Breaking Clergy Confidence

confidenceBy David M. Gower. Posted with permission from Baptist Bulletin May/June 2012. All rights reserved.

People expect a lot from a pastor—including standing up for justice and helping those in need. But they also expect him to provide confidential spiritual guidance. So what happens when these expectations collide? What happens when a pastor learns that someone he is counseling has committed a crime? To whom does the pastor owe his loyalty: the person being counseled, or the victim of the crime? These questions are at the center of a rape case now pending in a Michigan court of appeals that will set precedent in Michigan and could have ramifications nationwide.

People of Michigan v. Samuel Bragg

John Vaprezsan is the pastor of Metro Baptist Church, an independent Baptist church in Belleville, Mich. In 2009, reports USA Today, a woman in the church told Vaprezsan that her daughter had been raped by Samuel Bragg, a teenager who also attended Metro Baptist. The girl was just 9 years old at the time of the assault.

After hearing this disturbing news, Vaprezsan asked Bragg and his mother to meet him at the church. Vaprezsan claims that at the meeting Bragg confessed to sexually assaulting the girl. Later Vaprezsan gave a statement to police and Bragg was charged with first-degree criminal sexual assault. But Bragg and his mother deny making any confession.

Knowing that his testimony would be vital to the case, Vaprezsan agreed to testify in court about the details of Bragg’s confession. However, the trial judge ruled that Vaprezsan’s testimony was inadmissible because it would violate Michigan’s clergy privilege statute, which states,

No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.1

The prosecutor appealed the trial judge’s decision to the Michigan court of appeals, which has not issued its ruling as of this writing.2

What is the clergy privilege?

You have probably heard of the attorney-client privilege. It prevents an attorney from disclosing confidential information received from someone seeking legal advice. Similarly, the clergy privilege prevents a pastor from disclosing confidential information that he receives from someone seeking spiritual advice.

The clergy privilege is based on public policy. Simply put, American society has traditionally recognized the need for effective religious guidance. By protecting the privacy of conversations with ministers, the clergy privilege encourages people to speak openly and honestly with a minister without fear of incriminating themselves.

All 50 states have enacted statutes that recognize the clergy privilege. But not all of these statutes are the same. So the extent of the privilege depends on the law of the jurisdiction where the pastor is called to testify.

To whom does the clergy privilege apply?

Simply being called a “pastor” does not necessarily make someone “clergy” under the law. While most state statutes apply broadly to anyone who is ordained, licensed, or simply “accredited”3 by a religious body, some statutes are more limited. For example, in Kansas, the privilege applies only to a “regular or duly ordained minister” and excludes any pastor who only “irregularly or incidentally preaches or teaches” in the church.4

Some courts have extended the clergy privilege to a minister’s assistant regardless of whether the assistant fits within the definition of “clergy.”5 But this extension is not universal and applies only to an assistant whose knowledge of the privileged information is “indispensable” to the work of the minister in counseling. For example, a federal court in California ruled that the clergy privilege applied to lay counselors who regularly assisted a pastor with counseling due to the large number of people who required counseling in the pastor’s church.6

In sum, it is important to understand how the clergy privilege applies to each person in a leadership position at your church. Pastors should know if they fall within the definition of “clergy” under the law of their state. Those who assist pastors with counseling should know if the privilege extends to them.

Was the conversation “confidential”?

To be privileged, a conversation with clergy must be confidential. Whether a conversation is confidential depends on whether the pastor or the person being counseled intended it to remain private.

In the Bragg case, the parties disagree as to whether Bragg intended his conversation with Pastor Vaprezsan to remain private. The prosecutor has argued that Bragg did not intend the conversation to remain private because he allowed his mother to stay in the room. But Bragg’s attorney has argued that Bragg was just a teenager and the pastor required his mother to come to the meeting, so Bragg naturally assumed that his mother’s presence did not destroy the privacy of the conversation.

