Not All Faith-Based Communications Are Protected By The Clergy-Penitent Privilege

by Reminger Co., LPA

The clergy-penitent privilege (also known as the clergy privilege, confessional privilege, priest–penitent privilege, clergyman–communicant privilege, and/or ecclesiastical privilege) is a recognized form of privileged communication that protects the contents of conversations between religious advisers and an advisee. Generally speaking, this means that any conversation had with or amongst religious leaders (assuming that they are acting in their religious capacity) cannot be brought into court. 

In Ohio, the clergy-penitent privilege is codified by statute. R.C. § 2317.02(C) provides, in relevant part, that

[a] cleric, when the cleric remains accountable to the authority of that cleric’s church, denomination, or sect, [shall not testify] concerning a confession made, or any information confidentially communicated, to the cleric for a religious counseling purpose in the cleric’s professional character.

R.C. 2317.02(C)(1).

This privilege is not absolute and may be waived either by express consent of the penitent or by operation of law in specifically enumerated instances involving minors or instances of physical or mental abuse. (See, R.C. § 2151.421(A)(4)(c) for a full list of exceptions).

Neither form of waiver applies, however, if the cleric’s disclosure would violate a sacred trust, as defined in R.C. § 2317.02(C)(2)(b). The privilege “recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive [spiritual] consolation and guidance in return.” Trammel v. United States, 445 U.S. 40, 51 (1980). Nevertheless, the privilege is not absolute, and must be strictly applied. Ward v. Summa Health Sys., 128 Ohio St. 3d 212, 2010-Ohio-6275, ¶ 15. “The party claiming the privilege has the burden of proving that the privilege applies to the requested information.” Giusti v. Akron Gen. Med. Ctr., 178 Ohio App. 3d 53, 2008-Ohio-4333, ¶ 17 (9th Dist.)

The contours of the cleric-penitent privilege were recently tested by Ohio’s Ninth District Court of Appeals in McFarland v. West Congregation of Jehovah’s Witnesses, Lorain, OH, Inc., 9th Dist. Lorain No. 15CA010740, 2016-Ohio-5462, ¶ 13. In McFarland, a member of West Congregation alleged that she was abused by a fellow Congregation member. McFarland’s parents notified elders at West Congregation about the abuse, but the Congregation neglected to discipline the molester or report the abuse of the minor and discouraged McFarland’s parents from doing so.   

Years later, McFarland brought suit against the Congregation and various governing bodies of the Congregation alleging negligence, ratification and fraud by omission/concealment. Specifically, McFarland argued that the defendants failed to take measures to protect her from abuse and responded inappropriately once the abuse was reported. (Id., ¶ 5.) During the course of the litigation, McFarland sought the production of certain documents between the Congregation and the Congregation’s governing bodies regarding McFarland, her allegations of molestation and the alleged abuser. The defendants withheld approximately nineteen documents from their production, claiming that these documents were protected by the clergy-penitent privilege. (Id., ¶ 10.)

In examining whether the clergy-penitent privilege applied in this instance to each of the disputed documents, the appellate court began by noting that not every word authored or spoken by a cleric is automatically privileged and there is no protection for communications made for secular purposes – even when those communications were intended to be confidential. Ward, 128 Ohio St. 3d 212, 2010-Ohio-6275, at ¶ 15; Niemann v. Cooley, 93 Ohio App.3d 81, 88-89 (1st Dist.1994). Further limiting the clergy-penitent privilege is the fact that the privilege stems from a penitent’s desire to receive spiritual counsel, not a cleric’s desire to give it. See Trammel v. United States, 445 U.S. 40, 51 (1980).  

In its examination of each of the nineteen disputed documents, the appellate court only withheld production of those documents where the defendants clearly satisfied their legal burden of demonstrating that the document served a religious counseling purpose rather than a secular one. For example, correspondence between governing elders and various congregations were not deemed confidential because they did not involve an instance of a particular penitent confiding to a cleric. (Id., ¶ 16.) Another letter, in which the author was drawing attention to the Congregation’s handling of a particular matter, was also not privileged because it did not pose any questions to the elders or request advice of a spiritual nature. (Id., ¶ 20.) Further, the court also refused to protect those documents involving persons unrelated to the McFarland dispute, finding no third-party privacy rights applied. (Id., ¶ 53.)

Finally, the court rejected defendants’ claim that the production of the disputed documents violated their First Amendment rights by exposing their “internal discipline procedures and beliefs regarding repentance, mercy and redemption to external, secular scrutiny.” (Id., ¶ 56.) The First Amendment to the United States Constitution and the Establishment Clause and Free Exercise Clause prohibit states from enacting “laws that have the purpose or effect of advancing or inhibiting religion,” or expressing a preference for any one religious denomination. Varner, 500 F.3d at 495. The Clauses apply to limit the power of courts to hear suits whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by church judicatories.” Watson v. Jones, 80 U.S. 679, 727, 20 L. Ed. 666 (1871).

In rejecting the Congregation’s First Amendment claims in McFarland, the appellate court noted that the First Amendment does not protect religious institutions from disclosing relevant, non-privileged information. Thus, because the documents were not privileged, there was no need for the court to interpret or evaluate the defendants’ religious beliefs or internal governance. In short, because the question of relevance was purely secular and “did not require the court to delve into religious law and policy” there was no merit to the Congregation’s First Amendment claims. (Id., ¶ 59, relying, in part, upon Howard v. Covenant Apostolic Church, Inc., 124 Ohio App.3d 24, 28-29 (1st Dist.1997)).

In total, the appellate court found that only four of the disputed documents were protected from production by the clergy-penitent privilege. The significance of this holding is that despite the generally-held belief that matters of church governance and policy are protected from production, there are strict limits applied to the clergy-penitent privilege and determining whether the privilege applies requires a careful, case-by-case analysis.


Written by:

Reminger Co., LPA

Reminger Co., LPA on:

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