Confidentiality, Privacy, and Religion

At Ballecer & Segal, we are excited about a case we are working on that has significant implications in the State of Arizona. This case engages with the concepts of confidentiality, privacy, and religion, and how we determine what is protected and what is not.

See no evil, hear no evil, speak no evil

When you consider the phrase “See no evil, hear no evil, speak no evil,” you may interpret it to mean turning a blind eye to something illegal or immoral, thus abdicating responsibility. Setting aside various diverging interpretations of this ancient quip, there are undeniably situations in which people should be able to trust that their communications are protected, and we believe the words spoken to a respected religious leader seeking spiritual guidance are a case in point.

Statutory protections for attorneys, clergymen, and physicians

Three professions enjoy statutory protections of privileged communication with clients: attorneys, clergymen, and physicians. For example, you often hear about doctor-patient or attorney-client confidentiality, in which the information shared is private and protected. The only person that can assert this privilege is the “client.”

What does it mean that statutory protections protect the client?

In other words, in Arizona, the statutes in relation to confidentiality are interpreted from the standpoint of protecting the “client,” whether their disclosures be about a medical condition or a criminal offense. But what about priests and their penitents? Is everything you say to your priest (or other religious leader) in the sanctity and apparent privacy of a confession truly confidential?

Priests, penitents, and confidentiality

People in religious congregations rely on their clergymen for emotional support, spiritual guidance, and, oftentimes, atonement. Almost every religious faith, denomination, and sacred institution abide by their own rituals, processes, and practices. This is often what makes it challenging for the courts to determine: What “counts” as a confession or legitimate spiritual practice? What communications between priests and penitents merit the protections afforded by confidentiality?

What qualifies as priest-penitent confidentiality?

In Arizona, all three of these requirements must be fulfilled for communications with a priest to be truly confidential:

1) The person receiving the confession was a priest.

2) The confession was made while the priest was acting in his professional capacity.

3) The confession was made in the course of discipline enjoined by the church to which the clergyman or priest belonged. 

In terms of the case that we are currently working on, we were hired to file a special action to protect a defendant’s confession to his Pastor in the course of seeking guidance and forgiveness—a confession that he assumed was privileged due to the nature of the conversation and who it was with. Division 1 of the Arizona Court of Appeals is reviewing this case and has asked for supplemental briefing to answer five questions which may modify or establish a legal test to determine when and how the priest-penitent privilege can be asserted in criminal cases.

These questions include:

1. When the superior court is determining whether to order an evidentiary hearing to determine whether the clergy-penitent privilege applies to known communications, must the party claiming the privilege make a prima facie showing that A.R.S. § 13-4062(3) applies? Why?

2. To make a prima facie showing, must the proponent’s belief be subjectively reasonable or objectively reasonable? Why?

3. If the superior court concludes the proponent has made a prima facie showing and orders an evidentiary hearing, who bears the burden of proving the communication is in fact clergy-penitent privileged communication? Why? What is that burden of proof? Why?

4. At the evidentiary hearing stage, must the superior court determine whether the proponent held a subjectively or objectively reasonable belief that the proponent made the communication to the clergy in the clergy’s “professional character”? Why?

5. In analyzing these issues, as well as the issues discussed in the existing briefing, what statutory interpretation principles should guide this court’s analysis? May this court look beyond the language of ARS § 13-4062(3)? Why?

Parties, groups, and organizations interested in filing amicus briefs are encouraged to submit one if they believe they have knowledge or insight that could assist the court in making a decision.

We look forward to the oral argument which will be held on Tuesday, November 28th, so be sure to tune in and keep an eye out for news on this pertinent issue.