A Legal Discusssion of the the Rabbi-Penitent Privilege

Margaret E. Retter, Esq.

(This article solely deals with New York law. Although your state law may be similar, please consult your state law regarding the privilege that applies to your communications with your rabbi.)

I.               PRIVILEGE.

Is the Rabbi-Penitent Communication Privileged?

New York State Rules of Evidence provides in C.P.L.R. § 4505:

Confidential communication to clergy is privileged unless the person confessing waives the privilege,                                                                                               a clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him                                                   in his profession character as a spiritual advisor.

This provision is included among statutes regulating the admissibility of evidence in legal proceedings, as are communications between an attorney and a client, a physician and a patient, etc. The obvious purpose of granting legal privilege to such communication, is to encourage free and open discussion between the individual and their clergy.

The New York State statute provides that the privilege belongs only to the congregant/penitent (1), and not to the clergyman/rabbi. It is therefore, clear that violation of the privilege will render the content of the communication inadmissible and/or excludable at trial. However, two phases of this statute require further clarification, and must be discussed prior to determining whether the communication falls within the privilege:

A)    Nature of the Confession

What is the nature of the confession protected by this statute, and, is the communication made to the clergy in “his professional character as spiritual advisor?” 

i.      New York Courts have held that a confession by a penitent to their clergyman for spiritual advice, aid and comfort, is privileged even though they are not a member of the church from which they seek advice. Kobloff v. Bronx Savings Bank, 233 N.Y.S.2d 849 (1962).

ii.     Is a communication made by both husband and wife to a clergyman (rabbi) with a view to reconciliation one which is “made” to a clergyman “in his professional character as a spiritual advisor?” Such communication was held privileged under former section 351 of the Civil Practice Act, in the case of Kruglikov v. Kruglikov, 217 N.Y.S. 2d 845 (4th Dept. 1962). The Court held in Kruglikov, suprathat the privilege is “absolute in the sense that, even in matter involving public justice, a court may not compel disclosure of confidential communications between husband and wife, (to the clergyman) …”

As the Court in Kruglikov stated:

The attorney for the defendant does not take issue with the contention of [the] Rabbi as embodies in the letter to the court dated May 17, 1961, from the New York Board of Rabbis, wherein it is stated: “The New York Board of Rabbis deem is essential for the proper work of the Rabbi in the community, that any confidence reposed in him by husband and wife, individually or jointly, or anyone else who has come to him for counseling not be divulged, and we hope that the Court will sustain this action. Otherwise the confidential role of the Rabbi in counseling would be completely vitiated, to the detriment of those who seek this guidance.” Said attorney argues, however, that neither party to this action sought guidance from [their] Rabbi, nor was either a member of his congregation.

*          *          *          *

The court is of the opinion that it matters not how and by whom the meeting was initiated. The parties had formerly lived in the community and were known to [the] Rabbi; indeed, the plaintiff had been employed by his congregation. The fact is that they consulted a representative of their faith in the privacy of his study in the Synagogue with a view to reconciliation and restoring their marriage. It cannot be supposed that either husband or wife, or both, would have been willing to disclose their marital problems to the Rabbi if they thought that what they said would ever be divulged, even in a judicial proceeding. Paraphrasing the language of the Court of Appeals in Warner v. Press Pub. Co., 132 N.Y. 181, 186, what was said by the parties here, in the privacy of the Rabbi’s study was stamped “with that seal of confidence which the parties in such a situation would feel no occasion to exact.” In the privilege conferred by Section 351 of the Civil Practice Act is not to be stultified, confidential communications to a clergyman under the circumstances here involved must be deemed to fall within the spirit of this statute.

Furthermore, the court, found in Kruglikov, supra,that a conversation held by a husband and wife in the privacy of the rabbi’s study with whom they were consulting with a view to reconciliation and restoring their marriage and with the view that neither party thought their conversation would ever be divulged even in a judicial proceeding was made to the Rabbi in his “profession as a spiritual advisor”. Because the communication was made in the Rabbi’s study it was stamped “with seal of confidence” and was privileged.

See also People v. Drelich, 123 A.D. 2d 441, 443, 506 N.Y.S.2d 746; and People v. Carmona, 606 N.Y.S.2d 879.

As can be seen, not every communication made by a person to a Rabbi falls within the scope of the privilege; rather the communication must be made to the clergyman, “in his professional character as a spiritual adviser” The New York Court of Appeals ruled that a Rabbi had not breached the confidentiality statute in revealing a murderer’s communication to him when the only purpose for which the accused contacted the Rabbi was for his help in finding lawyer and negotiating with the prosecutor’s office. People v. Drelich, supra.

B)    Is there a Waiver of the Privilege?

1.     Who holds the privilege?

The holder of the privilege has the power to invoke it or waive it. In the majority of states, including New York, the privilege is held by the “penitent”. (In New Jersey, the privilege is held by both the clergyman and the penitent, and both must waive it for disclosure to be permitted.).

2.     Are there third parties present who may cause the privilege to be vitiated?

The penitent should be instructed that any third-party presence regardless of the relationship (unless husband and wife) may “break” the privilege and permit the clergy to disclose the confidence.

