Pastoral "Confidentiality" and the Seal of the Confessional

[J. Thomas Shelley]

A very interesting case unfolding in Pennsylvania:

https://www.pennlive.com/crime/2021/12/hospital-chaplain-derails-attempt-to-have-accused-womans-comment-that-i-killed-my-baby-suppressed.html

WILLIAMSPORT – A hospital chaplain put a damper on the defense effort to have suppressed emergency room comments by a homicide suspect that included, "I killed my baby."

Sister Gabrielle Nguyen testified Thursday Corrie Shanikah Cowlay-Saunders, 23, "was just speaking" when she made the self-incriminating comments in UPMC Williamsport.

She is charged with killing her 5-month-old daughter Cailania Faltz on Jan. 14.

Defense attorney Donald Martino claims statements his client made in the hospital are privileged because they were directed to a member of the clergy.

However, at the continuation of a hearing on Cowlay-Saunders' omnibus pretrial motion, Nguyen testified she is not a member of the clergy and cannot accept confessions.

She provides spiritual and emotional support to trauma patients if they want it, she explained.

Cowlay-Saunders was agitated, upset and confused and initially told her to back off, the chaplain said.

She then said she was open to spiritual support but did not ask for forgiveness, Nguyen said.

First Assistant District Attorney Martin L. Wade maintains Cowlay-Saunders' statements were not confidential because she made them in the presence of others including police.

Officer Geno Caschera in a report quoted her as saying: "I didn't want to live and I didn't want her to live without me and I thought we could both go to heaven. I'm so sorry. I tried to do CPR because it was breaking me to see it.

"I didn't call the ambulance. I said to myself he is the one who deserves to die, so I went to his house to kill him."

The male to whom she referred is the infant's father and her former fiancee, Cordell Faltz.

The discovery of the infant's body in Cowlay-Saunders' Adams Street home concluded a series of events that have been described in testimony at court proceedings. This is a summary:

About 1:30 a.m. Shauniece Bolden, who was dating Faltz, went to his Franklin Street home at his request.

Cowlay-Saunders was there. Bolden and she talked and they got into Bolden's car where a fight broke out.

Cowlay-Saunders pulled out a large patch of Bolden's hair, hit her with two objects and threw items out of her car.

That evening Faltz awoke to find Cowlay-Saunders in his bedroom. She would not leave so he went downstairs. She followed. He noticed his car keys were missing and when he asked where they were, Cowlay-Saunders replied in the baby's room.

She followed him back upstairs and while he was lying on the floor looking under a crib he was stabbed in the neck below the right ear.

After pulling out the knife he went downstairs and saw her drive off in his car that a short time later crashed into a fence near Railway Street and Maxwell Place.

Cowlay-Saunders at the accident scene exclaimed her daughter was dead, causing police to go to her home. They found the infant on an upstairs bed.

She is questioning how she can be charged with homicide because Dr. Rameen Starling-Roney, a forensic pathologist who conducted the autopsy, found the cause of death inconclusive.

Cowlay-Saunders is jailed without bail on charges of homicide, attempted homicide, aggravated assault, endangering the welfare of a child, recklessly endangering another person, possession of an instrument of crime, burglary, criminal trespass and unauthorized use of vehicle.

The essential questions are:

1)  What and who constitutes "clergy"?

2)  What constitutes a "privileged communication" by someone (who ultimately becomes a defendant) to someone presumed by that person to be clergy?

The Sister has rightly distinguished that she, as one who cannot receive Sacramental confessions and bestow Absolution is held to a much lower standard of confidentiality than those who are under the Seal of the Confessional.

[Dan Fienen]

About 20 years ago I was part of a group of pastors who volunteered with the local police as chaplains and we discussed this. A couple of factors that could influenced whether it could be considered privileged was whether the suspect had identified us as a pastor and was speaking to us in that capacity, general chit chat did not count. And as Heather they spoke to us privately with the expectation that they wouldn't be overheard.

[Brian Stoffregen]

I've also heard that if the "confession" is made in a public place where others can overhear (in contrast to a confessional booth or a private office) it cannot be considered protected.

[Donald_Kirchner]

I agree with Brian. 😆

This follows Minnesota law which I believe is the touchstone of the seal of the confessional, as opposed to the LCMS CTCR document which gives a false, weasel exception to the confessional seal in the "Distinctions in Pastoral Practice" section.

Something I wrote years ago regarding this issue and child abuse:

In Minnesota, a clergyman is not a mandatory reporter (or rather is, but then there is an exception re: the confessional seal) for child abuse by a confessee about which the clergyman learns in the context of confession.

Minnesota Statute 626.556 deals with the reporting of maltreatment of minors. Subdivision 3 states in pertinent part:

"Persons mandated to report. (a) A person who knows or has reason to believe a child is being neglected or physically or sexually abused, as defined in subdivision 2, or has been neglected or physically or sexually abused within the preceding three years, shall immediately report the information to the local welfare agency, agency responsible for assessing or investigating the report, police department, or the county sheriff if the person is:

(1)    a professional or professional's delegate who is engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, correctional supervision, probation and correctional services, or law enforcement; or

(2)    employed as a member of the clergy and received the information while engaged in ministerial duties, provided that a member of the clergy is not required by this subdivision to report information that is otherwise privileged under section 595.02, subdivision 1, paragraph (c)."

