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It’s my understanding that that American (federal?) law protects the privacy of personal communications with one’s spiritual advisor (clergy). I figure that this protection was drafted with a specific religion in mind which incorporates human to human “confession” in it’s doctrine. In practice, however, it’s no different than doctor/patient and attorney/client confidentiality, except, I wonder whether it’s more about freedom of religion rather than providing a critically needed social service to society.
I also wonder whether this protection is equally afforded to Jews going to their rav for advice. Even if courts have historically leveled the playing field in this regard, are they in fact legally compelled to do so?
So, can a rabbi be compelled in a US court to reveal private conversations with a congregant or this protection universally applied to any recognized religion?
Confidentiaty does not apply between a Rabbi and a congregant, Only between a priest and a confessioner.
Confession to a Priest is long considered part of the catholic relgion. it is not part of Judaism.
So if someone confesses to a Priest that he killed someone and the body is buried ___. The Priest cannot go to the police and its not considered admissable evidence, Even if they find the body.
However if someone does the same to a Rabbi. he CAN go to the police and it is admissable evidence
From my long ago classes on Criminal Procedure:
“Rule 506 (Communications to Clergy ) of the Federal Rules of Evidence provides:(a) Definitions. As used in this rule:
(1) A “clergyman” is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is “confidential” if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication made by the person to a clergyman in his professional character as a spiritual adviser.
(c) Who may claim the privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The clergyman may claim the privilege on behalf of the person. His authority so to do is presumed in the absence of evidence to the contrary.”State Laws Vary………..
In twenty-five states, the clergyman–communicant statutory privilege does not clearly indicate who holds the privilege. In seventeen states, the penitent’s right to hold the privilege is clearly stated. In only six states, both a penitent and a member of the clergy are expressly allowed by the statute to hold the privilege.CTLawyer
there was a famous case in NY where a woman told her rabbi some confidential information, The Rabbi went to the husbands divorce lawyer with the information (She was breaking a Halacha)
The woman then sued the Rabbi for Clerical misconduct and the case went to the New York State Supreme court and the chief Justice ruled that the Rabbi was wrong, however he didnt break any laws in NY and therefore the woman could not win the case
US and State laws provide the SAME treatment of Rabbi-congregant conversations as it does to Priest-Catholic laymen conversations during confession.
ZD: I believe that you are incorrect. The in NYS the Clergy privilege does not depend on religion. See below for the NY Law.
First, NY Supreme Court is the lowest court in NY State and it does not have a “chief justice”.
Second, CPLR 4505 states ” § 4505. Confidential communication to clergy privileged. Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed disclose a confession or confidence made to him in his professional character as spiritual advisor.”
Third, the case you are referring to was a “custody hearing” and was written up in “Jewish Law and Contemporary Issues” (Printed in 2015) and while it is not an “official rule” as there is no case-law on the subject, “NY Courts have repeatedly held that physician-patient, attorney-client, and psychotherapist-patient privileges cannot be invoked in such proceedings”. (Page 331 Footnote 9)
ZD, that’s a different issue than the OP. Your case the rabbi *chose* to disclose the information he was told by her to another person. That’s legal. The OP asked if the rabbi can be *compelled* by court to disclose the information.
I am fairly certain WTP knows the case. its quite famous. The Chief Justice of NY admonished the Rabbi for his conduct from the bench, but said she was powerless as confidentiality was not part of jewish law
It was not the chief justice, as it only went to a lower court. And the judge didn’t say anything about Jewish law confidentiality.
Everybody:
PLEASE do NOT confuse rules of Criminal Procedure and civil actions.
there is NO Clergy privilege in Civil trials.
ZD………….
I don’t practice in NY, BUT
The Clergy privilege has to do with CRIMINAL prosecution. It has NOTHING o do with civil proceedings such as a divorce.Please don’t mix apples and oranges
it went to the Chief Justice Judith Kaye.
you can google it
CTL: I believe that he NY Law is not just for criminal proceedings.
ZD: While it may have gone in front of Justice Kaye, you stated in your post “New York State Supreme court and the chief Justice”. There is no “Chief Justice of the NYS Supreme Court”.
Reading the decision, the “Rabbi” disclosed information to the husband and “other third parties” (not just the divorce case). So there is privilege and since it was disclosed to other third parties, it was a violation of that privilege.
CTL, if a Catholic goes to the Confession booth and admits to having damaged his neighbors luxury car, the neighbor can successfully subpoena the priest to force him to reveal that conversation in either court or in a deposition?
Joseph…
If he neighbor had knowledge of the confession than the confidentiality would have already been breached and no privilege would applyThe law doesn’t preclude the rabbi from choosing to disclose the information to anyone be chooses to relate it to.
