Privileged Communications

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Privileged Communications

Slides prepared by Brian J. Novak,
Attorney-Advisor, Garrison-OSJA, for presentation
to Chaplain Unit Ministry Team Training, 19
August 2006. Presentation today by CH (MAJ) Joe
Hughes, Family Life Chaplain
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References

• Military Rule of Evidence 503
• AR 165-1
• AR 608-18

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Purpose

• Explain a persons privilege to refuse to
  disclose and to prevent another from disclosing a
  confidential communication by the person to a
  clergyman or to a clergymans assistant.

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Agenda

• Privileged Communications
• Rules for disclosing Privileged Communications
• Sensitive Communications
• Discussion Problems
• Interpretation of Right
• Supervisory Issues

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Privileged Communications
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Privileged Communication -- Definition

• Privileged Communications. A privileged
  communication is defined as any communication to
  a chaplain or chaplain assistant given as a
  formal act of religion or as a matter of
  conscience, that is, any communication that is
  made in confidence to a chaplain acting as a
  spiritual advisor or to a chaplain
• (Cont on next slide)

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Privileged Communication -- Definitioncont.

• assistant aiding as a spiritual advisor, and that
  is not intended to be disclosed to third persons
  other than those to whom disclosure furthers the
  purpose of the communication, or to those
  reasonably necessary for the transmission of the
  communication.

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Rules for Disclosing Privileged Communication

• The privilege against disclosure belongs to the
  penitent.
• A chaplain or chaplain assistant may NOT disclose
  the content of privileged communication without
  the express consent,of the person to whom the
  privilege belongs.

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Military Rule of Evidence(M.R.E.) 503

• General rule of privilege. A person has a
  privilege to refuse to disclose and to prevent
  another from disclosing a confidential
  communication by the person to a clergyman or to
  a clergymans assistant, if such communication is
  made either as a formal act of religion or as a
  matter of conscience.

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Confidential Communication M.R.E. 503(b)

• A communication is confidential if made to a
  clergyman in the clergymans capacity as a
  spiritual advisor or to a clergymans assistant
  in the assistants official capacity and is not
  intended to be disclosed to third persons other
  than those to whom disclosure is in the
  furtherance of the purpose of the communication
  or to those reasonably necessary for the
  transmission of the communication.

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Clergyman - M.R.E. 503(b)

• A clergyman is a minister, priest, rabbi,
  chaplain, or other similar functionary of a
  religious organization, or an individual
  reasonably believed to be so by the person
  consulting the clergyman.

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Rules for Disclosing Privileged Communications

• If a military judge or other presiding official
  determines that no privilege exists, a chaplain
  or chaplain assistant may be subject to punitive
  or adverse administrative action for failing to
  comply with the ruling.
• Also, a chaplain should not presume that the
  military concepts of privileged communication
  will prevent disclosure in state courts.

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Rules for Disclosing Privileged Communications --
contd

• Chaplains, in deciding whether or not to disclose
  information, must also consider the tenets of
  their faith, the provisions of their ordination
  vows, and their individual consciences.
• Not disclosing information when a legal
  obligation to disclose information exists, may
  result in punitive or adverse administrative
  action.

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Rules for Disclosing Privileged Communications --
contd

• Due to the complexity and importance of
  preventing unauthorized disclosure of
  information, chaplains and chaplain assistants
  are advised to consult with supervisors, seek
  legal counsel from the Staff Judge Advocate, or
  ask for policy guidance from the Chief of
  Chaplains (OCCH).

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Sensitive Information
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Sensitive Information -- Definition

• Any non-privileged communication to a chaplain,
  chaplain assistant, or other chaplain personnel
  that involves personally sensitive information
  that would not be a proper subject for general
  dissemination.

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Sensitive Information -- Definition

• Sensitive information should normally not be
  disclosed unless the declarent expressly permits
  disclosure.

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Sensitive Information -- Definition

• Knowledge of a soldiers enrollment in Drug
  Alcohol Programs, Psychiatric Treatment, Prior
  Arrest or Prior Hospitalization is generally
  considered as Sensitive Information.

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Rules for Disclosing Sensitive Information

• Sensitive information should NOT be disclosed
  unless the individual about whom the information
  pertains expressly consents.
• There is generally no legal impediment to
  disclosure of this information.
• In appropriate cases, such information should be
  disclosed.

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Rules for Disclosing Sensitive Information

• Remember to consider the tenets of your faith,
  the provisions of your ordination vows, and your
  individual conscience.
• Chaplains who refuse to disclose Sensitive
  Information when required to do so may be subject
  to punitive and adverse administrative action.

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Rules for Disclosing Sensitive Information

• Proper handling of Sensitive Information
  reinforces trust in the Chaplaincy by soldiers
  and their family members.

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Discussion Problems
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U.S. v. Moreno

• Three Part Test
• Communication must be formal act of religion or
  as a matter of conscience.
• Must be made to a clergyman in his capacity as a
  spiritual advisor.
• Communication must be intended to be confidential.

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Discussion Problem 1

• Soldier makes appointment with battalion chaplain
• Soldier feels hed hurt himself unless he got
  some help
• Chaplain warns soldier that expressions of intent
  to harm self/others would not be treated
  confidentially
• Chaplain testifies in court to support motion to
  suppress
• Chaplain provides statements made before warning

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U.S. v. ISHAM

• Chaplains testimony was protected.
• The Soldier went to the Chaplain in his spiritual
  capacity at a business hour appointment.
• The Soldier made statements while under great
  mental distress only to get help.
• Chaplain and Soldiers intent was to preserve
  confidentiality but only disclose information
  that was necessary to help the Soldier.

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Discussion Problem 2

• Soldier, Catholic, married, having family
  problems
• Engaged in sexual acts with daughter
• Calls pastor, also father-in-law, discloses
  sexual acts
• Dad, can you help me? My marriage is falling
  apart
• Son, is it true you took liberties with your
  daughter?
• Yes, Dad, and I feel like a dog will you pray
  for me?
• Yes, I will.
• Soldier not a member of pastors church

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U.S. v. Coleman

• Statements were allowed.
• Statements were to father-in-law not Pastor.
• Not made as a formal act of religion or matter of
  conscience.
• Not intended to be confidential.

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Interpretation of Right
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Interpretation of Right

• MORAL

Individual Personal Theology/ Morality/Conscience
interprets what is right
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Interpretation of Right

• MORAL

Individual Personal Theology/ Morality/Conscience
interprets what is right
LEGAL
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Interpretation of Right

• MORAL

Individual Personal Theology/ Morality/Conscience
interprets what is right
LEGAL
PROFESSIONALETHICS
Military Chaplain Corps interprets what is
right (Chaplain doctrine / policy)
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Interpretation of Right
PROFESSIONALETHICS

• MORAL

LEGAL
Risk results from disagreement in
interpretation
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Supervisory Issues
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Supervisory Issues

• Supervisors must recognize privileged
  communication and sensitive information issues
  and provide guidance to subordinates dealing with
  these issues in ministry.
• Supervisors must also understand their
  responsibilities regarding subordinates when
  their subordinates commit misconduct or perform
  unsatisfactorily.

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Questions?