Privileged Communications

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

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

Purpose Explain a person’s privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman or to a clergyman’s assistant.

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

Privileged Communications

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)

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.

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.

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 clergyman’s assistant, if such communication is made either as a formal act of religion or as a matter of conscience.

“Confidential” Communication – M.R.E. 503(b) • A communication is “confidential” if made to a clergyman in the clergyman’s capacity as a spiritual advisor or to a clergyman’s assistant in the assistant’s 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.

“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.”

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.

Rules for Disclosing Privileged Communications -- cont’d • 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.

Rules for Disclosing Privileged Communications -- cont’d • 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).

Sensitive Information

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.

Sensitive Information -- Definition • Sensitive information should normally not be disclosed unless the declarentexpressly permits disclosure.

Sensitive Information -- Definition • Knowledge of a soldier’s enrollment in Drug & Alcohol Programs, Psychiatric Treatment, Prior Arrest or Prior Hospitalization is generally considered as Sensitive Information.

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.

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.

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

Discussion Problems

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.

Discussion Problem #1 • Soldier makes appointment with battalion chaplain • Soldier feels he’d 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

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.

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 pastor’s church

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.

Interpretation of Right

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

Collective Society interprets what is right (Rules of evidence). Interpretation of Right Individual Personal Theology/ Morality/Conscience interprets what is right MORAL LEGAL

Collective Society interprets what is right (Rules of evidence). Interpretation of Right Individual Personal Theology/ Morality/Conscience interprets what is right MORAL LEGAL PROFESSIONALETHICS Military Chaplain Corps interprets what is right (Chaplain doctrine / policy)

Interpretation of Right PROFESSIONALETHICS MORAL LEGAL Risk results from disagreement in interpretation

Supervisory Issues

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.

Questions?

Privileged Communications