Military Clergy Privilege

[Alexander Dushku]

Rule 503 of the Military Rules of Evidence states:  "A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication is made either as a formal act of religion or as a matter of conscience."  Again, this is basically just the proposed Rule 503 that Congress rejected in favor of a common law approach to all privileges.

My read is that *if* Rule 503 governs, a clergyman probably could not be prosecuted (which requires a court) for failure to report abuse because the evidence of his knowledge of the abuse would arise from and be based on a privileged communication.  My question relates to the extent to which a military clergyman can rely on this and other military rules protecting confidential communications when a state law requires reporting of child abuse.  My sense is that the military rule should trump the state rule in state court, especially if there is a military context to the confession (e.g., military chaplain and serviceman), but I'm not sure.  And I don't think that approach would hold, however, where the serviceman made a confession to a civilian clergyman and the issue arises in a civil court.  One of the problems is that rules of privilege are typically governed by forum law unless there is some special reason why the rule of the state where the communication occurred should apply.  See Restatement (Second) of Conflict of Laws sec 139(2).

>>> Mark.Scarberry at PEPPERDINE.EDU 11/13/01 11:42AM >>>
It's important to distinguish between (1) privilege and (2) the duty to
maintain confidences. For example, a client has a privilege against
testimony by his or her lawyer disclosing confidential communications. But
the lawyer does not violate the "privilege" by disclosing those
communications outside court. Instead, the lawyer violates the duty to
maintain the client's confidences inviolate. That duty arises not under the
Rules of Evidence but under the rules of professional conduct.

Ditto for clergy/penitent privileges and confidences, I think. One must ask
not just whether the communication was privileged but whether there is a
duty to maintain a confidence.

Thus I don't think the existence of a privilege by itself creates a duty not
to disclose the contents of a communication in a nonjudicial setting. I
think it also does not trump any duty to disclose that other law may create
in a nonjudicial setting, such as a duty to report child abuse to the
appropriate child welfare agency. I don't know whether the religious duty to
maintain confidentiality of clergy/penitent communications rises to a
constitutional level, and thus might trump child abuse reporting statutes.
Perhaps someone else on the list can shed some light on this issue.

I wonder also whether a military rule of evidence would apply even in
judicial proceedings that are not military proceedings.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: Alexander Dushku [mailto:ADUSHKU at KMCLAW.COM]
Sent: Monday, November 12, 2001 3:28 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Military Clergy Privilege


Under Rule 503 of the military rules of evidence, confidential
communications to clergy are privileged.  No exception is made for child
abuse or other difficult situations.  Some states where servicemen are
stationed have mandatory child abuse reporting statutes.

Questions:  If a military clergyman receives a confidential confession of
child abuse from a serviceman that is privileged under Rule 503, but does so
in a state with a mandatory reporting statute, is the clergyman bound in any
way by the state law?  Does it make a difference whether the communication
occurs on or off the military base?