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Univ. of South Carolina School of Law

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Monday, November 15, 2010

Forgive Me Father: Court Of Appeals Of Texas Finds Child Sexual Abuse Talk With Priest Not Covered By Privilege

Texas Rule of Evidence 505(b) provides that

A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser.

So, let's say that a Catholic priest calls a father based upon allegations that the father was sexually abusing his daughter, a member of his parish. Are the father's statements to the priest covered by this clergyperson-penitent privilege. According to the recent opinion of the Court of Appeals of Texas, Houston, in Gutierrez v. State, 2010 WL 4484350 (Tex.App.-Houston [1 Dist.] 2010), the answer is "no," at least if the priest makes the purpose of the conversation clear to the father.

In Gutierrez, R.G. reported alleged sexual abuse by her father, Rogelio Gutierrez, to Father Michael Minifie, a Catholic priest at her parish.

In response, Father Minifie told R.G. that he had a duty to contact the police. He drove R.G. to a Houston Police Department station, where Officer Flucas interviewed her about the abuse. The following day, R.G. told Gutierrez that she had revealed the abuse to Father Minifie. Two days after her outcry to the priest, R.G. also told her mother about the abuse. That day, Gu[]tierrez asked R.G. for forgiveness, claiming he was a changed man and he was good with god. Similarly, when R.G.'s mother confronted Gutierrez, he simply asked her for forgiveness.

In the next days following R.G.'s outcry, Father Minifie became concerned because the police had not yet arrested Gutierrez, and he thought Gutierrez might come on church property, where children were present. As a result, he contacted the legal department of the Archdiocese of Galveston and Houston. Based on their advice, he called Gutierrez. His purpose was to put Gutierrez on notice that he, the parish and the archdiocese knew that someone had accused him of rape and sexual assault. Further, he testified that the purpose of the call was not to provide spiritual advice, and he was not calling in the capacity of a spiritual advisor. He did not mention R.G. by name and spoke of the allegations in only general terms.

In response, Gutierrez neither confirmed nor denied the allegations, but told Father Minifie that he was getting help and had gone to confession with another priest. He said he realized what he did, and he was trying to get his life back on track. He asked Father Minifie twice if he could meet with him, but Father Minifie declined because he said it would be a conflict of interest. Gutierrez responded that he understood why he could not meet with him. Further, he stated that he was reading the Bible and that we needed to reach down and let the Lord take care of this situation. He said, "It hurts, my daughter hurts." Lastly, he asked Father Minifie what was going to happen, and Father Minifie responded that he did not know.

This testimony was instrumental to the prosecution in procuring Gutierrez's conviction for sexual assault of a child and aggravated sexual assault of a child, and, after he was convicted, claiming, inter alia, that it was given in violation of Texas Rule of Evidence 505(b). The Court of Appeals of Texas, Houston, disagreed, finding that

Father Minifie initiated the phone conversation with Gutierrez to put him on notice that he, the parish, and the archdiocese were aware of the sexual assault allegations against him. Father Minifie's motive was concern for the children at his church because the police at that time had not yet arrested Gutierrez. We hold that the trial court reasonably could have concluded that the phone conversation was not made to Father Minifie in his professional character as a spiritual advisor, and was thus not privileged.

The court noted Gutierrez's argument "that although Father Minifie initiated the conversation for an administrative purpose, the communication is nonetheless privileged because Gutierrez sought spiritual guidance during the phone call." The Court of Appeals, however, determined that

the trial court reasonably could have concluded that Gutierrez did not expect that his communications would be confidential because Father Minifie had made it clear that he was not communicating with him in his professional character as spiritual advisor....At the beginning of the call, Father Minifie notified Gutierrez of his administrative purpose for the conversation. Also, when Gutierrez asked to see him, Father Minifie twice refused, stating that it would be a conflict of interest. Finally, although Gutierrez made comments of a religious nature, Father Minifie did not solicit these comments and did not respond to them.

Further, Gutierrez appeared to understand that Father Minifie would not communicate with him in his professional character as spiritual advisor. When Father Minifie refused to meet with him, Gutierrez responded that he understood why he could not. Also, Gutierrez notified him that he had already sought spiritual advice from another priest, who had heard his confession. We hold that the trial court did not abuse its discretion in overruling Gutierrez's privilege objection.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/11/clergy-privilege-gutierrez-v-statenot-reported-in-sw3d-2010-wl-4484350texapp-houston-1-dist2010.html

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