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Tell All or Go to Jail: A Dilemma for the Clergy

by Dean M Kelley

Dean M. Kelley is director for religious liberty at the national Council of Churches in New York City. This article appeared in the Christian Century, January 30, 1974, pp. 96-100. Copyright by The Christian Century Foundation; used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted and Winnie Brock.


A clergyman of the American Lutheran Church has been ordered confined in jail for contempt of court because he refused to answer questions before a grand jury investigating the "occupation" of Wounded Knee, South Dakota, for two months last year by militant Indians. Paul Boe refused to answer on the grounds that his testimony would violate a confidence entrusted to him as a clergyman attempting to minister to the spiritual needs of a group -- the American Indian Movement (AIM) -- with which he had been closely related since its founding in 1968.

The federal judge hearing the contempt charge rejected Dr. Boe’s claims but staved the imprisonment to allow an appeal. Several church bodies and leaders have joined in an amicus curiae brief to support Boe’s appeal. They include -- in addition to Boe’s own denomination -- the National Council of Churches, the U.S. Catholic Conference, the Lutheran Church-Missouri Synod, the Lutheran Church in America, the United Presbyterian Church in the U.S.A., and the Rt. Rev. John F. Hines, presiding bishop of the Episcopal Church.

This case poses some very significant legal and theological problems: Are the churches claiming same kind of special privilege? Are clergymen entitled to keep silent before the grand jury when others (i.e., journalists) are not? Is the "priest-penitent privilege" properly invoked when there is no pastor-parish setting in which confession is a religious duty incumbent upon priest and penitent, when the "penitents" are not necessarily members of the priest’s denomination, when there is no "confession" as such, and when the clergyman is asked to divulge not the content of a confession, but, as the legal briefs say, observations made by him "incident thereto"?

Confession in the New Testament

The "priest-penitent privilege" or the "seal of the confessional" is a recognition in law of the confidentiality of anything told to a priest in the practice of individual auricular confession of sins, considered a sacrament in the Roman Catholic and Eastern Orthodox branches of Christianity. The New Testament apparently enjoins the confession of sins (cf. James 5:16, for example) , but does not necessarily view it solely as a secret transaction between one priest and one penitent. Indeed, confession might be (and often has been) made before the congregation; the clergy, as such, need not be a party to it at all.

The public (or at least congregational) admission of wrongdoing is characteristic of small, close-knit, high-demand, sectlike religious groups. As the congregation grows larger and more diverse and less like a family, such open confession becomes rarer and harder. To encourage individuals to relieve their souls of remorse, then, the church developed the confessional, with elaborate protection for the anonymity of the penitent and the secrecy of his confession. Not until the patristic period was there written recognition of the importance of secrecy, and not until the fifth century were there ecclesiastical regulations requiring it. (Cf. W. H. Tieman: The Right to Silence [John Knox Press, 1964])

During the medieval period, a priest who divulged anything confessed to him was disgraced, defrocked, driven out to become a wanderer. An exception to this rigorous rule might have been the duty to give evidence in court concerning a crime which a priest learned about in the confessional; but as the civil law of evidence developed, it included a privilege for the priest against being compelled to reveal anything told to him under the "seal of the confessional." This privilege endured in England up to the time of the Restoration, when it was eliminated. It endures in the United States in some form in the statutes of all but six states (Alabama, Connecticut, Mississippi, New Hampshire, Texas and West Virginia) , and in an ambiguous condition in the federal law (which governs in Boe’s case).

The ‘Traditional’ Statute

In an article published in the Spring 1968 issue of the Valparaiso University Law Review, Fred Kuhlmann (at the time chief counsel for the Lutheran Church -- Missouri Synod) classifies these statutes. What he calls "the traditional statute reads something like the following:

No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules of practice of such denomination.

This is the type of statute in effect in 23 states, among them South Dakota, where Paul Boe is claiming the privilege. When narrowly construed, as some authorities insist all privileges should be, a statute of this nature protects communications of a very limited class.

1. The communication must be made to a clergyman;

2. He must be acting in his "professional capacity," not just as a friend, associate or onlooker;

3. The communication must be a "confession";

4. It must be made "in the course of discipline enjoined by the rules of practice" of the clergyman’s denomination (not "rules or practice," but presumably some official written regulation of the denomination) ;

5. The person making the confession must be a member of the same denomination and thus under obligation of the same "rules of practice" as the clergyman;

6. The denomination’s "rules of practice" must require confidential individual auricular confession rather than merely permitting or encouraging it;

7. The communication must be clearly intended at the time to be and to remain confidential;

8. It must not be made in the presence of, or subsequently divulged to, third parties, or treated in such way as to lose its character of confidentiality (as by being recorded in files that are open to casual inspection).

In most of the recorded decisions cited by Kuhlmann, the privilege has been denied for violation of one or more of those conditions. In the relatively few cases where the privilege was upheld, most of these tests were not strictly applied. For instance, in 1931 a Minnesota court-generously expanded limitations nos. 3, 4, 5 and 6 to mean simply that all clergymen are obliged by their denominations to hear the troubles of all who come to them and to offer what spiritual help they can (In re Swenson).

