法律英语：09 Confidentiality With Clergy

by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.

Confidentiality⁴ with clergy⁵ is an important part of many people’s religious experience –from the formal Catholic sacrament, to more informal counseling by clergy on such important issues such as marriage and child rearing. Jeffrey from Maryland wrote:

Listening to the episode on confidentiality for lawyers and psychiatrists⁶ started me thinking about mandated⁷ reporting. I'd love to hear your take on mandated reporting for clergy/pastoral counselors⁸.

The law recognizes several evidentiary privileges that allow one person to refrain from testifying about communications with another person. For example, spouses⁹ can refuse to testify about communications with each other, lawyers can refuse to testify about communications with clients, and clergy members can refuse to testify about communications with communicants, or the parishioner.

The law recognizes these privileges in part because society benefits from open, honest and unfettered communication with certain people. Society benefits when a client discusses his case candidly¹⁰ with the lawyer, and marital¹¹ relationships are stronger when spouses feel comfortable discussing anything. If we knew that a court could force us to testify against our spouses, then we would not be as honest with our spouses, undermining the fabric¹² of the relationship.

The same logic¹³ applies to the clergy-communicant relationship. Society benefits from communicants disclosing everything they have done in order to obtain complete spiritual guidance.

But, as with the psychotherapist and attorney relationships, there are situations in which a clergy member can be forced to speak under threat of contempt of court. As discussed in the previous episode, in some states, a psychotherapist has a duty to break his duty of confidentiality to his patient and report credible¹⁴ and specific threats of violence to law enforcement. An attorney does not have a legal duty to do so, but may do so in some situations without breaking his duty of confidentiality to his client.

As far as my research shows, states generally do not impose on clergy the duty to report credible threats of violence to police. However, where the threat is against a child, or in some domestic violence situations, some states require active reporting.

The law generally does not impose such a duty on clergy because clergy members are trained in spiritual guidance, not mental health. While clergy members might provide counseling that has a therapeutic¹⁵ effect, they simply do not have the same expertise¹⁶ and state-imposed training requirements that psychotherapists do. However, with regard to children and battered¹⁷ spouses, the state has a stronger interest in protecting them due to their position of diminished power and access to police help.

Clergy members do have duties to warn of criminal activity occurring within their ranks. For example, if a parishioner goes to a priest and discloses that another priest molested¹⁸ him, then the priest who learns about the abuse has a duty to report it. This conflicts with a priests duty of confidentiality to the parishioner, and might break vows¹⁹ the priest has to the church, but the priest must report because society has determined²⁰ that the well-being²¹ of the harmed parishioner is more important.

Clergy can also refuse to testify against communicants in some situations. For example, if a man killed his wife, and confesses it to his rabbi, the rabbi can refuse to disclose the information at the murder trial. Most courts have carved out exceptions to this rule in situations where children or domestic violence is involved, or when there is suspicion of repeated or institutional abuse.

A couple sticky issues arise in this area, for example when a person is friends with his clergy member, and discloses something as a friend, but not necessarily seeking spiritual guidance. In that situation, the clergy member can be forced to testify because he was not acting²² as a clergy member. Another gray area is who exactly is the “holder” of the privilege. In the attorney-client relationship, confidential³ information generally belongs to the client, and the client chooses when to waive²³ confidentiality and speak. In the clergy-communicant situation, the law is often unclear as to who has the right to disclose the information.

Overall, this area of the law is evolving, sticky, and pits several constitutional doctrines²⁴ against each other. States handle the issues very differently, and most cases are very fact-specific.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful²⁵ Life. Be sure to take the short listener survey by clicking on the green 5 to the right of the transcript²⁶. You can send questions and comments to。。。or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 confidential   

adj.秘（机）密的，表示信任的，担任机密工作的

参考例句：

• He refused to allow his secretary to handle confidential letters.他不让秘书处理机密文件。
• We have a confidential exchange of views.我们推心置腹地交换意见。

4 confidentiality   

n.秘而不宣，保密

参考例句：

• They signed a confidentiality agreement. 他们签署了一份保守机密的协议。
• Cryptography is the foundation of supporting authentication, integrality and confidentiality. 而密码学是支持认证、完整性和机密性机制的基础。

5 clergy   

n.[总称]牧师，神职人员

参考例句：

• I could heartily wish that more of our country clergy would follow this example.我衷心希望，我国有更多的牧师效法这个榜样。
• All the local clergy attended the ceremony.当地所有的牧师出席了仪式。

6 psychiatrists   

n.精神病专家，精神病医生( psychiatrist的名词复数 )

参考例句：

• They are psychiatrists in good standing. 他们是合格的精神病医生。 来自辞典例句
• Some psychiatrists have patients who grow almost alarmed at how congenial they suddenly feel. 有些精神分析学家发现，他们的某些病人在突然感到惬意的时候几乎会兴奋起来。 来自名作英译部分

7 mandated   

adj. 委托统治的

参考例句：

• Mandated desegregation of public schools. 命令解除公立学校中的种族隔离
• Britain was mandated to govern the former colony of German East Africa. 英国受权代管德国在东非的前殖民地。

