The Pastor-Penitent Privilege: A Case Study

Some months ago, an interesting theological conundrum reared its ugly head regarding the seal of the confessional and pastoral counsel. I want to share this story with my fellow pastors on this blog, and hopefully the reader may be edified in our theology and practice of the Christian faith.

From the title I have given this essay, you can already tell that this whole discussion must be sensitive to matters of privacy. With the permission of the senior pastor I work with, the Rev. James Woelmer, and his review of this essay, I want to share with you what we have learned in this ordeal.

There was a clear cut, publicly acknowledged leaving of a spouse, with an unscriptural divorce. Thus far, I am sharing public knowledge, and this is as far as I go.

The counsel from God’s Word given by me and our senior pastor, and our listening to and discussion of the details of what happened, is and always remains sealed. If our pastoral care does not remain totally confidential, then how will Christians ever trust me or any other pastor to come for help and spiritual counsel? Not to mention, we have made a vow before God not to divulge the sins confessed to us. These principles stand on clear passages of Holy Scripture.

As the divorce case came to trial, certain details could not be agreed to between the two parties, and amazingly enough, in Texas, issues in a divorce can be put to a jury trial to be settled. As far as we can tell, this seems to be unique in our country. As this trial by jury came up, suddenly, out of nowhere, the senior pastor and I were subpoenaed to testify in the trial.

We were advised to call the lawyer (of the offending party) who had subpoenaed us and ask for clarification. When we talked to the lawyer over the phone, we asserted that we could not testify publicly nor would we speak to our confidential pastoral care, but nevertheless the lawyer refused to release us from the subpoena. Why not? “You have information in your private counsel with our client that will help our case, and my client has released the rite to privacy and confidentiality.”

Get that? The penitent – or, person we want to be penitent – has “released the rite to privacy and confidentiality” for the sake of somehow winning the case.

I replied to the lawyer, “Excuse me, but I do not care what your client says. Our counsel to your client as one of our flock is always privileged and confidential. There’s no way we are going to share anything discussed here. We have pastor-penitent privilege.”

The lawyer replied: “We’ll let the judge decide what you will or will not say in court.” And with that, the phone line basically went dead. It was clearly a threat. If the lawyer convinces the judge to go against our privilege as pastors with our flock, then perhaps it would come time to make the good confession of the faith, obeying God rather than man, and face the temporal consequences.

The senior pastor and I consulted with a fellow LCMS pastor whom we respect. He advised us to read “The Pastor-Penitent Relationship, Privileged Communications” – a 1999 document of the LCMS CTCR.

Does the CTCR document give the penitent or the person giving confidential information permission to divulge their confidential counsel with the pastor? No! The CTCR gives no such advice. If one looks on page 13 of the CTCR document under “Summary Principles and Practical Guidelines” one can see the summary of all of the previous discussion of this issue in the document: there are no circumstances, as far as the CTCR document is concerned, under which a Lutheran pastor need give away confidential information whether in the confessional or just in private pastoral counsel and aid.

We see the position of the mistaken lawyer in footnote #27 of the CTCR document, which notes the position of the ELCA. The ELCA constitution and bylaws say that the person giving confidential information can give the pastor permission to divulge confidential information, no distinction being made between the confessional or other pastoral communication. However, the CTCR merely notes this position as “interesting” and it is obviously in contrast to their summary principle #2: “Historically, the Lutheran church has consistently and resolutely maintained the seal of the confessional, that is, the confidential nature of confessional communications. The Lutheran church expects its pastors to maintain this position.”

Further, the CTCR’s principle #4 recognizes that although there may be a distinction between communications to the pastor in the confessional and those that are offered for other reasons, “communications to a pastor as pastor… are to be held in strict confidence as privileged communications.” (Pastor-Penitent, CTCR, 13) The CTCR document leaves very small room for breaking this principle, “except in the most extraordinary of circumstances” – and even then, it does not detail what such might be. One might call that the only weakness of the CTCR document.

