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What Is the Clergy Privilege?

The clergy privilege (also known as the priest/penitent privilege) is one of the recognized forms of privileged communication that protects the contents of conversations between religious advisers (priests, rabbis, minsters, etc...) and an advisee.  This means that any conversation you have with your clergy (assuming they are acting in their religious capacity) cannot be brought into court.    

For example, anything said to a catholic priest during a confessional cannot be used against you, or even mentioned, in any legal matter.

Who Is Considered Clergy?

Although some states have tried to compile lists of exactly which clergy are officially recognized, the judge in a case will generally have the discretion to determine whether someone is a "bona fide" clergy member.  Obviously, a minister of any major faith will certainly qualify.  But even someone with no training and only a nominal religious title can qualify, if the confessor truly intended to confess to him in a religious capacity.

When Does the Clergy/Priest-Penitent Privilege Apply?

The privilege is a state law, which means each state has its own rules and regulations regarding how it can be used.  Although in the past there were many strict rules regarding its use (such as only applying if the clergy and the confessor were of the same religious denomination), nowadays most states only have two main requirements restricting its use:

  1. The confessor must be speaking to the clergyman in his religious capacity.  This means that you must be talking to the clergyman as your religious adviser, not just as your friend or associate.  Simply having a conversation with a priest is not automatically privileged.
  2. No third parties may be present (unless they too are clergy you are confessing to).  You cannot make a confession in front of other people and still expect the conversation to be secret.

If these two requirements are met, any conversation you have with the cleric, even an admission of murder, is not admissible in court (with the notable exception below).   

Another important question is who holds the privilege; the clergy, the confessor, or both? That is to say, which of the two people involved controls whether it is used.  Can a priest refuse to testify even if the confessor waives his right?  Are the things the priest says privileged too?  The states are divided evenly as to who holds the privilege, with about 1/3 saying the clergy, 1/3 saying the confessors, and 1/3 saying both.

Is There an Exception to This Rule?

Indeed there is, but it is a very contentious issue.  Often, problems with the clergy privilege arise in cases dealing with child abuse.   Every state in the U.S. has laws requiring certain categories of professional people to report child abuse.  There are 35 states which either require clergy specifically to report any child abuse learned in confession, or else require all people to report any child abuse discovered by any means (including clergy).  In these states, the clergy privilege will NOT apply in such cases (and in many states, in cases of child neglect as well).   The remaining 15 states do not include clergy in the list of people mandated to report child abuse, so presumably the clergy privilege remains intact there.  

However, many religious bodies (the Catholic Church being the most prominent example), do not recognize any constraint on the privilege, so there are many clergy who may refuse to testify about privileged conversations even if it IS required by law.

There is also a question of applicability when the clergy in question is a trained psychologist or secularly licensed counselor, whom often have certain duties to report crimes by state law.   In such cases, the relevant question is whether the confession was made to the clergy in his religious capacity.

Can an Attorney Help?

The laws regarding this privilege are different from state to state, so it can be helpful to contact an attorney to determine exactly what kind of protections and requirements your state has for both clergy and confessor. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 11-19-2013 10:28 AM PST

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