PRIEST-PENITENT PRIVILEGE

The 'priest penitent privilege', also known as the 'clergy privilege', is an application of the principle of privileged communication that purports to protect the contents of communications between a member of the clergy and communicant, who shares information in confidence. It stems from the doctrine of the Seal of the Confessional.
It is a distinct concept from that of confidentiality (see non-disclosure agreement).
''See also: Privilege (canon law)''
Today, the so-called priest-penitent privilege, or the like, most frequently arises in the context of divorce proceedings and criminal (primarily child abuse) and ministerial misconduct cases. The applicability of the privilege is potentially complicated when the minister is a trained psychologist or secularly licensed counselor required by state law to report child abuse.

Contents

Republic of Ireland

US

UK

Justification of the principle

Bentham's views

References

Bibliography

External links

Republic of Ireland

The privilege was recognised under the common law of the Republic of Ireland as the privilege of the priest in the case of ''Cook v. Carroll'' [1945] IR 515.^[1]

US

The First Amendment is largely cited as the jurisprudential basis. The earliest and most influential case acknowledging the clergyman-communicant privilege was ''People v. Phillips'', where the Court of General Sessions of the City of New York refused to compel a priest to testify or face criminal punishment. The Court opined:
"It is essential to the free exercise of a religion, that its ordinances should be administered-that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance..."
A few years after Phillips was decided, ''People v. Smith'' distinguished the case on the grounds that the defendant had approached the minister as a "friend or adviser," not in his capacity as a professional or spiritual advisor. As with most privileges, a debate still exists about the circumstances under which the clergyman-communicant privilege applies. The capacity in which the clergyman is acting at the time of the communication is relevant in many jurisdictions
In twenty-five states, the clergyman-communicant statutory privilege does not clearly indicate who holds the privilege. In seventeen states, the penitent's right to hold the privilege is clearly stated. In only six states, both a penitent and a member of the clergy are expressly allowed by the statute to hold the privilege.

UK

As the only professional privilege granted in English law is for the purposes of obtaining legal advice from professional advisers, there is no priest-penitent privilege.

Justification of the principle

McNicol^[2] gives three arguments in favour of the privilege:

★ Freedom of religion;

★ The ethical duty of ministers of religion to keep confessions confidential; and

★ The practical fact that ministers of religion will inevitable be ruled by the conscience and defy the courts, even at the cost of their own liberty.

Bentham's views

Jeremy Bentham, writing in the early years of the nineteenth century, devoted a whole chapter to serious, considered argument that Roman Catholic confession should be exempted from disclosure in judicial proceedings, even in Protestant countries, entitled: ''Exclusion of the Evidence of a Catholic Priest, respecting the confessions entrusted to him, proper''.^[3][4] Remarkably, Bentham was an opponent of professional privilege for the giving of legal advice. He noted:
He refers the reasons in favour of the exclusion to two heads:

★ evidence (the aggregate mass of evidence) not lessened; and

★ "vexation", "preponderant vexation".
Under the first heading he says that the effect of non-exclusion would be the decrease in the practice of confession, he said:
The whole chapter is exclusively limited to the claim for protection for the Catholic practice of confession.^[5]

References

1. McNicol (1992) ''p.''338, n.88.
2. McNicol (1992) ''pp''328-331
3. ''Rationale of Judicial Evidence'', in Bowring, ''Works of Jeremy Bentham'', VII, Bk.IX, Pt.II, Ch.VI section 5, ''pp''366-368
4. ''Catholc Encyclopaedia'' (1913) "Seal of the Confessional"
5. See also, "Evidence that ought not to be admitted - Disclosure of Catholic Confession", ''Introductory View of the Rationale of Evidence'', in Bowring, ''Works of Jeremy Bentham'', VI, section 5, ''pp''98-99

Bibliography

★

★

★ , Ch.5

External links

★ Whitepaper on Clergy Privilege