Clergy Confidentiality in Arizona: What is Confidential?

By June 15, 2020 Church
Clergy Confidentiality in Arizona: What is Confidential?

Members of religious congregations often rely on their clergypeople in times of uncertainty and distress, and the offering of penitence is even a core practice in some faiths. Naturally this often entails the disclosing of personal and otherwise private information—the sort of disclosures that people generally like kept secret for any number of reasons. Because of how important this is in the practice of religion, the clergy-penitent legal privilege has long been an observed in Arizona, as in the US more broadly.

But what is protected under this privilege, exactly? As one might expect, while every state in the union has some form of this privilege, its particulars differ from state to state, depending in large part on the scope of other laws requiring the revelation of information in the event of certain legal scenarios. The first clergy-penitent statute was enacted in 1828, in the state of New York, after a high court found that the privilege as it existed in common law applied only to Roman Catholics, since the practice of confession was required by that particular religion, and ministers of other faiths were not naturally afforded it. This statute changed the logic such that the privilege protected not only what was disclosed as part of a religious mandate, but any communication made in confidence to a religious leader.

In large part, this concept of the privilege has spread to the other states, including Arizona, and has held the line in the years since. The statute determining clergy-penitent privilege in Arizona is ARS section 13-4062(3), which states,

“A person shall not be examined as a witness in the following cases: […]

  1. A clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.”

In the meantime other concerns have arisen that some states have decided must have priority over this privilege. Chief among these are laws requiring clergy to report to the state any knowledge they may gain in the case of child abuse or neglect. Yet, in Arizona, the confidentiality mentioned in the above statute holds—for the most part.

In ARS section 13-3620(L), regarding the reporting of such situations, we find the following language:

“In any civil or criminal litigation in which a child’s neglect, dependency, physical injury, abuse, child abuse or abandonment is an issue, a member of the clergy, a Christian Science practitioner or a priest shall not, without his consent, be examined as a witness concerning any confession made to him in his role as a member of the clergy, a Christian Science practitioner or a priest in the course of the discipline enjoined by the church to which he belongs. This subsection does not discharge a member of the clergy, a Christian Science practitioner or a priest from the duty to report pursuant to subsection A of this section.”

Therefore, where a church’s theology prohibits disclosing confidential information and where the communication was made as part of a “confession” that was intended to be private and for spiritual purposes—the clergyperson may not be forced to repeat the words spoken to them. However, the clergyperson must report any evidence they see—behavioral, physical, and so on—indicating the presence of abuse or neglect. This makes for murky situations, to say the least.

So when a church, ministry, or other nonprofit organization in Arizona needs advice or legal aid regarding the laws surrounding confidentiality, Provident Law’s church and nonprofit attorneys are here to help. We recognize how essential these organizations are to society, and we provide broad transactional and general counsel services to keep them running smoothly. Contact us to learn more.

But what is protected under this privilege, exactly? As one might expect, while every state in the union has some form of this privilege, its particulars differ from state to state, depending in large part on the scope of other laws requiring the revelation of information in the event of certain legal scenarios. The first clergy-penitent statute was enacted in 1828, in the state of New York, after a high court found that the privilege as it existed in common law applied only to Roman Catholics, since the practice of confession was required by that particular religion, and ministers of other faiths were not naturally afforded it. This statute changed the logic such that the privilege protected not only what was disclosed as part of a religious mandate, but any communication made in confidence to a religious leader.

In large part, this concept of the privilege has spread to the other states, including Arizona, and has held the line in the years since. The statute determining clergy-penitent privilege in Arizona is ARS section 13-4062(3), which states,

“A person shall not be examined as a witness in the following cases: […]

  1. A clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.”

In the meantime other concerns have arisen that some states have decided must have priority over this privilege. Chief among these are laws requiring clergy to report to the state any knowledge they may gain in the case of child abuse or neglect. Yet, in Arizona, the confidentiality mentioned in the above statute holds—for the most part.

In ARS section 13-3620(L), regarding the reporting of such situations, we find the following language:

“In any civil or criminal litigation in which a child’s neglect, dependency, physical injury, abuse, child abuse or abandonment is an issue, a member of the clergy, a Christian Science practitioner or a priest shall not, without his consent, be examined as a witness concerning any confession made to him in his role as a member of the clergy, a Christian Science practitioner or a priest in the course of the discipline enjoined by the church to which he belongs. This subsection does not discharge a member of the clergy, a Christian Science practitioner or a priest from the duty to report pursuant to subsection A of this section.”

Therefore, where a church’s theology prohibits disclosing confidential information and where the communication was made as part of a “confession” that was intended to be private and for spiritual purposes—the clergyperson may not be forced to repeat the words spoken to them. However, the clergyperson must report any evidence they see—behavioral, physical, and so on—indicating the presence of abuse or neglect. This makes for murky situations, to say the least.

So when a church, ministry, or other nonprofit organization in Arizona needs advice or legal aid regarding the laws surrounding confidentiality, Provident Law’s church and nonprofit attorneys are here to help. We recognize how essential these organizations are to society, and we provide broad transactional and general counsel services to keep them running smoothly. Contact us to learn more.