There is no way to guarantee how a court will ultimately rule. However, certain precautions can be taken to increase the odds that a court will view a conversation as confidential. For starters, one could announce at the beginning of the conversation that it is intended to remain private. On the other hand, a pastor could announce at the beginning that he may disclose any confession of illegal activities. If the counseled person proceeds to admit a crime, he would be hard-pressed to convince a court that his admission was intended to be confidential in light of the pastor’s warning.

Another precaution would be to retire to a room away from others, or remove others from the room where the conversation takes place. For example, a Minnesota court found that a conversation between a man and a hospital chaplain was confidential because they retired to the hospital lounge away from others to discuss the man’s suspected abuse of a child he had just brought into the emergency room.7

What was the purpose of the communication?

The purpose of a communication with a minister has a profound impact on whether the clergy privilege applies. The language of some state statutes appears to apply only to confessions that a person is required to make, and that a minister is required to receive and not divulge, under the rules of the minister’s church—as is the case with formal confessions made to Roman Catholic priests.

However, most evangelical religious communities, including the GARBC, do not require formal confessions to ministers and do not forbid ministers from divulging confessions. If the clergy privilege applied only to Roman Catholic priests, it would arguably violate the establishment clause of the First Amendment by favoring one religion over others. Many states avoid this problem by applying the privilege more broadly to confessions made in the course of any spiritual counseling. The trial judge in the Bragg case took the broader approach, finding that Bragg’s confession was privileged because it was made during spiritual counseling, even though Pastor Vaprezsan testified that Baptist doctrine does not prohibit him from testifying. The GARBC has not established rules governing when a pastor can, or cannot, disclose confidential information that he receives during spiritual counseling. This approach is consistent with the GARBC’s practice of allowing local churches to remain autonomous and free to design their own rules based on Scripture and the laws of the state where the church is located.

Who holds the power of the privilege?

While it is called the “clergy” privilege, in many states the privilege belongs to the person being counseled, not to the minister. In those states, the counseled person decides whether the minister may testify. Bragg’s attorney argues that under Michigan law, the privilege belongs to Bragg, not Pastor Vaprezsan. He further argues that Bragg never waived the privilege, and therefore he claims that the judge correctly barred Vaprezsan’s testimony.

In other states, the privilege belongs to the minister as well as to the person being counseled. In those states, either person may waive the privilege or elect to enforce it, regardless of what the other person wants.

A few states flatly forbid clergy from testifying, and neither the minister nor the counseled person may waive the ban.

Is child abuse an exception to the clergy privilege?

The issue of child abuse requires special attention. All 50 states have enacted laws requiring people in certain professions, such as doctors and teachers, to report child abuse. Approximately 26 states specifically include clergy among the list of professionals who must report child abuse. Another 18 states require any person who suspects child abuse to report it, which would include clergy. All GARBC pastors should be aware of their obligations to report suspected child abuse or neglect pursuant to state law. The U.S. Department of Health and Human Services has compiled a summary of mandatory reporting laws throughout the U.S. and how they relate to the clergy privilege. It is available online at www.childwelfare.gov or by calling the department at 800-394-3366.

Some states flatly deny the clergy privilege in cases of child abuse. In those states, clergy must report child abuse to the appropriate government authority and can be compelled to testify about it in court. In other states, clergy are merely required to report child abuse, but the clergy privilege can still be invoked in court. Michigan, where the Bragg case is pending, falls into the second category. Michigan law requires clergy to report child abuse or neglect:

A…member of the clergy…who has reasonable cause to suspect child abuse or neglect shall make immediately, by telephone or otherwise, an oral report, or cause an oral report to be made, of the suspected child abuse or neglect to the [Michigan Department of Human Services].8

However, Michigan law also permits the clergy privilege to be invoked in a criminal trial:

Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made or for excluding evidence in a civil protective proceeding resulting from a report made pursuant to this act. This section does not relieve a member of the clergy from reporting suspected child abuse or child neglect…if that member of the clergy receives information concerning suspected child abuse or child neglect while acting in any other capacity.9

Pastors of GARBC churches should have no moral objection to laws requiring them to report actual child abuse or neglect. Scripture says, “Rescue the weak and needy; deliver them out of the hand of the wicked” (Psalm 82:4, NASB). Who could be weaker or in more desperate need of help than an abused or neglected child?

