Діни қызметкерлердің құпиялылығы: сот тәжірибесі мен балаларға қатысты зорлық-зомбылық мәселелері

Rule of evidence
The clergy–penitent privilege, clergy privilege, confessional privilege, priest–penitent privilege, pastor–penitent privilege, clergyman–communicant privilege, or ecclesiastical privilege, is a rule of evidence that forbids judicial inquiry into certain communications (spoken or otherwise) between clergy and members of their congregation. a position supported by the law of many countries, although in conflict with civil (secular) law in some jurisdictions. It is a distinct concept from that of confidentiality (see non disclosure agreement). The protection of the clergy–penitent privilege relationships rests on one of the more basic privileges as strong or stronger than the similar clauses to confidentiality between lawyer and client.

In Australia, most states now implement various versions of the Commonwealth Uniform Evidence Law 1995, which provides for clergy privilege. States which have not implemented a version of the Uniform Evidence Act are covered by common law derived from the English common law. Since there is very little case law regarding priest penitent privilege, it is not absolutely clear if such privilege applies: the standard understanding is that there is no such privilege, but there is some disagreement. Several states have modified the effect of the statutory Evidence Law to restrict clergy privilege when applied to child abuse cases. In the state of Queensland, a law was passed on August 9, 2020, that forces members of the clergy to report known or suspected cases of abuse to the police, meaning they are no longer allowed to use the sanctity of the confessional as a defence or excuse in child sex abuse matters.

In October 2021, a report which investigated sexual abuse of children by Catholic clergy and lay persons employed by the church, recommended to require priests to notify the police about child abuse cases that are mentioned in confession. Bishop Eric de Moulins Beaufort rejected the recommendation. 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 spokesperson for the French bishops' conference later said that they are not required to do that.

The MHG Studie found that the priest penitent privilege in Germany had been used to cover up sexual abuse.

The privilege was recognised under the common law of the Republic of Ireland as the privilege of the priest in the case of Cook v. Carroll [1945] IR 515., reversing an earlier judgment from 1802. In 2011, in the wake of several sex abuse scandals, the Fine Gael–Labour government announced plans to criminalise failure to report an allegation of child abuse, even if made during confession. Seán Brady, the Catholic primate of all Ireland, condemned this as compromising the seal of the confessional. 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.

The status of priest–penitent privilege in English law has not been absolutely determined.

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." A pastor has a duty to hold in confidence any information obtained during a counseling session. A pastor who violates this trust might be on the losing end of a suit for an invasion of privacy or defamation. The First Amendment is largely cited as the jurisprudential basis. 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. The Court opined:

text=It is essential to the free exercise of a religion, that its ordinances should be administered—that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance

A few years after Phillips was decided, People v. Smith distinguished the case on the grounds that the defendant had approached the minister as a "friend or adviser," not in his capacity as a professional or spiritual advisor. As with most privileges, a debate still exists about the circumstances under which the priest–penitent privilege applies. The capacity in which the clergyman is acting at the time of the communication is relevant in many jurisdictions.

In U. S. practice, the confidentiality privilege has been extended to non Catholic clergy and non sacramental counseling, with explicit clergy exemptions put into most state law over the past several decades. In most states, information gained within a confession or private conversation is considered privileged and may be exempted from mandatory reporting requirements.

According to New York state law, confessions and confidences made to a clergyman or other minister are privileged and cannot be used as evidence. 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". What matters is that the conversations were of a spiritual nature, and were confidential enough to indicate that the penitent intended that they be kept secret and that the penitent did not waive the privilege subsequently. New York law (NY CPLR 4505) provides that unless the person confessing or confiding waives the privilege, a clergyman, or other ministers of any religion or duly accredited Christian Science practitioner, shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor. Oregon Statute ORS 40.260 (Clergy–Penitent Privilege) states confidential communication made privately and not intended for further disclosure may not be examined unless consent to the disclosure of the confidential communication is given by the person who made the communication. Oregon's reporting law 419B.010(1), explicitly exempts pastors from any duty to report such privileged communications. In California, absent waivers, Cal. Evid. Code § 912, both clergy and penitent – whether or not parties to the action – have the privilege to refuse to disclose a "penitential" communication. Cal. Evid. Code §§ 1033–34. In 25 states, the clergyman–communicant statutory privilege does not clearly indicate who holds the privilege. In 17 states, the penitent's right to hold the privilege is clearly stated. In only 6 states, both a penitent and a member of the clergy are expressly allowed by the statute to hold the privilege. In Florida, pastors have an absolute right to keep counseling details confidential. The Official Code of Georgia Annotated states: "Every communication made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to any Protestant minister of the Gospel, any priest of the Roman Catholic faith, any priest of the Greek Orthodox Catholic faith, any Jewish rabbi, or any Christian or Jewish minister or similar functionary, by whatever name called, shall be deemed privileged. No such minister, priest, rabbi, or similar functionary shall disclose any communications made to him or her by any such person professing religious faith, seeking spiritual guidance, or seeking counseling, nor shall such minister, priest, rabbi, or similar functionary be competent or compellable to testify with reference to any such communication in any court" (O. C. G. A 24 5 502). Louisiana's Supreme Court ruled in 2014 that a priest may be compelled to testify about what he was told in the confessional regarding a particular sexual abuse case, leaving the priest at risk of excommunication if he even confirms that a confession took place, or jail for contempt of court should he refuse to testify.