John E. DeVito, Esq., of DeVito and Visconti, P.A.

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Priest/Penitent Privilege

In the case of Commonwealth v. Vital (Appeals Court No. 2012-P-0845) - May 31, 2013 the defendant's convictions of indecent assault and battery on a child under the age of fourteen and related offenses were affirmed by the Massachusetts Appeals Court. The Court rejected the defendant's contention that the priest-penitent privilege (G.L. c.233, §20A) should have excluded statements from the trial made by the defendant. The facts of the case as outlined in the decision stated that the defendant met with the pastor of his church shortly after the incident. The complainant and her family attended the same church. The defendant asked the pastor to tell the complainant's family "that he was sorry for his actions" and that he hoped they would agree to "resolve this matter in the church, rather than through the court system." Under G.L. c.233, §20A, the "minister of any church" is forbidden from disclosing "any communication made to him by any person in seeking religious or spiritual advice or comfort, ... without the consent of such person." See Commonwealth v. Kebreau, 454 Mass. 287 (2009). Strictly construing the statute, the Court ruled that the defendant's statements were not protected by the priest-penitent privilege because the defendant "did not communicate with the pastor to seek religious counseling, but rather sought the pastor's assistance in an attempt to avoid criminal charges." In other words the defendant was using the pastor to convey a message to the victim. The court stated that "[e]ven if the defendant's conversations with the pastor were, in fact, privileged, the defendant waived this privilege" by asking the pastor to communicate his sentiments to the complainant's family. The court also mentioned that the communication was for strategic purposes for court and not priest/penitent counseling.

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