Confidence and the Clergy

By Richard N. Ostling

A minister faces jail for refusing to testify

Ex-Policeman Earl Sands, Florida suspect accused of sexually abusing a six-year-old girl, surrendered last month to the pastor of a church he had attended; the pastor then accompanied Sands to the police station.

The prosecutor later subpoenaed the clergyman, John Mellish of the Margate Church of the Nazarene, and asked him to reveal what Sands might have told him.

Mellish, 32, the father of three sons, refused, invoking the right to confidentiality for conversations with someone he was counseling. Such a claim has normally been honored by judges in the U.S., but Mellish was sentenced to 60 days for contempt of court and spent one night in jail earlier this month. He is now free on bond while an appeals court reviews his case.

The minister's quandary results from growing public alarm over child abuse, which has led to numerous state laws requiring anyone who knows about such a crime to inform authorities. In at least 20 states, toughened child-abuse laws have eliminated the longstanding legal and societal recognition of the "clergy-penitent privilege." Mellish would face no legal trouble if the crime were murder or rape; clergy in Florida are forced to testify only concerning abuse of children, the aged and the handicapped. His jailing, however brief, has prompted united interreligious support, with Roman Catholic priests and Jewish rabbis joining Protestants to back Mellish's appeal.

Rabbi Solomon Schiff, who directs prison chaplains for the Greater Miami Jewish Federation, argues that there is an "unbreakable bond" between clergyman and congregant An that is protected by the U.S. Constitution's guarantee of religious freedom. Agrees fellow Rabbi Brett Goldstein: "While under biblical law I have the right to reveal information of a criminal nature when that information could prevent another crime, it is not an obligation. Religious questions are between me and my God, and not between me, my God and the state." Michael Fitzgerald, a lawyer for the Roman Catholic Archdiocese of Miami, maintains that under the current law a grand jury could haul in every cleric in Florida and ask, "What have you heard about child abuse lately and from whom did you hear it?" But Denny Abbott, a Florida crusader against child molestation, insists, "The overriding concern should be for our children, and clergymen should report these crimes."

Child abuse, both sides agree, makes the issues particularly agonizing, because the person seeking religious counsel is often continuing the offense. "You have a helpless third person who may suffer while counseling goes on," says Lynn Buzzard of the Christian Legal Society. "I got a call involving a pastor who had been told by a husband and wife that the husband had sexually abused their child. The pastor was torn. He was concerned about the child, but he also said, 'My God, this is their first cry for help ever.' " The Rev. Charles Eastman, head of Miami's United Protestant Appeal, well understands both sides. When running a church day care center, he turned in parents whom he suspected of child abuse. But, he says, "never have I, nor will I, violate a confidence of someone who seeks counseling."

Eastman's position draws upon a firmly based heritage. The protection of the clergy-penitent relationship rests on "one of the more basic privileges," says Harvard Law Professor Arthur Miller--as strong or stronger than the similar claims to confidentiality between lawyer and client or doctor and patient. The Fourth Lateran Council of A.D. 1215 formalized the already long-established clerical discipline of absolute secrecy for discussions during sacramental confessions.

Under canon law, a Catholic priest who breaks the confessional "seal" is automatically excommunicated. In U.S. practice, the confidentiality privilege has been extended to non-Catholic clergy and to non-sacramental counseling, with explicit clergy exemptions put into most state laws over the past several decades.

Though the precise cutoff line is blurred, the privilege fades the further such counseling moves away from the purely religious toward the merely psychological.

And it does not exist at all for general religious work. In 1977, a New York court rejected a priest's contention that he was not required to testify about conversations he might have had with prison officials about an inmate he was counseling.

In all U.S. legal history, only about 100 cases have involved efforts to abrogate the clergy-penitent privilege, says the Rev. John C. Bush, head of the Kentucky Council of Churches and the co-author of The Right to Silence: Privileged Clergy Communication and the Law. Bush adds that no recognized clergyman, accused of contempt of court for claiming the privilege, has lost if he fought for his rights and appealed to a higher court. In one celebrated instance, the Rev. Paul Boe, an American Lutheran Church official, avoided jail in 1974 after he refused to testify before a federal grand jury investigating an American Indian occupation of the reservation at Wounded Knee, S. Dak.

As it happens, the Mellish case is not the only one currently in court. There is at least one other, which turns on a somewhat narrower set of facts. In Arizona, David Crumbaugh, a Pentecostal minister, is fighting a six-month contempt sentence and $1,000 fine for refusing to testify about what the wife of a convicted child killer told him while he counseled both during the murder trial. But Crumbaugh "got weak for a moment," as he put it, and has already signed an affidavit detailing what the wife said, thus undermining his privilege claim. Nonetheless, the National Coalition for Religious Freedom is offering him legal help because of its belief in the primacy of the privilege. Whatever the courts may decide in Crumbaugh's case and, more important, Mellish's, virtually all clergymen will continue to honor the privilege. For them the question is not whether they should, even in child-abuse cases. The question is whether they will be jailed for doing so.

--ByRichard N. Ostling. Reported by Martin Casey/Miami and J. Madeleine Nash/Chicago

With reporting by Martin Casey/Miami, J. Madeleine Nash/Chicago