Zenas’ Brief – October 2023

Shhh, It’s Confidential

Pastors have an ethical, professional, and sacred obligation not to disclose confidential information about those under their care without permission. But this rule is not absolute and there are often questions about confidentiality. For example: Is it ever appropriate to disclose confidential information? Are there limits to confidentiality? Plus, not all communication is confidential. In fact, it may be common knowledge. But for communications that are confidential, confidentiality comes with expectations. The purpose of this brief is the outline what is confidentiality and when a pastor should and should not keep it.

Confidentiality. Confidentiality is the commitment not to disclose information that has been given with either the explicit instruction that the information is not to be divulged or the implicit expectation that the information remains private.

Penitent Privilege.  The classic case of confidentiality is the penitent privilege. The penitent privilege is when a church member seeks spiritual counseling and confesses a crime to the pastor. Under the law, the confessor may claim a penitent privilege that stops the pastor from sharing the confession, testifying about the confession, or being compelled to testify about the confession. For the privilege to apply, the communication must have been truly confidential, i.e., no third-party present, the confessor had an expectation of privacy, and the confessor reasonably believed he was confessing to an ordained pastor. With penitent privilege, only the confessor may waive the privilege.

Minister.  Communication is not legally considered privileged if it is made to one other than a pastor or minister. A confession to a deacon, teacher, secretary, or even the pastor’s wife is not deemed a communication to a minister. Moreover, for a communication to be confidential, it must be made to the pastor in his capacity as a spiritual advisor, not as a “friend.”

Mandatory Reporting.  Utah and Idaho statutes require the reporting of child abuse, but the requirement does not apply to a member of the clergy functioning in a ministerial capacity.

This leaves the pastor in an obvious quandary. The pastor wants to report the abuse in order to protect the child, but the pastor has an obligation to respect confidentiality. The answer lies in the Bible.

We are called to protect the powerless. If you know that a child is being harmed, you may break confidentiality to rescue the child. It should be noted that anything you say to help the child will likely not be able to be used in man’s court. However, rest assured that God will exact justice, and you’ll have helped a child escape abuse. Finally, if a pastor receives information of abuse from another source, the pastor is required to report that information.

Waivers.  If the pastor has reason to believe that the person may or intends to confess a crime or something for which there is mandatory reporting, the pastor should consider, before any confession is made, informing the person that any such confession will not be regarded as confidential if requested by the authorities or if it involves abuse of a child. The waiver must be clear and specific so that the person understands it. If someone disclosed information to you and you want to break confidentiality, you can always politely ask to share the information with others.

While we touched on confidentiality in criminal matters, there are other areas of confidentiality and privacy to be considered. For example, disclosure of personal giving, personal health problems, church discipline, background checks, and private conversations. The pastor must exercise discretion and respect privacy as disclosure could be the basis for a legal claim against the church.

But there are times when confidentiality and limited disclosure are important and appropriate. For example, in matters of church discipline, the appointment of a ministry leader, and discussions of negotiation strategy for a contract or lawsuit. In these instances, it is paramount that you inform the person of your intent to reveal the information beforehand.

In closing, confidentiality is biblical.* Proverbs 11:13 says “A talebearer reveals secrets, but he who is of a faithful spirit conceals a matter” and Proverbs 29:9 advises us “do not reveal the secret of another.”  

Confidentiality can be confusing. Your Legal Team is here to help you determine when to keep it secret and when to reveal it. And don’t worry, we are also bound by confidentiality.

*For more on biblical confidentiality, go to https://www.thegospelcoalition.org/article/biblical-confidentiality/