Illinois Official Reports 

Appellate Court

Doe v. Catholic Diocese of Rockford, 2015 IL App (2d) 140618

Appellate Court 

Caption

JAIME DOE, on Behalf of J. Doe, a Minor, Petitioner-Appellee, v. 

THE CATHOLIC DIOCESE OF ROCKFORD and JOHN DOE, 

Respondents-Appellants.

District & No. Second District

Docket No. 2-14-0618

Filed September 4, 2015

Decision Under 

Review

Appeal from the Circuit Court of Kane County, No. 14-MR-57; the 

Hon. David R. Akemann, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Joshua G. Vincent, Kimberly A. Jansen (argued), Gregory T. Snyder, 

and Jennifer L. Johnson, all of Hinshaw & Culbertson LLP, of 

Chicago, for appellants.

Philip J. Piscopo (argued), Peter M. Storm, and Stephen M. Cooper, 

all of Cooper, Storm & Piscopo, of Geneva, for appellee.

Panel JUSTICE BIRKETT delivered the judgment of the court, with 

opinion.

Justices Hutchinson and Zenoff concurred in the judgment and 

opinion.
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 OPINION 

¶ 1 Respondents, the Catholic Diocese of Rockford and John Doe, appeal the judgment of the 

circuit court of Kane County granting the petition pursuant to Illinois Supreme Court Rule 224 

(eff. May 30, 2008)1 of petitioner, Jaime Doe, seeking the identity of the writer of an allegedly 

defamatory letter concerning her son, J. Doe. Respondents argue that petitioner’s Rule 224 

petition was insufficiently pleaded and that, even if the petition were sufficient, disclosure is 

prohibited under the clergy-penitent privilege, codified at section 8-803 of the Code of Civil 

Procedure (Code) (735 ILCS 5/8-803 (West 2012)). We affirm. 

¶ 2 I. BACKGROUND 

¶ 3 We summarize the pertinent facts in the record. John Doe (Doe) is a pastor of a parish 

located in Kane County and within the Catholic Diocese of Rockford. Petitioner and her son 

both are members of Doe’s parish. In September or October 2013, an unidentified individual 

wrote a letter containing the statements at issue here. The writer delivered the letter to Doe “in

his capacity as pastor of the parish.” The letter allegedly contained defamatory statements 

about petitioner’s son. 

¶ 4 On January 23, 2014, petitioner filed a petition pursuant to Rule 224, seeking an order 

requiring respondents to produce a copy of the letter and the identity of the writer. Petitioner 

alleged that the letter “as described by [respondents] contained several false allegations against 

[her son],” namely, “that J. Doe engaged in a sexual touching against another minor child, who 

is not the child of the [writer],” “that a parent of J. Doe admitted the improper sexual contact,”

“that J. Doe was older and larger than the other child,” and “that J. Doe threatened the other 

child with harm if the other child told anybody about the touching.” Petitioner expressly sought 

to proceed under a theory of defamation per se. She alleged that the allegations concerning her 

son were false. According to petitioner, as a result of the letter, her son became “isolated and 

ostracized in the community, including the parish community.”

¶ 5 Respondents received leave to notify the writer that the petition had been filed and that the 

trial court had issued orders regarding anonymity and sealing the record. The writer has neither 

appeared nor participated in the proceedings. 

¶ 6 Next, respondents moved to dismiss the petition. Respondents argued that the petition did 

not allege sufficient facts to state a claim of defamation. Respondents raised a number of 

claims outside of the four corners of the petition, including a claim that the clergy-penitent 

privilege applied to bar any disclosure of the information sought in the petition. In support of 

this claim, respondents included Doe’s affidavit, along with documents from the Diocese 

addressing sexual misconduct and reporting as well as standards of behavior applicable to 

Diocesan employees and volunteers. 

 

1The purpose of Rule 224 is to allow a petitioner to learn the identity of one who may be liable in 

damages. Ill. S. Ct. R. 224, Committee Comments (Aug. 1, 1989).
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¶ 7 In his affidavit, Doe averred that the writer “sought consultation and advice about Church 

law, ethics and policy pertaining to [the writer’s] roles as a parishioner and a volunteer in the 

parish with responsibility for monitoring children.” Doe further averred that his role as pastor 

included guiding the parishioners in spiritual matters and providing counseling and direction 

about canon law, religious law and policy, and the Catholic faith. Doe also averred that church 

law required him to keep the confidentiality of requests for counseling and direction. 

¶ 8 Petitioner filed a reply, generally controverting respondents’ arguments. Petitioner 

included in her reply, as an exhibit, a copy of correspondence sent to her by respondents’

attorney. Based on that correspondence, petitioner argued that respondents viewed the letter as 

an accusation against J. Doe of sexual misconduct, necessitating an investigation of the 

incident pursuant to the Diocese’s sexual misconduct standards. Additionally, petitioner 

attached an affidavit from her attorney describing how respondents portrayed to petitioner the 

contents of the letter. Specifically, according to petitioner’s counsel, respondents described the 

letter as relating an incident that involved “more than just two boys checking each other out”

(internal quotation marks omitted). Instead, respondents revealed that the letter specifically 

stated that J. Doe “touched and fondled another boy’s private parts.” Further, petitioner offered 

to submit an amended petition including more detailed allegations of conduct from the letter, if 

the trial court deemed it necessary. 

