What is Clergy/Penitent Privilege?

Tensions inherent in this privilege:

• Federal Rules of Evidence 501 says privilege should be applied according to "reason," "experience," and the history of "[t]he common law" (Donley, 2018).

State histories and laws vary, so clergy/penitent privilege varies from state to state.

• Because clergy/penitent communication often includes confessions of guilt for wrongdoing, some people question the wisdom of preserving the privilege, saying that it creates a loophole for mandatory reporting of abuse. Proponents of this view say that clergy members should help people make moral choices but not hide immoral choices.

How are these tensions playing out in Utah?

Under current statute, Utah clergy members are not required to report abuse, even when the victims are children (Winslow, 2019). In 41 states, clergy members are required to report known or suspected child abuse (AGFinancial, 2022).

In 2020, Rep. Angela Romero, D-Salt Lake City, introduced a bill to remove clergy/penitent privilege as an exception to the mandatory reporting of child abuse codified in section 62A-4a-403 (Romero et al., 2020). The bill did not pass.