1.  KEEPING SECRETS

If you can't trust your pastor to keep a secret, who can you trust? Suppose you went to your pastor and confessed a continuing problem of shoplifting or adultery. You sought his prayers and counsel. You prayed with him for god's forgiveness and strength to renew you life. But alas, the problem continued; you tired of the pastor's confrontation and spoke no further with him about it. Then suppose you found out he had told the deacons about your problem. Or imagine he told you that unless you changed your conduct, he would "tell it to the church." What would your reaction be?

What if you were the pastor? What would you do? Would you advise other church leaders and follow step two of Matthew 18? Would you eventually "tell it to the church"? Or is the information confidential?

Or suppose the counseling ministry of you church is ministering to a church member who acknowledges a drug problem that is affecting her marriage and work. Who has been nominated by the church for a position of leadership. As a counselor, what should you do with this information - morally, biblically, legally?

Such situations pose difficult ethical, pastoral, and legal problems because of the issue of confidentiality.

Most of us expect that if we acknowledge a transgression or identify a problem to our pastor it is personal and not intended to be shared with others. Indeed, most of us would be quite surprised and angry to hear our "story" become the sermon illustration on Sunday or used as a church discipline "case" for the elders. When we seek spiritual help with a problem we do not expect it to become public information. Yet when we seek spiritual help with a problem we do not expect it to become public information. Yet when the counseling is proving ineffective and the ongoing conduct is serious and destructive, there are biblical expectations that seem to run against absolute secrecy. From a purely spiritual perspective, what we wish to keep hidden and secret may need to be brought into the light.

Church discipline "cases" frequently raise claims that the church discipline process violated an expectation of confidentiality when the information revealed in counseling or confession was then divulged to church leaders.

Charles Roberson in his suit against the Evangelical orthodox Church alleged that the revelations to the defendant Weldon Hardenbrook were "a penitential communication" made "as a penitent to his clergyman." He claimed he asked the pastor and others "to keep his communication confidential," but that in spite of this the defendants "told numerous other persons." These acts were the complaint alleged, a "breach of fiduciary duty" - a duty to "the highest standard of trust, confidence and fair dealing."

Similarly, in John Kelly's suit against the Christian Community Church and Dr. Donald Phillips, the complaint alleged that Kelly had secured Phillips's services as a counselor and "in the course of treatment (Kelly) disclosed confidential.. Details of his sexual and marital life" and that Dr. Phillips then "released confidential information" to the church board of elders. These acts of Phillips were, it is argued, "negligent, careless, reckless and/or in derogation of his professional duties."

To some extent these claims sound very much like the "invasion of privacy" issue, but though the concern about revealing "private" facts is the same, and legal basis is different. Here the allegation is not an invasion of privacy, but a claim that the pastor or counselor was negligent. The negligence arises from an implied agreement between the parties, based on their relationship, that this information would not be shared, that it was an agreement to keep matters confidential. It is further argued that the role of pastor or counselor carries with it a professional duty to keep such communications confidential.

The legal argument is that the recipient of the communication (the pastor, for example) was under a legal duty not to disclose what he had been told in confidence. When he reveals the information, he violates a trust, breaching his duty to preserve the confidences of the counseling, there must be strong elements of trust and reliance that the information shared will be held in confidence. If there is no expectation of confidentiality, few will venture to reveal embarrassing personal facts or acknowledge their shortcomings. People seek counseling not for publicity but for help.

Yet it is in such pastoral conversation, whether in formal counseling or not, that pastors and counselors may obtain information about conduct that, if not changed, would call for further church efforts to encourage repentance and restoration. These efforts could include discipline. How can these seemingly contradictory expectations be dealt with?

Of course, there is no conflict when the confiding party is genuinely repentant and seeking God's renewal, even if in a stumbling, slow, and often inadequate way. Here the confidence is respected in keeping with biblical principles as well as any personal or professional expectations. But what if the sin becomes increasingly prominent, destructive of spiritual life and the ministry of the parishioner? What if the person persists and compounds his or her sin? What ought to be the pastoral response? What will the law say if the minister tells? What about the pastor's duty to the church versus his spiritual duty to the unrepentant counselee?

The kind of confidentiality claimed in these church discipline cases should not be confused with a related but somewhat different legal right often referred to as "clergy confidentiality. This refers to the right of a clergyman to remain silent and refuse to testify in court as to communications with a "penitent." In law this is often called the "clergy-penitent privilege."