¶ 9 The trial court granted petitioner’s petition in part, ordering respondents to disclose only 

the identity of the writer of the letter. The trial court held that petitioner “met her discovery 

burden” because “[h]er proposed defamation claim would survive a section 2-615 [(735 ILCS 

5/2-615 (West 2012))] motion to dismiss.” The trial court reasoned that the “complained-of 

statement [was] not reasonably capable of an innocent construction, and it [could] be 

reasonably construed as a factual assertion.” The trial court rejected respondents’ contention 

that, in addition to surviving a motion to dismiss pursuant to section 2-615 of the Code, it must 

also survive a motion to dismiss raising affirmative matters pursuant to section 2-619 of the 

Code (735 ILCS 5/2-619 (West 2012)). Respondents timely appeal. 

¶ 10 II. ANALYSIS 

¶ 11 On appeal, respondents argue that the trial court erred in granting the petition. Respondents 

contend that the petition was not sufficient to survive a motion to dismiss pursuant to section 

2-615. Alternatively, respondents contend that the clergy-penitent privilege precludes the 

disclosure of the writer’s identity. We address each contention in turn. 

¶ 12 Before we turn to respondents’ contentions on appeal, we first address petitioner’s motion 

for leave to amend the pleadings, which we took with the case. Petitioner requests that, 

pursuant to Illinois Supreme Court Rule 362 (eff. Feb. 1, 1994), she be granted leave to amend 

her petition to conform the petition to the record. Petitioner argues that all of the information 

she seeks to add to the petition was within the various papers filed in the trial court. Petitioner 

further argues that such an amendment would not prejudice respondents. Respondents contend 

that an amendment is improper because it would not cure the petition’s defects and, in any 

event, they would be prejudiced because petitioner argued the additional information only in 

her reply, so respondents did not have an opportunity to directly respond below. We have 

carefully considered the parties’ arguments and we deny petitioner’s motion for leave to 

amend. 
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¶ 13 A. Sufficiency of Petition 

¶ 14 Respondents initially contend that the petition was not sufficiently pleaded. This argument 

requires that we consider the text of Rule 224 and the standards under which a Rule 224 

petition is reviewed. 

¶ 15 Rule 224 states, pertinently: 

“(i) A person or entity who wishes to engage in discovery for the sole purpose of 

ascertaining the identity of one who may be responsible in damages may file an 

independent action for such discovery. 

 (ii) The action for discovery shall be initiated by the filing of a verified petition in 

the circuit court of the county in which the action or proceeding might be brought or in 

which one or more of the persons or entities from whom discovery is sought resides. 

The petition shall be brought in the name of the petitioner and shall name as 

respondents the persons or entities from whom discovery is sought and shall set forth: 

(A) the reason the proposed discovery is necessary and (B) the nature of the discovery 

sought and shall ask for an order authorizing the petitioner to obtain such discovery. 

The order allowing the petition will limit discovery to the identification of responsible 

persons and entities and where a deposition is sought will specify the name and address 

of each person to be examined, if known, or, if unknown, information sufficient to 

identify each person and the time and place of the deposition.” Ill. S. Ct. R. 224(a)(1) 

(eff. May 30, 2008). 

¶ 16 Under Rule 224, the unidentified individual or entity does not bear the burden of 

demonstrating that the discovery request does not satisfy the rule; rather, it is the petitioner 

who bears the burden of showing that his or her proposed complaint supports a cause of action, 

even if the unidentified individual or entity does not challenge the request. Hadley v. 

Subscriber Doe, 2014 IL App (2d) 130489, ¶ 12, aff’d, 2015 IL 118000. This is because Rule 

224 is intended to assist a petitioner in identifying a currently unidentified party who might be 

liable; however, to employ the rule, the petitioner must demonstrate that the proposed 

identification is necessary. Hadley v. Subscriber Doe, 2015 IL 118000, ¶ 25. 

¶ 17 In order to show the necessity of the identification, the petitioner must demonstrate that a 

potential defamation claim against the unidentified individual or entity would survive a section 

2-615 motion to dismiss. Id. ¶ 27. A section 2-615 motion to dismiss is concerned with the 

legal sufficiency of a complaint, posing the question of whether the allegations of that 

complaint, viewed in the light most favorable to the plaintiff, state a claim on which relief may 

be granted. Id. ¶ 29. We review de novo the trial court’s decision on a section 2-615 motion to 

dismiss. Id.

¶ 18 In order to state a claim of defamation, a plaintiff must plead facts demonstrating that the 

defendant made a false statement about the plaintiff, that the defendant made an unprivileged 

publication of the subject statement to a third party, and that the publication caused damages to 

the plaintiff. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 24. A statement 

is defamatory if it harms an individual’s reputation by lowering the individual in the eyes of the 

community or if it deters the community from associating with the individual. Id. Defamation 

can be either defamation per se or defamation per quod. Id.

¶ 19 A statement is defamatory per se if its harm is apparent and obvious on its face. Id. ¶ 25. 

When a statement is defamatory per se, a plaintiff need not plead actual damage to his or her 
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reputation, because the statement is deemed to be so obviously and materially harmful that 

injury to the plaintiff’s reputation is presumed. Id. However, because a claim of defamation 

per se relieves a plaintiff of the obligation to prove actual damages, it must be pleaded with a 

heightened level of precision and particularity. Id. Illinois recognizes five categories of 

statements that are defamatory per se: (1) words imputing the commission of a criminal 

offense; (2) words imputing an infection with a loathsome communicable disease; (3) words 

imputing an individual’s inability to perform his employment duties or a lack of integrity in 

performing those duties; (4) words imputing a lack of ability in an individual’s profession or 

prejudicing an individual in his or her profession; and (5) words imputing an individual’s 

engagement in fornication or adultery. Id. In this case, petitioner contends that the writer’s 

statements fall within the first and last categories. With these principles in mind, we turn to 

respondents’ contentions. 

