Confessional privilege (United States): Difference between revisions

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In United States law, confessional privilege is a rule of evidence that forbids the inquiry into the content or even existence of certain communications between clergy and church members.

It grows out of the common law and statutory enactments which may vary between jurisdictions.

Statute

All fifty states, the District of Columbia, and the federal government have enacted statutory privileges providing that at least some communications between clergyman and parishioners are privileged.^[1]

Common law

Prior to the adoption of statutory protections, there was some protection under common law.

New York: In People v. Phillips (1 Southwest L. J., 90), in the year 1813, the Court of General Sessions in New York recognized the privilege as in a decision rendered by De Witt Clinton, recognized the privilege as applying to Rev. Anthony Kohlmann, S.J., who refused to reveal in court information received under the seal of confession. (Incidentally, the successful argument in favor of the privilege was made by William Sampson, a Protestant lawyer exiled from Ireland for defending Catholics.)^[2]

There is also Smith's case reported in the "New York City Hall Recorder", vol. II, p. 77, which, apparently, was decided in the same way.

Massachusetts: In Commonwealth v. Drake [(1818) 15 Mass., 154], it was argued on the one side that a confession of a criminal offence made penitentially by a member of a certain Church to other members, in accordance with the discipline of that Church, may not be given in evidence. These others (who were not clergy) were called as witnesses. The solicitor-general argued that religious confession was not protected from disclosure. He also took the point that in this case "the confession was not to the church nor required by any known ecclesiastical rule", but was made voluntarily to friends and neighbours. The court held that the evidence was rightly received (not protected).

Issues

The privilege is defined in over 50 separate statutes and may therefore vary in important ways:

Who qualifies as a member of the clergy
What communications are covered by the privilege
Who holds the privilege^[3]

The Child Welfare Information Gateway states that the privilege of maintaining this confidentiality under State law must be provided by statute. Most States provide for clergy–penitent privilege within rules of evidence or civil procedure.^[3]

Footnotes

^ "The First Amendment Basis for the Clergyman-Communicant Privilege" Archived March 9, 2006, at the Wayback Machine
^ "The Catholic Question in America", by Anthony Kohlman and William Sampson, New York, 1813
^ ^a ^b Child Welfare Information Gateway (2012). "Clergy as Mandatory Reporters of Child Abuse and Neglect" (PDF). United States Children's Bureau. pp. 1–19.

