Clergy privilege goes by several different names, but the essence remains the same: the “privilege” refers to a conversation between a clergy member and a confessor being kept private.

It is typically invoked in the event of a criminal trial in which the contents of that conversation are sought. Therefore, a conversation you have had with your clergy member as a confessor may not be testified about in court.

Who is Considered to be a Member of the Clergy?

Federal law states that a minister, priest, rabbi, or person working for a similar religious organization in a similar capacity is clergy. In fact, the clergy privilege may hold if the confessor believed they were speaking to a clergyman, but actually were not. However, each state has its own legal definition of who qualifies as clergy.

When Does the Clergy/Confessor Rule Apply?

The conversation in question must be held in “confession” mode, in which the confessor is specifically speaking to their spiritual adviser, in their role as adviser. An obvious example here would be a Catholic going to their priest for confession.

However, the rule does not have to be so formally interpreted, these days. An informal clergy/confessor conversation will do. But, to reemphasize the point, each party to the conversation must be in their role, as clergy or confessor. An ordinary conversation or chit chat with one’s clergy person will not qualify for the privilege.

Additionally, no other parties may be present during the privileged conversation. The conversation is, by its very nature, private and even secret. Having someone else as a party to the conversation destroys the privilege, and the conversation becomes subject to exposure in court.

In addition to states varying as to who qualifies as a clergy member, they also vary as to who holds the privilege. In other words, who may invoke the privilege? The clergy member? The confessor? Either/both? The states are divided on this issue.

Are there Exceptions to the Privilege?

Are there things that may be disclosed during a conversation otherwise subject to the clergy/confessor privilege, which the clergy member will nevertheless be compelled to disclose? The major example here is that of child abuse, or neglect. States also have their own laws on this subject. The majority of U.S. states do require that clergy report instances of child abuse which have been confessed to them, as clergy.

However, not all states have this requirement, so presumably, the clergy is not required to disclose the confession of abuse in those cases. The Catholic church refuses to recognize exceptions to the privilege.

It is worth noting that trained mental health professionals are generally bound by a duty to report child abuse, and in cases where a clergy member is also a licensed mental health professional, the question comes down to whether the information was revealed to them in their capacity as spiritual adviser.

Can an Attorney Help?

A criminal lawyer in your state can help sort through the laws particular to your state, including: who qualifies as clergy, who holds the privilege (clergy or confessor), and whether your state has legal exceptions to this privilege rule. This will help your attorney use the clergy privilege as a defense in court, if necessary.