¶ 20 Respondents argue that petitioner did not sufficiently plead facts that demonstrated a 

defamation claim against the writer. Respondents contend that, because the issue is whether 

petitioner’s claim would survive a section 2-615 motion to dismiss, we are limited to the four 

corners of the petition. Further, respondents contend that petitioner failed to sufficiently allege 

statements that are defamatory per se. We address respondents’ contentions in turn. 

¶ 21 1. Scope of Review 

¶ 22 Respondents’ initial contention is that we are limited to the four corners of the petition in 

our review. We agree. Before our supreme court decided Hadley, there might have been some 

room for debate, but that door has been closed by Hadley, 2015 IL 118000, ¶¶ 27, 29. Our 

supreme court held that section 2-615 standards apply to the consideration of a Rule 224 

petition. Id. ¶ 27. More specifically, when conducting a section 2-615 analysis, the court is 

limited to considering “[a]ll facts apparent from the face of the complaint, including any 

attached exhibits.” Id. ¶ 29. Thus, we agree with respondents and limit our consideration to the 

four corners of the petition. 

¶ 23 2. Precision and Particularity of Defamation Claim 

¶ 24 Under a section 2-615 analysis, the court accepts as true all well-pleaded facts, as well as 

any reasonable inferences that arise from them. Borcia v. Hatyina, 2015 IL App (2d) 

140559, ¶ 20. The court does not, however, accept as true conclusions that are unsupported by 

specific facts. Id. The court construes the cause of action liberally in the plaintiff’s favor and 

should not dismiss it unless it is apparent that no set of facts can be proved that would entitle 

the plaintiff to a judgment in his or her favor. Id.

¶ 25 In the petition, petitioner alleged that the writer made false statements against J. Doe and 

that, in September or October 2013, the allegedly defamatory letter was published to John Doe. 

Petitioner alleged that she requested a copy of the letter but that respondents refused to provide 

it.

¶ 26 Petitioner alleged that respondents “described” to her the contents of the letter and that the 

statements regarding J. Doe were false. According to petitioner, the pertinent statements in the 

letter included: (1) “that J. Doe engaged in a sexual touching against another minor child, who 

is not the child of the [writer]”; (2) “a parent of J. Doe admitted the improper sexual contact”; 

(3) “J. Doe was older and larger than the other child”; and (4) “J. Doe threatened the other child 
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with harm if the other child told anybody about the touching.” According to petitioner, J. Doe 

became “isolated and ostracized in the community, including the parish community.”

¶ 27 Petitioner thus alleged a claim of defamation per se, alleging that the writer accused J. Doe 

of adultery or fornication and the commission of a crime. The allegations recounting the 

allegedly defamatory statements are not to be read independently of each other; rather, they are 

to be read as a whole (along with the other allegations in the petition). See Lloyd v. County of 

Du Page, 303 Ill. App. 3d 544, 552 (1999) (consideration of a complaint subject to a section 

2-615 motion to dismiss “requires an examination of the complaint as a whole, not its distinct 

parts”). In our view, these allegations are sufficiently precise and particular to survive a section 

2-615 analysis of the defamation claim. 

¶ 28 Specifically, petitioner alleged that the writer stated, falsely, that J. Doe performed a 

“sexual touching.” One of J. Doe’s parents purportedly admitted that the “sexual touching”

was indeed “improper sexual contact” and the contact was “against another minor child.” J. 

Doe threatened the other child in order to prevent that child from revealing the contact between 

them. Additionally, petitioner alleged that the writer published the false statements to Doe and 

that, as a result, J. Doe experienced “isolat[ion] and osctraciz[ation]” in his relevant 

communities. We believe that these allegations are sufficient to pass muster under a section 

2-615 analysis. 

¶ 29 Respondents rely on Green v. Rogers, 234 Ill. 2d 478 (2009), in support of their contention 

that petitioner failed to plead with precision and particularity the facts supporting her 

defamation claim against the writer. In Green, the plaintiff alleged, on information and belief, 

that the defendant made statements about the plaintiff, including that the plaintiff “ ‘exhibited a 

long pattern of misconduct with children’ ” and had “ ‘abused players, coaches, and umpires’ ”

in the Clarendon Hills Little League. Id. at 493. Our supreme court noted that a defamation 

claim must be pleaded with “specific precision and particularity so as to permit both initial 

judicial review[ 2 ]

 and the formulation of an answer and potential affirmative defenses.” 

Id. at 492. 

¶ 30 The Green court held that the complaint did not “set forth a precise and particular account 

of the statements that [the] defendant allegedly made”; rather, the allegations “set forth only a 

summary of the types of statements that [the] plaintiff may or may not have a reason to believe 

[the] defendant made.” Id. at 493. The court noted that the allegations were “completely devoid 

of any specifics, such as what type of misconduct [the] plaintiff exhibited; the nature of any 

alleged ‘abuse’; or how that abuse manifested itself in relation to players, coaches and 

umpires.” Id. Because the complaint left many questions unaddressed–like whether the alleged 

abuse was verbal, physical, or a combination, or whether the alleged misconduct was “ ‘not 

acceptable for [the little league’s] coaches’ ” under league rules or some other standard–the 

court had “no way of assessing whether [the] defendant’s words were defamatory per se.” 

