Why should priests be afforded greater privilege than lawyers?

Great Debates
21

I presume that the OP is speaking hypothetically, as the law of privilege is not accurately set forth in the OP (at least for any jurisdiction I’ve looked at).

But if the law were as set forth in the OP, I think that the public policy reasons one would advance to support such a state of affairs are, simply, that historically the confessional has been sacrosanct, but that for lawyers and others, a balance should be drawn.

This is an interesting article about the privilege (pdf), and note particularly the discussion of Arizona v. Macumber, in which a dead man’s lawyers were not permitted to testify that their dead client had confessed to the crime for which the unfortunate Mr. Macumber was being tried (and was convicted and sentenced to life in prison).

This is not an accurate statement of the law in California.

22

I would say that depends on the denomination and what the individual confessed if a member of the clergyperson’s denomination.

23

How is it not accurate?

I merely stated that privilieged communication between lawyer and client, doctor and patient, has exceptions. That isn’t true for priests. Such was my understanding and it seems to be confirmed by this post of Bricker’s in the previous thread.

24

Another thing to consider is that a sin cannot be forgiven if the person confessing isn’t truly repentant. As Guin noted, a confessor who hears a confession of the commission of a major crime will usually require the confessee to turn himself in as penance. Assuming that the confessee actually went to confession sincerely and wishes to be forgiven the sin (of murder, rape, whatever), he WILL go turn himself in, otherwise he doesn’t receive forgiveness.

25

I parsed your OP differently; I understood your OP to be suggesting that there were no exceptions to the priest-penitent privilege, and wild exceptions to the attorney-client privilege (including an exception to the privilege requiring a lawyer to report any planned crime, which would be an absolutely ludicrous exception that would gut the entire privilege).

I will note, however, that even this much broader statement isn’t accurate. First, many non-US jurisdictions have only very limited priest-penitent privileges (UK and Australian dopers, please chime in). Second, most US jurisdictions do not hold the priest-penitent privilege to be absolute (see, e.g., rules that priests are mandatory reporters for child abuse).

What I took exception to in the OP was, specifically, the following:

First, and as noted above, the priest does not have absolute privilege.

But, second, and more importantly, I am not aware of a single US jurisdiction in which a lawyer or doctor is required to report every “future crime” to the authorities. There are some jurisdictions that require a report of a future crime that is reasonably certain to cause death or grievous bodily injury, but that’s a pretty narrow exception. And some jurisdictions don’t even have that exception. See, for example, California, where attorneys may, but are not required to, report a crime that they reasonably believe will be committed that will cause death or grievous bodily harm.

So in some senses, the exceptions to attorney-client privilege are narrower (I’m ignoring SOX). Assume a client comes to my office, and as part of our discussion, he asks me for advice on how to molest kids. I give him the advice (don’t do it, it’s illegal, etc.), and he says, well, I hear you, but I’m going home and molesting my kid anyway. I cannot disclose that admission.

Assume my client leaves my office, stops by the church, confesses his sins, and then tells the priest, well, I hear you, but I’m going home and molesting my kid anyway. The priest must (not may, but must) report that to the authorities.

In that instance, then, the attorney-client privilege provides more protection from disclosure than the priest-penitent privilege.

With that, sorry for the hijack; it just bothers me when inaccurate statements of the law are used as the basis for an otherwise interesting discussion.

26

I didn’t read the whole thread so i apologise if it’s already been said.

It’s because people have a big wank about religion.
There shouldn’t be ANY rights about what you say to a religious person.

Could Fat Tony say to the court that Little Johnny is his priest and so he can’t testify? How do they draw the line with this?

The church gets their money tax-free, who says my car repair business isn’t my religion?

Priests get a greater privilege in this regard because they are PRIESTS. That’s it.

27

No problem, Campion. That’s part of the reason I love this board, inaccuracies very rarely slip by. I stand corrected and I very much appreciate your detailed and interesting response.

28

Separation of Church and state come to mind.

It is (IMHO) a greater good to have God and peoples access to God unrestricted by state. Spirituality is very personal and needs to be as free from state interference as possible.

It is also bowing down to the Almighty, as in the phrase ‘one nation under God’, God has higher authority then the nation.

29

I think the very different concepts of confidentiality and privilege have been confused in this thread.

In Canada there is solicitor-client confidentiality, solicitor-client privilege, and priest-penitent confidentiality, but there is no priest-penitent privilege.

30

Up to the point where the functions of that spirituality put other lives at risk. I’m sorry, but if a priest, for example, learns in confession that a fellow priest has been abusing children and the abuse is ongoing then he should take steps to protect the children and damn the consequences. Do they really believe that their God expects them to let the children suffer as long as the sacredness of the confessional is upheld?

