Disclaimer—The author of this article is not a lawyer.  The information contained herein is meant for educational purposes only and is not intended to be, nor in lieu of legal advice.  Should the reader have specific legal questions—qualified legal counsel should be obtained .
       

Perhaps no other issue or topic the law enforcement chaplain is involved with poses greater potential to destroy the chaplain or chaplaincy than the misuse or breach of confidentiality.  The sacred and hard-earned trust placed in the department chaplain is a complete, yet fragile one at best.  The reason personnel utilize the chaplaincy is not because of all the degree’s hanging about the chaplain’s walls, rather, the chaplain has developed credibility in his or her role and proven themselves faithful.  Should the chaplain lose his credibility due to confidentiality issues, he has all but lost his ability to minister effectively.

Confidentiality as a topic, offers a myriad of “legaleaze” with which most clergy are not equipped to deal.  Where one would hope for information or basic standards in black and white, confidentiality only offers many shades of gray.  With the differences in denominational structure, religious continuity, confusion in terminology, and the ever-changing legislative climate affecting its outcome at every turn, it offers a harsh arena within to work.  One thing is for certain—most clergy do not have a sufficient understanding of confidentiality to protect themselves or their agency. 

The information rendered within this section is meant to be informational only and seeks to raise the chaplain’s consciousness relative to the issue.  It will then be incumbent upon the chaplain to take the information and research how it applies to them specifically within their own denominational or organizational structure.  Once again, should specific legal questions arise, the individual should seek qualified legal counsel.

Note—The laws of confidentiality are different and unique to each state; therefore the body of information within this article will be generic; however, occasionally California law will be cited in example.

Confidentiality?

Why is there so much confusion relative to confidentiality?  When I first entered the ministry, I believed that confidentiality just meant that members of the clergy didn’t tell secrets.  In my simplistic thought, I was partially correct.  However, it wasn’t long until I found out that it was that and a whole lot more.  

Right from the start we have problems as we find ambiguity in the basic terminology.  We tend to use the term “confidentiality” as an umbrella term.  By that I mean we lump together terminology such as confidentiality, privileged communication, penitential communication, clergy-penitent privilege, etc. and believe it all has the same intrinsic meaning.  This could not be further from the truth and a dangerous proposition for the unaware.

Most states have these terms bi-furcated.  When speaking to the base issues of confidentiality, we are usually speaking to a clergyman’s ethical, moral, or professional mandate to keep information he hears or is told a secret.  Suffice to say, every member of the clergy, regardless of their status in ministry or licensing, has this obligation to confidentiality.  Within most churches or agencies, this is not an issue of confusion and probably is not worth spending a great deal of time on.  It is not until we get to the other issue of confidentiality that the waters muddy a bit.

When we leave the realm of the ethical, moral, or professional obligations to confidentiality, we enter the statutory regulations relative to confidentiality.  These are protections that are usually held for those members of the clergy who are licensed or ordained.  Many states refer to this kind of confidentiality as “Privileged Communication”.  Basically, privileged communication is a “statutory protection that enables a member of the clergy to receive certain communications in the context of his/her pastoral capacity, and being immune from testifying to the same in a court of law”¹ .  These protections generally come under the “rules of evidence” as they usually refer to what evidence is or is not admissible in a court of law.  

Behind the legal privilege lies a social policy that would “encourage a person rather than discouraging persons from confession or seeking pastoral counsel.”  The Minnesota Supreme Court noted the reason:
      
          “The fundamental thought is that one
          may safely consult his spiritual
          advisor.  The purpose of the statute is one
          of a large public policy, based
          in part on the idea that the human being
          does sometimes have need of
          a place of penitence and confession and
          spiritual discipline.  When any
          person enters that secret chamber, this
          statute closes the door upon him
          and civil authority turns away its ear.”²
         
 As with all legal jargon, the terminology or “elements” of these statutes are critical to understand.  Within them lies the blueprint for what the law says can or cannot be held confidential for a member of the clergy.  They will define what a “clergyman” is, what a “penitent” is, and under what circumstances or situations privileged communication can be claimed.  Members of the clergy do not have to memorize these statutes, but they most certainly need to know where they are found and how they operate.  A misunderstanding or misapplication within this realm could potentially lead one to jail or to a lawsuit, so it is imperative to be educated on this.