Keep in mind that most states impose civil and criminal penalties for failing to report suspected child abuse or neglect.10

Lessons from the Bragg case

Church leaders must understand their obligations under state law. They should know to whom the clergy privilege applies and the types of communications that are privileged. Most important, each leader should have a thorough understanding of when and how to report suspected child abuse and neglect.

If you have any questions about your rights or obligations under the clergy privilege or a mandatory reporting statute, contact the appropriate government agency or an attorney licensed to practice law in your state.

Notes about legal cases

1 Mich. Comp. Laws Ann. § 600.2156

2 The Michigan appeals court docket for People v. Bragg, Case No. 305140, is available online at hcoa.courts.mi.gov.

3 735 ILCS 5/8-803.

4 Kan. Stat. Ann. § 60-429.

5 In re Verplank, 329 F. Supp. 433, 436 (C.D. Cal. 1971); In re Grand Jury Investigation, 918 F.2d 374, 384 (3rd Cir. 1990); People v. Diercks, 88 Ill. App. 3d 1073, 1078 (5th Dist. 1980).

6 In re Verplank, 329 F. Supp. at 436.

7 State v. Orfi, 511 N.W.2d 464, 469 (Minn. Ct. App. 1994).

8 Mich. Comp. Laws Ann. § 722.623.

9 Mich. Comp. Laws Ann. § 722.631.

10 “Penalties for Failure to Report and False Reporting of Child Abuse and Neglect: Summary of State Laws,” U.S. Department of Health and Human Services. Accessed on March 19, 2012, at www.childwelfare.gov.


David M. Gower is an attorney with the law firm DeBlasio Law Group, LLC in Oak Brook, Ill. He is licensed to practice law in the state of Illinois, the U.S. District Court for the Northern District of Illinois, and the U.S. Court of Appeals for the Seventh Circuit. He is the son of David Gower, former editor of the Baptist Bulletin. This article is for informational purposes only and is not legal advice.

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There are 23 Comments

Aaron Blumer's picture

EditorAdmin

Thanks for this fact-focused look at the issue.

Jay's picture

Quote:
However, the trial judge ruled that Vaprezsan’s testimony was inadmissible because it would violate Michigan’s clergy privilege statute, which states,

Quote:
No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.

The prosecutor appealed the trial judge’s decision to the Michigan court of appeals, which has not issued its ruling as of this writing.

It looks like the Court of Appeals http://www.freep.com/article/20120509/NEWS05/120509027/Pastor-penitent-c...? ]issued their ruling .

This is completely wrong. Completely and morally wrong; I hope that the MI Supreme Court overrides this foolish and damaging ruling.

"Our task today is to tell people — who no longer know what sin is...no longer see themselves as sinners, and no longer have room for these categories — that Christ died for sins of which they do not think they’re guilty." - David Wells

Susan R's picture

EditorModerator

It is so important for church leadership to understand the law. Sometimes pastors may feel above the law, or that the law doesn't apply to them because of Acts 5:29. But there has to be a balance somewhere between Acts 5:29 and Romans 13. I don't envy pastors this burden. Congregations should consider the unique responsibilities of the pastor and pray diligently that God grant their leaders and staff with exceptional wisdom and discernment.

T Howard's picture

A pastor should never promise or imply that conversations he has with members of his congregation will remain private or confidential. Whether because of legal or church discipline reasons, the pastor should inform those who seek counsel from him that he may have to disclose his conversations to the legal authorities or the elders of the church in order to deal legally/biblically with the situation.

