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
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.
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
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
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.
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.