Twenty-one states and the District of Columbia have broadened the privilege of clergymen under their statutes to reach a result similar to that of In re Swenson; namely, to include (a) communications received (or given?) in the course of marriage counseling, pastoral counseling, or other spiritual help given in confidence; and (b) communications of persons not members of the clergyman’s parish or denomination.

The Federal Rule

The federal rule on the "seal of the confessional" is far from clear. The Federal Rules of Civil Procedure (Rule 43) provide that the competency of a witness to testify is to be determined by statute, precedent, or the law of the state in which the case arises. The Federal Rules of Criminal Procedure (Rule 26) provide that in the absence of statute or rule, the court shall follow "the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Strictly speaking, under the "federal common law" there is no privilege for clergymen; but it is wonderful what "the light of reason and experience" can do! The Circuit Court of Appeals for the District of Columbia Circuit determined in 1958 (Mullen v. U.S.) that there is such a privilege, and a federal court in California added in 1971 (In re Verplanck) that it covers not only a clergyman engaged in draft counseling but his lay assistants!

This pattern was confirmed and regularized in the Federal Rules of Evidence recently promulgated by the U.S. Supreme Court. This document contains a commendable rule concerning communications to clergymen: "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser." Unfortunately (for the Boe case at least) , Congress "impounded" the proposed Rules of Evidence until it could review them and enact what it approved. The revisions now being drafted in the House Judiciary Committee have reportedly eliminated all privileges, not only for clergymen and counselees but for attorney and client, physician and patient, husband and wife, etc.

Boe’s Claim

So Boe’s claim is a legal conundrum. Does it come under the South Dakota (traditional) statute, the Mullen and Verplanck precedents, Rule 506 of the proposed Rules of Evidence, or the House judiciary Committee’s reversion to the strict common-law principle of no privilege at all? Given even the most favorable combination of these, it is still unlikely that Boe can qualify for the privilege unless the courts can see beyond the prototype inherited from medieval times of a cloistered priest sitting in the confessional booth listening through an opaque screen to the whispered confession of an individual penitent parishioner.

Obviously, Boe’s role at Wounded Knee was not a traditional ecclesiastical one; AIM was not a "parish" of the American Lutheran Church (though that church has made regular grants to it) ; probably no one was confessing his or her sins; and Boe was not asked to divulge the content of any such confessions anyway. He was asked what he saw at Wounded Knee, and he answered a number of grand jury questions which he felt did not violate any confidences. What he refused to answer was a question about whom he had seen carrying guns. He contended that revealing the identities of persons with whom he had associated at Wounded Knee would violate the relationship of confidence and trust which he had built up over several years.

Of course no one likes to be thought of as ‘‘betraying the confidence’’ of friends or associates. Yet if grand juries and courts were to be deprived of all evidence subject to that reproach, a significant amount of eyewitness testimony would be eliminated. The U.S. Supreme Court held recently (Caldwell v. U.S.) that journalists have no such privilege in the absence of any indication that the legislatures want them to have it; hence the effort to enact "shield laws" in Congress and various states. But in the case of clergymen, there is considerable evidence of legislative intent; namely, the statutes of 44 states and the District of Columbia (plus the proposed federal Rule of Evidence No. 506).

Why Such a Privilege?

The rationale for the priest-penitent privilege once was that without it some persons would fail to confess their sins and thus forfeit their soul’s salvation. That is not a suitable rationale for civil legislation in this country. The only proper justification for the privilege is that it protects relationships that are of greater value to society than any items of evidence that might be obtained by abrogating it. This is ostensibly the case with laws protecting the confidentiality of the relationship between husband and wife, attorney and client, physician and patient. The clergyman-counselee protection is no more a ‘‘special privilege’’ than any of these other relationships. It is entitled to the same degree of consideration, no more and certainly no less.

It is worth noting at this point that many other considerations often blur the merits of a given claim of privilege. Kuhlmann’s impression, he said, was that courts tended to rule on the privilege in the direction of the verdict the court thought ought to be reached. If the clergyman’s evidence would help to convict a defendant the court considered obviously guilty, he was compelled to testify. If the court suspected that his evidence would damage the outcome it desired, the privilege was broadly construed and he was not permitted to testify even if he wanted to.

Boe’s attorneys contend that the prosecutors are using the grand jury to fish for additional evidence to assist them in convicting persons already indicted -- an illegal and improper use of the grand jury. They also contend that the same or better evidence is available from many witnesses at Wounded Knee who cannot claim the privilege, but that the federal prosecutors are pillorying Boe in an effort to discredit one of the sources of legitimation of the American Indian Movement -- not the first time in recent history that grand juries and federal courts have been used to impress upon dissidents the weight of official displeasure, whether or not convictions were obtained.

So it is neither necessary nor prudent to assume that prosecutors or judges are always wise or righteous -- any more than clergymen or militant radicals. A good rule of privilege would be one which gives each party an opportunity to attack or defend the claim of privilege and gives judges less discretion in according privilege than some have exercised in the past.