Larry's picture

Moderator

Quote:
This is completely wrong. Completely and morally wrong; I hope that the MI Supreme Court overrides this foolish and damaging ruling.
It's not just a matter of overriding it. It is a matter of changing the law. The courts can't (or at least aren't supposed to) just change the law. That is the legislature.

I would be curious as to some clarification because I wonder if he has read the MI law wrong. It seems that the "mandatory clergy reporting" applies when the knowledge comes apart from his clergy duties to the person involved. In this case, the pastor must report the mother's charges if he finds them to be reasonable. He could testify on that basis alone I imagine. (Again, "reasonable" is the word the law uses. No one is required to report all charges; every law has some sort of reasonability clause.) It seems that the law specifies that if the pastor's only knowledge of the crime is through the perpetrator, he cannot report or testify.

Bob Hayton's picture

I think we should pause and commend Pastor Vaprezsan's handling of the matter. He is clearly standing up for the offended, and not impeding justice. There have been cases in the media the last few years of incidents where questions are raised as to whether an independent Baptist pastor has dodged the full force of the law to cover things up or what have you. Clearly this is not happening here, and we should be thankful for that. Whether or not his testimony can be admitted, he is willing to testify and did make the report that he needed to make. That was the right call for sure.

Striving for the unity of the faith, for the glory of God ~ Eph. 4:3, 13; Rom. 15:5-7 I blog at Fundamentally Reformed. Follow me on Twitter.

Dr. Jack's picture

The State of New Hampshire has a law entitled "Child Protection Act" which makes failure to report information on child abuse or neglect, even if you heard it as a rumor from a third party, a crime. The law applies to all clergymen and all people with the one exception of lawyers. In 1996 I, along with dozens of others, testified in front of the State Senate Judiciary Committee in an effort to amend the act to exempt clergymen, but the Senate ultimately failed to act. Technically, it would make Catholic priests in the confessional booth subject to criminal prosecution.

Dr. Jack Williamson

Marcia W.'s picture

What I cannot understand is why a mother would take this information to a pastor and not to the police. What good did it do to burden the pastor with having to make a decision like that? Perhaps the pastor's first step should have been to accompany this mother to the police station rather than trying to handle it on his own. Again, hind sight is always 20/20, and we may learn some very important things from this situation. Unfortunately, in the society we live in today, pastors will see much, much more of it. Thank you for sharing this.

sutherlandrewj's picture

Whether you are a pastor, a counselor, or simply a friend lending an ear, if someone asks if they can tell you something in confidence, you should consider saying something to the effect of, "I will never tell anyone I do not need to tell."

If you committed a crime or are a danger to someone, I need to tell the police.

Larry's picture

Moderator

Quote:
That was the right call for sure.
Bob, how would you feel if a whole case is jeopardized or thrown out because a pastor testified or reported improperly? Would it still be the right call?

I am not sure it would. If our goal is the prosecution of a criminal, then we need to make sure to work with the law to ensure that things are done right. Striking out on your own can have some bad consequences, including the opposite of what you want to accomplish. This is why it is imperative to seek legal counsel from people who actually know what they are talking about. Living in a broken world is difficult, and seeking justice is difficult. We need to be careful not to make it worse by well-meaning but misguided and possibly illegal actions.

Susan R's picture

EditorModerator

Larry wrote:
Quote:
That was the right call for sure.
Bob, how would you feel if a whole case is jeopardized or thrown out because a pastor testified or reported improperly? Would it still be the right call?

I am not sure it would. If our goal is the prosecution of a criminal, then we need to make sure to work with the law to ensure that things are done right. Striking out on your own can have some bad consequences, including the opposite of what you want to accomplish. This is why it is imperative to seek legal counsel from people who actually know what they are talking about. Living in a broken world is difficult, and seeking justice is difficult. We need to be careful not to make it worse by well-meaning but misguided and possibly illegal actions.


If the goal is to see that justice is done, pastors must comply with their state law. This can place a person in a very difficult position of putting aside their principles in order to gain a desired result, and that's just flat out scary. The 'higher good' may be to thumb one's nose at the law and report to the police, but if that sets a child molester free because the evidence is compromised, what has been gained?

