Military Clergy Privilege

[Alexander Dushku]

The State of West Virginia, to take one example, has a rule that certain professionals must report child abuse.  The list includes clergy.  [Anyone want to opine about whether and why that is unconstitutional?]  In Utah, if a person confidentially communicates to a clergyman that he has abused a child, then the privilege holds and the clergyman need not report.  If he confidentially communicates that a third person has abused him or another, then the clergyman has to report it to law enforcement.  Failure to report is a crime.  (As you can imagine, this has caused all kinds of problems.)

Supremacy, on some level, is the issue, but it is not clear how it plays out.  In times of peace, the general jurisdiction of state courts over military personnel accused of crimes committed within the state is well established.  Failure to report abuse can be a crime.  And yet, the clergy privilege in the military is strong.  So, in a state that requires clergy to report child abuse, a serviceman who is also a pastor to a military congregation, but who lives off the base with his family, hears a confidential confession of child abuse from a serviceman.  Military law is clear that the confession is not admissible evidence in a court martial and that the pastor should (at least as a matter of clergy ethics) keep it confidential.  It is also clear that state law requires the pastor to report and that failure to do so is a crime.  What result?

As to whether the clergy privilege is a matter of constitutional right, that has never been firmly resolved.  It is mostly a creature of statute at the state level since English common law after the Reformation generally did not recognize the privilege.  Federal common law under Rule of Evidence 501 has provided strong protections for the clergy privilege.  The military has adopted the privilege in proposed Rule of Evidence 503, which the Supreme Court suggested to Congress but which was rejected in favor of the much broader terms of Rule 501.

>>> thetruthserum at YAHOO.COM 11/13/01 04:40AM >>>
--- Alexander Dushku <ADUSHKU at KMCLAW.COM> wrote:
> Some states where
> servicemen are stationed have mandatory child abuse
> reporting statutes.

Do we have any specific examples of the form of such
reporting statutes with which to work?

Is your question addressed to something more nuanced
than the 500 lb gorilla known as Supremacy?

Is the clergy privilege really only a matter of rule
of procedure, or does the rule, in fact, simply affirm
a right or privilege extended by other law or the
Constitution?

Jim "A Few Questions" Henderson
Senior Counsel
ACLJ

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