McFarland v. West Congregation of Jehovah’s Witnesses, Lorain, OH, Inc., 9th Dist. Lorain No. 15CA010740, 2016-Ohio-5462Not All Faith-Based Communications Are Protected By The Clergy-Penitent Privilege: Reminger Attorneys at Law
The contours of the cleric-penitent privilege were recently tested by Ohio’s Ninth District Court of Appeals in McFarland v. West Congregation of Jehovah’s Witnesses, Lorain, OH, Inc., 9th Dist. Lorain No. 15CA010740, 2016-Ohio-5462, ¶ 13. In McFarland, a member of West Congregation alleged that she was abused by a fellow Congregation member. McFarland’s parents notified elders at West Congregation about the abuse, but the Congregation neglected to discipline the molester or report the abuse of the minor and discouraged McFarland’s parents from doing so.
Years later, McFarland brought suit against the Congregation and various governing bodies of the Congregation alleging negligence, ratification and fraud by omission/concealment. Specifically, McFarland argued that the defendants failed to take measures to protect her from abuse and responded inappropriately once the abuse was reported. (Id., ¶ 5.) During the course of the litigation, McFarland sought the production of certain documents between the Congregation and the Congregation’s governing bodies regarding McFarland, her allegations of molestation and the alleged abuser. The defendants withheld approximately nineteen documents from their production, claiming that these documents were protected by the clergy-penitent privilege. (Id., ¶ 10.)
In examining whether the clergy-penitent privilege applied in this instance to each of the disputed documents, the appellate court began by noting that not every word authored or spoken by a cleric is automatically privileged and there is no protection for communications made for secular purposes – even when those communications were intended to be confidential. Ward, 128 Ohio St. 3d 212, 2010-Ohio-6275, at ¶ 15; Niemann v. Cooley, 93 Ohio App.3d 81, 88-89 (1st Dist.1994). Further limiting the clergy-penitent privilege is the fact that the privilege stems from a penitent’s desire to receive spiritual counsel, not a cleric’s desire to give it. See Trammel v. United States, 445 U.S. 40, 51 (1980).
In its examination of each of the nineteen disputed documents, the appellate court only withheld production of those documents where the defendants clearly satisfied their legal burden of demonstrating that the document served a religious counseling purpose rather than a secular one. For example, correspondence between governing elders and various congregations were not deemed confidential because they did not involve an instance of a particular penitent confiding to a cleric. (Id., ¶ 16.) Another letter, in which the author was drawing attention to the Congregation’s handling of a particular matter, was also not privileged because it did not pose any questions to the elders or request advice of a spiritual nature. (Id., ¶ 20.) Further, the court also refused to protect those documents involving persons unrelated to the McFarland dispute, finding no third-party privacy rights applied. (Id., ¶ 53.)
Note: This case is from 2016.