Sharing Sacred Secrets: Is it (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?

153 Pages Posted: 12 May 2003

Abstract

In this article, the author discusses the important and previously unexplored topic of whether the law should recognize a future harms exception to the clergy-penitent privilege, similar to that recognized in the area of psychotherapist-patient and attorney-client privileges. After tracing the origins and current application of the clergy-penitent privilege in America, the author discusses how the privilege as currently applied in most states admits of no exceptions, and is unnecessarily expansive in breadth. Using the hypothetical of a homicidal spouse who reveals to his minister an intent to murder his wife, the article compares the ethical and legal duties of a minister with those of an attorney and a psychotherapist. The author concludes that the state's compelling interest in protecting public safety in such a situation outweighs the parties' interests in confidentially, and urges adoption of a limited exception to the privilege for communications pertaining to future violent crimes. In the last section of the article, the author argues that such a dangerous person exception to the clergy-penitent privilege would not contravene either the Establishment Clause or the Free Exercise Clause of the First Amendment.

Keywords: evidence, criminal law

Suggested Citation

Cassidy, R. Michael, Sharing Sacred Secrets: Is it (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?. Boston College Law School Legal Studies Research Paper Series Vol. 13, No. #, William & Mary Law Review, Vol. 44, p. 1627, 2003, Available at SSRN: https://ssrn.com/abstract=401220 or http://dx.doi.org/10.2139/ssrn.401220

R. Michael Cassidy (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States
617-552-4343 (Phone)

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