Suppose the neighbor knew he discussed the incident but didn’t know particularly what he related.
google Judith kaye. She was the Chief Justice of the New York Supreme Court. She died in 2016 so there were alot of obituaries about her
Again the neighbor could not know that the incident was discussed in the confessional unless either the priest or confessor had breached the confidentiality…if so, no privilege exists.
If the confession was overheard from outside the confessional, the expectation of privacy was violaed and the confession would not be admissable.
CTL: In NYS the “clergy privilege” is for both Civil and Criminal (as confirmed by a former DA).
ZD: As I said….she was the Chief Judge of the NYS Court of Appeals, not the NYS Supreme Court which is the lowest court in NYS. The Court of Appeals is the highest court in NYS.
“Judith Ann Kaye (née Smith; August 4, 1938 – January 7, 2016) was an American lawyer, jurist and the longtime Chief Judge of the New York Court of Appeals”
If a wife told her Rabbi “in confidence” that for the last nine months she’s been purchasing treif meat from Costco and feeding it to her family without their knowledge.
The rabbi would be halachicly obligated to tell the husband.
In the case under discussion she did much worse than feeding treif. And the rabbi needed to tell the husband.
We may want to either stay vague, or just change the subject. Or return to the original subject.
Mod-29
Im not sure if OP asked this question in a vaccuum , or if they were referring to a real case. Since there was a real case in New York that directly answers the question it needs to be used
Telling the husband has nothing to do with clergy privilege in a court of law and compelling the clergy to testify against the congregant
“It’s my understanding that that American (federal?) law protects the privacy of personal communications with one’s spiritual advisor (clergy). I figure that this protection was drafted with a specific religion in mind which incorporates human to human “confession” in it’s doctrine. In practice, however, it’s no different than doctor/patient and attorney/client confidentiality,” (blubluh) [emphasis mine]
blubluh: As for the doctor/patient relationship, it’s not the same. The HIPAA (Health Insurance Portability and Accountability Act of 1996 ensures medical disclosures between doctors and patients.
HIPAA does not, however, entitle someone the ability to confess any criminal activity without consequence.
“According to the privacy rule, if a healthcare provider believes in good faith that a warning to third parties is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others, the provider, consistent with applicable law and standards of ethical conduct, is free to alert those persons whom the provider believes are reasonably able to prevent or lessen the threat. In sharing confidential information, a provider is assumed to have a good faith belief based on the provider’s actual knowledge or in reliance on a credible representation by a person with apparent knowledge or authority.
Although the explanation of the privacy rule provided by the director is helpful, providers still need to be aware that state laws and court decisions affect how and when providers may disclose information about a patient they believe to be threat to public safety or themselves. ” (Physicians Practice dot com)
For more information about doctor patient confidentiality laws and regulations, please visit HHS dot gov, the U.S. Department of Health & Human Services.
Thank you
Joseph
There are distinctions here.
In the case under discussion the woman is doing the averah.
The husband is only considered to be doing an averah if he is aware.
Thus it may not be advisable to tell him. Certainly you shouldn’t tell him if you are afraid he may not grant her a divorce. Which brings us back to the last disagreement I had with you. Namely better shogeg then mazid. Here he wouldn’t even be shogeg he would have a din ones since he is unaware.CTL, no disagreement with that. That wasn’t my point. I was addressing halacha.
Mentsch, the husband is doing an aveirah whether he’s aware or not. Awareness only determines whether he’s a shogeg or meizid. He must be told.
Btw, I addressed a comment to you in the “tochacha” thread.
It would be the same if the husband is being fed treif while thinking it’s kosher. You wouldn’t tell him it’s treif food?
Joseph
If you are discussing treif you would be correct. But we are discussing a completely different halacha. In this Halacha ,awareness, creates the issur for the husband.
There is a famous tshuva on this by the noda b’yehudah. In it he lays out this concept and when to tell the husband. The exact case he is discussing is quite juicy and involves …
(Sorry , the moderator said to be vague). Ask someone knowledgable to fill you in on the details or point out the tshuva. It’s an interesting read.
Gotta go get ready. Have a good shabbos.
And moderator. It’s torah. I would like to think that I occasionally raise the level of conversation in the coffee room. But if you feel otherwise, I accept the tochacha.There was a case when someone went to a priest and confessed to a crime, the priest went to the police and the courts ruled it was inadmissible evidence
Theoretical question- does the professional confidentiality issue apply only after a crime is committed? What if someone told his doctor or minister of whatever religion that he is planning to commit murder. From a legal point of view, can he break the trust? is he obligated to? If he doesn’t, is he an accessory to the crime?
