Cleric-Penitent Privilege

The "Cleric-Penitent Privilege" has received recent coverage in some New Jersey media due to the recent decision in State of New Jersey v. J.G.

News reports indicated the Court's majority expanded the privilege because it adopted a new test to determine whether the privilege could be raised.

With its eponymous title suggesting a centuries old vintage, the Cleric-Penitent Privilege derives from the Code of Canon Law of the Roman Catholic Church. Canon Law not only criminalized breaking the seal of the confessional by a priest, but also emphasized the significance of this breach by imposing excommunication for revealing information acquired during a confession.

England, however, broke away from the Roman Catholic Church in the Sixteenth Century during the English Reformation, and likewise, English courts abandoned this privilege. As a result it was totally foreign to American Common Law.

Under New Jersey law, for example, there was no Cleric-Penitent Privilege until 1947. In that year the New Jersey legislature enacted it, and subsequently the government has amended this law.

It is no surprise, therefore, that the centerpiece of both the majority and the dissenting opinions in State v. J.G. consists of analysis using tools of statutory interpretation.

Courts employ tools of statutory interpretation to determine legislative intent and, accordingly, to apply the law. J.G. may pique one's interest because the majority and dissenting opinions apply similar tools to reach very different conclusions. And if the outcome is politically undesirable, the legislature can amend the statute.

State of New Jersey v. J.G.