Understanding the Boundaries of Clergy-Penitent Privilege

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  2. Understanding the Boundaries of Clergy-Penitent Privilege
Clergy-Penitent Privilege
Church & Nonprofit

The Arizona church and ministry lawyers at Provident Law® counsel, represent, and serve churches, ministries, charities, foundations, and nonprofit organizations. We can advise your church or ministry of its legal rights, including the bounds of clergy-penitent privilege. Together, we can handle any legal issues that may arise, determine the best strategy for addressing those issues, and work to resolve those issues in as positive a manner as possible.

The Clergy-Penitent Privilege Statute

Members of churches and other religious congregations often lean heavily on their faith in challenging times. As a result, they often disclose sensitive, personal, and private information to their priests, bishops, ministers, pastors, and clergy members. The law recognizes the sanctity of these communications by lending some degree of confidentiality to these communications in every state, including the state of Arizona.

A.R.S. § 13-4062 states that a person shall not be examined as a witness in certain cases, including “[a] clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.”

Generally, the clergy-penitent privilege applies in civil and criminal cases, thus protecting the confidential communications between church members and their church officials. However, Arizona, like many other states, has enacted an exception to the clergy-penitent privilege for the purposes of reporting child abuse or neglect. Nonetheless, as explained in further detail below, this exception is not absolute, and does not require disclosure in all circumstances.

The Child Abuse Reporting Statute

Arizona’s Child Abuse Reporting Statute, A.R.S. § 13-3620, lists various persons who are mandatory reporters of physical injury, abuse, reportable offenses, or non-accidental neglect of a child. The statute includes anyone who is a “member of the clergy, priest or Christian Science practitioner.”

However, A.R.S. § 13-3620(L) states:

In any civil or criminal litigation in which a child’s neglect, dependency, physical injury, abuse, child abuse or abandonment is an issue, a member of the clergy, a Christian Science practitioner or a priest shall not, without his consent, be examined as a witness concerning any confession made to him in his role as a member of the clergy, a Christian Science practitioner or a priest in the course of the discipline enjoined by the church to which he belongs.  This subsection does not discharge a member of the clergy, a Christian Science practitioner or a priest from the duty to report . . .

As a result, if a minister, priest, or clergy member receives information about abuse or a reportable offense affecting a child in the context of a religious confession, they cannot be forced to testify as a witness in any civil or criminal litigation about that abuse. Confessions fall within the boundaries of clergy-penitent privilege.

The Adams Case

Last fall, an Arizona Superior Court judge dismissed a lawsuit filed against The Church of Jesus Christ of Latter-Day Saints based on clergy-penitent privilege. More specifically, the judge ruled that church officials had no duty to report that Adams, a church member, was sexually abusing his child because they learned of the abuse through the church member’s confession.

Originally, a county judge had ruled that Adams had waived his right to keep his confession confidential when he shared videos of himself abusing his child in private online forums, which led to his eventual arrest. The Arizona Court of Appeals overturned the ruling, finding that Adams’ confession to church officials concerning the abuse, along with his disciplinary records when the church later excommunicated him, were confidential under state law. That court also ruled that attorneys could not compel church leaders to answer questions about Adams’ confession or excommunication. On appeal, the Arizona Supreme Court upheld the Court of Appeals ruling.

In the most recent ruling, the judge found that not only was Adams’ confession to a church bishop covered by the clergy-penitent privilege, but communications with others concerning the confession were covered, as well. The judge ruled that communications with Adams’ wife and members of the church disciplinary council who ultimately excommunicated Adams concerning the confession constituted a “confidential communication or confession.”

The rulings in the Adam case create a murky situation for church and ministry officials who find themselves in possession of information regarding child abuse or neglect. The language of the statute on its face is not completely consistent with the court rulings and attempts by some in the state legislature to amend the relevant statute continue. Therefore, churches and other religious organizations faced with such issues should immediately seek legal counsel.

Contact Us for Assistance with Your Church or Ministry Legal Matter Today

Churches, ministries, and nonprofit organizations face many of the same legal issues as other business entities, but also may face certain legal matters that are unique to their industry. The church and ministry attorneys at Provident Law® have decades of combined legal experience representing these clients in various legal matters. We aim to build a long-term relationship with your church, ministry, or other entity as we work together to proactively address and solve your most complex legal problems. Contact a church and ministry lawyer today by calling (480) 388-3343 or reach out to us online to set up a time to see what we can do for you.

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