Judge holds that confession in front of an Alcoholics Anonymo us g roup is shielded by clergy-penitent privilege

Volokh, Eugene VOLOKH at MAIL.LAW.UCLA.EDU
Thu Aug 2 13:41:33 PDT 2001


        The NYLJ excerpt likewise supports this; but even if AA is seen as a
religious group, isn't it permissible for state law to treat a confession
told to a group of people differently from confessions told to one person?
(Unless I'm mistaken, most clergy-penitent privileges apply only to
confidential confessions told to one person -- or is that not so?)

        Or is the judge saying that whenever a group has (1) a religious
component to its meetings (e.g., a pervasively religious school, or for that
matter just a religious family) and has (2) a rule of confidentiality for
things that people say, even to dozens of other people at once, the law has
to treat such statements as privileged?

        The judge's decision may also be invalid under the Teague v. Lane
"new rule" habeas doctrine, though I realize that this point is going
off-topic.

        Eugene

> -----Original Message-----
> From: Paul Salamanca [SMTP:psalaman at POP.UKY.EDU]
> Sent: Thursday, August 02, 2001 12:09 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Judge holds that confession in front of an Alcoholics
> Anonymous g roup is shielded by clergy-penitent privilege
>
> Perhaps the judge was saying that having a clergy-penitent privilege but
> denying it to A.A. constituted improper discrimination among religions.
> According to the New York Times, the judge described the privilege as one
> "granted to other religions similiarly situated."
>
> At 11:51 AM 8/2/01 -0700, you wrote:
>
>
>
>                       Seems like a rather broad reading of the
> clergy-penitent privilege -- though I'm not sure whether it's too broad --
> but more importantly, where are the grounds for federal habeas here?  Is
> the theory that the clergy-penitent privilege is commanded by the Free
> Exercise Clause and that a denial of the privilege therefore renders the
> conviction unconstitutional?  If anyone has a URL or a WESTLAW/LEXIS
> pointer to the decision, I'd love to see it.
>
>       <http://www.nypost.com/news/regionalnews/36507.htm>:
>
>                                August 2, 2001 -- A federal judge yesterday
> overturned
>                                the double-homicide conviction of a man
> sent to jail on the
>                                word of fellow Alcoholics Anonymous
> members, saying the
>                                testimony should have never been
> admissible. . . .
>
>                                Paul Cox . . . has served seven years since
> a jury
>                                convicted him of manslaughter in the grisly
> slaying of
>                                husband-and-wife doctors as they slept in
> their Larchmont
>                                bed.
>
>                                Brieant ruled that Alcoholics Anonymous has
> to be
>                                considered a religious institution based on
> previous court
>                                rulings - and that its meetings must enjoy
> the same
>                                protections as sessions between priests and
> their penitents.
>
>                                "Clearly, it is possible as a matter of
> constitutional law to
>                                have and to practice a religion without
> having a clergyman
>                                as such," Brieant wrote, "or where all
> members exercise the
>                                office of clergyman to the extent of
> receiving confessions." . . .
>
>                                The case had remained unsolved for four
> years, until an AA
>                                member told cops that Cox talked in
> sessions about
>                                dreams and memories of killing the doctors
> in a drunken
>                                stupor in the home where Cox, as it turned
> out, had lived
>                                as a child.
>
>
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