I know I said the post on Lois Lane’s employment contract would probably be our last post on Man of Steel, but we got a great question from Neal that I couldn’t resist writing up. Neal—who is a rabbi in New York—writes:
You may remember that Clark Kent goes into a church and confesses to the priest (let’s assume he’s a Catholic priest, for the sake of argument, though to be clear different religions handle “confession” and counseling relationships differently) that he’s the guy everybody is looking for. Now, in NY, that priest can’t be compelled to testify or reveal information obtained while performing the duties of a clergy- penitent or clergy-congregant relationship (as I broadly understand it) but there ARE mandated reporting laws, e.g. regarding child and elder abuse.
So could the Feds or the state government have compelled the priest to testify given that:
1) An alien might not be presumed to be a member of the church, especially if he just showed up and had no prior relationship to this denomination or its clergy,
2) the stakes are just so damn high, like planetary destruction. If there is a mandated reporting law for child abuse- and to be clear I am not 100 percent sure even that overrides the legal protection of the clergy relationship in all instances- wouldn’t it apply on a vastly larger scale with something like this?
These questions raise several issues related to the confessional privilege.
I. The Confessional Privilege in Kansas
At common law there was little or no legal protection for statements made to a member of the clergy in confession or otherwise while seeking religious advice or counsel. Instead, the privilege is largely derived from statutes. Generally speaking it is weaker than, for example, the attorney-client privilege, but in some states the confessional privilege can be pretty broad.
I believe that the confessional scene takes place in Smallville, which is located in Kansas. In Kansas the privilege is defined in the Kansas Rules of Evidence, specifically K.S.A. 60-429(b):
A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.
So in other words, Clark (if he’s present) or the priest (if Clark is absent) could claim the privilege (become the claimant) in order to prevent the priest from disclosing what Clark told the priest, or in order to prevent Clark from disclosing the same.
Now, there are a lot of specialized terms in that definition, including “penitent” and “penitential communication” (we’ll assume the priest is a regular or duly ordained minister). Those terms are defined in 60-429(a):
“penitent” means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God’s mercy or forgiveness for past culpable conduct
“penitential communication” means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent’s moral obligations, or to obtaining God’s mercy or forgiveness for past culpable conduct.
So right off the bat we can see the answer to one of the issues: there’s no requirement that Clark have been a member of the church in question or otherwise have had a pre-existing confessional relationship with the priest. As long as he “recognizes the existence and the authority of God and … seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging [his] moral obligations”, that’s sufficient. And honestly I’m not too sure about the “recognizes the existence and the authority of God” part, but it doesn’t appear to have been put to the First Amendment test, at least in Kansas.
In this case, Clark is at least seeking advice or assistance in determining his moral obligations (i.e. whether to reveal himself as Superman and try to do good in the world with his powers). And it appears that he intended the communication to be confidential. He and the priest were alone in the church, and I don’t recall him telling the priest it was okay to tell anyone else. There was a strong implication that it was a confidential conversation, and that Clark told the priest what he did precisely because he believed it was confidential.
II. Any Exceptions?
The Kansas statute, like many such statutes, does not contain much in the way of exceptions. It sets a relatively high bar to accessing the privilege in the first place, but once it’s reached, that’s pretty much it. Many states do provide an exception for child abuse reporting, particularly if members of the clergy are mandatory reporters, but the issue does not appear to have come up in Kansas. Certainly there is no broad exception for the public good or public safety. And that makes a certain amount of policy sense. The confessional privilege would be largely pointless if those confessing the possibility of endangering themselves or others (e.g. by committing a violent crime) were not protected by it.
III. But Wait, What About the Feds?
It’s all well and good that the privilege would apply in state court in Kansas, but what about federal court? After all, it’s not exactly the local sheriff that’s looking for Clark. Would the priest still be able to keep quiet if there was some kind of federal proceeding?
Maybe, maybe not. There is no federal confessional privilege statute. One was proposed as part of the Federal Rules of Evidence, but it was not approved by Congress. Over the years a federal common law privilege has developed, and it appears to be recognized in Kansas. U.S. v. Dillard, 2013 WL 875230 (D.Kan. Mar. 7, 2013) (“Plaintiff does not take issue in this case with the general existence of the [confessional] privilege. Neither does this Court.”).
I have yet to see a federal case that describes the contours of the privilege clearly, so I will take this summary from a treatise on the subject:
The communication by a spiritual communicant is privileged if it is made to an ordained or otherwise duly accredited functionary of a religious organization in his capacity as such. … The communication must have been made for the purpose of obtaining spiritual aid or religious or other counsel, advice, solace, absolution, or ministration. It must also have been made in confidence.
Paul F. Rothstein & Susan W. Crump, Federal Testimonial Privileges § 10:3.
In this case, the federal privilege would also appear to apply.
The state law confessional privilege probably applied in this case and there probably wasn’t an exception. The same is likely true of the federal privilege, bearing in mind that it exists on somewhat shaky ground, having never been formally approved by the Supreme Court or even (as far as I can tell) the 10th Circuit, in which Kansas is located.