St. George
Serbian Orthodox Church
Carmichaels, PA

Talk Given by Attorney Linda Chambers: Rights and Protections Offered to Churches

November 3, 2013

Not too long ago I spoke to you about freedom to worship in a church. As part of that topic, I told you of the First Amendment and freedom of religion. Today, I want to clarify a misconception many people have and to point out a legal concept that many of you might know about but not understand.

Many people believe that someone can obtain sanctuary in a church that would protect them from arrest or other action by authorities. Religious sanctuary began long before Christianity. The early Romans and Greeks designated certain areas as being sacred and persons who entered such areas were protected against mistreatment. The concept spread through Western civilization to various degrees. The English were particularly enthralled with the notion and went way beyond religious sanctuaries. By charter, they would create zones where fugitives could obtain refuge, if only temporary. Perhaps the most famous claim of sanctuary is the fictional story of the Hunchback of Notre Dame which takes place in the 15th century.

There is no such protection offered by law in the United States. Regardless, people have claimed sanctuary in our churches. Churches in Hawaii offered protection to servicemen who did not want to go to Viet Nam. The military gave these soldiers several weeks with the hope they would change their minds. The MPs finally raided the churches, even breaking down doors if required. When it was discovered that Tawana Brawley lied when making rape accusations, her mother took refuge in a church to avoid testifying before a grand jury. This time, the police did nothing and she eventually fled the state.

Although churches are not physical sanctuaries for people being sought by authorities, Pennsylvania law does provide protections for communications made to members of the clergy. It has been reported that close to half of all Americans who seek counseling have looked to clergy to provide advice because of the high level of trust and confidence people find in spiritual advisors.

The United States Supreme Court has stated that the clergy-penitent privilege covers “the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” 1 In Pennsylvania, the confidentiality of communications between priest and parishioner is codified into law:

1 Trammel v. United States, 445 U.S. 40, 51 (1980).

Pa. Statute: 42 Pa.C.S. § 5943. Confidential communications to clergymen

No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

Pennsylvania has recognized confidential communications to clergy as early as 1959 and all 50 states have adopted the confidentiality in some form. Our statute limits the privilege to clergy of “any regularly established church or religious organization,” and the privilege only applies if the clergyman was acting in the course of his duties. In Pennsylvania, the question is “…whether the communicant disclosed information in confidence to a member of the clergy in his or her capacity as confessor or spiritual advisor.” 2 Therefore, clergy cannot be compelled to disclose privileged information in any governmental legal proceeding or investigation nor are members of the clergy permitted to disclose such information unless the person who made the communication agrees to allow the disclosure. Although the law protects our communications with our priest, Pennsylvania law does include clergy as mandated reporters in matters involving suspected child abuse. Is there a conflict between the law protecting privileged communications and reports of child abuse?

2 Com. v. Stewart, 547 Pa. 277, 288, 690 A.2d 195 (1997.).

23 Pa.C.S. § 6311. Persons required to report suspected child abuse

(a) General rule.--A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse…

Except with respect to confidential communications made to a member of the clergy which are protected under 42 Pa.C.S. 5943... and except with respect to confidential communications made to an attorney, ....the privileged communication between any professional person required to report and the patient or client of that person shall not apply to situations involving child abuse and shall not constitute grounds for failure to report as required by this chapter.

Members of the clergy were added to this law in 1995. The law specifies that reporting is required when there is “reasonable cause to suspect” that a child is the victim of child abuse. “Child abuse” applies to children under the age of 18 and is defined as recent act(s) causing nonaccidental serious physical injury, any act(s) causing nonaccidental serious mental injury or sexual abuse/exploitation, recent act(s) creating imminent risk of serious physical injury or sexual abuse/exploitation and serious physical neglect. However, the requirement for reporting the above only applies to children under “the care, supervision, guidance or training” of the clergy or the church. And, privileged confidential communications to clergy, supersede the mandatory reporting requirements I stated above – i.e. the privilege shall apply to communications involving child abuse and shall excuse the requirement to report.

