Wednesday, August 13, 2008
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Church Elders Who Heard Member Admit Rape Must Testify—C.A.
By STEVEN M. ELLIS, Staff Writer
A man’s alleged admissions to elders of his church that he raped a member of a fellow Jehovah’s Witness congregation, who was present when the statements were made, are not protected by clergy-penitent privilege, the Sixth District Court of Appeal has ruled.
Directing the Santa Clara Superior Court to vacate its ruling that the elders could not be compelled to testify in an action regarding custody of a child born to the man and woman after the alleged rape, the court held that the woman was a “third party” whose presence during the group meetings eliminated the expectation of confidentiality necessary for the man to claim the privilege, even though his faith required her presence in order for him to receive spiritual guidance. `
After the man, identified only as Ryan T., filed a petition in 2005 to establish a parental relationship with the child born the previous year, the woman—a member of the Coyote Creek Jehovah’s Witness congregation—alleged the child had been conceived when the man—a member of the Oak Grove congregation—raped her after taking her to a drive-in theater on the pretext of meeting mutual friends while she was under the influence of Vicodin and Percocet due to recent dental surgery.
About three months after the alleged incident, the woman, identified as Candace S., approached elders of her congregation who counseled her to “deal with the situation through the church.” The elders ultimately held three group meetings at which the man, the woman and elders from both congregations were present.
According to the woman, Ryan T. admitted the rape during the first meeting, and—after subsequent meetings in which the allegations and the man’s statements were discussed with their respective families—was later “removed as a member of the church.”
The parties agreed to the child’s paternity and to a visitation schedule for the man, and Candace S. listed the elders as persons to be contacted after the court ordered a full child custody or visitation evaluation.
Religious Beliefs Argued
However, when contacted by the evaluator, the elders invoked the clergy-penitent privilege and refused to speak with him. They argued that the s beliefs and practices of their religion required them to keep any communication received for spiritual guidance confidential, and that the presence of all of the attendees at the group meetings had been necessary under their faith to offer such guidance.
Candace S. sought an order compelling their testimony after Ryan T. declined to waive the privilege, but the trial court rejected her request, reasoning that the group meetings were “part of the religion” and there was thus no third person present who had “no business to be there.”
After the evaluator, noting the limitations in evidence presented to him, recommended joint legal custody with a visitation schedule, the woman—pointing out that Family Code Sec. 3030(b) prohibits a person convicted of rape from being awarded custody or visitation with a child conceived as a result, and that Sec. 3044(a) imposes a presumption against awarding custody to a person found to have committed domestic violence—sought writ relief from the trial court’s order.
Citing Evidence Code Sec. 1032’s plain language that the privilege only applies to communications made where no third party is present, she argued that she was such a third party, eliminating the necessary expectation of confidentiality.
No Confidentiality Expectation
In an unpublished opinion for the Court of Appeal, Justice Patricia Bamattre-Manoukian agreed there was no expectation of confidentiality, and thus no privilege. Noting not only that Candace S. had been a third party at the first meeting, she opined that family members present at the other meetings also constituted third parties.
The presence of such third parties precluded application of the privilege, “irrespective of any religious tenets regarding the confidentiality of the communication,” Bamattre-Manoukian said, and similarly concluded that the Legislature’s omission of the clergy-penitent privilege from the text of Evidence Code Sec. 912(d)—allowing disclosure to third parties where “reasonably necessary” to accomplish the purpose of the privilege—deprived the trial court of legal justification for its order.
“We acknowledge the trial court’s concern that the tenets of the Jehovah’s Witnesses religion provide that the group meetings with the elders were confidential…,” Bamattre-Manoukian explained. “The trial court was not authorized, however, to imply an unwritten exception to the clergy-penitent privilege for any religion, since the clergy-penitent privilege is an existing statutory privilege.”
Justices Richard J. McAdams and Wendy Clark Duffy joined Bamattre-Manoukian in her opinion.
The case is Candace S. v. Superior Court (Ryan T.), H032683.
Copyright 2008, Metropolitan News Company