We have already noted the concept of a "privilege" that creates some exception from a duty or requirement. The clergy-penitent privilege is the right of persons who have communicated certain confidential information to the clergy in the context of pastoral ministry to prevent testimony in court regarding such communications. Such testimony is thus said to be "inadmissible." In some states the privilege is also held by the clergy who may refuse to testify even with a penitent's permission regarding such matters.

Like most privileges it exists not because there is some doubt about the relevance of the testimony or its reliability but because of a social policy of encouraging rather than discouraging persons form confession or seeking pastoral counsel. The Minnesota Supreme Court noted the reason:

"The fundamental thought is that one may safely consult his spiritual adviser. The purpose of the statute is one of a large public policy, based in part on the idea that the human being does sometimes have need of a place of penitence and confession and spiritual discipline. When any person enters that secret chamber, this statute closes the door upon him and civil authority turns away its ear."

Besides the social policy behind the privilege, the fact it is known that many clergymen would refuse to testify in any event may encourage the protection. As Ponder, writing in Liberty magazine, noted:

"Generally ministers will not testify, regardless of what the trial judge says or does to them. The Catholic priest, for example, would be subject to excommunication for breaking the seal of confessional. From his viewpoint, the court's penalty is to be preferred to the church's penalty."

The origin of this privilege can be traced to those traditions, primarily Catholic, in which there is a requirement that members confess regularly to their priest and where the priests are under an absolute religious duty not to reveal these secrets.

In England the privilege has not been recognized since the Restoration in 1660, and, thus, was not a part of the common law influencing American law. In the United States, however, the privilege has been more favorably received. In 1813 perhaps the earliest case, a New York court held largely on free exercise grounds that a Catholic priest should not be compelled to reveal what he had heard under the Sacrament of Penance. The court declared:

"It is essential to the free exercise of religion, that its ordinances should not be administered - that ceremonies as well as its essentials should be protected. Secrecy is the essence of penance. The sinner will not confess, nor will the priest receive his confession if the veil of secrecy is removed."

Interestingly, some early courts declined to give the same privilege to Protestants since the secrecy of the confessional did not constitute a central religious tenet. A New Your case applying such a distinction, People v. Smith, led in part to the adoption by the New York legislature of the first statute dealing with such a privilege.

Today at least forty-six states provide for the clergy-penitent privilege by statute, encompassing minister, rabbis, and other religious leaders who perform similar roles.

Often the distinctions among statutes and the specific language lead to interesting cases raising such questions as, who is a clergyman entitled to the privilege? Does it extend to non-ordained persons acting on behalf on the church such as elders and deacons? And what about those groups that claim all their members are clergy?

STATUTORY CONDITIONS FOR THE PRIVILEGE

Not all conversations are privileged, and the statutes usually identify the limits. First, statutes typically provide that the person must be a clergyman or at least one acting in such a capacity. Usually a reasonable belief on the part of the penitent that the other person is a clergyman will suffice.

Second, the privileged communications must be to a clergyman who is acting in his professional capacity. Random conversations with the clergy will not necessarily be protected.

Third, in some instances courts have held that the communication must be "penitential" in nature; that is, it must be a confession. The New York Court of appeals head that the priest-penitent privilege arises not because statements are made to a clergyman. Rather something more is needed..."It is only confidential communications made to a clergyman in his spiritual capacity that the law endeavors to protect." Generally, however, the tendency has been to broaden the privilege to include other situations besides traditional confession. The significant role of pastors in general counseling, specifically in marriage counseling, has resulted in revision of statutes or court interpretations that have included these non-confessional communications; but not all courts have extended the privilege to these contexts. As to whether it applies in the context of marriage counseling, a California court indicated that marital counseling communications were not privileged, while a New York court held they were. Some state statutes specifically include marriage counseling. For example, Alabama protects communications when one approaches a clergyman "to enlist help or advice in connection with a marital problem."

Fourth, a number of state statutes have a requirement that the communication be pursuant to a "discipline enjoined by the rules of the church." That is, confession must be in response to a religious duty set forth by the doctrine of the church mandating such confession. Such a requirement reflects a more narrow view of the privilege and roots it not in a general policy of protecting spiritual counsel but in the First Amendment protection against government interference in religious duties. a restrictive view of such language might limit the privilege to Catholic clergy. In Simrin v. Simrin, for example, the court noted that the communications in the marriage counseling context were not "a discipline enjoyed by the church" and that the statute limited the privilege to such communications. In an Arkansas case the privilege was held not to exist without evidence that the church to which the pastor and penitent belonged made confession a duty. On the other hand many courts read such statutory provisions broadly. In one widely cited case, In re Swenson, the Minnesota Supreme Court read "discipline enjoined" to broadly mean the practice of confession:

We are of the opinion that the "confession" contemplated by the statute has reference to a penitential acknowledgment to a clergyman of actual or supposed wrongdoing while seeking religious or spiritual advice, aid or comfort, and that it applies to a voluntary "confession" as well as to one made under a mandate of the church. The clergyman's door should always be open; he should hear all who come regardless of their church affiliation. 

