Priest-penitent privilege survives challenge

The 1,500-year-old tradition of confidentiality between priests and their parishioners is alive and well, following a legal challenge in Michigan Court of Appeals.

In People v. Bragg, defendant Samuel Dale Bragg is on trial for fist-degree criminal sexual conduct, accused of molesting a young relative when he was 15 years old and she was 10 years old.

At his March 2011 preliminary examination in Wayne County 34th District Court in Romulus, Assistant Prosecuting Attorney Angela Povilaitis called Bragg’s pastor to testify. The pastor, Rev. John Vaprezsan, had previously given police officers a written statement in which he said that Bragg had made a confession in his office, where Bragg’s mother happened to work.

The prosecutor argued that the conversation wasn’t a confession. For starters, Bragg’s mother was present. That means that it’s unclear what role Vaprezsan was fulfilling as he talked to Bragg — the mother’s boss or a pastor? The prosecutor also argued that it’s not as if Bragg sought counsel from his pastor, as a confessor seeking to unburden his soul would do. Instead, the pastor summoned Bragg to his office to talk, after the alleged victim and her family, who are also members of the church, told him what had happened.

But Bragg’s attorney, Farmington Hills-based Raymond Cassar, argued that Bragg never made such a confession, but even if he did, it is protected and confidential. Cassar said that because Bragg was still a teenager at the time that the pastor called him to his office to discuss the matter, the mother’s presence doesn’t waive Bragg’s expectation of confidentiality. Further, the pastor pressured Bragg to confess in a manner that a pastor might, so anything Bragg would have told Vaprezsan should be confidential. We reported on this story last year, and subscribers can read it in full here.

The District Court admitted the evidence. Even though Cassar said that without the pastor’s statement, there was still enough presented to bind over his client for trial. The pastor testified. Bragg was bound over for trial. Wayne County Circuit Court Judge Cynthia Gray Hathaway approved the bind over based on the victim’s testimony, but determined that the district court abused its discretion in admitting the pastor’s testimony in violation of priest-penitent privilege.

The Court of Appeals noted that the case is unusual:

“We are not faced with a pastor who learned of ongoing or future criminal activity and struggled over whether to report it to the authorities. We are not asked to consider whether a cleric may speak to the police concerning information conveyed with an expectation of privacy. Today, we consider only whether a cleric may reveal in court a congregant’s statements made in confidence,” said the opinion.

The Court noted that “all 50 states have enacted statutes or evidentiary rules, and the federal government has accepted as part of its common law … [that] everywhere in this nation, any penitent speaking to any clergyman of any denomination enjoys an evidentiary privilege precluding the use in court of his ‘confession’ or sometimes more broadly his ‘communication.'”

The Court also noted that not only would a pastor refuse to make public the confidential conversations with parishioners, “Pursuant to MCL 600.2156, a cleric is not permitted to ‘disclose’ certain statements made to him.”

The Court opined that when Bragg spoke to Vaprezsan, the statements “fall within the scope of privileged and confidential communications under MCL 767.5a(2). The communication was necessary to enable Vaprezsan to serve as a pastor, because the defendant communicated with Vaprezsan in his professional character in the course of discipline enjoined by the Baptist Church.

“The communication between defendant and Vaprezsan served a religious function — it enabled Vaprezsan to provide guidance, counseling, forgiveness, and discipline to defendant.”

Cassar said that if the case had gone the other way, it would have had a chilling effect on communication with clerics.

“I think this is a great day for all religions. People can continue to confide in clergy without fear that their confidential conversations will be disclosed,” he said.

A spokeswoman for the Wayne County Prosecutor’s Office said this morning the prosecutor will seek leave to appeal in Michigan Supreme Court.

Priest-penitent case headed for appeal?

A criminal case that could test 1,500 years of priest-penitent privilege could be headed toward the Michigan Court of Appeals.

Farmington Hills attorney Raymond Cassar said on May 25, 3rd Circuit Court Judge Cynthia Gray Hathaway made a good call when she said she wouldn’t mess with the age-old tradition, and law, that protects confidentiality between pastors and members of their flocks.

Cassar’s client, Samuel Bragg, now 18 years old, is accused of molesting a family member when he was 15 and the girl was 10 years old. In October 2009, the girl told the pastor at her church, where Bragg and his mother are also members, about the alleged molestation. Read Michigan Lawyers Weekly‘s story here. (Subscription required for full access.)

The pastor called Bragg and Bragg’s mother into his office to discuss what the girl had said. And according to Cassar, the pastor said that after lengthy questioning in the church office, Bragg confessed (though Bragg contends he never did). Later, the pastor, the Rev. John Vaprezsan, voluntarily gave police a one-page written statement to that effect.

At Bragg’s preliminary examination, 34th Wayne County District Court Judge Brian Oakley permitted Vaprezsan to testify, despite Cassar’s argument that MCL 600.2156 and MCL 767.5(a)2 clearly protects clergy-penitent communication as privileged and confidential.

Motions were due on May 18, and were argued Wednesday in front of Hathaway.

After Hathaway said she wouldn’t allow Vaprezsan to testify, Cassar said he was told by assistant prosecuting attorney Angela M. Povilaitis that it is her intent to to appeal at Michigan Court of Appeals. The Wayne County Prosecutor’s Office declined comment.

“Judge Hathaway said in court that it was obvious what my client was [in the pastor’s office] to do. He was there to seek counsel from his pastor,” Cassar said. “And she wasn’t about to interfere with that privilege.”