Wednesday, June 20, 2012

Are Rabbis protected by Privileged Communications Laws?

 Update 6/20/2012 I received the following letter as a response to my post which now follows the letter:

Rabbi Eidensohn,

Thanks again for posting on a subject that's both important and fascinating. I have some sources about the situation in New York State, which makes them somewhat tangential to your blog post. (Though N.Y. is, obviously, an important jurisdiction with respect to, e.g., Jewish child abuse cases.) A number of years ago I suffered harm because my layman's intuitions about the clergy-penitent privilege (in New York State) were, as my elders might have said, "_punkt verkehrt_". For the situation in New York, the Court of Appeals decision (2001) in Lightman v. Flaum frames many of the issues quite lucidly:
Lightman v. Flaum, 761 NE 2d 1027 - NY: Court of Appeals 2001 - Google Scholar,33 The earlier litigation in the case makes it easier to understand:

Lightman v. Flaum, 179 Misc. 2d 1007 - NY: Supreme Court 1999 - Google Scholar,33

Lightman v. Flaum, 278 AD 2d 373 - NY: Appellate Div., 2nd Dept. 2000 - Google Scholar,33 It appears to me that it's not just the detailed provisions, but even the underlying _logic_ and _purpose_ of these laws, that varies from jurisdiction to jurisdiction. Every layman I know was surprise when they read Lightman v. Flaum.
P.S. A passage from Wikipedia's article ( might serve as a warning that things aren't necessarily intuitive: 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.

 This was my original post:
Privileged communication for clergyman is not clearly defined in New Jersey. In other words a determined prosecutor probably could get charges to stick. There is also the important distinction of whether it is a confession or that the beis din is aware from other sources. Confession is the most likely protected knowledge.

The following is a government report summarizing the issues of clergy as mandated reporting
Privileged Communications
As a doctrine of some faiths, clergy must maintain the confidentiality of pastoral communications. Mandatory reporting statutes in some States specify the circumstances under which a communication is “privileged” or allowed to remain confidential. Privileged communications may be exempt from the requirement to report suspected abuse or neglect. The privilege of maintaining this confidentiality under State law must be provided by statute. Most States do provide the privilege, typically in rules of evidence or civil procedure.4 If the issue of privilege is not addressed in the reporting laws, it does not mean that privilege is not granted; it may be granted in other parts of State statutes.
This privilege, however, is not absolute. While clergy-penitent privilege is frequently recognized within the reporting laws, it is typically interpreted narrowly in the context of child abuse or neglect. The circumstances under which it is allowed vary from State to State, and in some States it is denied altogether. For example, among the States that list clergy as mandated reporters, New Hampshire and West Virginia deny the clergy-penitent privilege in cases of child abuse or neglect. Four of the States that enumerate “any person” as a mandated reporter (North Carolina, Oklahoma, Rhode Island, and Texas) also deny clergy-penitent privilege in child abuse cases.
In States where neither clergy members nor “any person” are enumerated as mandated reporters, it is less clear whether clergy are included as mandated reporters within other broad categories of professionals who work with children. For example, in Virginia and Washington, clergy are not enumerated as mandated reporters, but the clergy-penitent privilege is affirmed within the reporting laws. [which isn't true of New Jersey]


  1. If a Catholic sinner goes to "confession" to his priest and admits to a crime (i.e. murder, rape, child abuse, etc.), and the priest is protected and does not have to report the crime to police/prosecutors under relevant state law, then a Jewish clergyman would similarly be protected if someone related a crime to him after coming to him due to his capacity as a clergyman or rabbi.

    1. Nice try abe but it doesn't work that way in NJ.

      First New Jersey now has an Any Person statute which essentially removes that protection on certain crimes.

      Second Confession to a human being is not a sacrament in Judaism. If were an essential and vital part of the religion than maybe you could argue that the law was interfering with the basic tenant of Judaism, but it is not.

      Third in the Lakewood case, you have a victim going to the Rabbi(s) not the perp.

  2. Let me repeat my prior opinion that a law that singles out "clergy" as mandated reporters violates the First Amendment. If NY were to pass such a law, it would be challenged immediately.