Id. at 493-94. 

¶ 31 Green is distinguishable, but this does not mean that we cannot draw some guidance from 

it, particularly regarding the initial judicial review of the allegedly defamatory statements. The 

Green court was also concerned with the defendant’s ability to understand the allegedly 

 

2

“Initial judicial review” might be a somewhat opaque phrase. In its context in Green, it meant that 

the plaintiff must plead specific conduct to allow the court to assess, as with a section 2-615 motion, 

whether the words are defamatory. It is in this sense that we use the phrase in the following paragraphs. 
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defamatory words used, formulate an answer to the allegations, and develop any applicable 

affirmative defenses. Id. at 492. That circumstance is not present in this case; rather, petitioner 

is attempting to identify a potential defendant. Accordingly, the defendant’s ability to 

formulate an answer and affirmative defenses is not yet in issue. Instead, the issue is whether 

petitioner has sufficient facts on hand to eventually draft a viable claim against the 

as-yet-unidentified defendant. Thus, we believe that the portion of Green devoted to the 

consideration of whether the precision and particularity of a complaint is sufficient to allow a 

defendant to formulate an answer and affirmative defenses is simply inapposite to the 

consideration of the sufficiency of allegations against an as-yet-unidentified defendant in a 

Rule 224 petition. 

¶ 32 That leaves the former of the Green court’s concerns, permitting initial judicial review of 

the defamatory content of the allegations. Id. We believe that Green is not inapposite in the 

initial-judicial-review context, although it is factually distinct. In Green, the plaintiff was fully 

aware of the identity of the defendant; here, petitioner knows only that the writer of the letter 

has connections with Doe’s parish. In both Green and this case, the allegations of defamation 

are made through information and belief. However, here, petitioner notes that she was apprised 

of the letter and its content, because it was “described by [respondents]” to her. In Green, by 

contrast, there was no indication as to how the plaintiff learned about the allegedly defamatory 

statements. Thus, the record here is not so “devoid of specifics” as to prevent the sort of initial 

judicial review contemplated in Green. 

¶ 33 In Green, the court believed that there were many unknown aspects concerning the type of 

conduct that the plaintiff purportedly performed. Id. at 493-94. Here, petitioner described that 

the writer averred that J. Doe “engaged in a sexual touching against another minor child.” This 

averment informs the reader that J. Doe is a minor, that he touched another minor in a sexual 

fashion, and that it was “against” this child, leading to an inference that there was an element of 

coercion or lack of consent. Petitioner further alleged that the writer averred that one of J. 

Doe’s parents “admitted the improper sexual contact.” The phrase “improper sexual contact”

confirms the inference that the sexual touching was not harmless, but was overtly sexual and 

against the mores of society. This is further confirmed by petitioner’s allegation that the writer 

averred that J. Doe “threatened the other child with harm if the other child told anybody about 

the touching.” This implies that J. Doe knew that the sexual touching was wrong and that he 

faced definite negative consequences if the other child revealed the touching to anybody. 

While it is true that petitioner did not describe the precise nature of the alleged touching, we 

can reasonably infer (especially as we view the factual allegations in the light most favorable to 

petitioner under section 2-615) that it was not the innocent explorations of two minors “playing 

doctor”; rather, in light of the purported threat and parental admission of “improper sexual 

contact,” we believe that the clear import of the alleged statements is that J. Doe engaged in 

some form of knowing conduct that was nonconsensual and overtly sexual. We further believe 

that this is enough to fall under the rubric of “fornication” for purposes of defamation per se. 

See Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 93-94 (1996) (the term “slut”

was sufficiently specific to refer to the plaintiff’s sexual activities without requiring a detailed 

description of those activities). Thus, we hold that, unlike in Green, the description of the 

allegedly defamatory statements was sufficiently precise and particular to allow the trial court 

to perform an initial judicial review. 
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¶ 34 Respondents argue that, as in Green, the phrase “sexual touching” is imprecise and does 

not adequately describe the specific conduct to which the writer was referring. We reject the 

contention. The allegations are to be viewed as a whole and not distinctly. Lloyd, 303 Ill. App. 

3d at 552 (consideration of a complaint subject to a section 2-615 motion to dismiss “requires 

an examination of the complaint as a whole, not its distinct parts”). Moreover, viewing all of 

the allegations together makes clear that petitioner means that the writer averred that J. Doe 

committed an improper sexual act against the other, younger, child. This is sufficient. 

¶ 35 Respondents complain that the allegation that the writer described J. Doe as “older and 

larger” than the other child is still too imprecise to pass muster, because “[t]here is no way of 

knowing the ages or sizes of the children.” Again, we view this allegation in light of all of the 

allegations, especially in light of the allegation that the writer averred that J. Doe had 

threatened the other child with harm if the other child revealed the touching to anyone. This 

implies that J. Doe was in a position, being both older and larger than the other child, to enforce 

his threat of harm. Additionally, it underscores the wrongful nature of the conduct, because if J. 

