Clergy Confidentiality
By: Mathew D. Staver, Esq.
Copyright © 1999

Every state in America protects communications made to clergy in confidence. The typical statute applies to (1) confidential communications, (2) made to clergy, (3) acting in the course of the clergy's professional capacity, and a few states add the requirement that (4) the communication be made during the course of discipline.  

Who are Clergy?

Typical of many states, the Florida statute defines the term "clergyman" as a priest, rabbi, Christian Science practitioner, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed so to be by the person consulting him. Fla. Stat. 90.505. Therefore, the first step to determine the confidentiality requirement is to determine whether the person receiving the communication is considered a cleric.

 What is a Confidential Communication?

In Florida, as in most states, the second step is to determine whether the communication is confidential. Again, the Florida statute states that a communication is confidential if it is made privately for the purpose of seeking spiritual counsel and advice from a clergyman in the usual course of the practice or discipline, and not intended for further disclosure except to other persons present in furtherance of the communication. The second step is therefore to determine whether what has been transmitted is (1) a communication (2) made privately, (3) for the purpose of seeking spiritual counsel and advice in the usual course of the clergy's practice or discipline, and (4) the communication is not intended for any further disclosure.

Casual conversation with clergy may not be privileged, and in most states, a communication intended to be confidential will not be confidential if it is disclosed in the presence of another person. In Florida, the communication may still be confidential if disclosed in the presence of other persons, so long as those persons present are necessary to the counseling process. A communication made in the presence of a minister with another counseling minister present may be confidential in the state of Florida, but in other states it may not. Also, in Florida, a communication made by a husband or wife in the presence of each other with the minister during marriage counseling may be privileged, but in other states it may not.  

Who May Assert the Privilege?

It is important to note that the privilege belongs to the person making the communication, and thus the person making the confidential communication may prohibit the clergyman from revealing its contents. A clergyman may usually assert the privilege on behalf of the counselee.

Clergy may be held liable for revealing the contents of a privileged communication to outsiders, and therefore it is important to determine whether a communication revealed during counseling is privileged. If there is uncertainty, then the minister should discuss the confidentiality with the counselee.

The confidentiality rule has been violated numerous times by clergy when given sermon illustrations. Often, important material that can be used as uplifting sermon illustrations is obtained during the counseling process. In most instances, information so revealed has no adverse ramifications, but in few instances, some ministers have been sued for invading the privacy of a counselee. If a minister wishes to reveal privileged information obtained during a counseling process, then to be safe, the minister should obtain the written consent of the counselee. The clergy confidentiality in most states will be violated by revealing this information to any outside party, including discussions with other ministers during minister retreats. Clergy can give generic examples in order to obtain counseling assistance, but should avoid revealing names.  

What About Child Abuse?

Most states have mandatory child abuse reporting laws. If a minister obtains information concerning child abuse during a confidential communication, should the minister comply with the mandatory child abuse reporting requirement? To not comply with the mandatory child abuse reporting requirement could result in legal liability.

The answer to the question of child abuse reporting can only be solved on a state-by-state basis. In some states, a minister must comply with the mandatory child abuse reporting law notwithstanding the clergy confidentiality rule. However, in the state of Florida, $415.512 of the Florida Statuses exempts attorneys and clergy from the mandatory child abuse reporting laws if the child abuse information was obtained during a confidential communication. If the minister does not report suspected child abuse, the minister must be absolutely sure that the information was given during a confidential communication. If it was not, the minister is required to report child abuse. Learning of child abuse through a third party, hearing of child abuse by the abuser in the presence of outsiders, learning of the abuse from the abuser during casual conversation, or possibly even of the abuse from a family member other than the abuser during casual will not qualify as a privileged communication, and therefore the minister must report the abuse.

Determining what is confidential and what is not may sometimes be confusing and may present ethical dilemmas. Though cumbersome, clergy may avoid certain conflicts of the confidentiality rule by letting the counselee know at the beginning of the counseling process that the information obtained during counseling process is not intended to remain confidential, and therefore request the counselee sign a consent for the minister to reveal certain information obtained in the counseling process, it may be too late, because at that time the counselee has already relied upon the clergyman and revealed a confidential communication.

The information contained herein in not intended to render legal advice. Factual and legal issues may arise that must be considered in each circumstance. If legal advice is necessary, the services of a competent attorney should be sought.