Tennessee law recognizes a clergy-penitent privilege, which protects the legal confidentiality (so that it cannot be used as evidence at trial) of some statements made to members of the clergy when seeking spiritual advice or counsel. However, this privilege does not apply when dealing with incidents of child sexual abuse. Nor does any other communication privilege, other than attorney-client privilege, protect the confidentiality of statements involving known or suspected child sexual abuse. This exception is statutory. It is also recently illustrated in the case of State v. Workman, E2010-02278-CCA-R3-CD (Tenn.Crim.App. 12-13-2011).

The Defendant in that case was charged with multiple incidents of sexually abusing his stepdaughter. In addition to other evidence, the State introduced at trial the testimony of two church pastors who claimed that the Defendant had admitted the conduct to them. The Defendant challenged the admissibility of that evidence, claiming the clergy-penitent privilege. The trial court admitted the testimony because the statements pertained to known or suspected child abuse. The Court of Criminal Appeals affirmed that ruling, and ultimately the Defendant’s convictions and sentence. The Court noted that the only communication privilege in Tennessee that would protect these statements is attorney-client privilege.

Of course, the pastors were not the only people to which the Defendant had admitted the conduct. He also admitted it in an interview with DCS investigators. His challenge to the admissibility of that evidence was that he was not properly Mirandized. That challenge also failed because he was not in custody when he made those statements. He was free to leave, and did leave after the interview.

For more information on what may or may not be considered privileged communication in a criminal case, contact The Lanzon Firm.