In other American states, courts have concluded that the presence of wives, children, or parents of the penitent does not make the confessional privilege inapplicable.
by Massimo Introvigne
The problem of Section 1032 of the California Evidence Code is that the secret of the confession is not protected if the confession is rendered by the penitent “in the presence of a third person.” This is the rule in the Catholic Church—one priest, one penitent—but not necessarily in other religions. Section 1032 is thus vulnerable to attacks based on the argument that it creates a special privilege for the Catholic Church and other religious organizations that follow the model of the one-on-one confession.
I continue here the study of cases from other jurisdictions in the United States, which have indicated that granting the confessional privilege to “confessions” where third parties were present is the only solution consistent with the Constitutional mandate not to discriminate in favor of specific religions.
There are cases in which confessions are rendered to one religious minister, yet “in the presence of a third person,” such as a parent or a spouse. According to California’s Section 1032, this presence takes the confession out of the sphere protected by the confessional privilege. This, again, is consistent with the Catholic model. One does not go to Catholic confession accompanied by a spouse or a parent. But this is not true for confessions in other religions.
In states other than California, where state law does not specify whether the “presence of a third person” makes the confessional privilege unapplicable, courts have decided that a confession remains a confession even if relatives of the layperson confessing to a minister are present.
On March 16, 1999, in the case “Alternative Health Care Systems, Inc. et al. v. McCown,” the Court of Appeals of Georgia decided a case where a widow had sued a hospice for having “wrongfully instructed an eye bank to remove her deceased husband’s eyes after she had refused permission, then concealed their actions from her and falsified records pertaining to the eye removal.”
Confession entered the case because the hospice tried to introduce the testimony of a female ordained minister of the United Methodist Church, to whom the widow had allegedly confessed that she was not against the donation of the eyes. The Methodist minister, Elizabeth Walker, was serving as a chaplain in the hospice and was called to offer “spiritual counseling” to the dying man’s family.
The trial court excluded Walker’s testimony on the basis of § 24-9-22 of the collection of Georgia’s laws called Official Code of Georgia Annotated, which protects the confessional privilege. In its appeal, the hospice argued that, even if the communication had happened during a “confession,” the confessional privilege had been waived by the widow because she had allowed her two daughters to participate in her conversation with Walker.
The court of appeal, however, stated that there was “no authority for the proposition that the clerical privilege is waived by the presence of more than one person,” in addition to the religious minister, during the confession, and affirmed the trial court decision to exclude Walker’s testimony.
Further cases have confirmed that the presence of relatives in addition to the person making the confession does not constitute a waiver of the confessional privilege. On December 15, 2009, in “State v. Archibeque,” the Court of Appeal of Arizona examined the case of a couple where both husband and wife were members of the Church of Jesus Christ of Latter-day Saints (LDS), popularly known as the Mormon Church. The defendant had confessed to his bishop (who in the LDS church has a role comparable to a parish priest in the Catholic Church or the pastor of a local Protestant congregation) that he had “sexually touched” his stepdaughter. The defendant’s wife was present during the confession.
The bishop testified that he received the defendant’s confession in his role as a Mormon bishop, and within the context of a “repentance process” that is part of official LDS church doctrine. Under Arizona law, which like all other U.S. states recognizes the confessional privilege, this should prevent the bishop from testifying about the content of the confession. Accordingly, the trial court excluded the bishop’s testimony.
The state appealed, claiming that by having his wife present, the defendant had waived his right to claim the confessional privilege. The Court of Appeal disagreed, stating that the crucial point was not whether another person was present in addition to the penitent and the bishop, but whether the presence of this other person made the confession non-confidential. The Court noted that, “Although the Bishop testified that it was not necessary for the repentance process to have [defendant] Archibeque’s wife present, the Bishop explained that he had counseled couples together on previous occasions. The Bishop testified that confidentiality was a concern for both him and the Archibeques. He stated that an official manual of instructions for Bishops, provided by the Church, required that meetings held in the furtherance of the repentance process must remain confidential. He also called a church ‘helpline’ and received confirmation that such conversations are confidential. In keeping with this church policy, the Bishop assured the Archibeques that their communications would be confidential.”
As long as both the bishop and the defendant and his wife intended and understood the confession to be confidential, the presence of the wife did not take its content out of the scope of the confessional privilege.
Note that the willingness of the religious minister who received the confession to testify about its content has been declared irrelevant in the case “People v Bragg,” decided by the Court of Appeal of Michigan on May 8, 2012. In this case the defendant, who was 15-year-old at the time of the events, went accompanied by his mother to confess to his Baptist pastor that he had raped his 9-year-old female cousin. While regarding in general confessions as confidential, the pastor felt that in this case he should testify, particularly after the prosecutor had told him that the presence of the defendant’s mother had rendered the confessional privilege inapplicable. The pastor testified, and even produced a written statement. The circuit court, however, quashed the pastor’s statements, stating that it was not in his power to renounce a confessional privilege that should firstly protect the penitent.
The Court of Appeal agreed, observing that the presence of the defendant’s mother did not exclude the application of the privilege. The importance of “People v. Bragg” for the debate about California is that, rather than relying only on the fact that as a minor it was logical for the defendant to be accompanied by his mother, the Court of Appeal included a lengthy discussion of the confessional privilege and its roots in both the U.S. Constitution and Michigan law. The judges warned against restricting the confessional privilege to one-on-one confessions only, as this would “allow only Catholic penitents the armor of privilege,” thus creating an obviously unconstitutional “preference” for the Catholic Church over other religions.
On December 28, 1999, in the case of “State v Ellis,” the Court of Appeal of Louisiana, First Circuit, applied similar principles and stated that the trial court had erred in admitting the testimony of a Baptist pastor to whom the defendant had confessed that he had threatened a business associate with a gun. The testimony was admitted because the lower court accepted the prosecutor’s argument that the confessional privilege did not apply since the confession had been rendered in the presence of the victim and both the latter’s and the defendant’s wives. The Court of Appeal, however, found that in the Baptist Church a “confession” can be rendered with the presence of parties other than the pastor and the penitent.
There are cases where American courts have recognized that the presence of third parties makes the confessional privilege inapplicable. Both the Supreme Court of New York in “People v. Brown” (1974) and the Supreme Court of Arkansas in “Perry v. State” (1983) found that in cases where defendants went to confess a murder to their churches’ ministers accompanied by a police officer, who was present during the confession and obviously not bound by confidentiality, the confessional privilege had been waived. In Montana, the Supreme Court overturned in 1998 a 1995 decision by the trial court that had regarded as protected by the confessional privilege a conversation the defendant, who admitted that he had molested his stepdaughter, had with his ex-wife, and two lay leaders of their nondenominational Protestant church. However, in this case the Supreme Court did not dispute that the confessional privilege can apply also when third parties are present in a confession. Rather, it denied that the conversation was a “confession,” as it happened in a restaurant outside any specific religious context, and perhaps those who participated in it did not even regard it as confidential.
While the presence of relatives or other third parties per se does not exclude the confessional privilege, the latter only applies if the communication is a “confession,” i.e., happens within the specific context of a given religion, and if the third parties understand that they are also bound by confidentiality.