In many jurisdictions certain communications between a member of the clergy of some or all religious faiths (e.g., a minister, priest, rabbi, imam) and a person consulting them in confidence are privileged in law.
[5][6] Several states have modified the effect of the statutory Evidence Law to restrict clergy privilege when applied to child abuse cases.
[7] Two Canadian provinces recognize the privilege in the communications between individuals and their religious leaders in their statutes (Newfoundland and Labrador under its Evidence Act[8] and Quebec under its Charter of Human Rights and Freedoms).
The court establishes that a test, proposed by John Henry Wigmore, might be employed to determine whether a specific communication is privileged or not.
[11] To determine whether a communication is privileged, the "Wigmore Criteria" state that: The "Wigmore Criteria" are informed by the Canadian Charter of Rights and Freedoms guarantee of freedom of religion (protected under s.2(a)) and the interpretive s.27 ("This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians").
Interior minister Darmanin told him in a meeting that priests are obliged to report cases of sexual violence against children, even when heard in the confessional, to the police.
The responsibility of the confessor for the adequate clarification, processing and prevention of individual sexual abuse offences needs to be emphasised from a scientific point of view.
In Germany, under section 383(1) No 4 Code of Civil Procedure, clerics may refuse to testify, with a view to what was entrusted to them in the exercise of their pastoral care and guidance.
One must bear in mind that, from the outset, only specific documents whose existence is know of by the petitioner can be asked for, section 142(1) Code of Civil Procedure.
[21] Article 178 of the Polish Code of Criminal Procedure explicitly forbids calling a clergyman as a witness in order to disclose information he obtained during a confession.
[22] Article 261 of the Polish Code of Civil Procedure allows clergymen to abstain from testifying if this would reveal information he obtained during a confession.
[23] According to former Chief Justice of the United States Warren Burger, "The clergy privilege is rooted in the imperative need for confidence and trust.
The [...] privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive consolations and guidance in return.
[25] However, many jurisdictions have recognized the need for exceptions in extreme cases, such as child abuse, child neglect, sexual abuse, "notorious crimes"/murder,[26] as the needs of modern civil society to protect victims prevail over the 'laws' of a particular religion, which irrespective of the First Amendment's free exercise clause, does not override modern legal jurisprudence.
The earliest and most influential case acknowledging the priest–penitent privilege was People v. Phillips (1813), where the Court of General Sessions of the City of New York refused to compel a priest to testify.
In most states, information gained within a confession or private conversation is considered privileged and may be exempted from mandatory reporting requirements.
This privilege is not limited to communications with a particular kind of priest or congregant, and it is not confined to statements made "under the cloak of confession".
[34] McNicol[35] gives three arguments in favour of the privilege: Jeremy Bentham, writing in the early years of the 19th century, devoted a whole chapter to serious, considered argument that Roman Catholic confession should be exempted from disclosure in judicial proceedings, even in Protestant countries, entitled: Exclusion of the Evidence of a Catholic Priest, respecting the confessions entrusted to him, proper.