This is why Christians, IMO, need to be knowledgeable of and involved in politics/justice to a certain degree- enough to be able to help shape laws that protect the innocent and punish the guilty without tying the hands of pastors so they can't effectively minister to all parties involved.

Jay's picture

Yes, you are correct - it is the place for the Legislature to change the law. I still think it's a horrible ruling, but if that's what the law says....then I guess we have to live with that. I do still think that Pastor V did the right thing by going to the police, even if the court can't use his testimony.

Let me back up a little, here - Dr. Jack mentioned protecting the privilege of the RC Confessional or keeping pastors from being forced to testify of criminal acts, and I'd like to reply to that.

If someone is guilty of breaking the law - and especially when it's something that is as clear as criminal sexual conduct with a minor - why should I NOT report it to the police? Is there some kind of Biblical injunction to cover up illegal and immoral actions? Did I sleep through that class in Pastoral Theology or something? The accused guy can claim the Fifth all he wants in a court, but from a strictly Scriptural view, I have a really hard time saying that it's OK for a pastor to not report things to the police when they are criminal actions; we report to God, not just the court. I'm pretty surprised that would be suggested that, but that's why I'm writing. Did I misunderstand that post or something?

If someone confesses to me that they've molested a minor, the first call I'm making is to a lawyer - What do I do now with this knowledge (just to make sure I'm not missing any steps) and then the second is to the police (if they refuse to go down to the police with me).

"Our task today is to tell people — who no longer know what sin is...no longer see themselves as sinners, and no longer have room for these categories — that Christ died for sins of which they do not think they’re guilty." - David Wells

Larry's picture

Moderator

Quote:
If someone is guilty of breaking the law - and especially when it's something that is as clear as criminal sexual conduct with a minor - why should I NOT report it to the police?
Because it may be illegal to do so depending on where you live, and at the very least, it may jeopardize justice. Is that worth it? I would say you can choose civil disobedience and accept the results for yourself, but you shouldn't do it for others. If some victim doesn't see justice because you took matters into your own hands, that would be injustice. As you say at the end, call a lawyer who has some knowledge about this area.

Jay's picture

Let me amend that previous post - I'm referring to when someone comes to me for pastoral guidance (if I'm a pastor in a church) and confesses that they broke the law to me.

I'm not an advocate of running to the cops every time I THINK something illegal may have occurred. You go to the cops when you have evidence, not just accusations (which is why I suggested going to a lawyer first and getting guidance).

"Our task today is to tell people — who no longer know what sin is...no longer see themselves as sinners, and no longer have room for these categories — that Christ died for sins of which they do not think they’re guilty." - David Wells

Larry's picture

Moderator

Quote:
I'm referring to when someone comes to me for pastoral guidance (if I'm a pastor in a church) and confesses that they broke the law to me.
Pastors are probably more tied in these cases because the privilege is usually specifically attached to the seeking of spiritual guidance. There is some debate about whether the privilege applies in all communications, or just in communications seeking spiritual guidance. This is why lawyer's get paid the big bucks. In this case and the Willis case, both encounters were initiated by the pastor, not the member. Whether or not that changes it is part of what was being argued.

If you have reasonable suspicions based on a third party (such as the mom), a pastor probably must report it, and can do so even if he has confirmation from the perpetrator. But I doubt that, even then, he can be called to testify about the statements made to him by the perpetrator.

Again, it depends from state to state. Call a lawyer.

Brent Marshall's picture

Jay wrote:
This is completely wrong. Completely and morally wrong; I hope that the MI Supreme Court overrides this foolish and damaging ruling.

Jay, I wonder whether you will still feel this way after reading the court's opinion, which can be found http://coa.courts.mi.gov/documents/opinions/final/coa/20120508_c305140_4... ]here on the court web site (I found this link via footnote 2 of the original post). I am not suggesting that you will (or should) find everything totally satisfactory. However, the opinion gives a different sense of the case than one gets from the news article.

