Scott v. Hammock
| Citation | 870 P.2d 947 |
| Decision Date | 04 March 1994 |
| Docket Number | No. 910112,910112 |
| Parties | Michelle SCOTT, Plaintiff, v. Steven LeRoy HAMMOCK, Defendant. The Church of Jesus Christ of Latter-day Saints, Intervenor. |
| Court | Supreme Court of Utah |
Ross C. Anderson, Linda M. Jones, Salt Lake City, for Michelle Scott.
Mary C. Corporon, Salt Lake City, for Steven LeRoy Hammock.
Oscar W. McConkie, Merrill F. Nelson, Von G. Keetch, Salt Lake City, for Church of Jesus Christ of Latter-day Saints.
The United States District Court for the District of Utah certified to this Court the following question of law: "Whether nonpenitential communications between a lay person and a clergyman are privileged under Utah law." We accepted the certification pursuant to Utah Code Ann. § 78-2-2(1) (1992 & Supp.1993). We hold that nonpenitential communications are privileged under Utah law if they are intended to be confidential and are made for the purpose of seeking spiritual counseling, guidance, or advice from a cleric acting in his or her professional role and pursuant to the discipline of his or her church.
Michelle Scott filed a complaint in federal district court against her adoptive father, Steven Hammock, alleging that he had intentionally and recklessly inflicted emotional and psychological distress on her by physically and sexually abusing her for a period of more than ten years beginning in 1972 when she was five years old. In 1983, prior to the filing of the civil complaint, Steven Hammock was charged criminally with four counts of forcible sexual abuse against Scott and her sister. Hammock pleaded guilty to two counts of attempted forcible sexual abuse. He was subsequently excommunicated from the Church of Jesus Christ of Latter-day Saints (LDS Church).
While the criminal charges were pending, Hammock had three conversations with his bishop. 1 One took place in the bishop's church office with no one else present. The other two conversations took place in Hammock's home. Hammock's wife was present during one of the communications. When Scott took Hammock's deposition in the civil suit, Hammock invoked the clergy-penitent privilege and refused to disclose the substance of his communications with the bishop, except to say that the communications were not made in the context of his confessing or seeking forgiveness. The record is therefore clear that his communications to the bishop were not "penitential."
After Hammock invoked the clergy-penitent privilege, Scott subpoenaed documents from the LDS Church relating to Hammock's excommunication proceeding and communications referring to the abuse of Hammock's children. The Church moved to quash the subpoena on the ground that the information sought was privileged under the clergy-penitent privilege as stated in Utah Code Ann. § 78-24-8(3). Hammock then filed a motion for a protective order against the disclosure of the substance of his discussions with his bishop.
In granting the two motions, United States Magistrate Judge Ronald N. Boyce, in a lengthy and scholarly opinion on the scope of the Utah clergy-penitent privilege, held that the communications between Hammock and his bishop and the church documents relating to his excommunication proceeding were privileged under Utah Code Ann. § 78-24-8(3). Scott v. Hammock, 133 F.R.D. 610 (D.Utah 1990). Scott objected to the decision, and United States District Judge David A. Sam certified to this Court the question of whether nonpenitential communications to clergy are protected by the Utah clergy-penitent privilege from compelled disclosure in a legal proceeding.
When Scott filed her action, Rule 501 of the Utah Rules of Evidence, promulgated by this Court in 1983, provided that evidentiary privileges were governed "by the common law, except as modified by statute or court rule." Section 78-24-8(3) was then in effect and therefore governs the scope of the clergy-penitent privilege issue in this case. 2 That provision states:
A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.
This provision was enacted in 1870 and since then has remained virtually unchanged. 1870 Acts, Resolutions, and Memorials, tit. 11, ch. 1, § 381; 1876 Compiled Laws, tit. 11, ch. 1, § 381.
Under the language of § 78-24-8(3), a communication is privileged if the communication (1) is a confession, (2) made to a clergyman or priest in his professional character, and (3) made in the course of discipline enjoined by the church to which the clergyman or priest belongs. The precise issue before us is whether a nonpenitential communication made to a cleric by a church member may be a "confession" as that term is used in § 78-24-8(3).