    OTOH, a law that makes everyone a mandated reporter is likely constitutional even as applied to clergy under Employment Div. v. Smith. However, if you adopt that, then you have to be willing to make EVERYONE a mandated reporter. That means parents can be put in jail for failing to report abuse that occurs to their children. Is that what people want?

  3. BTW, the issue is broader than the priest-penitent privilege and the sanctity of confession, both of which are Catholic concepts. Clergy, including rabbis and others, are often turned to for religious and spiritual advise. In the case of rabbis, this includes requests for psak halakha and for daas Torah, as well as generaly religious advise. Requiring clergy to report child abuse interferes with their ability to be sources of religious guidance, and with their congregants' right to obtain such advise and guidance from their clergy.

    (Here is a hypothetical. Parents believe that their child is being abused. Child has psychological issues. They fear that if they go to the authorities, the child will be subject to intense scrutiny and cross-examination, and will suffer for it. OTOH, if they don't go to the authorities, then the abuser will continue abusing others. That strikes me as a moral dilemman that many would want religious guidance on.)

    As I said, IMO, there is a Constitutional difference between a law that singles out clergy and a law that mandates reporting for everyone.

  4. One problem (for me as one of the heydot) is that as stated above there is no equivalent to the sacrament of the confession in Judaism. If I tell a (non-criminal) secret to a Catholic priest during confession, he is religiously obligated not to spread it around. There is no such religious requirement for rabbis - if I tell one of them I am cheating on my wife, nothing but his own judgement prevents him for telling my wife, my father in law, a beit din handling my get, etc. So even if rabbis are protected by privileged communications laws, laypeople are not.

  5. larry l -- you bring up the issue of who is a rabbi? if i go to a shiur by a talmid chacham, and i ask him a personal issue, is he / me protected?

    2. the lightman case was decided on other issues (the (ex) wife supposedly made the statements in front of other peoople, so there was no confidentiality, hence no privelege. but the court accepted the concept of a privelege. by the way, the (ex) wife was railroaded by the rabbonim in that case. where was the orthodox board of rabbonim (aguda, etc) to straighten out this matter? not only none, they got a promotion.

    3. note too, the tendler (sr) decision, that the rav can waive the privelege, based on his own (halachic) criteria. (and report the murderer to the police.)

    4. r m tzadok -- i believe the lakewood case involved the accused going to a psychologist who reports to a bet din. unless we're talking about another case. (or the lakewood / r zweibel, esq hypotehetical case.)

  6. If a rabbi claims his understanding of Judaism prohibits him from disclosing what someone advised him in his capacity as a religious figure, that has the same status and effect under the las as a Catholic confession / sacrosanct secrecy.

    A court cannot review religious doctrine and/or canon law to make a determination of what is or is not a particular religions religious laws.

    Every Jewish community has their own religious customs (minhagim) and interpretations of Biblical Law that may differ from another Jewish communities or sects interpretation or customs. A court cannot and will not favor or judge one version of Judaism over another or even attempt to determine any particular Jewish sects customs or interpretations of religious law.

    1. I am not a lawyer (B"H) but I would wonder whether there is a concept of confidentiality being an understood and expected privilege if the subject matter is a sensitive one. If I were to discuss a "private" matter with any kind of professional, I would expect that my privacy not be breached, without the need to check with state law. If clergy is given the level of professionalism and privacy as an option, the subject matter should dictate that those matters that are private be included in the understanding of confidentiality.

      Just thinking.

    2. Just wondering. In NY State at least, that turns out not to be the case. Note that Agudath Israel was active in supporting the notion the law protects rabbis but not congregants.

  7. Abe - exactly. So if I ask a rabbi a question in confidence, and he determines halacha requires him to publicize the situation I told him about, I have no recourse, either from the secular legal system or the religious. If a secular psychiatrist did the same thing he could lose his license and possibly be successfully sued for damages.

  8. Invaluable piece ! Incidentally , you are searching for a Nebraska 1027 exemption form , my husband discovered a blank document here


please use either your real name or a pseudonym.