Doing further research into the matter, we found the “Ethical Guidelines” of our LCMS Texas District written in 2005. (http://www.txdistlcms.org/downloads/Guidelines_for_Ethical_Conduct_of_Called_Servants.pdf)

This document refers to the CTCR document; yet, it contradicts it and seems to come down on the side of the ELCA position, note my emphasis added:

“5.1 Goal of Confidentiality

A called servant maintains the strictest standards of confidentiality in order to provide an opportunity for people to confess any and every sin and to receive forgiveness; to permit discussion of matters of the utmost personal importance; and to protect the good name of Christ’s holy people from malicious gossip and slander. The called servant also has a responsibility to the welfare of the community, which requires reporting information to legal authorities when life and health are discovered to be at risk.

5.2 Confession

An ordained servant of the Word does not reveal those matters that have been revealed to him as a consequence of the confession of an individual. (See CTCR Document, The Pastor Penitent Relationship.)

5.3 Privileged Communications

A called servant regards any entrusted information as privileged communication to be held in the strictest confidentiality. The person divulging the information, not the called servant who receives it, owns the privilege. Entrusted information should be revealed with the full knowledge and consent of the individual. However, in situations where the health and welfare of other people are at risk, or where it is required by law, the called servant will comply with the legal stipulations except for matters under the confessional seal. (See 5.2) When such revelation occurs, the called servant should inform the individual as soon as possible, consistent with the circumstances as legally allowed.”

Somehow, some theologians have found a “responsibility to the welfare of the community” that is nowhere backed up with Scriptures or the Confessions. The Texas document is quite muddled, you are to retain confidences, but you are not if the community needs to know, but you are if under the confessional, but maybe or maybe not if the penitent says so, one can’t tell what to do.

Did Jesus die to defeat and cleanse us of the sin and the corruption of the world and the devil or did He not? God “remembers” our sin “no more,” Jeremiah 31:34. The sins repented of are gone “as far as the east is from the west” in God’s view, Psalm 103:12. Likewise, all of the circumstances and hurtful events that surround, lead to, and follow those sins!

So, who are we to reveal anything given over to God and His forgiveness on account of the blood of Christ? Does our preaching and teaching of God’s Law and Gospel as pastors in private also belong to God? Are we only acting in this office in His stead and by His command? Who are we, whether pastor or penitent, to share publicly what Word of God has or has not been applied in private for the sake of the cure of souls? Further, do we or do we not trust God to protect “the welfare of the community” without one of His pastors divulging what does not belong to them to divulge?

To this humble pastor, no human “owns the privilege” of receiving or giving the counsel of God’s Word – the Bible simply does not acknowledge or leave room for such a position. I ask: is the idea that the penitent “owns the privilege” based on current American legal situations, current cultural views, or one based on a theological argument? This question remains unanswered and undocumented where such an opinion comes from, I saw no documentation in the Texas District ethical guidelines. (I admit, I have not researched the origins of the ELCA position…)

One excellent piece of advice was to consult with a retired judge and LCMS layman who advised the CTCR on the writing of its document in 1999. His advice to us pastors was crystal clear. Under all circumstances, there are no judges in the United States who will not recognize at this time the “Priest/Pastor - Penitent Privilege” in court. The retired judge told us to absolutely maintain confidentiality, and that the lawyer who threatened us was issuing so much hot air.

It turns out, these subpoenas were a scam on the part of the lawyer to keep us pastors out of the courtroom and out of the view of the jury, from sitting behind and in support of our faithful member who has been abandoned. Since we were sworn-in by the judge as witnesses (a new experience for me!), we could not sit in the courtroom. We were excused and never called back to the courthouse, much less to the witness stand. It did make for two days of fearing the ring of our cell phone, the judge telling us he could call us in at anytime to take the stand!

The day may come soon in our country when judges may threaten to throw the pastor in jail over refusing to testify in a divorce trial. One never knows. The whole circumstance, however, certainly worked to sharpen our theology as pastors on this important area of pastoral practice.

Does anyone know where these foreign ideas to the theology and practice of our church come from? Is anyone else not surprised that the ELCA finds the right of the individual to be as or more important than God’s choice and gift to forgive and retain sins and cure souls? Does anyone else find comfort, at least in this CTCR document, that the LCMS stands on the scriptural side of Christian theology and practice in this matter? I realize there is a lot more to say on this, a lot more history and practice good and bad even in our own LCMS. Feel free to comment or criticize.

Rev. Jacob Sutton