No, it isn’t God, it’s the Church that expects it and the Church should be told that its institutions should take a back seat where real harm would otherwise follow.

31

Part of the function for such ‘spiritual leaders’, thought that term is not always indicating that the person is acting on behalf of God, is to lead that person to God and God’s healing for their life and the life of the ones abused. In that sense there is a positive reason for both the victim and the person committing the crime in having a neutral person to talk to. Such a person may not be able to tell anyone who is going to run to the authorities, and not even start to get help, but having someone that is above the state, and able to talk someone through it, and even help him accept the consequences of the action is IMHO a net benefit to society.

Also having a agency, in this case the church, being separate from the state is a net benefit for the people. Interference by the state onto this is limiting the freedoms available to us.

32

Another misconception in the OP and the title line is that it’s the priest’s and the lawyer’s privilege. I’m not as up to speed on the priest-penitent relationship, but in the solicitor-client relationship, the privilege belongs to the client, not the lawyer. Only the client can normally waive the privilege, not the lawyer. That’s because the privilege exists to enable clients to seek legal advice in confidence.

33

And allowing people to die or suffer because that agency won’t bend its rule is also a net benefit? The Church shouldn’t be allowed carte blanche in the name of freedom of religion.

And just how far does this confidentiality extend? Can anybody claim its protection? Suppose, for instance, a close friend comes to me and intimates that he needs to talk to me about something but the problem is I’d be breaking the law if I didn’t inform the police once I know about it. Don’t worry about it, I respond, in two shakes of a lamb’s tale I can get me an instant priesthood from one of the many cockamamie religions advertising on the net.

No sooner said than done. I am now a Reverend Father in the Church of the Risen Nyarlathotep. I will hear your confession, my son, say I.

He informs me of a gruesome murder that he committed last week. The police are even now hunting him. I instantly absolve him of all present, past and future sins (hey, Nyarlathotep is a forgiving god) and tell him not to worry about me. The law can’t get a thing out of me. Freedom of religion, dontcha know.

I have a strong feeling that this might not work. But why not? Do religions need to pass some kind of test to be approved by the state and claim this immunity?

34

The whole premise seems to me to be not right. Before you start wondering what might be possible under certain very strange circumstances, it would be good if we actually could find out from a lawyer whether priests really do have more immunity than, for example, doctors, as you state in your original post. Because I have my doubts.

35

It depends on the jurisdiction. As I pointed out above, there is no penitent-priest privilege in Canada.

36

In California, the penitent-priest privilege is codified at Cal. Evid. Code section 1033.

37

It seems to me that for Americans there is the constitutional issue of separation between church and state. I can’t see the government over-riding a traditional and fundamental church practice/policy.

38

Not as a class privilege analogous to the solicitor-client privilege, no, but there can be a priest penitent privilege on a case-by-case basis. See R. v. Gruenke, [1991] 3 S.C.R. 263.

39

I’m not sure I follow this conclusion. On what basis must the priest report this disclosure?

40

But as has been pointed out before, suppose we repeal the privelege. Well, all that will happen now is that your criminal friend won’t confess his crime to you. It’s not like all of the sudden priests will come swarming out of confessionals to talk to the cops. Rather, what will happen is that criminals will have a disincentive to talk to priests, at least about the commission of future crimes.

And of course, priests are still going to mostly follow their customs, even if that puts them in contempt of court for refusting to testify. And most of the time when a criminal confesses to a priest NO ONE ELSE KNOWS. So since the priest keeps mum, there’s no case.

So the only scenario where this would help the cops is if the criminal tells the priest he’s going to commit future crimes. The priest refuses absolution, tells him to turn himself in, and so on. The criminal leaves, and the priest does nothing. Then the criminal gets arrested for the crime, and some witness remembers that he talked to a priest before the crime. “Aha!” say the cops. “He must have confessed to the priest. Just haul Father O’Malley in and threaten him with contempt of court and he’ll crack like a walnut. A very thin-shelled walnut, though.”

Except what then happens is that Father O’Malley says that he can’t reveal anything about what he was told in the confessional booth. So the Judge has him locked up. Except, what evidence to the cops have that Father O’Malley was told anything by the perp? And if their case depends on getting Father O’Malley to talk, that’s a pretty thin case. Maybe they should try developing other lines of evidence too. And Father O’Malley stays in jail refusing to testify until the Judge gives up and lets him free. Civil disobedience.

And exactly how many times a year do we imagine that child-rapists confess to priests that they’re going to commit future crimes? Once? Twice? A dozen? How many more of those child rapists would be put in prison if Father O’Malley could be forced to testify? One? Zero?