The clergy-penitent privilege is one of the oldest forms of privileged communication in U.S. law. Originally, it prevented clergy from breaking their religious rules about revealing what people confessed to them in confidence as part of the separation of church and state.
The clergy-penitent privilege can unjustly shield abusers from having to face criminal liability for many crimes, but it can sometimes be breached. Let us look at the laws about this privilege in Michigan and what your lawyer can do to break the privilege.
What Are the Clergy-Penitent Privilege Laws in Michigan?
According to Michigan’s Compiled Laws § 767.5a(2):
“Any communications between attorneys and their clients, between members of the clergy and the members of their respective churches, and between physicians and their patients are hereby declared to be privileged and confidential when those communications were necessary to enable the attorneys, members of the clergy, or physicians to serve as such attorney, member of the clergy, or physician.”
This covers the privileged communication laws for clergy, attorneys, and doctors. If any of these are doing their job at the time of the communication, that information can be kept secret. It’s not enough to tell a clergy person something in passing outside of a religious context. It must be during spiritual counseling, confession, or an equivalent for your religion.
Even if a clergy person wants to reveal what they said, defendants have a right to prevent the disclosure under this ruling. On the surface, this means criminals can openly confess to crimes to clergy with legal protection. However, this veil of secrecy may be penetrated under certain limited conditions.
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Confessions About Child Abuse and Neglect
Michigan has mandatory reporting laws if they have reasonable cause to believe that child abuse or neglect is happening for clergy, among many other professions. They have to report suspected abuse or neglect within 72 hours by phone or written record. The information to do so can be found at Michigan’s Health & Human Services website.
This means that clergy have a duty to report child abuse or neglect to the state if they believe it’s happening. If Health & Human Services finds the report credible, they can notify law enforcement to step in for the safety of the child.
However, if this information is learned as part of a confessional situation, then it is still considered privileged and the clergy may not have to report. This creates a loophole where abusers can confess to crimes to feel better about themselves and the clergy person cannot discuss the matter with others.
Not All Church Communications Are Protected
The origination of clergy-penitent privilege is rooted in the idea of Catholic confession. In this situation, there is one priest and one penitent in a private chamber discussing spiritual matters. It does not automatically apply just because someone talked with clergy.
For example, if someone gave a public confession in a church, that the privilege would not protect them. Also, some religions do not treat confession as a private matter. A church might reveal what was confessed so everyone at the church may pray on behalf of the confessor.
On the flip side, if someone met with clergy outside of a religious context and let something slip, clergy-penitent privilege doesn’t protect that speech.
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Why Might Clergy Feel Pressured Not to Report?
In most cases, it’s because of the doctrines of the faith of the clergy. In some denominations, a clergy person who reveals things said in confession can be removed from their office and even removed from the faith. Revealing what was said can utterly destroy their career choice and their faith.
However, clergy aren’t entirely powerless. A priest that knows someone is abusing a child might try to give guidance to the child and instructions on how to contact authorities to report the crime. An abuser that confesses might be pressured to go to the authorities to have their sin forgiven.
You will always work directly with your attorney throughout your case.
White Law PLLC Can Help
Michigan’s laws for clergy-penitent privilege are strong, but they’re not unbreakable. Mandatory reporting laws and other legalities may compel clergy to reveal what they know about an alleged abuser.
If you believe that someone in the clergy has information about your abuser and won’t reveal it, speak to our lawyers. We can tell you your legal options and see if any communication between the clergy and the alleged abuser happened outside of privileged situations.
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