Local law professor talks “clergy privilege” rule

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In late May, the Department of Justice subpoenaed the Buffalo Catholic Diocese.

According to a source with knowledge of the investigation, it was for documents related to alleged pornography, taking victims across state lines, and inappropriate use of cell phones and social media.

Prior to this, investigations of local dioceses were handled by state or local authorities. 

Last week, News 4 learned several diocese in Pennsylvania were also subpoenaed. 

It’s unclear if the investigations are related. 

“We’re now beginning to get a sense that perhaps there is a cross border component state-to-state, that really kind of invites federal oversight to see what’s happened here,” said associate law professor at UB, Christine Bartholomew.

Bartholomew is not involved in this specific case, but specializes in the legal concept of clergy privilege, which in many ways can be seen as doctor-patient confidentiality, only for religious leaders.  

Bartholomew said a cleric’s right to keep certain communications out of court under the clergy privilege rule will come into play in this case. 

New York was the first state to officially recognize the statute in the 1800s. All 50 states now have some form of the statute.

“Part of the problem here is we have these statutes that are the basis of this privilege, that are written incredibly broadly. So for instance, in some of the statutes it says that any time you seek comfort from a cleric, that would be privileged. Meaning, if your cleric pats you on the back but then you go on and give them information, that would count.”

Clergy privilege could also apply to conversations between two priests. 

Ultimately, a judge would decide whether or not the privilege would be granted.  

Over the years, the Church has agreed to narrow the definition of clergy privilege in many cases, but in alleged sex abuse cases, there’s generally been a push in the opposite direction; to keep more out of the court’s reach, Bartholomew said.

It this case, she said it appears federal prosecutors know what they’re looking for. 

“This investigation is pretty far underway. There’s already been a decision to produce certain documents limited to living priests. That the Diocese has already sought to limit the priests involved makes me very curious to see what happens next as far as privilege assertions.”

The U.S. Attorney’s Office for the Western District of New York would not confirm or a deny an investigation. 

In a statement, a spokesperson for the Buffalo Diocese said:

“Several months ago, we received a call from the local U.S. Attorney’s office with a request to review documents. A subpoena was provided and after some discussion, an agreement was reached to produce documents. We have heard nothing since early June. As far as we know, our response has nothing to do with the current Pennsylvania investigation that has just begun.”

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