In most states, confidential communications between clergy and parishioner are privileged, meaning they can remain protected from disclosure even if litigation about them arises, but there are limits to the privilege. A recent case out of Ohio cautions against relying too heavily on the privilege to shield documents simply because they involve words spoken by clergy.
Why the Plaintiff sought the documents
The case, McFarland v. West Congregation of Jehovah’s Witnesses, involved a suit against the Church by a Plaintiff who claimed she was molested over the course of four years by another member of the congregation when she was a minor. The Plaintiff claimed that the Church was aware that the offending member had previously molested another child, but failed to take measures to protect her, including failing to take action when she reported the conduct. The case proceeded through to discovery. At that point, the Plaintiff asked the Church to turn over a host of documents the Church considered to be privileged. These documents were primarily letters and other correspondence from the Body of Elders responsive to communication from the Watchtower—the overarching body of the Jehovah’s Witnesses—regarding child molestation cases and prevention within its congregations.
The court’s decision about clergy-penitent privilege
Claiming the clergy-penitent privilege, the Church declared that the letters and documents involving the Body of Elders responsive to the Plaintiff’s request were privileged and should not be disclosed. The trial court disagreed and ordered all the documents be produced. The Church appealed. On appeal, the appellate court substantially agreed with the trial court, reversing as to only four documents. The opinion contains a detailed analysis of each document at issue, but the ultimate result turned on the definition of the privilege in Ohio, and the Court’s charge to construe that privilege narrowly.
In Ohio, clergy privilege is quite limited: “[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.”1 Based on this definition, the Church was ultimately forced to turn over the majority of documents it had sought to protect.
The Court came to this decision for two main reasons:
- Documents were only privileged under the clergy-penitent privilege if they involved a plea for spiritual guidance and the corresponding response.
- Most documents were not privileged because they did not meet the narrow definition of clergy-penitent privilege in Ohio. As the Court noted:
o Not everything clergy says or writes falls within the privilege;
o Where the letters were from one set of clergy to another, the privilege did not apply because the “penitent” communication was clearly lacking;
o Letters that are in the nature of administrative direction or instruction were not sufficient to invoke the privilege ;
o Where an author simply sent a letter “to draw attention to a particular matter and to express the author’s frustration with the handling of that matter,” the letter was not sent for the purpose of seeking spiritual advice and was not privileged;
o The privilege did not apply to “unsolicited religious counseling.”
Deciding whether the clergy-penitent privilege applies can often be complex. In this case, the issue was not whether communications involved clergy—that was undisputed. The dispute was over whether the communications were the kind of communications the privilege was intended to protect. Because of Ohio’s limited coverage, the Court concluded most documents were not covered.
Considering whether the privileges apply
Whether or not the privilege applies will vary from jurisdiction to jurisdiction, as different states have different definitions of who qualifies as “clergy” and what communications are covered. It is important to understand your state’s unique definition. In addition, there may be further constitutional doctrines to consider that would expand the privilege beyond the statute, which did not appear to be at issue in this case.
Do not assume that everything clergy says is beyond discovery. As this case demonstrates, courts are clearly becoming more willing to sift communications and make a determination of what qualifies as communication made for religious counseling, and what communication was made for a “secular” purpose.
1 R.C. 2317.02(C).
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