One revelation that usually comes out of this newly acquired knowledge is that the laws of confidentiality are broadly written to be very inclusive of all religious persuasions.  What this means to most chaplains is that issues of how the court may view them or their role relative to privileged communication usually falls back to their particular denomination or ecclesiastical covering.  How you are viewed by your church or organization, what your by-laws state, what written policies you have in place or what is a matter of practice and/or history may all come into play.  It would be advisable to contact your denomination’s legal counsel or talk to a lawyer to have them review the laws of your particular state and see how they apply to you and your church.  This is one area that an ounce of prevention will certainly yield more than a pound of cure!
     
One could say that in a base sense we all have the same confidentiality…
It’s just a matter of what we want to pay to keep it!!

Child Abuse

Another area that is often problematic for the clergyman is that of child abuse and mandated reporting.  Again, state legislatures have contributed to this confusion by passing laws that have made clergy mandated reporters one year, and having reversed themselves several years later.  It has been my experience that most clergy and government entities still do not understand how these laws apply to clergy.

Mandated reporters are persons who are required by law to report known or suspected child abuse to the authorities.  They have a legal duty or “mandate” to report suspicion or knowledge of child abuse that they may encounter in the course of their professional capacity.  Failure to report such abuse could lead to criminal action being taken against them.  Because of the legal mandate to report such abuse, mandated reports are usually immune from civil actions if the report turns out to be false.

Discretionary reporters, on the other hand, are persons who have a concern for a child’s welfare but do not have a legal mandate to report such abuse.  They may make a “good-faith” report if they have good reason to believe abuse is occurring.  Since discretionary reporters do not have a legal mandate to report, they cannot be held criminally liable for failure to report.  However, with this comes the other side of the coin--civil liability.  If it can be proven that a report was made maliciously, frivolously, or with reckless disregard for the truth, the reporter may be subject to civil liability.

Where many clergy get into trouble outside of the general rules regarding child abuse reporting is when they have dual mandates.  That is to say, they have confidentiality within one part of their profession, but are mandated to report within yet another.  Examples of this would be where a person is a clergyman and a school’s principal, or a policeman and clergyman, clergyman and licensed counselor, etc.  There is much case law to show the pitfalls in having dual mandates and how this can be a very delicate situation--maybe a no-win situation for a member of the clergy.  Again, it is incumbent on the reader to find out how the rules of child abuse and mandated reporting apply to them within their particular state and denominational structure.

Some states have changed the laws in recent years to make clergy mandated reporters once again but have kept the confessional intact.  An example of this lies in California law where AB3354, chaptered in 1996, changed sections of the California Penal Code.  In § 11166 (a) of the California Penal Code, it specifies the duties of the clergy as mandated reporters except as provided in subsection (C).  In paragraph (C) (1) it says; “A clergy member who acquires knowledge or reasonable suspicion of child abuse during a penitential communication is not subject to paragraph (a)”³.  This is one example of where the law can both clarify and confuse the issue of mandated reporting in the same statute.

Irrespective of what the law may or may not say, there are those individuals and/or religious denominations that will maintain absolute confidentiality no matter what.  In matters of moral conscious or denominational direction, the chaplain must do whatever he/she feels they must.  The cost of maintaining confidentiality must be carefully weighed as the consequences rest squarely on the shoulders of the chaplain.

Americans with Disability Act--ADA
    
Another aspect of confidentiality that may apply to clergy is that found within the Americans with Disability Act or ADA as it is commonly referred.  The ADA was never intended to be a confidentiality statute; rather, it was enacted as part of anti-discrimination legislation. 

The reason the ADA can apply to clergy is that it is federal law, which supercedes state confidentiality laws.  Where it is relevant to clergy is that within the ADA statute it defines HIV and AIDS as a disability⁴ . 

Discrimination against persons with contagious diseases based upon unsubstantiated perceptions of threat of infection violates the ADA.  This means that you cannot disclose a person’s HIV or AIDS status without their permission or you could be violating their civil rights.  Again, this was never meant to be a confidentiality statute, but a protection for those with HIV and AIDS against discrimination.  Depending on the scope of a chaplaincy program, this may or may not be an issue.  However, this is one of those low probability, high liability issues that the chaplain must be appraised if they are to protect themselves or their programs.