Doe and the other child were only “playing doctor,” a threat of harm to prevent disclosure 

would have been unnecessary and unlikely. Finally, respondents complain that “[t]here is no 

way of knowing what ‘harm’ J. Doe purportedly was said to have ‘threatened’ if the other child 

told anybody about the ‘touching.’ ” Respondents suggest that the threatened “harm” could be 

as innocuous as a threat to no longer be friends. Like the precise nature of the sexual touching, 

however, the precise harm is immaterial. The point of the allegation is that, in order to coerce 

the other child into silence, J. Doe threatened that some negative action would occur if the 

child disclosed the conduct. This leads to the inferences expressed above and confirms that the 

conduct averred by the writer was more than simple innocent exploration. Accordingly, we 

reject respondents’ contentions about the imprecision of the allegations of the allegedly 

defamatory statements. 

¶ 36 Respondents also take issue with the description of the “factual basis informing”

petitioner’s information and belief regarding the contents of the letter. We find that, in totality, 

the petition alleges circumstances adequate to allow initial judicial review and to suggest that 

petitioner can state a viable claim against the writer. Respondents attempt to analogize 

petitioner’s allegations to those of the plaintiff in Green. This analogy fails because in Green

the plaintiff offered no information as to how he arrived at his information and belief regarding 

the defendant’s allegedly defamatory statements; by contrast, here, petitioner alleged that the 

writer’s letter was described to her. We find this sufficiently distinguishing to render 

misplaced respondents’ reliance on Green. Accordingly, for the preceding reasons, we reject 

respondents’ contention that petitioner did not allege a claim of defamation with sufficient 

precision and particularity to pass muster under section 2-615. 

¶ 37 3. Defamatory Per Se Statements 

¶ 38 Respondents next contend that petitioner did not sufficiently allege that the statements 

made by the writer were defamatory per se. As noted above, among the categories of 

defamation per se are statements imputing the commission of a crime and statements imputing 

fornication or adultery. Hadley, 2014 IL App (2d) 130489, ¶ 20. Respondents argue that the 

statements fall into neither of these categories. We disagree. 

¶ 39 Respondents first focus on the defamation per se category of fornication or adultery. 

Respondents contend that there is nothing in petitioner’s allegations indicating that the writer 
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accused J. Doe of sexual intercourse with the other child. Respondents further argue that, 

because the fornication-or-adultery category was added by statute to the tort of defamation 

per se (see 740 ILCS 145/1 (West 2012)), the statute, which was adopted in derogation of the 

common law, must be strictly construed. Respondents conclude that, because petitioner has not 

expressly alleged a statement accusing J. Doe of fornication, she has failed to adequately plead 

a defamatory per se statement within the fornication-or-adultery category. We disagree. 

¶ 40 We note that our supreme court in Bryson held that the allegation that the plaintiff was a 

“ ‘slut’ ” implied that the plaintiff was “ ‘unchaste,’ ” so that the defendants falsely accused the 

plaintiff of fornication. Bryson, 174 Ill. 2d at 90. The court reasoned that, in the context of the 

allegedly defamatory article, the term “slut” was intended to describe the plaintiff’s sexual 

proclivities. Id. at 93-94. The court was untroubled by the lack of a precise description of what 

sort of activities the plaintiff was accused of engaging in. Id. at 90, 93-94. Similarly, albeit in 

the imputation-of-a-crime context, our supreme court in Hadley was untroubled that the 

alleged defamer did not expressly state that the plaintiff was a pedophile or had actually 

molested children. Hadley, 2015 IL 118000, ¶ 37. The natural effect of the words used, along 

with their context, conveyed the idea that the plaintiff was a pedophile or had engaged in 

sexual acts with children. 

¶ 41 Here, petitioner related that respondents informed her that the writer accused J. Doe of a 

“sexual touching,” and that it was “improper sexual contact.” We believe that these words, 

given their context, are sufficient to impute activities akin to those found to be implied by the 

defendants’ use of the word “slut” in Bryson. We have discussed above that the allegations, 

read together, paint a picture of nonconsensual sexual activity that J. Doe forced upon the 

younger, smaller child. We believe that these alleged statements are sufficient to fall under the 

fornication-or-adultery category in the same way as the use of the word “slut” in Bryson.

3

¶ 42 Respondents turn to the Slander and Libel Act (740 ILCS 145/1 (West 2012)) for their next 

argument. Section 1 of the Slander and Libel Act provides, pertinently: “If any person shall 

falsely use, utter or publish words, which in their common acceptance, shall amount to charge 

any person with having been guilty of fornication ***, such words so spoken shall be deemed 

actionable, and he shall be deemed guilty of slander.” Id. Respondents argue that “unchastity”

and “sexual misconduct” are not within the terms of section 1 of the Slander and Libel Act 

(id.), and so a statement imputing “unchastity” or “sexual misconduct” cannot constitute a 

defamatory per se statement. We disagree. While respondents are correct that section 1 does 

not contain the words “unchastity” or “sexual misconduct,” we do not believe that this lack 

forecloses our holding. We note that Bryson expressly analyzed section 1 of the Slander and 

Libel Act. Bryson, 174 Ill. 2d at 89. The court expressly held that the use of the term “ ‘slut’ ”

implied that the plaintiff was “ ‘unchaste,’ ” so that the “defendants’ statements [fell] within 

this statutorily created category of statements that are considered actionable per se.” Id. at 90. 

 

3We also note that respondents’ attorney characterized the contact referred to in the letter as a 

fondling of the genitals. While we do not consider the attorney’s letter in determining the sufficiency of 

the allegations in the Rule 224 petition pursuant to a section 2-615 analysis, we mention this 

characterization as a sort of reasonability check. This type of conduct clearly falls within the 

fornication-or-adultery category of defamation per se. Additionally, this information was included in 

petitioner’s offer of proof supporting a proposed amended petition. While the original petition was 

sufficiently specific and properly alleged defamation per se, we note that the additions proposed by 

petitioner further convince us that our construction of the alleged statements is, in fact, appropriate. 
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Further, the court deemed that “slut” described the plaintiff’s sexual proclivities, not that it 

necessarily meant that she had engaged in fornication or sexual intercourse on a specific date 

and time at a specific place with specific individuals. Id. at 93-94. 

