法律英语：09 Confidentiality With Clergy（在线收听）

by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Confidentiality with clergy is an important part of many people’s religious experience –from the formal Catholic sacrament, to more informal counseling by clergy on such important issues such as marriage and child rearing. Jeffrey from Maryland wrote:

Listening to the episode on confidentiality for lawyers and psychiatrists started me thinking about mandated reporting. I'd love to hear your take on mandated reporting for clergy/pastoral counselors.

The law recognizes several evidentiary privileges that allow one person to refrain from testifying about communications with another person. For example, spouses can refuse to testify about communications with each other, lawyers can refuse to testify about communications with clients, and clergy members can refuse to testify about communications with communicants, or the parishioner.

The law recognizes these privileges in part because society benefits from open, honest and unfettered communication with certain people. Society benefits when a client discusses his case candidly with the lawyer, and marital relationships are stronger when spouses feel comfortable discussing anything. If we knew that a court could force us to testify against our spouses, then we would not be as honest with our spouses, undermining the fabric of the relationship.

The same logic applies to the clergy-communicant relationship. Society benefits from communicants disclosing everything they have done in order to obtain complete spiritual guidance.

But, as with the psychotherapist and attorney relationships, there are situations in which a clergy member can be forced to speak under threat of contempt of court. As discussed in the previous episode, in some states, a psychotherapist has a duty to break his duty of confidentiality to his patient and report credible and specific threats of violence to law enforcement. An attorney does not have a legal duty to do so, but may do so in some situations without breaking his duty of confidentiality to his client.

As far as my research shows, states generally do not impose on clergy the duty to report credible threats of violence to police. However, where the threat is against a child, or in some domestic violence situations, some states require active reporting.

The law generally does not impose such a duty on clergy because clergy members are trained in spiritual guidance, not mental health. While clergy members might provide counseling that has a therapeutic effect, they simply do not have the same expertise and state-imposed training requirements that psychotherapists do. However, with regard to children and battered spouses, the state has a stronger interest in protecting them due to their position of diminished power and access to police help.

Clergy members do have duties to warn of criminal activity occurring within their ranks. For example, if a parishioner goes to a priest and discloses that another priest molested him, then the priest who learns about the abuse has a duty to report it. This conflicts with a priests duty of confidentiality to the parishioner, and might break vows the priest has to the church, but the priest must report because society has determined that the well-being of the harmed parishioner is more important.

Clergy can also refuse to testify against communicants in some situations. For example, if a man killed his wife, and confesses it to his rabbi, the rabbi can refuse to disclose the information at the murder trial. Most courts have carved out exceptions to this rule in situations where children or domestic violence is involved, or when there is suspicion of repeated or institutional abuse.

A couple sticky issues arise in this area, for example when a person is friends with his clergy member, and discloses something as a friend, but not necessarily seeking spiritual guidance. In that situation, the clergy member can be forced to testify because he was not acting as a clergy member. Another gray area is who exactly is the “holder” of the privilege. In the attorney-client relationship, confidential information generally belongs to the client, and the client chooses when to waive confidentiality and speak. In the clergy-communicant situation, the law is often unclear as to who has the right to disclose the information.

Overall, this area of the law is evolving, sticky, and pits several constitutional doctrines against each other. States handle the issues very differently, and most cases are very fact-specific.

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