EXCEPTIONS TO THE PRIVILEGE

Few privileges are absolute, but especially lately, this general protection of confidentiality and privilege is under some challenge. In a 1984 story, Time reporter Richard Ostling noted the controversy when the legal principle of confidentiality competes with a strong social policy, such as stemming the rising tide of child abuse. Widespread attention was drawn to the case; of a Florida pastor, John Mellish, to whom Earl Sands, accused of sexually molesting a six-year-old-girl, had surrendered. The prosecutor called Mellish to testify regarding conversation he had with the accused, and Mellish invoked a right of confidentiality. The court rejected the claim, and when Mellish continued to refused to testify he was sentenced to sixty days for contempt of court.

At least twenty states have now abolished the clergy-penitent privilege in cases of child abuse. By 1974 all fifty states had mandatory reporting laws often noted as "child protection" statutes. The statutes vary: some involve only medical personnel, but the tendency has been to broaden the group of persons under a duty to report suspected child abuse. Some states have statutory clauses including "any other person." In at least twenty states all privileged communication protection are withdrawn except the attorney-client privilege. Mississippi, for example, specifically indicates that the act of reporting is "not a breach of confidence" and thirty-three states provide a criminal penalty for failure to report such crimes.

These policies clearly clash with the privilege, but some rulings protect the privilege even in child abuse cases. In a 1958 decision, Mullen v. United States, the United States Court of Appeals reviewed the conviction of a mother for abuse and willful mistreatment of her children. The decision was reversed on other grounds, but two of the tree justices also concurred in an opinion that the admission of the testimony of a Lutheran minister regarding what the woman had told him in preparation for receiving communion was erroneously admitted. "Sound policy-reason and experience-concedes to religious liberty a rule of evidence that a clergymen shall not disclose on a trial the secrets of a penitent's confidential confession..." Circuit Judge Edgerton in a separate concurring opinion went perhaps even further:

I think a communication made in the reasonable confidence that it will not be disclosed, and in such circumstances that disclosed, and in such circumstances that disclosure is shocking to the moral sense of the community, should not be disclosed in a judicial proceeding...

Other recent cases have also pressed the issue of the clergy-penitent privilege. In Arizona a Pentecostal pastor, David Crumbaugh, was given a six-month sentence and one thousand dollar fine for refusing to testify about what the wife of a convicted child killer told him while he counseled them both during the murder trial. And in one state, pastors publicly announced they would disobey a new statute requiring them to report suspected child abuse.

As Ostling noted, regardless of what the courts say, most clergymen continue to invoke the privilege and the "question is whether they will be jailed for doing so."

The "privilege" in regard to court "testimony" is not really the same concept as the kind of confidentiality raised by the church discipline cases, nor is it the primary type expected by the counselee. The counselee does not merely expect that the pastor won't testify in a court or call the cops but that he won't "blab" at all.

In the context of church discipline, the critical aspect of confidentiality is whether there is a relationship creating a legitimate and binding expectation of confidentiality so that its breach is a kind of clergy malpractice, a negligence created by the breach of the pastor's duty to keep secrets.

As churches are increasingly involved in ministries of pastoral counseling, there is a tendency to uncritically adopt a secular counseling style including all the assumptions about confidentiality that properly prevail in secular counseling. And certainly the general concept that persons seeking pastoral care are not going to have their shared secrets made public is reasonable.

But we have noted the conflict between the biblical admonitions about pastoral and church care and any notions of absolute secrecy. In Matthew 18 it is clear that if "counseling" fails, the church is to further its discipline even to the point of public rebuke and expulsion. The secret is to be made known, brought to light that it might be made manifest. As Robert Illman noted writing in the Presbyterian Journal, "We have too often been guilty of encouraging an expectation of confidentiality that is inconsistent with our biblical responsibilities.

The more a church counseling program, whether separately staffed or simply part of the pastoral ministry of the staff, takes on the style and character of a secular counseling operation, the more reasonable it is for counselees to assume that secrecy is a guarantee. Such an expectation may be directly encouraged by many pastoral counselors.