¶ 43 Likewise here. Respondents related to petitioner that the writer’s letter accused J. Doe of 

engaging in a “sexual touching” that constituted “improper sexual contact.” This activity is 

clearly akin to the type of sexual conduct about which a statement is actionable, as approved by 

Bryson. Accordingly, we reject respondents’ contention. 

¶ 44 The Bryson court then considered whether the defendants’ words were capable of an 

innocent construction. Id. at 90-96. The innocent-construction rule renders an allegedly 

defamatory statement nonactionable if it is reasonably capable of an innocent construction. 

Hadley, 2015 IL 118000, ¶ 31. In applying the innocent-construction rule, the court must give 

the allegedly defamatory words their natural and obvious meaning and interpret them as they 

appear to have been used and according to the idea they were intended to convey to the 

recipient. Id. Because the context of the statement is important to understanding its meaning, 

the court must consider the allegedly defamatory words in the context of the entire 

communication. Hadley, 2014 IL App (2d) 130489, ¶ 23. The innocent-construction rule does 

not require the court to strain to find an unnatural and innocent meaning for a statement when a 

defamatory meaning is far more reasonable. Hadley, 2015 IL 118000, ¶ 32. 

¶ 45 As noted above, we cannot conclude that the writer’s allegedly defamatory statements are 

subject to an innocent construction. Although a “sexual touching” could mean only that the 

two children were engaging in normal, consensual exploration, we note that the writer further 

stated that J. Doe’s parent “admitted” that the conduct amounted to “improper sexual contact.” 

This takes the conduct out of the realm of innocent sexual exploration. Further, the fact that the 

writer accused J. Doe of attempting to intimidate the other child into silence through a threat of 

harm suggests that the activity both was known by J. Doe to be improper and was even 

nonconsensual. Accordingly, we do not believe that the statements attributed to the writer can 

be innocently construed. Thus, we conclude that petitioner has alleged defamatory per se

statements under the fornication-or-adultery category. 

¶ 46 While our conclusion that petitioner alleged defamatory per se statements means that we 

do not need to consider whether she also alleged a defamatory per se statement under the 

commission-of-a-crime category, we choose to address the parties’ arguments on this ground 

as an additional and alternate basis for our holding. For a statement to constitute defamation 

per se as imputing the commission of a crime, the crime must be an indictable one, involving 

moral turpitude and punishable by death or imprisonment rather than by fine. Jacobson v. 

Gimbel, 2013 IL App (2d) 120478, ¶ 27. While the allegedly defamatory words need not meet 

the pleading requirements of an indictment, the words must fairly impute the commission of a 

crime. Id. The innocent-construction rule also applies to whether an allegedly defamatory 

statement imputes the commission of a crime. Id. ¶ 28. Respondents contend that the alleged 

statements about “sexual touching” and “improper sexual contact” fail to impute the 

commission of a crime. 

¶ 47 At oral argument, we indicated our concern as to whether the alleged statement that “J. Doe 

threatened the other child with harm if the other child told anybody about the touching”

constituted the imputation of the commission of a crime. In the trial court, neither party 

addressed whether this statement imputed the commission of a crime. We directed the parties, 

on our own motion, to present supplemental briefing regarding the adequacy of the petition on 
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the issue of defamation per se by imputation of a crime, specifically, the offense of 

intimidation. The parties each submitted the requested supplemental brief. Respondents argued 

that we should not consider whether petitioner alleged that the writer imputed the offense of 

intimidation. Therefore, upon reflection, we will not further address the issue. 

¶ 48 Next, we turn to the imputation of the commission of a sexual offense. Respondents 

contend that the remaining allegations are insufficient to demonstrate that the writer was 

imputing to J. Doe the commission of criminal sexual abuse or any other sexual offense. “A 

person commits criminal sexual abuse if that person: (1) commits an act of sexual conduct by 

the use of force or threat of force ***.” 720 ILCS 5/11-1.50(a) (West 2012). In turn: 

“ ‘Sexual conduct’ means any knowing touching or fondling by the victim or the 

accused, either directly or through clothing, of the sex organs, anus, or breast of the 

victim or the accused, or any part of the body of a child under 13 years of age, *** for 

the purpose of sexual gratification or arousal of the victim or the accused.” 720 ILCS 

5/11-0.1 (West 2012). 

Respondents argue that there is no statement that J. Doe was committing the “sexual conduct”

for the purpose of sexual gratification or arousal. Respondents further argue that there is no 

allegation that the other child was under 13 years of age. We reject respondents’ arguments. 

