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Chaplaincy and the Law: What about Priest-Penitent Privilege?


Recently I spoke to a group of chaplains on the topic of chaplaincy and the law. The one area the group seemed to find most confusing was the subject of priest-penitent privilege and how that relates to what we do as crisis chaplains. As chaplains, we’re known for keeping things said to us in confidence. That’s not confusing. But what happens when we receive information about other people in danger, and specifically, when we learn about the abuse of children or vulnerable adults? Should or must we speak up, or stay silent?

While priest-penitent privilege has never been codified into law on a national level, it falls under what we know as common law: a historical legal understanding of law based upon past practices or legal cases. With priest-penitent privilege, it really comes down to a New York case from 1813, People v. Phillips. In this case it was recognized that clergy (in this case a Catholic priest) would not break the seal of the confessional, even for the state. For him to do so would be for him break his church’s canon law and, according to the teaching of the church, lose his salvation. The court agreed that the priest could not be compelled by the court to repeat what was said to him in confession.

Not much has changed today. A federal law—Rule 506 (Communications to Clergy) of the Federal Rules of Evidence— was proposed but rejected. It was then left up to each state to declare what priest-penitent privilege would look like in their jurisdiction. So the laws differ from one state to another. Here’s the law in South Carolina:

2013 South Carolina Code of Laws

Title 19 - Evidence

CHAPTER 11 - COMPETENCY OF WITNESSES

SECTION 19-11-90. Priest-penitent privilege.

Universal Citation: SC Code § 19-11-90 (2013)

In any legal or quasi-legal trial, hearing or proceeding before any court, commission or committee no regular or duly ordained minister, priest or rabbi shall be required, in giving testimony, to disclose any confidential communication properly entrusted to him in his professional capacity and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline of his church or religious body. This prohibition shall not apply to cases where the party in whose favor it is made waives the rights conferred.

Questions:

  1. The term "regular minister" is a little obscure when it comes to chaplains appointed by their departments. The US code states: "The term “regular minister of religion” means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister." What does this mean for a chaplain?

  2. Was the communication properly entrusted and in a professional capacity? In other words, did the penitent have a reasonable expectation that priest-penitent privilege would apply? Just hearing someone say something doesn't necessarily count as confession. It must clearly be in the form of confession AND that confession must be a discipline of his/her church or religious body of the clergy. Two friends talking and one sharing doesn’t necessarily count.

In a lot of ways, it really boils down to the faith community of the chaplain. And not all are the same. For example, if someone told a Catholic priest that they raped someone, he would have to keep quiet; he could not be compelled to testify and in fact cannot reveal what was said to him. But many of us are part of religious bodies that have different rules. For example the church that commissioned me as a chaplain has a policy that says if someone tells me they raped someone I am not only allowed to tell the police, but obliged to do so.

So where does this leave us when it comes to the mandatory reporting of abuse of children and vulnerable adults? In South Carolina the law recognizes that priest-penitent privilege may apply. If one’s faith tradition says that the seal of the confessional cannot be broken, then the clergy is not obliged by the state to report such abuse (See South Carolina Statute: SECTION 43-35-50 and SECTION 63-7-420). But for me, my faith tradition states that I must report it, so priest-penitent privilege does not cover me in this area.

Confusion can still arise if, like me, you wear different hats. I am an EMT and instructor as well as a chaplain. If I go out on an EMS call and observe child abuse I must report it. Even though I am always a chaplain, I am not acting in that capacity.

When I do receive what I would consider confidential and compromising information, I have to ask: What hat am I wearing? Who is the penitent talking to? I also have to ask: What does my faith group tell me I have to keep confidential? If you are representing yourself as an EMT trying to get medical information, the information you receive most likely can be used in a court of law (though HIPPA issues apply). Just because you are a chaplain doesn't mean everything you are told is said to you because you are a chaplain.

A couple of things to think about. What does your department SOP's state for mandatory reporting? Do they take into account the laws concerning priest-penitent? Also, what does your faith group that ordained or commissioned you as a chaplain say concerning priest-penitent? A chaplains faith group sets the standard for what and when things can be shared.

Chaplains are historically known as a safe place to talk. What is shared with a chaplain usually stays with the chaplain, and in almost all cases that’s right and good. It’s at the core of who we are. And it’s not something that we take lightly but is a privilege and honor that we carry as we minister to first responders, their families, and the public.

Chaplain Chris Wade

Vice President

South Carolina Public Safety Chaplains Association

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