Informative Ruling on Priest-Penitent Privilege

The Massachusetts Appeals Court refused to apply the state’s priest-penitent privilege where the criminal defendant’s conversations with a Baptist minister did not concern spiritual advice.  Consequently, the court permitted the minister’s testimony about the defendant’s admission of child sexual abuse.  Commonwealth v. Vital, 2013 WL 2350393 (Mass. App. Ct. May 31, 2013).

Massachusetts, like many states,Fotosearch_1775298 contains a statutory priest-penitent privilege.  Mass. Gen. Laws  c. 233 § 20A.  Also called the clergy-communicant privilege, the “minister’s privilege,” or the cleric-confessor privilege, this evidentiary privilege generally protects from compelled disclosure a person’s communications—not just confessions—to her priest, pastor, rabbi, or other minister.  Most statutes, however, protect only communications made for the purpose of seeking spiritual or religious advice or comfort.

In Vital, the defendant met with his Baptist minister about his sexual assault of an underage girl.  According to the minister, the defendant’s stated purpose for the discussions was to persuade the minister to talk with the girl’s family in the hopes of avoiding criminal prosecution.  Although the defendant confirmed the privileged and confidential nature of the discussions with the minister before confiding admissions, the appellate court found that the privilege simply did not apply to the conversations.

The defendant in this case . . . did not communicate with the pastor to seek religious counseling, but rather sought the pastor’s assistance in an attempt to avoid the proverbial ‘train going right at the defendant’s forehead, i.e., criminal charges’.

The court strictly construed the priest-penitent privilege statute, found that it did not cover these communications, and permitted the minister to convey the defendant’s confession of guilt to the jury.

PoP Analysis.  Several states maintain priest-penitent privilege statutes similar to the Massachusetts’ statute.  Applicable in criminal and civil cases, the privilege encourages individuals to seek spiritual or religious therapy, if desired, by removing the fear that a court may later force the minister to disclose statements made during a spiritual discussion.  But as in Vital, courts strictly construe the statute.  Vital reminds practitioners to, where possible, lay a foundation that the communicant’s discussions with a clergy member were made for the purpose of seeking religious or spiritual advice within the confines that religious discipline. Only after laying this foundation will courts apply the privilege and prevent disclosure.