Clergy of many faiths are often asked by members of their congregation to keep confidences and give advice about difficult topics. In the course of their work, ministers of various faiths may hear details about a person’s life that could have serious consequences for that person if the information were to be disclosed beyond the confidence of the clerical relationship.
Various faiths have different internal rules governing their clergy’s obligation to preserve in confidence the information shared by a member of the congregation. The Catholic Church, for example, requires its priests to uphold the Seal of Confession, which prohibits priests from disclosing to anyone the contents of disclosures made by an individual during confession. An ordained Catholic priest is required to maintain the Seal of Confession even under threat of death.
Secular law has long recognized the importance of confession and the relationship between clergy and their congregants. The so-called “clergy privilege” protects information disclosed to a member of church clergy in a variety of circumstances from legally mandated disclosures. The privilege typically applies if clergy are asked to provide testimony in a trial, whether civil or criminal. It can also limit the applicability of mandatory reporting laws with respect to the content of conversations that take place under circumstances where the congregant is consulting with a member of clergy under an expectation of confidentiality.
California’s legislature has been considering a bill that would impose a mandatory reporting obligation on members of the clergy if they learn about actual or suspected child abuse, even in some contexts in which the clergy privilege would apply. Senate Bill 360 passed the California Senate on May 23. If passed into law it would add clergy to a list of “mandatory reporters,” which already includes teachers, employees at childcare facilities, and medical professionals.
If passed into law in its current form, SB 360 would exempt “penitential communications” from mandatory disclosure. Such communications are defined as having these characteristics:
- The communication is oral.
- It is made privately to a clergy member.
- It is intended by the communicant to be an act o contrition or a matter of conscience.
- It is intended by both parties to be confidential at the time it is made.
- It is made in the manner and context that places the clergy member specifically and strictly under a level of confidentiality that is considered inviolate by church doctrine.
SB 360 goes on to clarify when a communication does not meet the standard of a “penitential communication.” These exceptions include conversations that can be characterized as religious counseling or therapy, management, or activities relating to church activities. Written communications are also specifically placed outside the context of the privilege.
The extent to which SB 360 will change as it passes into the Assembly remains to be seen. What is clear is that California clergy need to stay aware of the bill and how it might affect the confidentiality of their communications with congregants and potentially place clergy members in legal jeopardy for failing to make mandated disclosures.
The Church Law Center of California counsels religious and secular nonprofits on matters of governance and risk management. We are watching the development of SB 360 carefully and can help churches resolve their questions about how the bill could affect them. Call us today at (949) 892-1221 or reach out to us through our contact page.