II.             IS A VIOLATION OF THE CLERGY-PENITENT PRIVILEGE ACTIONABLE? 

In a case of first impression entitled Lightman v. Flaum, (Index No. 2169/97), decided in March 1999, Justice David Goldstein of the New York State Supreme Court (Queens County), granted summary judgment on a woman’s claim that two Orthodox Rabbis had violated their fiduciary duty of confidentiality by divulging the woman’s confidences relating to her marriage, in affidavits to the Court to oppose her custody petition in her divorce case. She commenced the action for violation of the clergy-penitent privilege, and for the intentional infliction of emotional distress. An action for defamation was dismissed.

The court found, that while “a cause of action does not automatically exist for a breach of an evidentiary rule, our court have repeatedly recognized that violation of certain privileges does give rise to a common law cause of action fro breach of the fiduciary duty of confidentiality”. Lightman, supra

As the court stated, it was aware of only one reported case, which addressed this particular issue. In Snyder v. Evagelical Orthodox Church, 216 Cal App. 3d 297 (1989), plaintiffs had confessed their adulterous relationship to certain members of the clergy, and although made in confidence to the clergy, the confession was revealed to a Church Board of Elders and a gathering of priests, ministers, pastors and guests. Defendants/Clergy moved to dismiss arguing that the court lacked jurisdiction over the conduct which was “ecclesiastical in nature”. The Court in Snyder, supra, held that under certain circumstances, tort liability could be imposed upon a member of clergy for revealing such confidences. It did however, recognize that substantial constitutional considerations relating to the First Amendment were involved, and held that various factors needed to be taken into account, including:

(1)    whether the acts complained of were taken pursuant to church doctrine, and

(2)    whether the state interest outweighed any concomitant burden on religion.

Moreover, in Snyder, supra, a four pronged balancing test was set forth:

(1)    whether there is a justifiable burden on expression of religious belief in relation to the effect upon significant societal interests; the government must be in furtherance of some compelling state interest:

(2)    the burden on expression must be essential to further this interest;

(3)    the type and level of the burden must be the minimum necessary to achieve the state interest; and,

(4)    the burden must apply to everyone, not just to those who have a religious belief.

See also Alexander v. Culp, 124 Ohio App. 3d 13 (1997) (plaintiff met with the defendant/minister for marriage counseling, whereupon, he disclosed in confidence to the minister, that he had several affairs during his marriage and was currently having an affair. Thereafter, the clergyman revealed the information to the plaintiff’s wife. In addition, the clergyman advised the wife, that her husband was unworthy of trust and counseled her to obtain a restraining order against her husband, to change the locks on the marital home, and to initiate divorce proceedings. The Ohio Court found the factual allegations sufficient to state a viable claim for common law negligence and stated:

“Public policy supports an action for breach of confidentiality by a minister. There is a public policy in favor of encouraging a person to seek religious counseling. People expect their disclosures to clergy members to be kept confidential… Whether a particular case interferes with First Amendment freedoms can be determined on a case by case basis.”

In the Lightman matter, although the defendant(s) clergy claimed, that to sustain a cause of action would impinge upon the free exercise of their religious rights, and that generally cases held that the imposition of liability for conduct or activities of a religious society or its members in furtherance of its religious is barred where the result would be an abridgement of the free exercise of religion, the court set forth numerous factors to be considered in which instances disputes involving religious entities may be adjudicated:

1)    Whether the dispute involving a religious entity may be decided by applying “neutral principle of law” and without resolving or impinging upon underlying controversies over religious doctrine.

Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra; Park Slope Jewish Ctr. v. Congregation B’Nai Jacob, 90 NYS2d 517; First Presbyt. of Schenectady v. United Presbyt. Church in United States of Am., 62 NY2d 110, 199-120; see also, Jones v. Wolf, 443 US 595.) These and other cases held that civil dispute involving religious institutions or persons may be addressed without offending constitutional restrictions, as long as neutral laws of general applicability are employed in the resolution or adjudicated. (Emphasis added.)

2)    Whether the conduct of the religious entity remains subject to regulation for the protections of society. This is especially so where the imposition of liability or sanctions for the conduct complained of is secular in nature, namely where liability is imposed equally, for religious institutions, and parities, as well as for others, and where the basis of such liability may be determined without examination into religious law or policies. Lightman, supraThus, the free exercise clause is not an absolute defense where tortious liability is sought to be imposed upon clergy. It may only serve as a defense where the alleged tortious conduct was undertaken pursuant to religious principle or doctrines.

3) Even where the conduct is predicated upon religious beliefs, it may nevertheless form the basis for liability where significant societal interest are involved. It has been held that the intentional torts of the clergy may be actionable, notwithstanding the allegation that are incidents of religious beliefs. (See, Meroni v. Holy Spirit Ass. for the Unification of World Christianity, 119 A.D.2d 200). Other courts have sustained causes of action against religious organizations for negligent supervision and retention, upon the ground that a liability determination would not require examination of any religious doctrine nor would it inhibit any religious practice. Kenneth R. V. Roman Catholic Diocese of Brooklyn, 220 A. D. 2d 159. In such instances, the First Amendment will not serve as a defense because it is not implicated.

Moreover, the court in Lightman, sustained the cause of action of intentional infliction of emotional distress against both defendant rabbis finding that the complained of conduct was so “outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (Lightman, supra, citing Freihoger v. Hearst Corp., 65 N.Y.2d 135, 146).

Presently, the law as decided by Justice Goldstein in the Lightman case is the law in New York State. A violation of the clergy-penitent privilege is actionable.


1 In this article, which discusses privilege and confidentiality within the context of Orthodox Judaism, I will refer to the penitent as the congregant and the clergyman as rabbi.

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