Chaplaincy Programs Validated

Ask any chaplain who has started a chaplaincy program what the most common question or misperception is that he has had to deal with and he will tell you it is the perceived problem of the separation of church and state issues.  However, he will also tell you that once a city attorney or county counsel reviewed the applicable case law, it all became a non-issue.

Several federal courts have upheld the constitutionality of legislative, military, and hospital chaplaincies.  In addition, the Washington Supreme Court upheld the constitutionality of a sheriff’s department chaplaincy program.

In Marsh v. Chambers⁵, the Supreme Court relied upon historical background of legislative chaplaincies to justify that of the Nebraska legislature, instead of applying the three-prong Lemon test of constitutionality.  Further, the Court held activities of the legislative chaplain amounted to neither an establishment of religion nor a step toward establishment. Id. at 792 .  Instead, the chaplaincy was viewed as “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” Id.

In Katcoff v. Marsh⁶ , the court found that military chaplaincy passes the Lemon test. 755 F.2d at 232 . The court considered the history of these chaplaincies, id. at 232 , the need to alleviate unique stresses of military life, id. at 228 , and the need to permit military personnel Free Exercise of religion in remote locations in rejecting application of Lemon and upholding Army chaplaincies.  Id. at 235 .

In the Eighth Circuit Court of Appeals decision in Carter v. Broadlands⁷, the court utilized the Lemon test to uphold the constitutionality of a hospital chaplaincy program. See 857 F.2d 448.   In providing grief counseling and related services, the court found a secular purpose for the chaplaincy, necessary under the first prong of Lemon. Id. at 454 .  The court went further and determined that the chaplain did not proselytize or promote specific religious beliefs; therefore the second prong of Lemon was satisfied. Id. at 455 .  Additionally, the court further held the third prong was not only satisfied, the level of government and religious entanglement was actually reduced by the chaplain’s involvement in meeting patient’s religious needs and supervising volunteer chaplains. Id. at 456 .

The Washington Supreme Court applied the Lemon test in upholding a volunteer police chaplaincy in Malyon v. Pierce County⁸.  In providing secular services such as death notification and counseling, the program met the secular purpose prong. Id. at 1275, 1286 .  Further, because police chaplains provided broad-based counseling services to people of all religions or no religion at all, the effect was not a prohibited advancement of religion. Id. at 1288 .  Additionally, as Pierce County chaplains were under the sole authority of the sheriff’s department, did not serve as representatives of their denominations, and were not paid a state salary, the court found no third-prong excessive entanglement of government and religion. Id.

The main court case used as the benchmark for the validity of chaplaincies is Lemon v. Kurtzman⁹ .  The Lemon case established a three-pronged litmus test to determine whether a statue or government policy will offend the Establishment Clause of the First Amendment.  The three prongs of the Lemon test state that a program or policy must:

          1.  Have a secular purpose
          2.  Be religiously neutral
          3.  Avoid excessive government entanglement

Having satisfied each of these “prongs” a program or policy would not violate the Establishment Clause.  Based upon the federal and state law cited above, it is clear that a chaplaincy program in a police department does not violate the Establishment Clause of the First Amendment.

Dr. Charles R. Lorrain is the Executive Director of the International Conference
of Police Chaplains.

  1.  California Evidence Code § 1032 “Penitential Communication”--synopsis
  2.  Placer County Law Enforcement Chaplaincy Training Manual
       “Keeping Secrets”—Author unknown
  3.  California Penal Code § 11166 (C) (1) “Exemption to duty”
  4.  Americans with Disability Act--1990
  5.  Marsh v. Chambers, 463 U.S. 783 (1983)
  6.  Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985)
  7.  Carter v. Broadlands Medical Ctr., 857 F.2d 448 (8th Cir. 1988)
  8.  Malyon v. Pierce County, 935 P.2 1272 (Wash. 1997)
  9.  Lemon v. Kurtzman, 403 U.S. 602 (1971)