The Man of Steel Confesses

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,

and

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.

IV. Conclusion

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.

 

12 responses to “The Man of Steel Confesses

  1. “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.”

    I can see some cases where it might apply to somebody who doesn’t meet this criteria. If an agnostic, atheist, or simply somebody questioning their faith goes to a religious figure for advice, it makes sense to protect the exchange. Religious people should support it because someone having a moral crisis might find answers through their religion. Non-religious people should support it because many religious leaders are effective counsellors despite not being certified like a therapist or psychologist. since they have similar responsibilities, they should have similar privileges.

  2. The recognizing the existence of god requirement seems difficult to enforce. Would the priest have to ask to ensure that the person confessing to a crime in entitled to the privilege (penitent: “I killed a man in Reno just to watch him die.” priest: “Say ten Our Fathers. And, follow up question, do you accept Christ as your personal savior?”)? What if he doesn’t ask in an attempt to end run the rule and be able to report to the police? There’s most likely a presumption that if a person is coming into a confessional to make confession that s/he is, at least on some level, a practicing Catholic, but someone could just want to get some criminal activity off their chest and they use the confessional as a safe space to do that.

  3. “…or the priest (if Clark is absent) could claim the privilege (become the claimant) … in order to prevent Clark from disclosing the same.”

    A few questions:
    1) Does this mean that if Clark confesses a crime to a priest, and then wants to confess to the police, the priest could prevent him from doing so?
    Or:
    2) Is Clark’s presence at the police station (or wherever he is confessing) enough to prevent the priest from becoming a claimant?
    3) If Clark showed up after the priest had already claimed privilege, would this nullify that privilege?
    4) And if 2&3 are both yes, wouldn’t that make this portion pointless?

    And an extra one:
    5) “recognizes the existence and the authority of God”: would that apply to someone who believes “I am God”? (especially if he is a cult leader and has his own “priests” that serve him).

    • 1. The privelege only protects the content of that communication, Clark would be totally free to go forth and create a new communication with the police and confess to them.

      Now, by a purely verbatim reading that ignored the policy, the priest might actually be able to have the contents of that confession suppressed even if Clark wants to reveal them. It would take a twisted turn of events for this ever to come up, but lets take it out of the superman situation. Imagine a person comes to the priest and seeks counseling as part of his confession. The priest while advising the person accidentally reveals illegal activities of a third person. Say, Joe the Criminal talks about just committing a robbery and the priest while trying to counsel him relates an anecdote of Bob the Criminal doing a similar robbery. The priest might then want to suppress the contents of the confessional discussion to protect the third party, like Bob.

      2 – 4 Remember that this is largely coming from rules of evidence for court and for testimony given in court.

      5. As the post states, that part is untested and may not hold up at all. There may not be any real requirement to be religious. But assuming it is valid, then probably yes. The First Ammendment, as interpreted by the Supreme Court, grants a near unlimited freedom of conscience. You are free to believe just about anything you want and it will be accepted as your belief. To the extent the law could or did care about your religious beliefs, they would normally take them at face value (I say normally because things like conscientious objectors become more complicated).

      It’s also worth noting that historically this claim, or at least being descended form a god, did come up. In both ancient Greece and Rome, many prominent people claimed there was a god somewhere up on their family tree.

  4. I’m surprised this has not been asked, but to go along with Norcross’s 5th point, can somebody confessing claim the privilege if they believe in a different god than that of the clergy hearing the confession?

    That is to say, I walk in to the confessional, and say, “I’m Superman.”

    Priest: “Well, I’ll be darned.”

    Me: “I also vehemently worship Satan. He is my God and my guide.”

    In Ann’s example, the confessor is hiding behind the privilege without belief in a particular god. Must one have a specific belief when confessing, and does that belief have to match up to the belief of the clergy/church?

  5. I’m being reminded of a Father Dowling mystery where the bad guy confessed the details of his crimes to prevent the priest from being able to investigate them…

    • Melanie Koleini

      Father Dowling had to follow Cannon law (in addition to US law). I suspect the Catholic Church might have different confidentiality rules than the US government.

      • The Catholic Church does indeed have different “confidentiality rules.” Canon law is very clear on the matter: “The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason” (emphasis added) [1]. A cleric who violates the seal of the confessional is subject to excommunication[2].

        I’m not a Catholic or even a lawyer; but I do find “little” legal systems (like the Code of Canon Law or the Uniform Code of Military Justice) interesting.

        [1] Can 983 §1.
        [2] Can 1388 §1. “A confessor who directly violates the sacramental seal incurs a latae sententiae [i.e., automatic] excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict.

    • Did that work?
      If it did, I don’t think it should have. I’m pretty sure that for a confession to count as valid you have to be doing it because you are actually sorry for what you did. Father Dowling shouldn’t have had any problems (unless he actually thought the guy was genuinely remorseful).

    • Did that work?
      If it did, I don’t think it should have. I’m pretty sure that for a confession to count as valid you have to be doing it because you are actually sorry for what you did. Father Dowling shouldn’t have had any problems (unless he actually thought the guy was genuinely remorseful). Anyone who thinks they can get away with using confession for manipulative ends or to boast is in for a rude surprise.

  6. With regards to the “believes in God” bit, in the comics its generally assumed that Clark does (and in the comics God does indeed definitely exist). Its not brought up much though, but its at least implied that he was raised Evangelical. Only a handful of issues actually make reference to his belief in God, but he does seem to have it.

    Of course, that’s the comics, but I guess going to the church in the first place suggests that he believes in God.

    Unless he just felt like comparing himself to Jesus.

  7. I read somewhere that the makers of “Man of Steel” assume that Clark was raised Lutheran. The Church where he speaks with the priest would work as a Lutheran one, the priest could be Lutheran.

    If I recall correctly many Catholic priests have gone to prison in the US for refusing to reveal what courts think they should.

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