Breaking Clergy Confidence

By 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.

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.