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

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