¶ 49 We have noted that there is no possible innocent construction of the allegedly defamatory 

statements. With that starting position, we note that respondents are essentially arguing that, in 

order to make a claim of defamation per se based on the imputation of the commission of a 

crime, even though it is based on statements in a letter to which respondents have denied 

petitioner access, petitioner would have to allege that the writer included all of the elements of 

the relevant crime. We note that this is not the standard; rather, the standard is only that the 

statements must fairly impute the commission of a crime. We believe that the terms “sexual 

touching” and “improper sexual contact,” along with other language in the statements, fairly 

suggest that the writer accused J. Doe of committing a criminal sexual act with the other child, 

especially in light of the fact that J. Doe threatened the other child with harm to prevent the 

disclosure of the conduct. We disagree with respondents that petitioner needed to allege the 

ages of the children involved, especially in light of the fact that petitioner is trying to preserve 

the anonymity of both J. Doe and the other child in these pleadings. Identifying them by age 

would serve only to lessen that anonymity and, because this case involves a parish community, 

would risk actual exposure of the children’s identities beyond what has likely already occurred 

through the inevitable rumors that have likely accompanied the conduct, the publication of the 

letter, and this action. Accordingly, we reject respondents’ contentions and hold that petitioner 

adequately pleaded that the writer’s allegedly defamatory statements imputed the commission 

of a crime. Based on this holding, we need not consider the parties’ arguments concerning 

affidavits and exhibits beyond the four corners of the petition. 

¶ 50 B. Clergy-Penitent Privilege 

¶ 51 Respondents next contend that the clergy-penitent privilege should bar the disclosure of 

the writer’s identity. Strictly speaking, privilege is an affirmative defense (Johnson v. Johnson 

& Bell, Ltd., 2014 IL App (1st) 122677, ¶ 15 (privilege is an affirmative defense susceptible to 

resolution via a section 2-619 (735 ILCS 5/2-619 (West 2012)) motion to dismiss)), which 

should not be considered when resolving a section 2-615 motion to dismiss (Becker v. Zellner, 

292 Ill. App. 3d 116, 122 (1997) (generally, “affirmative defenses may not be raised in a 
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section 2-615 motion”)). See also Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 712

(2010) (an affirmative defense is not considered under a section 2-615 analysis). However, 

pursuant to section 2-619, respondents argued below that, if the trial court determined that the 

Rule 224 petition adequately stated a claim of defamation, the affirmative defense of 

clergy-penitent privilege would nevertheless defeat the petition. While respondents did not 

clearly denominate their motion to dismiss as a section 2-619.1 combined motion (735 ILCS 

5/2-619.1 (West 2012) (allowing for the promulgation of sections 2-615 and 2-619 motions to 

dismiss in the same motion so long as they are clearly separate)), they otherwise complied with 

the requirements of a section 2-619.1 combined motion, so we may and we will consider their 

contentions on the clergy-penitent privilege. 

¶ 52 Section 8-803 of the Code codifies the clergy-penitent privilege: 

“A clergyman or practitioner of any religious denomination accredited by the religious 

body to which he or she belongs, shall not be compelled to disclose in any court, or to 

any administrative board or agency, or to any public officer, a confession or admission 

made to him or her in his or her professional character or as a spiritual advisor in the 

course of the discipline enjoined by the rules or practices of such religious body or of 

the religion which he or she professes, nor be compelled to divulge any information 

which has been obtained by him or her in such professional character or as such 

spiritual advisor.” 735 ILCS 5/8-803 (West 2012). 

¶ 53 In order to properly invoke an evidentiary privilege, the party asserting the privilege must 

establish all of the privilege’s necessary elements. People v. Thomas, 2014 IL App (2d) 

121001, ¶ 94. The clergy-penitent privilege “extends only to information that an individual 

conveys in the course of making an admission or confession to a clergy member in his capacity 

as spiritual counselor.” People v. Campobello, 348 Ill. App. 3d 619, 634 (2004). This court has 

noted that a clergy member’s “professional character” is no broader than his or her role as a 

“spiritual advisor” under section 8-803. Id. This is demonstrated through a close reading of 

section 8-803. The first clause of section 8-803 accords protection to any “confession” or 

“admission” made to a clergy member “in his or her professional character or as a spiritual 

advisor in the course of the discipline enjoined by the rules or practices of [the] religious body 

or of the religion which [the clergy member] professes.” 735 ILCS 5/8-803 (West 2012). Even 

though “professional character” and “spiritual advisor” are linked disjunctively, the 

requirement that a “confession” or “admission” to the clergy member be made “in the course of 

the discipline” applies to all confessions and admissions received by the clergy member. Id.; 

Campobello, 348 Ill. App. 3d at 634. 

¶ 54 In this clause, “course of the discipline” is the crucial phrase: “the ‘discipline’ referred to in 

section 8-803 is limited to the set of dictates binding a clergy member to receive from an 

individual an ‘admission’ or ‘confession’ for the purpose of spiritually counseling or consoling 

the individual.” Campobello, 348 Ill. App. 3d at 635. Thus, to qualify for preclusion under the 

clergy-penitent privilege and section 8-803, “a communication must be an admission or 

confession (1) made for the purpose of receiving spiritual counsel or consolation (2) to a clergy 

member whose religion requires him to receive admissions or confessions for the purpose of 

providing spiritual counsel or consolation.” Id.

¶ 55 Last, the final clause of section 8-803 prevents the compelled disclosure of “any 

information” the clergy member has obtained “in such professional character or as such 

spiritual advisor.” 735 ILCS 5/8-803 (West 2012). “The inclusion of ‘such’ is a 
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reincorporation of the preceding definition of ‘professional character’ and ‘spiritual advisor,’

which as we have noted, is qualified by the phrase ‘in the course of the discipline enjoined by 

the rules or practices of such religious body or of the religion which [the clergy member] 

professes.’ ” Campobello, 348 Ill. App. 3d at 635-36. “Any information” given in the course of 

a confession or admission for the purpose of receiving spiritual counseling or consolation falls 

under the clergy-penitent privilege. Id. at 636. The privilege, however, extends only to a 

confession or admission made in confidence. Id. With these principles in mind, we turn to 

respondents’ contentions. 

