and Rabbinic Counseling
- An Overview of Halakhic
and Legal Issues
Rabbi Michael Broyde
Rabbi Yona Reiss
Nathan Diament, Esq.
and Rabbinic Counseling
The "clergyman-penitent privilege" was first introduced in the United States in the State of New York in the early 1800s. Since that time, it has been codified in New York as well as all fifty states and the District of Columbia in various forms which have, in turn, been updated and revised over the years. The most notable revision was the expansion of this privilege from its original application to Catholic priests and their confessors to the clerics of other religions and theirs. Perhaps due to the fact that these statutes grew from the Catholic model, the presumption underlying them is that a clergyman will be directed by his religion not to disclose any information confided in him by a penitent. While, as outlined in the halakhic discussion below, this default position coincides with that of halakha, it does not account for the situations in which halakha calls upon a Rabbi to disclose confided information.
In assessing the various clergy-penitent privilege statutes, there are three basic questions relevant to the practice of a Rabbi:
(1) The holder of a privilege has the power to invoke it or waive it. With regard to the famous attorney-client privilege, for example, it is the client that holds the privilege and thus, it is only the client who can permit the attorney to divulge information revealed to him in their confidential conversations. Among the fifty states, statutes may be found to resort to one of three models as to who holds the clergy-penitent privilege. In the majority of states, including New York, the privilege is held by the "penitent."  In some states, such as Illinois, it is the clergyman who holds the privilege and is thus empowered to waive it. Finally, in some states, such as New Jersey, the privilege is held by both the clergyman and the penitent and both must waive it for disclosure to be permitted.
(2) Although states vary with regard to who holds and may waive the privilege, there is general consensus with regard to what type of communication falls within the scope of the privilege. Not surprisingly, not everything said by a person to a Rabbi is protected by this privilege; rather, the communications must be made to the clergyman, in the words of New Yorks statute, "in his professional character as spiritual adviser." Thus, New Yorks highest court ruled over a decade ago, that a Rabbi had not breached the confidentiality statute in revealing an accused murderers communications to him when the only purposes for which the accused contacted the Rabbi were for his help in finding him a lawyer and negotiating with the prosecutors office.  This is not to say, however, that it is only matters that are "religious" which are privileged. Secular matters that arise in the context of a conversation with a Rabbi in which the Rabbi has been approached to provide spiritual guidance and counseling will be included under the privileges umbrella. In some states, it has been held that the privilege only bars the clergyman from disclosing communications from the penitent, but that the clergyman may relate his "observations."
(3) Like other privileges, the clergy-penitent privilege is statutorily constructed to prevent a clergyman from being compelled to testify in a legal proceeding about the matters confided in him by the penitent. If the privilege is found not to have "attached" in the first place, or is explicitly waived, the Rabbi may then disclose the confidential communication. As mentioned above, the privilege will not arise when the communication was not made to the Rabbi in the context of his professional capacity for the purpose of spiritual guidance. Also, like other privileges, this privilege will not attach when the circumstances of the communication are not entirely confidential in the first place; for example, if a third person who is not a member of the clergy is in the room.  Under current law, in states such as New York where the penitent holds a properly created privilege, that person must explicitly waive it to permit the Rabbi to disclose the confidential communication. In states such as Illinois, where the clergyman holds the privilege, it falls to the clergyman to waive it. In states where both hold it, generally, both must waive. It is, however, important to note the newly amended provision of New Jerseys law which may be adopted up by other states in the future. As mentioned above, New Jersey bestows the privilege upon both the clergyman and the penitent and thus, in general, both must waive it. The law now provides that when "the privileged communication pertains to a future criminal act the cleric alone may, but is not required to, waive the privilege."
Two points are important to note in concluding this brief discussion. First, rabbis may be aware that the federal and state constitutions protect the "free exercise of religion." Thus, one might be led to assume that such a constitutional protection will protect the Rabbi in a case where he discloses otherwise confidential information when he does so pursuant to a religious imperative. While one would hope this position would be clearly and widely recognized, it is not as of yet.  Moreover, there are precedents in American law which could very well suggest that a secular judge might not recognize a free exercise exception to these statutes.  This, as well as the entire foregoing outline, leads to the second point: rabbis would be well advised to consult with their personal attorneys  in dealing with any situation in which the issues of confidentiality and privilege arise.
*This outline of legal issues is not to be taken as legal advice with regard to any specific case and should not be relied upon as such; one should consult with an attorney for advice regarding a specific case. Similarly, this outline of legal issues is not intended to constitute a summary of the relevant halakhic issues which are dealt with separately in this memorandum.
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