How secrets are kept: Viewing the current clergy-penitent privilege through a comparison with the attorney-client privilege

Brigham Young University Law Review, 2002 by Bailey, Shawn P

between the state's coercive power to collect evidence and the right to maintain confidential certain religious communications lies at the center of every challenge to the clergy-penitent privilege. The holding in People v. Phillips is significant because it reflects an important early understanding of the phrase "free exercise of religion." The essential aspect of this understanding was that the First Amendment guaranteed state accommodation of religious behavior that may not conform to generally applicable law.6 A second legal basis that the Phillips court could have relied on is also important. If understood as a structural restraint on governmental power, the Establishment Clause also could have required the Phillips court to prevent state interference with Father Kohlman's confidential communications.7

child abuse.11 Framing the issue in such terms is an attempt to leverage the appropriate emotional response to a vile crime like child abuse against a religious liberty interest that may seem less urgent.

Still, one can fully condemn child abuse while defending the clergy-penitent privilege. However persuasive it may be, the binary approach suggesting that one must either choose between the privilege or child abuse prevention is simplistic and ultimately flawed. First, such an approach implies that, compared to the state, clergy are unconcerned when it comes to child abuse prevention. Contrary to this implication-and despite the rare case involving an abusive clergy member"-it seems reasonable to assume that both clergy and the state are deeply concerned about the well-being of children. Second, this approach proposes a probable non-solution: abrogation of the clergy-penitent privilege is not likely to diminish child abuse.13 Third, adopting this approach ignores the fact that alternative means, such as traditional law enforcement methods and less controversial reporting requirements, remain intact to enforce child abuse laws.14 Finally, the claim that one must choose between the clergy-penitent privilege and child abuse prevention fails to acknowledge that clergy-- penitent communication may effectively combat child abuse.15 Considering these points-and the religious significance of the practice of confidential confession16-abrogation of the clergy-- penitent privilege through abuse-reporting laws should be a cause for great concern.

marize current state laws regarding mandatory abuse-reporting and compare the effect these laws have had on the clergy-penitent and attorney-client privileges. Part II of this Comment will analyze the clergy-penitent and attorney-client privileges in relation to the traditional rationales for evidentiary privileges to assess whether the current difference in status between the two privileges relates to a difference in value or importance. Part III will analyze the clergy-penitent and attorney-client privileges' respective claims to protection under the Constitution. Finally, Part IV will look beyond the traditional rationales and constitutional arguments to consider some alternative explanations for the current difference in status between the clergy-- penitent and attorney-client privileges.

1. THE EFFECT OF ABUSE-REPORTING LAWS

Despite some basic similarities, significant variation between the abuse-reporting laws of the several states raises a variety of concerns.23 One of the more troublesome problems with abuse-- reporting laws is vague language. Of the fifty-one statutes under consideration, eighteen name any "individual," "person," or "other person" as a mandatory reporter.24 Using such universal language without specific guidance as to its effect on preexisting law, many abuse-- reporting laws leave considerable uncertainty as to their intended effect on evidentiary privileges.25 Still, a significant number of reporting laws are clear about their effect on otherwise privileged communications regarding abuse.26

A. Reporting Laws and the Clergy-Penitent Privilege

in the uncertain category may suggest that abrogation was intended.32

B. Reporting Laws and the Attorney-Client Privilege

strong in many of the "uncertain" states.38 In fact, Professor Mosteller has argued that state legislatures did not intend to abrogate the attorney-client privilege through abuse-reporting laws.39 Considering Mosteller's argument, the strength of the attorneyclient privilege in many states, and the lack of reference to attorneys in many abuse-reporting laws, there appears to be a strong presumption that abuse-reporting laws do not abrogate the attorney-client privilege.40

C. Attorneys Protected, Clergy Neglected

In light of how many states have sought to protect or abrogate the clergy-penitent and attorney-client privileges, the manner and extent of the abuse-reporting laws' unequal effect on these privileges becomes readily apparent. Perhaps most striking is the number of states that have expressly preserved the privileges. While seventeen states have preserved the attorney-client privilege without additional limits,41 only four states have preserved the clergy-penitent privilege without imposing additional limits.42 This difference in protection presumably reflects a significant amount of concern in state legislatures for the attorney-client privilege and relatively little concern for the preservation of the clergy-penitent privilege. Also notable is the difference between the abuse-reporting laws that partially abrogate the privileges at hand. Eighteen states limit the clergy-penitent privilege to various degrees while claiming to preserve it.43 In contrast, three of the four states that name attorneys as mandatory reporters preserve the confidentiality of communications with clients.44 In other words, these three states impose an essentially meaningless duty on attorneys to report, since it only applies to information not obtained from clients.