¶ 56 In this case, the writer wrote a letter to Doe outlining certain alleged improper sexual 

conduct, committed several years previously, by J. Doe. The writer sought guidance in how to 

handle the situation. The writer was a volunteer for a religious-education program conducted 

by the parish and had the responsibility of monitoring the children in the program. In our view, 

at least on the present record, the statements in issue are simply not of the character of a 

confession or admission for which the writer was seeking spiritual guidance. Rather, they are 

outlining a potential source of risk for the parish and the children if J. Doe were to repeat such 

conduct while participating in the educational program offered by the parish. This is 

fundamentally not a matter of conscience for the writer; rather it is a matter of risk 

management for the writer as an agent of the parish and a guardian of children. Accordingly, 

we hold that the clergy-penitent privilege is simply inapplicable. 

¶ 57 Respondents first contend that petitioner admitted that the writer published the allegedly 

defamatory statements to Doe “in his capacity as pastor of the parish.” Respondents conclude 

that petitioner has conceded that the communication was made to Doe in his professional 

character or as a spiritual advisor under section 8-803. We disagree. The position of pastor of a 

parish includes significant bureaucratic responsibilities for overseeing the various programs 

run by the parish and the diocese. “In his capacity as pastor of the parish” could refer to both 

Doe’s duties to provide spiritual counseling and consolation as well as his administrative and 

bureaucratic duties to oversee the running of the parish. We cannot say that petitioner actually 

conceded that the communication was delivered to Doe in his role as a spiritual advisor. 

¶ 58 Respondents attached Doe’s affidavit, in which he averred that his position required him to 

“provide spiritual consolation and consultation as well as moral and ethical direction.” Doe 

further averred that, if he identified the writer, it would breach the rules of the church and 

“breach the confidence of a parishioner and volunteer who sought consolation and guidance.” 

What respondents omit, however, is that the writer was a volunteer with a responsibility, 

within a specific program of religious instruction, to monitor the children participating in that 

program. Thus, the allegedly defamatory statements are more clearly seen as a request for 

guidance in conducting the program and discharging the writer’s responsibility than as a 

request for consolation or counseling over a matter of conscience. In other words, the request 

for guidance was for the purpose of minimizing the risk to the parish and the children, rather 

than seeking spiritual instruction. We do not believe that the clergy-penitent privilege extends 

to bureaucratic and administrative purposes. See id. (the privilege extends to confessions or 

admissions). Here, the writer explained the background of one of the children under his or her 

supervision and asked for guidance in handling the problems posed by this background; the 

writer did not make a confession or admission. 

¶ 59 Respondents argue that, in effect, requiring a confession or admission effectively takes 

communication about the acts of third persons outside of the clergy-penitent privilege, and that 
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such a holding contravenes Snyder v. Poplett, 98 Ill. App. 3d 359, 363 (1981). We disagree. 

The plain language of the statute applies to “a confession or admission.” 735 ILCS 5/8-803 

(West 2012). Here, we discern neither a confession nor an admission; rather, the writer’s 

statements are accusative, accusing J. Doe of certain improper sexual conduct. As a result, they 

fall outside of the Snyder court’s refusal to create a blanket exception to the privilege for 

communications relating to the acts of third persons instead of to the individual making the 

communication. 

¶ 60 Respondents note that, similarly, Campobello does not limit statements under the 

clergy-penitent privilege to those regarding the communicant’s own conduct. See Campobello, 

348 Ill. App. 3d at 636. We do not disagree. Campobello does not limit the statements to the 

communicant’s own conduct, but the statements are still limited to those that are confessional. 

Id. at 635. If the statement is not of such character, then it is, by statutory definition, outside of 

the clergy-penitent privilege. See 735 ILCS 5/8-803 (West 2012) (prohibiting the disclosure of 

“a confession or admission made to [the clergy member] in his or her professional character or 

as a spiritual advisor”). Here, the writer sought guidance not for a spiritual matter or a matter of 

conscience but in the writer’s capacity as a volunteer with the responsibility of monitoring the 

participants in one of the parish’s religious-education programs. It is not the fact that the 

statements concerned a third party, but the fact that the statements were not a confession or 

admission, that takes them outside of the privilege. Accordingly, respondents’ argument is 

inapposite. 

¶ 61 Respondents note petitioner’s concession that Doe, in his affidavit, averred that the 

writer’s letter was sent for the purpose of seeking spiritual counsel. Doe did indeed make such 

a conclusion. However, this conclusion is not borne out by the factual averments in the 

affidavit, especially when considered with the allegations in the petition. Accordingly, while 

petitioner might have been constrained to concede that Doe averred the writer’s purpose, that 

concession is of no significance, because it amounts to conceding that Doe said what he said. 

Accordingly, we attribute no weight to the concession or to respondents’ argument on that 

point. 

¶ 62 For the foregoing reasons, then, we hold that the clergy-penitent privilege does not apply 

under the facts so far elicited in this case. Accordingly, the trial court did not err in compelling 

the disclosure of the writer’s identity. We note that respondents did not raise on appeal any of 

the other arguments they advanced below. Accordingly, we need not address them. 

¶ 63 III. CONCLUSION 

¶ 64 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed. 

¶ 65 Affirmed.