Confessions to Clergy Not Always Private in Court Proceedings

By Andrea Lannom
State Journal
March 5, 2012

http://www.statejournal.com/story/17082437/confessions-to-clergy-members-not-always-private-in-court-proceedings

If a person confesses a crime to a member of the clergy, would it still be private?

According to some lawyers, it depends.

Ashley Pack, a member of Dinsmore & Shohl's Charleston office said there is national debate whether clergy members should be required to disclose information if it pertains to certain crimes.

"There has also been a religious basis of ‘are you putting a legal obligation above a religious obligation,'" Pack said.

According to the FindLaw blog, confessor/clergy privilege began in the 1813 case of People v. Phillips, where a man was charged with trafficking stolen goods. Although the defendant confessed the crime to his priest, the court concluded that the priest could not be called in to testify.

According to a Virginia appeals court ruling citing the case, New York became the first state in 1828 to provide protection to these types of confessions. Now, according to FindLaw, every state has enacted a similar law.

West Virginia law states members of the clergy cannot testify in criminal, grand jury or domestic relations proceedings unless the confessor gives his or her blessing.

"Essentially, if I confessed to my priest that I murdered someone, the priest can't testify about that in a criminal proceeding," Pack said. "But if I confessed that I was involved in a car accident and it's my fault, and the person brought a civil action against me then the priest would have to testify."

However, protection depends on whether the clergy member is acting in a professional capacity. West Virginia law states communication has to be made to the clergy member and in the form of a confidential confession or communication.

"Say you're at a picnic and talking to a member of the clergy and you confess something. There is a question of whether that is confidential," Pack said. "But, there are other people around, so you didn't intend to be confidential like you would in that person's office or in a confessional booth."

Also, many states, like West Virginia, end the confessor/clergy privilege when dealing with child abuse and neglect. According to state code, clergy members must disclose this information to the Department of Health and Human Resources "not more than 48 hours after suspecting this abuse."

This statute does not include attorney client privileges, however.

"If a client confesses to an attorney that there is child abuse, the attorney does not have to disclose it," Pack said. "But the priest would have to."

Pack said the issue does not come up very often and said the theory behind the law is to protect the relationship between clergy members and parishioners.

"The theory is that it protects the relationship of greater value to society than evidence obtained by aggregating it," she said. "There is greater public policy to encourage uninhibited communication with a minister than what evidence you might get for this privilege."