Clergy-Penitent Privilege


Although informally referred to as the Priest-Penitent Privilege, the following applies to all clergy, i.e. a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization. In general, any conversation had with or amongst religious leaders (assuming that they are acting in their religious capacity) cannot be brought into court. Each religion may have its own internal governance concerning the preservation of confidence which goes beyond that of the California Evidence Code.

Confidential Communications:

California defines a “penitential communication” as a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret, see Evidence Code Section 1032.

In other words, this privilege only applies if the clergy member has a duty to keep the communication secret under the discipline or tenants of the church.

Privilege:

In California, both the clergy member and the penitent hold the privilege. In other words, both the penitent and the clergy member would have the right to refuse to disclose or prevent another from disclosing, the contents of the privileged communications

However, that privilege is waived if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.

Note that California attempted to pass Senate Bill 360 in 2019 which would have imposed mandatory reporting requirements on clergy members concerning the sexual abuse of minors, the

Conclusion:

TA person seeking to invoke the clergy-penitent privilege typically must show that: a) the communication was made to a clergy member; b) the clergy member was acting in a spiritual capacity; and c) the person reasonably expected the communication to remain confidential.

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Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax, or other professional services. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.

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