EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, May 10, 2012

Forgive Me Father: Court Of Appeals Of Michigan Finds Cleric-Congregant Privilege Applied Despite Mother's Presence During Confession

A nine year-old victim is allegedly sexually assaulted by her 15 year-old cousin on two occasions. When the alleged victim is 11 year-old, she hears a church sermon on purity and tells her mother about the assaults. The alleged victim's mother and father later contact the police as well as the pastor of the Baptist Church that they attend. The pastor then contacts the mother of the defendant and asks her to bring him to the church as soon as possible for a meeting. The mother and the defendant, both parishioners at the church, meet with the pastor, with the defendant confessing to the assaults. Is this confession covered by Michigan's cleric-congregant privilege, or is it admissible because (a) the pastor initiated the conversation; and/or (b) the mother was present for the confession? Let's take a look at the recent opinion of the Court of Appeals of Michigan in People v. Bragg, 2012 WL 1605259 (Mich.App. 2012).

In Bragg, the facts were as stated above, with Michigan's cleric-congregant privilege, MCL 600.2156, providing that

No minister of the gospel, or priest of any denomination whatsoever, or duly accredited Christian Science practitioner, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination.

The Court of Appeals of Michigan noted that there several requirements for the privilege in MCL 600.2156 to apply, many of which the defendant easily satisfied. First, the subject communication must have been "necessary to enable" the pastor "to serve as such...member of the clergy." According to the court, "a communication is necessary to enable a cleric to serve as a cleric if the communication serves a religious function such as providing guidance, counseling, forgiveness, or discipline." 

Second, the communication must be made to the cleric in his "professional character," which "requires the communication to be directed to a clergyman in his or her capacity as a spiritual leader within his or her religious denomination."

Third, the communication must not have been "made in the course of discipline enjoined by the rules or practice of a particular denomination." This restriction is in place to "avoid resolving controversies about a religion's or church's internal governance or operating procedures."

The Court of Appeals of Michigan easily found that these three elements were satisfied and thus that the cleric-congregant privilege preliminarily applied. This left the court with two questions.

The first was whether the privilege did not apply because the pastor initiated the conversation. The court, however, found this fact to be irrelevant because thr privilege extends

to covered "communications," not just confessions. The term "communication" in no way suggests that the congregant must initiate the conversation in order for the privilege to apply.

The second was whether the presence of the mother during the confession rendered the privilege inapplicable. The court found that it did not because Michigan courts have

rejected blanket policies under which the presence of a third party automatically waives a privilege. In Basil,...the Court refused to deem the doctor-patient privilege waived by the presence of the patient's wife, holding "[t]he presence of one sustaining an intimate family relation with the patient when consulting a physician should not and does not waive the privilege" In relation to the attorney-client privilege, this Court has upheld the confidential nature of a communication when the minor client's agents (her parents) were present during all meetings.

The court found that the same logic applied to the case before it, with the mother "sustain[ing] defendant during this difficult conversation."



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