Sharing Sacred Secrets: Is it (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?

TABLE OF CONTENTS INTRODUCTION I. PURPOSE AND HISTORY OF THE CLERGY-PENITENT PRIVILEGE A. Rationale for the Privilege B. History of the Privilege II. STATE STATUTES TODAY A. The Discipline Enjoined Requirement B. Types of Protected Communications C. Who Holds the Privilege? D. Who Constitutes a Cleric? III. THE EVOLVING FEDERAL PRIVILEGE IV. CLERGY OBLIGATIONS WITH RESPECT TO DANGEROUS PERSONS: LESSONS LEARNED FROM THE MANDATED REPORTING STATUTES V. LESSONS LEARNED FROM THE OTHER PROFESSIONS: THE "HOMICIDAL SPOUSE" EXAMPLE A. Responsibilities of the Psychotherapist B. Responsibilities of the Attorney C. Responsibilities of the Clergy VI. CLOSING THE GAP VII. CONSTITUTIONAL CONSIDERATIONS A. The Free Exercise Clause B. The Establishment Clause CONCLUSION Nothing is concealed that will not be revealed, and nothing hidden that will not become known. (1) INTRODUCTION The growing crisis of pedophilia in the Roman Catholic Church (2) has cast renewed focus on the clergy-penitent privilege in America. (3) As many state legislatures scramble to consider proposed amendments to their child abuse reporting statutes that would designate clergy as mandated reporters, (4) the scandal has prompted widespread debate about whether information learned from otherwise privileged communications should be excluded from the statutory obligation to report. (5) This debate has highlighted the tension between respecting clergy confidences and protecting the public welfare. In this Article, I suggest that it is time to revisit the clergy-penitent privilege, and to question seriously whether its presently broad application truly serves the public interest. The clergy-penitent privilege is deeply engrained in American culture. (6) Although the privilege has its origins in the seal of the confessional of the Roman Catholic Church, (7) statutory forms of the privilege in most states now protect any confidential communications with a clergy member for the purposes of "penitential confession or spiritual advice" from compelled disclosure. (8) In recent years, another area of growth in the doctrine has been in the expanding definition of who constitutes a cleric for purposes of the privilege. (9) Many nonhierarchical religions rely on peer counseling rather than counseling by ordained ministers. (10) Other churches are experiencing a scarcity of ordained clergy, and increasingly are relying on lay ministers to perform certain spiritual functions previously performed only by the officially ordained. (11) Just as courts and legislatures over the past several decades have expanded the definition of what constitutes a protected communication, many states have taken a similarly broad view of who constitutes a clergy member for purposes of their clergy-penitent privilege statutes. (12) As a consequence of this interpretive growth, more types of religious officers and functionaries are now recognized as ministers, and more types of communications, such as marital counseling sessions, are recognized as falling within the ambit of spiritual counseling or advice. (13) This expanding application of the privilege during the twentieth century has been motivated in part by a growing respect for the diversity of religious affiliation and spiritual belief in our society, if not an explicit concern for potential collision with the Free Exercise and Establishment Clauses of the First Amendment. (14) The doctrinal creep of the clergy-penitent privilege described in this Article has come with serious collateral costs. (15) Whenever more types of conversations with more types of religious or quasi-religious functionaries are protected from disclosure, society pays a price in terms of relevant and highly probative evidence being excluded from the fact-finding process. (16) Because ministers are often intimately involved in the lives of many citizens, they frequently have relevant and highly probative evidence to offer a judicial tribunal on a wide variety of subjects including, among others, paternity, domestic violence, child abuse, child custody, and will contests. …