Scott argues that the statute must be strictly construed and that by definition the term "confession" means a penitential communication in which an admission of wrongdoing is made. 3 She points to LDS scripture to establish that confession of sin is an important principle in LDS doctrine and asserts that because the communications Hammock had with his bishop were not penitential, they were not confessions and therefore not privileged.
The LDS Church and Hammock argue that a broader construction is necessary to avoid discriminating against religious denominations that do not require formal confessions, but whose doctrine and practice require their clerics to provide confidential spiritual counseling, guidance, and advice to their parishioners. The LDS Church points out that many religious denominations, including a number of Protestant churches, teach that admission of wrongdoing is an important part of their religious doctrine and practice, but have no formal requirement for making admissions of wrongdoing to a cleric. In addition, the LDS Church argues that whether or not formal penitential confessions are required by a denomination, the role of a cleric in providing spiritual guidance and counseling cannot properly be limited to formal confessions and the law ought to recognize that fact. With respect to its own doctrine and practice, the LDS Church states that its members are required to engage in a process of repentance by which confidential admissions of wrongdoing may be made to a bishop or stake president at the beginning, during, or at the end of the repentance process and that confidential nonpenitential communications between a bishop or stake president and members of the LDS Church are an essential part of that process. Indeed, the LDS Church asserts that according to its course of discipline, it is impossible to separate a specific "penitential confession" from the process of providing religious and spiritual counseling, guidance, and admonishment intended to persuade a church member to forsake and make amends for wrongful conduct.
The term "confession" in § 78-24-8(3) is not defined by the statute. Scott seems to argue that the term "confession" means a formal, specific type of religious practice, such as occurs in the Catholic Church. Such a restricted meaning is not required by the statute. In common parlance, the word "confess" is used in several ways. It may mean simply "to disclose or acknowledge (something damaging or inconvenient to oneself)." The American Heritage Dictionary of the English Language 279 (1980).
The term "confession" also takes meaning from the remainder of the language used in the statute. In that context, a "confession" must be made to a "clergyman or priest," according to and "in the course of discipline enjoined by the church to which he belongs." Thus, the term "confession" as used in the statute does not take its meaning from the course of discipline of any one church, but rather depends for its meaning on the course of discipline of the church of the cleric. We note that use of the term "clergyman" in the statute, in addition to the more specific term "priest," is consistent with the conclusion that the term "confession" should be construed in light of the particular doctrine or discipline of the church to which the cleric belongs. See In re Swenson, 183 Minn. 602, 237 N.W. 589, 591 (1931).
The historical development of the clergy-penitent privilege in this country also sheds light on how the statute should be construed. Under old English common law, the confidentiality of the confessional was observed and protected in the courts at least until the Reformation. See 8 J. Wigmore, Wigmore on Evidence § 2394, at 869 (McNaughten rev. 1961); Jacob M. Yellin, The History and Current Status of the Clergy-Penitent Privilege, 23 Santa Clara L.Rev. 95, 100-01 (1983) [hereinafter Yellin]. There is also some evidence that the privilege continued to be applied after the Reformation, although the point is disputed. Compare Mullen v. United States, 263 F.2d 275, 278 (D.C.Cir.1958) (Fahy, J., concurring, joined by Edgerton, J.) with 8 J. Wigmore, § 2394, at 869.
In any event, it is generally thought that the privilege first formally appeared in American law in 1813 in the unpublished New York case of People v. Phillips, abstracted in 1 Western L.J. 109 (1843), and reported in Privileged Communications to Clergymen, 1 Cath.Law. 199 (1955) [hereinafter Privileged Communications ], and cited in Yellin, at 104 n. 49. In Phillips, the New York Court of General Sessions refused to compel a Catholic priest to testify concerning a defendant's confession made to him during the administration of the Sacrament of Penance on the ground that the priest was bound by the canons of his church to maintain silence. Privileged Communications, at 207. The court based its ruling, not on common law or historical grounds, but on the principle that compelling a priest to breach the confidentiality of the confessional would violate the constitutional right to the free exercise of religion. Id.; see also Yellin, at 105.
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