The question has not only legal dimensions but pastoral ones as well. The pastoral ministry of the church does depend on a sense of trust that secrets are not revealed. It is important for pastors who become possessors of powerful secrets about others to be scrupulous. If word gets out that a pastor can't be trusted, few will confide in him. But there are limits, and those biblical limits are not simply the legal limits of physical harm to other persons.

Unless the church through its teaching and counseling makes clear that while confidentiality is an aspect of the church counseling ministry it is not absolute, church discipline based on facts that emerge from counseling settings will continue to be legally troublesome.

There is no problem with pursuing church discipline when facts are obtained from independent and clearly non-confidential sources. But where the only source is pastoral counseling settings, the courts may well apply a test of asking whether or not the counselee-parishioner had a reasonable belief that the communications would be held in confidence.

Where courts find there was a expectation of confidentiality that has been breached, the counselor may be vulnerable to actions for "negligence" or breach of a fiduciary duty.

Of course, even where confidentiality is properly presumed, there may be limits as we have already noted in the case of child abuse reporting statutes. Recent cases raise other exceptions where the secret may be revealed in spit of expectations of confidentiality. One exception that may affect church ministries is the situation where the confidence not only may be revealed, but there may be a duty to disclose it.

A DUTY TO WARN?

The protective privilege ends where the public peril begins.

When is information obtained in a situation of expected confidentiality so vital that one not only may but must reveal it? One guideline is whether the revealed information has to do with past acts, or whether it deals in part with future acts. Lawyers, for example, have a privilege not to reveal confidences from their clients regarding past acts, even heinous crimes, but the privilege does not cover contemplated future criminal acts.

Another factor is whether or not there is a real physical danger to third persons. Public policy interests will certainly be greater where there is ongoing danger to other people.

A case that raised both of these dimensions was Tarasoff v. Regents. In 1968 a student at the University of California at Berkeley became distraught over his rejection by a girlfriend. he sought professional counseling and in the process of conversations with a psychologist threatened to kill Tanya, the former girlfriend. Later the agitated lover murdered Tanya. Her parents sued the psychologist and others for negligence because they failed to warn Tanya of the threats. The California Supreme Court in reviewing the case held that ;when a therapist realizes a third person is in danger, there is a duty to warn that person. The Court noted a "duty to exercise reasonable care to protect the foreseeable victim." The Court concluded that "in our risk-infected society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal."

The duty to warn has been included in some codes of conduct for mental health professionals, but there is no such uniformly accepted guide for clergy. When is there a "right" to reveal, and when might there even be a "duty"?

Given both legal and ethical considerations, how ought churches and pastor to treat "confidential" information? What policies are appropriate or even mandated?

The most critical legal issue today regarding traditional protection of clergy confidentiality in regard to "testimony" is balancing the interest in protecting such communication {for reason of both public policy and religious liberty} against concern for protecting third persons (e.g., abuse children). This may well create severe tensions for clergy to whom abusive parents come for help. If the clergyman promises help but advises he must first call the police, the number of such person seeking help will surly diminish. On the other hand, failure to take action may result in tragedies for children.

It may be critical for pastors to distinguish between situations where the acts for which one seeks help are in the past and where the conduct is likely to continue. Where one comes to confess past acts that are highly unlikely to continue, it is understandable that many clergy will not report such instances for reasons of spiritual duty or prudence. Where there is a continuing risk of harm to others, some action would seem to be legally and morally required, though there may be alternatives to notifying state authorities. When parents seek help they may consent to various reasonable and adequate interim remedies, such as placing the threatened children with relatives while the parents commit themselves to intensive counseling. Of course, clergy who take such steps may be liable under the law not only for failure to report, but should their remedies turn out to be inadequate to protect the children, they may well bear enormous legal liability and moral responsibility.

In regard to church discipline and counseling areas where there is a reasonable expectation of confidentiality, courts may well hold clergy liable if they reveal confidences to others such as church elders or boards. Unless the commonly held expectation of privacy and confidentiality is somehow negated, the pastor may be obliged not to reveal such information.

While this expectation of confidentiality may be overcome by specific statements (disclaimers) and by clearly established principles taught in the church, these may prove inadequate. Much pastoral counseling is simply not done formally but in the process of normal conversation where one does not begin with disclaimers, and in any event the use of such may will serve to shut off counseling. The clarity of disclaiming confidentiality may require it to be so prominent that it would create an erroneous impression of no confidentiality when in fact the church might want to indicate only that there are limits imposed by biblical principles and that communications would be held as confidential as possible within these limits.

