Clergy recast ‘privilege’ for peers accused of sex abuse

When UB law professor Christine Pedigo Bartholomew studied “clergy privilege” — the legal rule shielding confidential communications of priests and clergy — she found priests often recast communications to make them fall outside this testimonial protection.

Clerics often wanted to divulge information concerning such sensitive encounters as people confessing to crimes, says Bartholomew. The clergy wanted to do the right thing, she says, and help the courts’ search for justice.

But something happened when it came to accusations of sexual abuse, according to Bartholomew’s extensive, comprehensive review of cases from the early 1800s to 2016 — the first time a legal scholar has reviewed and recorded every opinion on clergy privilege during that time.

Where otherwise forthcoming priests tried to find ways to divulge what they knew to law enforcement officials, they did the opposite — they “pushed for their clergy privilege” — when their fellow priests were targets of sexual abuse accusations, according to research Bartholomew published in October 2017 in the Virginia Law Review.

“It is as if clergy are saying, ‘We want to divulge and to help, except when clergy are accused of sexual misconduct,’” says Bartholomew, associate professor and director of law review. “When it comes to sexual accusations, clergy act to protect themselves.”

Bartholomew says her findings, which are discussed in detail in the Virginia Law Review article “Exorcising the Clergy Privilege,” led her to a grim and upsetting conclusion. Based on the hundreds of cases she examined involving assertions of clergy privilege, she found a kind of double standard of behavior.

Even when a conversation would facially fall within a statute of privilege, clergy were often reluctant to frame such conversations as privileged. Instead, they frequently opted to share such communications, particularly when it came to investigations of crimes such as homicides, robberies and other serious criminal activity.

When it came time to divulge information they knew about sexual predatory priests, however, many clergy chose silence, invoking clergy privilege to protect information about such abuse from judicial scrutiny.

“There is a certain hypocrisy in that,” Bartholomew says. “And that is disturbing. Clergy generally want to help advance justice. They want to protect others. They want people to repent and face the consequences of their actions — except here.”

Clergy privilege is one of the oldest grounds in U.S. law for protecting otherwise relevant information from use in a legal proceeding. For over a century, Bartholomew writes, scholars and judiciary officials have assumed a “generous protection” of this clergy privilege is necessary to “foster and encourage spiritual relationships.” The findings from Bartholomew’s study question that long-standing assumption made by scholars and the judiciary.

After analyzing more than 700 legal decisions on the clergy privilege issue, Bartholomew found the privilege “in decline.” Courts have lost faith in this privilege,” she writes, “and so have clergy.”

“For decades, clergy have recast communications to ensure they fall outside testimonial protection,” intending to make what they knew through confessions or other conversations available to law enforcement officials, Bartholomew says. This willingness to cooperate, “(challenges) how essential confidentiality actually is to spiritual relationships.”

But when she looked closer at these 700 legal decisions involving clergy privilege, she found the pattern of priests and clergy looking for ways to divulge important information about crimes reversed itself when the accusations were about the sexual misconduct of their colleagues.

As Americans’ confidence in organized religion dropped, Bartholomew wrote, law enforcement’s “judicial interrogation” of these potentially privileged conversations and encounters increased and “deepened.”

“The response to the clergy abuse by some religious institutions only fueled judicial skepticism,” she wrote. “Rather than mirroring the general trend of clergy narrowly interpreting the privilege (and divulging more information to authorities), in the church sex abuse cases, clergy uniformly pushed for blanket protection.

“Many churches raised clergy privilege objections to shield communications by alleged clergy perpetrators to their superiors and fellow priests,” Bartholomew wrote. “These cases reflect a self-interested interpretation of the privilege, where clergy claimed virtually every document between a cleric and superior was privileged.”

The most recent clergy abuse scandal makes Bartholomew’s findings even more important. The recent reports of investigations against the Catholic dioceses of Pennsylvania and Buffalo have drawn attention to Bartholomew’s research. She was recently interviewed by WIVB-TV news and Spectrum News on the scope of the priest sex abuse scandal and its cover-up within the Catholic Diocese of Buffalo.

"The law will only recognize the confidentiality of a document if it’s considered privileged or if it’s a trade secret or some special category of document,” she told reporters. The law, she explained, does not shield documents “simply because the diocese wanted them to remain confidential.”

Bartholomew says she is watching the current sexual abuse cases closely.

“It remains to be seen whether these dioceses will buck the trend and be forthcoming,” she says, “or hide behind overly broad privilege assertions.”