Exorcising the Clergy Privilege

Article — Volume 103, Issue 6

103 Va. L. Rev. 1015
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This Article debunks the empirical assumption behind the clergy privilege, the evidentiary rule shielding confidential communications with clergy. For over a century, scholars and the judiciary have assumed generous protection is essential to foster and encourage spiritual relationships. Accepting this premise, all fifty states and the District of Columbia have adopted virtually absolute privilege statutes. To test this assumption, this Article distills data from over 700 decisions—making it the first scholarship to analyze state clergy privilege jurisprudence exhaustively. This review finds a privilege in decline; courts have lost faith in the privilege. More surprisingly, though, so have clergy. For decades, clergy have recast communications to ensure they fall outside testimonial protection—thus challenging how essential confidentiality actually is to spiritual relationships. This Article discusses both why clergy testimony frequently decides the question of privilege and the corresponding query of why some clergy break confidences. This understanding breathes new life into efforts to revise state statutes to reflect the narrowing privilege rather than perpetuate illusory promises of broad protection.

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  Volume 103 / Issue 6  

Exorcising the Clergy Privilege

By Christine P. Bartholomew
103 Va. L. Rev. 1015

Ambition and Fruition in Federal Criminal Law: A Case Study

By Lauren M. Ouziel
103 Va. L. Rev. 1077

Copyright Survives: Rethinking the Copyright-Contract Conflict

By Guy A. Rub
103 Va. L. Rev. 1141

Constitutional Avoidance: The Single Subject Rule as an Interpretive Principle

By Daniel N. Boger
103 Va. L. Rev. 1247