@@ Line 1: / Line 1: @@
+{{Short description|Secrecy of religious confessions in U.S. law}}
-The '''Confessional Priviledge''' is a rule of evidence that forbids the inquiry into the content or even existence of certain communications between clergy and communicants.
+{{Evidence law}}
+In [[Law of the United States|United States law]], '''confessional privilege''' is a [[Rules of evidence|rule of evidence]] that forbids the inquiry into the content or even existence of certain communications between clergy and church members.
-In American law, it grows out of the [[United States Constitution#First Amendment|First Amendment of the U.S. Constitution]], aspects of the [[common law]] and various statutory enactments which may vary from jurisdiction to jurisdiction.
+It grows out of the [[common law]] and [[Statute|statutory]] enactments which may vary between jurisdictions.
-==Statutes==
+==Statute==
-All fifty states, the District of Columbia, and the federal government have enacted statutory privileges providing that at least some communications between clergyman and parishioners are privileged. <ref>"[http://www.clsnet.org/clrfPages/pubs/clergyPriv.php The First Amendment Basis for the Clergyman-Communicant Privilege]"</ref>
+All fifty states, the District of Columbia, and the federal government have enacted statutory privileges providing that at least some communications between clergyman and parishioners are privileged.<ref>"[http://www.clsnet.org/clrfPages/pubs/clergyPriv.php The First Amendment Basis for the Clergyman-Communicant Privilege]"  {{webarchive |url=https://web.archive.org/web/20060309193954/http://www.clsnet.org/clrfPages/pubs/clergyPriv.php |date=March 9, 2006 }}</ref>
-==Common Law==
+==Common law==
 Prior to the adoption of statutory protections, there was some protection under common law.
-*[[New York]]: In People v. Phillips (1 Southwest L. J., 90), in the year [[1813]], the Court of General Sessions in [[New York]] recognized the privilege as in a decision rendered by [[De Witt Clinton]], recognized the privilege as applying to Rev. Anthony Kohlmann, S.J., who refused to reveal in court information received under the seal of confession. <ref>"The Catholic Question in America", by Anthony Kohlman and [[William Sampson (attorney)|William Sampson]], New York, 1813</ref>. (Ironically, the successful argument in favor of the privilege was made by [[William Sampson (attorney)|William Sampson]], a Protestant lawyer recently exiled from Ireland for defending Catholics.)
+*New York: In People v. Phillips (1 Southwest L. J., 90), in the year 1813, the Court of General Sessions in New York recognized the privilege as in a decision rendered by [[De Witt Clinton]], recognized the privilege as applying to Rev. [[Anthony Kohlmann]], S.J., who refused to reveal in court information received under the seal of confession. (Incidentally, the successful argument in favor of the privilege was made by [[William Sampson (attorney)|William Sampson]], a Protestant lawyer exiled from Ireland for defending Catholics.)<ref>"The Catholic Question in America", by Anthony Kohlman and [[William Sampson (attorney)|William Sampson]], New York, 1813</ref>
-There is also Smith's case reported in the "New York City Hall Recorder", vol. II, p.77, which, apparently, was decided in the same way.
+There is also Smith's case reported in the "New York City Hall Recorder", vol. II, p.&nbsp;77, which, apparently, was decided in the same way.
-*[[Massachusetts]]: In Commonwealth v. Drake [([[1818]]) 15 Mass., 154], it was argued on the one side that a confession of a criminal offence made penitentially by a member of a certain Church to '''other members''', in accordance with the discipline of that Church, may not be given in evidence. These others (who were not clergy) were called as witnesses. The solicitor-general argued that religious confession was not protected from disclosure. He also took the point that in this case "the confession was not to the church nor required by any known ecclesiastical rule", but was made voluntarily to friends and neighbours. The court held that the evidence was rightly received (not protected).
+*[[Massachusetts]]: In Commonwealth v. Drake [(1818) 15 Mass., 154], it was argued on the one side that a confession of a criminal offence made penitentially by a member of a certain Church to '''other members''', in accordance with the discipline of that Church, may not be given in evidence. These others (who were not clergy) were called as witnesses. The solicitor-general argued that religious confession was not protected from disclosure. He also took the point that in this case "the confession was not to the church nor required by any known ecclesiastical rule", but was made voluntarily to friends and neighbours. The court held that the evidence was rightly received (not protected).
 ==Issues==
@@ Line 20: / Line 22: @@
 * Who qualifies as a member of the clergy
 * What communications are covered by the privilege
+* Who holds the privilege<ref name ="ChildWelfareClergy">{{cite web |url=https://www.childwelfare.gov/systemwide/laws_policies/statutes/clergymandated.pdf | title=Clergy as Mandatory Reporters of Child Abuse and Neglect| author=Child Welfare Information Gateway| author-link=Child Welfare Information Gateway| publisher= [[United States Children's Bureau]] | year = 2012 | pages = 1–19 }}</ref>
-* Who holds the privilege: the minister, the congregant, or both?
+The [[Child Welfare Information Gateway]] states that the privilege of maintaining this confidentiality under State law must be provided by [[statute]]. Most States provide for clergy–penitent privilege within rules of evidence or civil procedure.<ref name ="ChildWelfareClergy"/>
-==See Also==
-*[[Seal of the Confessional]]
+==Footnotes==
-{{stub}}
+{{Reflist}}
+==See also==
+*[[Privilege (evidence)]]
+*[[Confidentiality]]
+*[[Duty of confidentiality]]
+*[[Admissible evidence]]
+*[[Priest–penitent privilege]]
+{{Use mdy dates|date=March 2012}}
+[[Category:Law of the United States]]
+[[Category:Priest–penitent privilege|United States]]