So, how does this work? Consider the following scenarios:

1. A woman meets privately with her priest because she is hysterical after discovering her husband has been unfaithful. She is so upset over the discovery that she lets her priest know she has considered suicide. She also tells him that she was so angry with her husband and his paramour that she bought a gun so she can kill them both. She asks for help in coping with the betrayal as she is afraid she will harm herself and others. Does the priest have any legal duty to warn her family, her husband or his paramour? Does the priest have a legal duty to call the police?

NO. NOT ONLY IS THERE NO LEGAL DUTY, DISCLOSURE WOULD BE A VIOLATION OF THE PARISHIONER’S EXPECTATION THAT HER DISCUSSION WOULD BE CONFIDENTIAL. SHE IS ASKING FOR SPIRITUAL GUIDANCE AND HELP. BY DISCLOSING HER COMMUNICATIONS, THE PRIEST WOULD NOT ONLY DISCOURAGE HER FROM SEEKING HIS HELP IN THE FUTURE, HE WOULD CAUSE OTHER PARISHIONERS TO QUESTION WHETHER THEY CAN TRUST THE CLERGY WITH THEIR DEEPEST SECRETS.

2. A member of the congregation has a private meeting with his priest. During the meeting, he confesses that his daughter’s broken arm was not really from falling down the stairs but was an injury he caused in anger because she wouldn’t stop crying. He is distraught because he has hurt her on other occasions and needs spiritual guidance to overcome his anger problems. Is the priest required to report this information to the appropriate authorities? If not required, can the priest choose to make a report of child abuse?

NO. EVEN THOUGH MEMBERS OF THE CLERGY ARE “MANDATED REPORTERS” OF CHILD ABUSE, PENNSYLVANIA LAW OF PRIVILEGED COMMUNICATIONS EXEMPTS PRIESTS FROM TELLING AUTHORITIES ABOUT THEIR PARISHIONERS’ CONFIDENTIAL DISCLOSURES. IN FACT, A PRIEST CANNOT BE FORCED TO DISCLOSE THESE COMMUNICATIONS TO POLICE OR OTHER AUTHORITIES.

3. While waiting for a friend at a local restaurant, a parishioner sees her priest having lunch, alone. She sits at his table and tells him she is concerned that her adult brother may have had an inappropriate relationship with a child in the neighborhood. When her friend appears, the parishioner waves her over to the priest’s table and continues to talk about her suspicions while her friend listens. Is the priest required or permitted to report this information?

YES. IN THIS SCENARIO, THE COMMUNICATION WAS NOT PRIVATE AS A THIRD PARTY WAS PRESENT DURING PART OF THE CONVERSATION. ALSO, IT DOES NOT APPEAR THAT THE PRIEST WAS ACTING IN THE COURSE OF HIS DUTIES. FINALLY, WAS THE PARISHIONER SEEKING SPIRITUAL GUIDANCE? FROM THE ABOVE, IT DOES NOT APPEAR THAT SHE WAS SEEKING GUIDANCE AS MUCH AS SHE WAS INFORMING THE PRIEST OF HER CONCERNS.

4. A child is dropped off for Sunday School and the priest notices bruises on his arms and face. The priest takes the child aside and asks about the injuries. The little boy tells the priest that his Daddy punched him in the face and grabbed him by the arms and threw him against the wall. The child’s father is a member of the church. Does the priest have a duty to report the injuries?

YES. DESPITE THE FACT THAT THE FATHER IS A MEMBER OF THE CHURCH, HE DID NOT SEEK GUIDANCE OR EVEN TALK TO THE PRIEST OF THE ALLEGED ABUSE. THE PRIEST HAD PERSONAL KNOWLEDGE OF THE CHILD’S CONDITION AND THE CHILD WAS ATTENDING A CHURCH FUNCTION. THE PRIEST WOULD BE REQUIRED TO REPORT HIS SUSPICION OF ABUSE AND TO COOPERATE WITH AUTHORITIES IN THEIR INVESTIGATION.

The laws of our country do not recognize churches as sacred places where people can seek refuge from arrest; the laws of our country do recognize that confidential communications between a priest and his communicant are sacred and cannot be disclosed. And, we must be able to talk to our priest and seek his counsel and guidance in all matters, regardless of the subject of the discussion.

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