A New Role for Clergymen?

At stake in the Boe case is an emerging relationship of great importance to society as a whole, but the "seal of the confessional" may not be the best image under which to understand it. In protecting the "priest-penitent privilege" and extending it (in 22 jurisdictions) to clergymen-counselors and their counselees, legislatures have shown sensitivity to a relationship they thought worth conserving -- not just for the sake of individual counselees and certainly not for the sake of any or all clergymen, but because it contributes to the healing and the equilibrium of society as a whole.

One of the functions of religion is to help people handle their anxieties, guilts, fears, rages, doubts and despairs by enabling them to find ultimate meaning in their lives. One of the clearest ways in which this function is performed is the counseling relationship, in which a trained professional helps troubled persons work through such problems. This function, which is of important value to society, is made more difficult if counselees must always fear that what they admit to the counselor may be extracted from him by threat of imprisonment, or if the counselor takes the attitude, openly or impliedly, "Don’t tell me anything that might get either of us in trouble."

The most effective counselor is one who takes risks in order to help those who need his help, who makes an unguarded commitment to stand by the troubled person through thick and thin. This does not necessarily mean to condone or conspire in criminal activities, since the effective counselor understands that deliberate violations of the law are serious and seldom the answer to any problems; they can be justified only in the few instances where the laws are unjust or where obedience to them works a greater wrong than overt conscientious disobedience.

In our day, it may be that troubled persons in groups are in need of pastoral counseling together rather than singly (as in group therapy?) , and that the most therapeutic part of their togetherness is what they do together to remedy their troubles. Militant organizations like the American Indian Movement do not exist for therapeutic reasons, and perhaps that is why they offer the best "therapy." That term is used here to suggest that just as individual counseling and therapy are useful for coping with individual problems, so group counseling and therapy might be useful for coping with collective problems. This is probably as far as the "confessor-counselor" image should be pressed. However, there is another traditional image that -- though like all images, it has its shortcomings -- may be useful for understanding what is happening on the edge of contemporary Christian ministries.

A ‘Chaplaincy’ to Groups with Special Needs?

The image I refer to is that of the chaplain, the bearer of the concern and compassion of Christians to special populations having special needs, either because of isolation (armed forces, prisons, hospitals) or because of unique and homogeneous character (industry, professional groups, universities, police forces, etc). In similar fashion, a few clergymen have undertaken or been assigned by their church bodies to enter into such a relationship with oppressed or deprived groups in our society. Some have worked closely with migrant farm laborers for years and are now active in the movement led by Cesar Chavez. Others have played roles of the same sort in antipoverty struggles in the inner city. The Rev. John P. Adams was assigned to such a role with the Poor People’s Campaign by his denomination and the ecumenical community. These men were not called "chaplains," but the "chaplaincy" is perhaps the closest analogue to what they did and do.

A similar but distinguishable role which clergymen sometimes take or are assigned to is that of mediator or "honest broker" between the opponents in an effort to resolve conflict. That is the role Adams took in Wounded Knee, rather than being "chaplain" of one of the parties, as Boe was, or as Adams had been in situations such as the Poor People’s Campaign. The "chaplain" and "mediator" roles must be carefully distinguished from each other, but both must rely upon trust and confidence in order to perform their important work -- important not just to them or to the groups they serve, but to all of us.

At their best, such "chaplains" help to "damp" the explosions of social conflict, to channel it into constructive or at least rational forms (rather than impulsive or self-destructive), to provide links to the other structures of society, to lend legitimacy to the objectives of the militant groups, to help them to weigh the choices before them and to communicate their hopes and needs to the "outside world," and to supply spiritual nurture and encouragement.

In conflict situations, the "chaplain" role comes under heated attack from "the other side," and the church is accused of "taking sides," The mediator role is often attacked by critics on both sides. And one of the risks the "chaplain" and the mediator run is that of being called to give evidence against the party or parties with which he or she has worked, of being converted retroactively into an agent of the prosecution, a spy co-opted out of the ranks of the trusting.

If such persons can be compelled by court order to "tell all," it will not be long before clergymen are unable to gain access to the militant groups which they might be able to help in the ways already indicated. Of course, there is always reporter Earl Caldwell’s answer: to go to jail rather than testify against his confidential sources. Boe may well choose this course if his claims of privilege fail. But he should not have to go to jail for 12 or 14 months for carrying out a religious ministry from which not only the militant Indians but all of us benefit.

Whatever the outcome of the Boe case, it should be apparent that many denominations do not adequately protect the confidentiality of their clergymen’s counseling ministry. Every denomination should have a clear-cut regulation requiring ministers to respect and preserve the confidentiality of communications made to them in a counseling relationship. Furthermore, the denominations should urge all state legislatures to adopt (or reinforce) statutes that more adequately protect such confidentiality. At the same time they should intercede with Congress (House and Senate Judiciary committees) to approve Rule 506 of the Federal Rules of Evidence, which would provide such protection in federal courts.


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