April 5, 2012
Is a Confession to a Pastor Always Confidential?
Michigan child-rape case spotlights clergy-penitent privilege.
A child sexual assault case in Michigan has garnered national interest in recent weeks because the evidence used to bring criminal charges against the alleged perpetrator included testimony from his pastor.
A county judge deemed the inclusion of the pastor's statements to be a violation of the state's clergy-penitent privilege laws, and tossed it out from the county prosecution's case against the man. The suspect, who is accused of raping a girl when she was 9, faces a mandatory 25-year prison sentence if convicted.
The prosecution appealed the county judge's decision based on two factors: One, the suspect's alleged confession was given to his pastor in the presence of the suspect's mother, thus reducing expectations for confidentiality. And two, the pastor requested the meeting, not the suspect, suggesting the suspect wasn't seeking spiritual counseling when the meeting occurred.
This case once again illustrates the challenges with understanding how clergy-penitent privilege works. Richard Hammar has written a few times about the clergy-penitent privilege on ChurchLawAndTax.com, including a case in Florida in which the privilege didn't apply, another case in Rhode Island in which it didn't apply, and a Q&A about the difference between privileged and confidential communications. These articles are critical first steps for pastors to understand how clergy-penitent privileges work, as is a thorough reading of applicable state laws.
For more help, the first volume of Pastor, Church & Law by Hammar includes an extensive checklist that pastors and church leaders can use before any potential communications that may involve a confession.