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New Jersey Supreme Court Defines Cleric-Penitent Privilege

By Howard M. Friedman

In a decision handed down Wednesday, the New Jersey Supreme Court, for the first time since N.J.S.A. 2A:84A-23 was amended in 1994, defined the scope of the cleric-penitent privilege. In State of New Jersey v. J.G., (NJ Sup. Ct., April 7, 2010), in a 6-1 decision, the court held that:

the cleric-penitent privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret, that is, made in confidence to a cleric in the cleric's professional character or role as a spiritual advisor.

At issue in the case is a conversation between a defendant accused of sexually abusing his daughters and a pastor that defendant had known for over thirty years. The state argued that the pastor was not acting as a spiritual advisor, but was acting to protect defendant's children. The court reversed and remanded the case since it was unclear whether the trial court had applied an objective reasonableness standard.

Justice Rivera-Soto dissented, arguing that the majority has "secularized" the privilege, based on an "unexpressed but nevertheless palpable fear of entangling itself in religious controversy." He urged a different standard: "in order for the cleric-penitent privilege to make sense, the question of whether the communication was made 'in confidence' must be informed and governed by the fundamental tenets and practices of the religious belief represented by the cleric and espoused by the penitent." He also objected that the parties had not been given an opportunity to develop their evidence in light of the new standard announced by the majority.

Full post as published by Religion Clause on April 09, 2010 (boomark / email).