The opinion also gives more facts than the original post. For example, the victim's family called the police first and the pastor second (in answer to Marcia's question), and the defendant's mother was the church secretary.

Everyone interested in this issue should read the opinion.

Larry wrote:
In this case, the pastor must report the mother's charges if he finds them to be reasonable. He could testify on that basis alone I imagine.

Larry, whether the pastor could testify as to the mother's charges would, I expect, depend on Michigan's rules of evidence regarding hearsay. I do not know Michigan's rules, but as a general matter, I would not expect the pastor to be able to testify to the mother's charge as proof that her son committed the offense charged.

Things That Matter

As the quantity of communication increases, so does its quality decline; and the most important sign of this is that it is no longer acceptable to say so.--RScruton

Larry's picture

Moderator

Quote:
Larry, whether the pastor could testify as to the mother's charges would, I expect, depend on Michigan's rules of evidence regarding hearsay. I do not know Michigan's rules, but as a general matter, I would not expect the pastor to be able to testify to the mother's charge as proof that her son committed the offense charged.
Brent, I was speaking of reporting requirements, not testifying. Clergy reporting is required when there is a reasonable suspicion and the information does not come from the alleged perpetrator. Testifying in court is different, I imagine.

wkessel1's picture

Quote:
Clergy reporting is required when there is a reasonable suspicion and the information does not come from the alleged perpetrator.

i would disagree, at least for Michigan. There does not appear in the law to be an execption to the reporting requiment for the information coming from the alleged perpetrator. As stated in the article Michigan compiled law says that a mandatory report shall report if there is reasonable casue to suspect abuse/neglect. The law does not give any exception for where the information came from, just if it is reasonable. If someone confesses child abuse/neglect to a pastor , that would seem pretty reasonable and they would be required to report it in Michigan.

Unfortunately, as this case found, the pastor cannot testify in the crimianl proceedings, even though he reported it. The privelaged information comes into play for the criminal proceedings, not the reporting part.

Larry's picture

Moderator

Quote:
i would disagree, at least for Michigan. There does not appear in the law to be an execption to the reporting requiment for the information coming from the alleged perpetrator.
Here's the law:

Quote:
Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made or for excluding evidence in a civil protective proceeding resulting from a report made pursuant to this act. This section does not relieve a member of the clergy from reporting suspected child abuse or child neglect . . . if that member of the clergy receives information concerning suspected child abuse or child neglect while acting in any other capacity.
As this read, any "legally recognized privileged communication ... except that between attorney and client or that made to a member of the clergy in his or her professional character is abrograted." To abrogate means to make null or void. So all privileges are void except attorney/client and clergy. So the clergy privilege is an exception to mandatory reporting if the clergy is acting in his or her professional character.

The end of the paragraph specifies, "This section does not relieve a member of the clergy from reporting suspected child abuse or child neglect . . . if that member of the clergy receives information concerning suspected child abuse or child neglect while acting in any other capacity." So there you have the "any other capacity" such as a third hand report, observation, etc. So a pastor is not relieved of reporting if he receives then info while acting in any other capacity.

wkessel1's picture

I missed that being under the child protection law, so I was wrong, that is an exception.

That is not how it is usually presented. Most of the articels I have read simply say pastor's in Michigan are mandatory reporters. It is good to know what the law actaully says.

wkessel1's picture

Larry - Do you take that to mean a pastor is not required to report if ithe information is from the alledged perpetator or that he can not report it?

Larry's picture

Moderator

Quote:
Do you take that to mean a pastor is not required to report if ithe information is from the alledged perpetator or that he can not report it?
Cannot. The clergy privilege in Michigan belongs to the parishioner. The clergy cannot divulge it without parishioners permission.

Quote:
600.2156 Minister, priest, or Christian Science practitioner; nondisclosure of confessions.

Sec. 2156.

No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.

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