8 counselors   

n.顾问( counselor的名词复数 )；律师；（使馆等的）参赞；（协助学生解决问题的）指导老师

参考例句：

• Counselors began an inquiry into industrial needs. 顾问们开始调查工业方面的需要。 来自《现代英汉综合大词典》
• We have experienced counselors available day and night. ) 这里有经验的法律顾问全天候值班。） 来自超越目标英语 第4册

9 spouses   

n.配偶，夫或妻( spouse的名词复数 )

参考例句：

• Jobs are available for spouses on campus and in the community. 校园里和社区里有配偶可做的工作。 来自辞典例句
• An astonishing number of spouses-most particularly in the upper-income brackets-have no close notion of their husbands'paychecks. 相当大一部分妇女——特别在高收入阶层——并不很了解他们丈夫的薪金。 来自辞典例句

10 candidly   

adv.坦率地，直率而诚恳地

参考例句：

• He has stopped taking heroin now,but admits candidly that he will always be a drug addict.他眼下已经不再吸食海洛因了,不过他坦言自己永远都是个瘾君子。
• Candidly,David,I think you're being unreasonable.大卫，说实话我认为你不讲道理。

11 marital   

adj.婚姻的，夫妻的

参考例句：

• Her son had no marital problems.她的儿子没有婚姻问题。
• I regret getting involved with my daughter's marital problems;all its done is to bring trouble about my ears.我后悔干涉我女儿的婚姻问题, 现在我所做的一切将给我带来无穷的烦恼。

12 fabric   

n.织物，织品，布；构造，结构，组织

参考例句：

• The fabric will spot easily.这种织品很容易玷污。
• I don't like the pattern on the fabric.我不喜欢那块布料上的图案。

13 logic   

n.逻辑(学)；逻辑性

参考例句：

• What sort of logic is that?这是什么逻辑？
• I don't follow the logic of your argument.我不明白你的论点逻辑性何在。

14 credible   

adj.可信任的，可靠的

参考例句：

• The news report is hardly credible.这则新闻报道令人难以置信。
• Is there a credible alternative to the nuclear deterrent?是否有可以取代核威慑力量的可靠办法？

15 therapeutic   

adj.治疗的，起治疗作用的；对身心健康有益的

参考例句：

• Therapeutic measures were selected to fit the patient.选择治疗措施以适应病人的需要。
• When I was sad,music had a therapeutic effect.我悲伤的时候，音乐有治疗效力。

16 expertise   

n.专门知识(或技能等)，专长

参考例句：

• We were amazed at his expertise on the ski slopes.他斜坡滑雪的技能使我们赞叹不已。
• You really have the technical expertise in a new breakthrough.让你真正在专业技术上有一个全新的突破。

17 battered   

adj.磨损的；v.连续猛击；磨损

参考例句：

• He drove up in a battered old car.他开着一辆又老又破的旧车。
• The world was brutally battered but it survived.这个世界遭受了惨重的创伤,但它还是生存下来了。

18 molested   

v.骚扰( molest的过去式和过去分词 )；干扰；调戏；猥亵

参考例句：

• The bigger children in the neighborhood molested the younger ones. 邻居家的大孩子欺负小孩子。 来自《简明英汉词典》
• He molested children and was sent to jail. 他猥亵儿童，进了监狱。 来自《简明英汉词典》

19 vows   

誓言( vow的名词复数 )； 郑重宣布，许愿

参考例句：

• Matrimonial vows are to show the faithfulness of the new couple. 婚誓体现了新婚夫妇对婚姻的忠诚。
• The nun took strait vows. 那位修女立下严格的誓愿。

20 determined   

adj.坚定的；有决心的

参考例句：

• I have determined on going to Tibet after graduation.我已决定毕业后去西藏。
• He determined to view the rooms behind the office.他决定查看一下办公室后面的房间。

21 well-being   

n.安康，安乐，幸福

参考例句：

• He always has the well-being of the masses at heart.他总是把群众的疾苦挂在心上。
• My concern for their well-being was misunderstood as interference.我关心他们的幸福，却被误解为多管闲事。

22 acting   

n.演戏，行为，假装；adj.代理的，临时的，演出用的

参考例句：

• Ignore her,she's just acting.别理她，她只是假装的。
• During the seventies,her acting career was in eclipse.在七十年代，她的表演生涯黯然失色。

23 waive   

vt.放弃，不坚持(规定、要求、权力等)

参考例句：

• I'll record to our habitat office waive our claim immediately.我立即写信给咱们的总公司提出放弃索赔。
• In view of the unusual circumstances,they agree to waive their requirement.鉴于特殊情况，他们同意放弃他们的要求。

24 doctrines   

n.教条( doctrine的名词复数 )；教义；学说；（政府政策的）正式声明

参考例句：

• To modern eyes, such doctrines appear harsh, even cruel. 从现代的角度看，这样的教义显得苛刻，甚至残酷。 来自《简明英汉词典》
• His doctrines have seduced many into error. 他的学说把许多人诱入歧途。 来自《现代汉英综合大词典》

25 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。

26 transcript   

n.抄本，誊本，副本，肄业证书

参考例句：

• A transcript of the tapes was presented as evidence in court.一份录音带的文字本作为证据被呈交法庭。
• They wouldn't let me have a transcript of the interview.他们拒绝给我一份采访的文字整理稿。