Wednesday, April 7, 2010

The Reasonable Penitent

The New Jersey Supreme Court has reversed a decision of the Appellate Division holding that discussions between a person later charged with sexual assault and a Pastor that he had known for over thirty years were not protected by the cleric-penitent privilege. Applying a standard of "objective reasonableness", the court concluded that the communications were privileged.

The defendant's wife had told the Pastor that the defendant had abused his two daughters. The wife and daughters were  members of the Pastor's church; the defendant was not. The Pastor met the defendant and they took a walk to a public play area to talk. When the defendant tried to blame his wife, the Pastor said "if it was [i]n the days of the law of the bible...I'd kill you myself because I think what you've done is deserving of death." The defendant did not directly admit the allegations but sought the Pastor's help and to be baptized, which the Pastor declined.

The trial court declined to admit the evidence but the Appellate Division reversed. Here, the court concludes that "a reasonable penitent could have concluded that [the Pastor] was serving in a [spiritual adviser] capacity." By the Pastor's invoking biblical law and hearing a plea for help, the privilege came into being.

Justice Rivera-Soto dissented: "...the majority has adopted a rule that hermetically insulates the cleric-penitent privilege from its origins, eschews the privilege's clear tradition, and ignores the statutory mandate." (Mike Frisch) 

http://lawprofessors.typepad.com/legal_profession/2010/04/the-reasonable-penitent.html

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