If the only source of information is one where there is a reasonable expectation of confidentiality, clergy and counselor may be obliged to respect that confidence. In such a situation, it may be appropriate not to reveal the information even if it seems relevant to the church's ministry and church discipline. That does not bar efforts to encourage the counselees to "own up" to their conduct, to advise them to remove themselves from positions of leadership inconsistent with their continuing conduct, to suggest to appropriate committees that certain persons might not be best to serve in given positions, or in certain circumstances to remove persons from leadership positions. And, as noted, one may proceed with church discipline if the information has come to the attention of the church through other, non-confidential means. As in Guinn, where there is no secret about what is going on, there is no confidence to respect at least as to the basic facts.

On the other hand if information has been obtained in confidence, and whether or not there is potential legal liability, the pastor or church leaders may choose to disclose limited information both in terms of the scope of the audience and the extent of information revealed. "Tell it to the church" is not a license for gossip or a refuge for moral Peeping Toms. There are good reasons for respecting confidences, and even church discipline does not require that the guilty be paraded before the church.

What is important for purposes of ;church discipline is to carefully assess (1) the church's counseling practices, (2) the likely expectations of parishioners and counselees, (3) whether the church wishes to overcome any expectations it believes are inconsistent with its doctrines, (4) in specific instances, whether or not there is a potential breach of confidence if information is provided others, and (5) whether or not possible disclosure requires a change in the manner which the church will proceed.

The issue of confidentiality is a mine field not only of legal claims but of troublesome church policy and potentially surprised penitents.

"The clergy-penitent privilege is a "rule of evidence"; that is, a rule relating to what kind of evidence of testimony is admissible in a civil or criminal proceeding.

The legal issue is, Who holds the privilege? In general the view is that the penitent holds the privilege and may waive the right to claim it. Normally, however,, the clergy may assert it on behalf of a penitent absent any indication the penitent has deliberately chosen to waive the privilege. In some states the language would seem to indicate that the clergy also have a privilege independent of that of the penitent, e.g., California Evid. Code. 1034(West): "A clergyman, whether or not a party, has a privilege to refuse to disclose a penitential communication if he claims the privilege."

In re Swenson, 237 N.W. 589, 591 (1931), citing in part Reuckemeier v. Nolte, 179 Iowa 342, 161 N.W. 290, 293 (1917).

Ponder, "Will Your Pastor Tell?" Liberty, May-June 1978,3. Church policy itself varies. The Luthern Church bylaws provide an exception to confidentiality, "in order to prevent the commission of crimes." The Catholic church, however, provides no exception, noting that "no cause, however great, whatever the circumstances, will justify its violation. The seal is inviolable. . . ." See the New Catholic Encyclopedia, cited by Yellin, 147.

See twenty-first canon of the Lateran Council, 1215.

There is some debate about whether English courts formally recognized the privilege in law in the pre-Reformation period. Certainly it was not absolute. In Garnets Case in 1606, Father Garnet had been the spiritual advisor to Guy Fawkes and others allegedly involved in the attempt to assassinate James I. The plot failed, and Garnet was called to testify on any conversations with the defendants. He refused and was tried and found guilty of "having knowledge of a treasonous plot." He is now considered a martyr of the "seal of the confession."

If there was any legal privilege before the Reformation, it was clearly not a part of English law after the Reformation and the Restoration in 1660. While confessions remained a central part of the life of the Anglican community, it was no longer compulsory. (Canon 113, Anglican Canons of 1603.) The Sacrament of Confession is held inviolable, but an exception is made where one's knowledge of a crime would subject him to capital punishment if he did not reveal it. Blackstone makes no mention of it in his famous Commentaries, and a long line of English cases deny the privilege. In Normanshaw v. Normanshaw, an action for divorce, the Vicar had refused to disclose the substance of an admission made to him. The Court declared that "it was not to be supposed for a single moment that a clergyman had any right to withhold information from a court of law." Cited by 8 J. Wigmore. Wigmore on Evidence, 2394 at 869, 70 n.4 (McNaughten rev. 1961).

See a report of this case in "Privileged Communications to Clergyman." - Catholic Lawyer (1955), 207.

Keeenan v. GiganteKeeenan v. Gigante, 47 N.Y.2d 160, 167, 390 N.E.2d 1151, 1154, 417 N.Y.2d 226, 229 (1979).