privilege, or rather the right of a defendant to prevent their  spiritual guide from testifying against them for things said in confidence and in the strictures of the scriptures. So without any further ado, let’s all say a few Hail Mary‘s, but definitely no mea culpas, and dive right in.

What is it?

Essentially, the priest-pentitent privilege, also sometimes known as the Clergy-Congregant or the Confessional Privilege, is an evidentiary privilege that means your spiritual leader cannot divulge shit on the stand. The shit has to be a confidential communication with the spiritual leader made between you and them within the confines of the religion. For example, telling Father Murphy about smacking your spouse around at the bar on Sunday isn’t privileged, but saying it in his office during a spiritual counseling session? Probably privileged.

Think of it like the attorney-client privilege, where shit’s only protected if you’re seeking legal advice, except in this case your judge is like…God (or in the case of some religions, a pantheon of gods).

Wait, Priest Penitent Privilege?

Jesus holy fuck, please, before you get up on your high horse and start screaming about how this is “So wrong that only priests can get this protection,” let me explain that law doesn’t fucking switch shit up very often. Seriously, you’re not going to get the law to change the terminology used for a centuries old privilege. It ain’t happening. It would literally throw our Westlaw searches into goddamn disarray to have to search every variation of any religious privilege. Accept this, and let’s move the fuck on, okay?

But it only applies to Priests?

No, of fucking course it doesn’t. Call off the three-headed dogs of war.

I mean, historically it only really applied to priests, because that was a whole thing about how the Catholics, and then the Anglicans, and then etc etc etc were the only true religions and therefore the only ones that deserved the heightened protection. And for a bit there was this whole thing about how the privilege only applied to, like, shit said while on your knees in front of a priest in the confessional booth (which, for the non-Catholics, is sort of like the Holy Gloryhole except instead of STD’s you get absolution). But this is America Dammit, and that means we don’t just let those vespers and latin screaming Catholics gain the  benefits of the privilege!

So, Any Religion Has This Protection Now?

…See, here’s where it gets weird. Alright, so pretty much every state and the federal government has recognized some form of the Priest-Penitent Privilege. But they all recognize it in statutory form, and that means the question of what religions are entitled to the protection are going to vary based on exactly what the state statute determines to be clergy that fall within the privilege.

In Pennsylvania, for example, the Priest-Penitent Privilege applies, obviously, to all of the major religions where there’s a clear division of clergy and congregant. Let’s take a look at that statute:

No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

-42 Pa.C.S. 5943

Some shit to unpack in that one:

First, Pennsylvania requires that the clergyman or minister be part of a regularly established church or religious organization. That means your internet certificate has absolutely no standing when your brother comes over to you talking about how he took out a busload of nuns or some shit. You can’t just start your own religion and then claim that any communication someone makes to you is exempt, it has to be regularly established. At the very least, this means a formal structure and regular church meetings.

Second, self-ordination is not a thing for this one. You can’t have a church where you’re ordained because you fucking say you are. That won’t trigger the privilege.

Third, there has to be some structure. A religion where “all members are equal” and nobody is really the high muckity-muck of the congregation in a role of a spiritual leader isn’t going to cut it. The person that you’re talking to about spiritual matters has to be someone in an authority position over your spiritual well-being for the privilege to apply. Otherwise, what separates you talking to them about a crime from you talking to anyone else about it? If everyone’s a priest, nobody’s a priest.

And this is just talking about Pennsylvania. Every state is different in this one, and there are wild variations between what is and is not going to be considered a penitent and a priest for the purposes of privilege. So, you know, get a lawyer in your state.

For instance, in Georgia a strict reading of their statue seems to indicate that only Christian or Jewish clergy would fall under the privilege.  Don’t believe that shit? Well…

Every communication made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to any Protestant minister of the Gospel, any priest of the Roman Catholic faith, any priest of the Greek Orthodox Catholic faith, any Jewish rabbi, or to any Christian or Jewish minister, by whatever name called, shall be deemed privileged.

-Ga. Code. 24-9-22

So, you know, that’s kind of fucked up, isn’t it?

And, of course, there are other conflicts in law with the whole thing, like…you know…child molestation.

Stop with the Catholic Jokes.

It’s not a joke.

Okay, so pretty much every state has a law regarding the mandated reporting of child abuse. And in a lot of those states, they state that clergy are specifically mandated reporters, meaning they are legally required to report suspected child abuse no matter what.

Which…you know, may conflict with their duty/privilege requirements as parties subject to the priest-penitent privilege. For example, Louisiana in Parents of Minor Child v. Charlet, 135 So.3d 1177 (La. 2014), specifically held that in the grand scheme of things allowing clergy to not report child abuse because they were made aware of it in the seal of the confessional was particularly a case of using God to do the Devil’s work. In such cases, according to Louisiana, the saving of a child was deemed more important than the saving of a soul, and priests lost the privilege in relation to their mandated reporter status.

In other states, though, and in fact in the majority of states, the pendulum swung the other way, and communications made in confidential, spiritual guidance related communications were specifically exempted from mandated reporter status. Meaning a priest who hears about someone molesting kids in the confessional is not required by law to report it in those states.

This also makes it difficult, because who can assert the privilege is also really dependent on where the fuck you are. In some areas, the priest holds the privilege, because they are the spiritual leader. In other areas, the confessee holds the privilege, because they were the ones who expected the communication to be confidential. In other places, either may assert or waive the privilege.

You can see why this shit requires a local lawyer to dig through it, right?

Forgive Me Father, For I Am Woefully Inadequate.

Look, there’s really no way to give you jackasses anything better than a high level overview of this privilege, because there is no uniform set of law regarding it. While there have been common law cases regarding the privilege since the early 1800’s, the fact is the incorporation of this privilege into statute is a relatively recent development, dating only back to the 1960’s, and it’s still very much in the course of being developed. But here are the highlights:

This privilege is a thing.

It may or may not apply to shit your clients say in confidence to a spiritual leader.

But the spiritual leader has to be a leader of a real goddamn religion.

You should check you state laws before attempting to assert it in any case. You know. Like a real lawyer.

Other than that? You assholes are on your own.

Now, someone cue up Ave Maria as I ascend into Heaven.

-BB