So, looking to Minn. Stat. 595.02, subd. 1(c), it states in pertinent part:

"A member of the clergy or other minister of any religion shall not, without the consent of the party making the confession, be allowed to disclose a confession made to the member of the clergy or other minister in a professional character, in the course of discipline enjoined by the rules or practice of the religious body to which the member of the clergy or other minister belongs; nor shall a member of the clergy or other minister of any religion be examined as to any communication made to the member of the clergy or other minister by any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the member of the clergy's or other minister's professional character, without the consent of the person."

The Minnesota Supreme Court has found that "the discipline enjoined" is akin to an uncodified principle of secrecy requiring a clergyman to hold communications in absolute confidence.  See In re Swenson, 182 Minn. 602, 237 NW 589 (1931).  Since we practice under this discipline of absolute secrecy, as memorialized in our ordination and installation vows, the statutory requirement that the communication be made according to the discipline of the church is of no consequence. Thompson, Minnesota Rules of Practice, Evidence, Section 501.06.

So it appears to me that, certainly in the context of a private confession situation, a pastor is not required under Minnesota law to divulge a confession of child abuse by the confessee and is, in fact, not to do so under State statute as well as our ordination vow. Moreover, the phrase "any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the member of the clergy's or other minister's professional character" seems to liberally construe what is a case of private confession.

Minnesota law coincides quite nicely with our ordination vow, even extolling it. My ordination vow included an affirmative to the question: "Will you forgive the sins of those who repent, and will you promise never to divulge the sins confessed to you?"

I recall both upperclassmen at Sem and pastors at winkel making downright unsettling comments about a confessee confessing a crime to them, such as, "If they don't turn themselves in, I will."

I think this issue has been extensively discussed hereon in the past.

[Michael Slusser]

I agree with Brian. 😆

This follows Minnesota law which I believe is the touchstone of the seal of the confessional, as opposed to the LCMS CTCR document which gives a false, weasel exception to the confessional seal in the "Distinctions in Pastoral Practice" section.

Something I wrote years ago regarding this issue and child abuse:

In Minnesota, a clergyman is not a mandatory reporter (or rather is, but then there is an exception re: the confessional seal) for child abuse by a confessee about which the clergyman learns in the context of confession.

Minnesota Statute 626.556 deals with the reporting of maltreatment of minors. Subdivision 3 states in pertinent part:

"Persons mandated to report. (a) A person who knows or has reason to believe a child is being neglected or physically or sexually abused, as defined in subdivision 2, or has been neglected or physically or sexually abused within the preceding three years, shall immediately report the information to the local welfare agency, agency responsible for assessing or investigating the report, police department, or the county sheriff if the person is:

(1)    a professional or professional's delegate who is engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, correctional supervision, probation and correctional services, or law enforcement; or

(2)    employed as a member of the clergy and received the information while engaged in ministerial duties, provided that a member of the clergy is not required by this subdivision to report information that is otherwise privileged under section 595.02, subdivision 1, paragraph (c)."

So, looking to Minn. Stat. 595.02, subd. 1(c), it states in pertinent part:

"A member of the clergy or other minister of any religion shall not, without the consent of the party making the confession, be allowed to disclose a confession made to the member of the clergy or other minister in a professional character, in the course of discipline enjoined by the rules or practice of the religious body to which the member of the clergy or other minister belongs; nor shall a member of the clergy or other minister of any religion be examined as to any communication made to the member of the clergy or other minister by any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the member of the clergy's or other minister's professional character, without the consent of the person."

The Minnesota Supreme Court has found that "the discipline enjoined" is akin to an uncodified principle of secrecy requiring a clergyman to hold communications in absolute confidence.  See In re Swenson, 182 Minn. 602, 237 NW 589 (1931).  Since we practice under this discipline of absolute secrecy, as memorialized in our ordination and installation vows, the statutory requirement that the communication be made according to the discipline of the church is of no consequence. Thompson, Minnesota Rules of Practice, Evidence, Section 501.06.

So it appears to me that, certainly in the context of a private confession situation, a pastor is not required under Minnesota law to divulge a confession of child abuse by the confessee and is, in fact, not to do so under State statute as well as our ordination vow. Moreover, the phrase "any person seeking religious or spiritual advice, aid, or comfort or advice given thereon in the course of the member of the clergy's or other minister's professional character" seems to liberally construe what is a case of private confession.

Minnesota law coincides quite nicely with our ordination vow, even extolling it. My ordination vow included an affirmative to the question: "Will you forgive the sins of those who repent, and will you promise never to divulge the sins confessed to you?"

That is also my understanding from an RC perspective.

Peace,
Michael