Clergy-Penitent Privilege

In Waters v. O’Connor, 209 Ariz. 380, 103 P.3d 292 (Court of Appeals of Arizona 2004), Korri Waters was prosecuted for sexual misconduct with a minor, a 16 year old boy.

During the pendency of her criminal case, Waters sent an e-mail to `Minister’ D.W., the volunteer music director at Church on the Word, a . . . non-denominational Christian church. D.W.'s title was honorific, given to her and others . . . to differentiate them from other church officers and as a sign of respect. Waters had been an active member of the church and had developed a close friendship with D.W. Over several years the two . . . discussed Waters' marriage and `things”’ that friends talk about.

In her e-mail Waters wrote she missed the church, asked forgiveness for the `choice’ she had made, explained she wanted her life back and stated she was `hungry to hear the word. . . .’ She asked . . . how to start over. . . . D.W. forwarded Waters' e-mail to the church's minister, Pastor D.M., and asked him what she should say. With guidance from Pastor D.M., D.W. answered Waters' e-mail and told her that . . .

[i]f you truly want deliverance in your life, total and complete deliverance, you have [to] come clean about what you did. Everything.

I want to help you. Your first step is to tell me exactly what you did, what's going on now, what your plan is for the future. As far as getting your life back, you don't want the life you had before. You need something better. A life that is solid and secure, without shame. It starts by telling the truth. The whole truth. The ball is in your court.’

Having been told by D.W. to tell her what she had done, Waters did exactly that. In a subsequent e-mail, Waters acknowledged her relationship with the minor, discussed its evolution and described it in graphic detail. D.W. forwarded this and other e-mails from Waters to Pastor D.M. who gave them to the minor's parents. The parents turned the e-mails over to the prosecutor in Waters' criminal case.

Waters v. O’Connor, supra.

The prosecutor wanted to call D.W. as a witness at Waters’ trial but Waters moved to bar her from testifying. She claimed D.W. “`had acted as a `person of the clergy’ and had provided her with religious counseling.” Waters v. O’Connor, supra. Waters said her communications with D.W. were privileged under Arizona Revised Statutes § 13-4062(3), which is the clergy-penitent privilege statute that applies in Arizona criminal proceedings. Section 13-4062(3) prohibits the examination of a “clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.” Waters v. O’Connor, supra.

The court held a hearing on Waters' motion. At the hearing, D.W. testified that she was not an ordained minister, did not receive confessions and referred questions regarding church doctrine to Pastor D.M. Waters v. O’Connor, supra. As the church's music director, she directed the choir, selected and arranged worship service music and occasionally delivered the “message” during worship services when Pastor D.M. was out of town. D.W. said that while she and Waters had been friends, Waters never before asked her for advice about “something like deliverance from sin.” D.W. also said this was the first time anyone had ever asked her for this type of advice. Waters v. O’Connor, supra.

Waters also testified. She said she believed D.W. was a minister and had confided in her as a minister, believing her e-mails would remain private -- except from Pastor D.M. -- because D.W. was a minister. She said that in the past she had confided in D.W. about her marriage and had sought her counsel as a minister. Waters v. O’Connor, supra.

The trial court denied Waters’ motion to bar D.W. from testifying because it found that D.W.’s position with the church was not that of a member of the “clergy.” Waters filed a motion asking the Arizona Court of Appeals to reverse the trial court’s decision, which the Court of Appeals agreed to do under its “special action” jurisdiction. An Arizona statute lets a court of appeals hear an issue in a case that has not gone to trial if it is an issue” of first impression, statewide significance” or a pure question of law. Waters v. O’Connor, supra. Since the Court of Appeals found that the issue Waters’ motion raised met all three conditions, it agreed to decide whether D.W. qualified as a member of the clergy for the purposes of applying the Arizona clergy-penitent privilege. Waters v. O’Connor, supra.

The court began its analysis of the issue by noting that the “privilege . . . belongs to the communicant: a clergyman may not disclose the communicant's confidences without the communicant's consent.” Waters v. O’Connor, supra. It also noted that the statute did not define “clergyman”. Waters argued that the clergy-penitent privilege should be

expansively defined, and should not be limited to formally ordained clergy. She argues that clergyman should be defined in a functional manner, and clerical status should be accorded to members of a religious organization who engage in functions akin to or customarily performed by members of the clergy. . . . [S]he contends that functionary and thus clerical status should be extended to individuals the communicant reasonably believes are acting as functionaries. Under her functionary equals clergyman definition, Waters' communications with D.W. would be privileged because Waters sought religious advice from D.W.; D.W. responded with spiritual counsel-just as a clergyman would; and Waters reasonably believed D.W. was, as befitting her honorific title, acting as a member of the clergy in providing that advice.

Waters v. O’Connor, supra.

Waters noted that a proposed (but not adopted) Federal Rule of Evidence would have defined clergyman as “`a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.’” Waters v. O’Connor, supra. After noting that various sources had criticized the expansive definition of clergy man in the proposed rule, the Arizona Court of Appeals held that the definition went too far because almost anyone in a

religious organization willing to offer what purports to be spiritual advice would qualify for clergy status. Such an expansive construction is contrary to how Arizona courts interpret privilege statutes. Generally, such statutes are to be restrictively interpreted. . . . because they impede the truth-finding function of the courts. . . . . Further, such an approach is not sufficiently linked to achieving the societal benefits justifying the existence of the clergy-penitent privilege

Waters v. O’Connor, supra.

The Court of Appeals explained that the clergy-penitent privilege exists “because of a belief that people should be encouraged to discuss their `flawed acts’ with individuals who, within the spiritual traditions and doctrines of their faith, are qualified and capable of encouraging the communicants to abandon and perhaps make amends for wrongful and destructive behavior.” Waters v. O’Connor, supra. It therefore held that the privilege should not be expanded to include communications with those

who are not qualified to provide such advice. As this case demonstrates, D.W.'s honorific title and activities in the church did not qualify her to render this type of counsel and encouragement or to even advise on issues of transcendent belief, repentance and forgiveness. Therefore, we decline to adopt Waters' functional test for determining the meaning of clergyman.

Waters v. O’Connor, supra.

The court also held, however, that the term clergyman “is not limited to members of religious organizations having an ordained clergy.” Waters v. O’Connor, supra. The court found that such a restrictive interpretation would violate the Establishment Clause of the Constitution (the clause that bars Congress from adopting laws that prefer one religion over others). The court decided that whether someone “is qualified to be a clergy member of a particular faith is . . . to be determined by the procedures and dictates of that person's faith.” Waters v. O’Connor, supra. “Thus, . . . we hold that whether a person is a clergyman of a particular religious organization should be determined by that organization's ecclesiastical rules, customs and laws. Such an approach avoids denominational favoritism and is consistent with the aims of the clergy-penitent privilege.” Waters v. O’Connor, supra.

The court therefore found that D.W.’s status did not qualify her as a clergyman under the Arizona statue, which meant that neither the emails she exchanged with Waters nor her testimony about those emails were barred by the state’s clergy-penitent privilege.

This is so far the only reported case I’ve seen involving email or any other aspect of cyberspace and an invocation of the clergy-penitent privilege. I can’t imagine that such claims will become common, but wouldn’t be surprised if the issue comes up, since it seems reasonable to assume that clergy will communicate with members of their congregations online.

And I wonder if there are online churches? If so, I assume all the communications would be via email, text, etc., so the privilege would necessarily come up in that context.