Mentsch, The Noda B’Yehuda 1:35 (or Tenina O.C. #35) says the husband should be told.
The doctor would be legally obligated to report the planned crime and the minister is probably legally obligated to report it to but he is certainly permitted to report it.
Its is Priest , not a minister . A Priest is for catholics and minister for Protestants. Confession is part of Catholism , not most (if not all Protestanism) Its specifically for catholics who confess to the Priest, Its inadmissible as evidence. The Priest can go to the Police to report the body, but if he turns in the confessee the police cannot arrest him on this basis and the prosecutor cannot use this as evidence of guilt
You don’t know what you’re talking about.
“planned crime”
What about a “thought crime”?
“Rabbi, I hate my next door neighbors. I really wish someone would burn down their house.”
Joseph
This doesn’t happen much in the coffee room.
But, I hear by bow to your superior wisdom and retract my posts on this matter.
I’m not saying we pasken every case like the Noda. However, what I wrote in his name is wrong.
And I thank you for sending me to the bais medresh on a motzei shabbos!That’s passive. It does not speak of intent to do something.
Even celebrities publicly stated thought crimes against the president. The president even stated thought crimes against certain individuals.
Once some students spoke like that against a teacher of ours. She died that semester and I heard those students crying and blaming themselves for their thoughts and words.
ZD- The point was not to limit it to just to Catholics, which is why I said minister (in its generic sense) of any religion. Anyway, do Catholics confess to things they have not yet done?
The question was not about reporting a body, or making an arrest or using it as evidence of guilt, but rather to prevent a crime before it was committed, and whether the “confessor” is legally culpable if he does not report it.
Joseph, what you are saying is that client-professional confidentiality only applies after the fact and not before?Yes, I’m saying the confidentiality is overridden by the requirement to preserve life/prevent crime.
The Title of the thread says “in American Law”
An American courtroom is no place to introduce halacha…preserve First SAmendment rights
There are certain relationships that have confidentiality
If you tell your lawyer you committed the crime , that cannot be used as evidence against you either (He doesnt have to be your lawyer)
Some people here dont seem to understand that confession is part of the catholic religion and the law recognizes that. Just like there are certain tenents of judaism that are indicitive of judaism and the law recognizes that too (IE not working on shabbos)
Is that because at the moment of confession someone who is Catholic believes that he or she is not speaking to a human who just so happens to work at a church, rather to G-d through his messenger/medium/portal who happens to be a human?
So a priest cannot say anything because no one actually told “him” and “he” technically wasn’t even there as himself. He was speaking for G-d according to the Catholicism Christianity and G-d cannot be an informant?
ZD………………….
Apparently you never took a comparative religion course in college.Episcopalians (church of England, Anglican, etc) have Priests and are Protestants. The religion was founded when King Henry VIII broke with the pope when Henry wanted still another divorce and to remarry and the Pope refused. Henry made his own church and confiscated all the lands and valuables of the Catholic church in England. These priests may marry.
Eastern Orthodox churches also have Priests.
Catholic and Episcopalians have confession. Yes, Catholics confess to things that are not ‘committed acts’ but impure thoughts.
ZD…you don’t quite portray Atty/Client privilege accurately.
The lawyer MUST be your attorney for the privilege to attach. Just telling something to any member of the bar is NOT protected. If someone wants to have a specific legal discussion with me, I always say ‘give me a dollar as a retainer to establish confidentiality’
Also, the discussion must take place in privacy and cannot have anyone present except employees of the attorney or their is no expectation of privacy and the privilege does not attach. I have been know to send spouses , relatives and client’s employees from the office before speaking to a client.I once read a fascinating article on this topic. There was a case a few years ago in Portland, Oregon about someone who confided in her Rebbetzins, and the court wanted them to give over information that had been given over confidentially.
The legal issue was whether or not Rebbetzins have the status of clergy and therefore are not obligated to give over information given in confidence. The other side was arguing that Rebbetzins can’t possibly be clergy since Orthodox Judaism doesn’t recognize female Rabbis.
The argument of the Rebbetzins and the Frum community was that women need to have someone they can confide in without having to worry about their confidentiality being broken, and often, there can be things that a woman might be more comfortable discussing with another woman, and that this is part of the role of a Rebbetzin.
In the end, they won the case. If anyone is interested, you can find articles about this case online by googling: Clergy confidentiality Rebbetzin. There was an article in the Yated about it.
My point here is that apparently clergy confidentiality does apply to Rabbis (and possibly even Rebbetzins).
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