Would Superman Be Protected By the Clergy Privilege?

SupermanStampIn the Man of Steel, Clark Kent goes to church and seeks out his minister for advice.

Would those communications be protected?

Could the pastor be forced to disclose those communications and that Clark Kent was Superman?

Most likely no, but there is a small chance the minister could disclose those communications, assuming the laws of the United States and Kansas applied to someone born on another planet.

The Kansas Rules of Evidence define the “Penitential Communication Privilege” as follows:

(a) Definitions. As used in this section,

(1) the term “duly ordained minister of religion” means a person who has been ordained, in accordance with the ceremonial ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his or her regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization;

(2) the term “regular minister of religion” means one who as his or her customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he or she is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister;

(3) the term “regular or duly ordained minister of religion” does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his or her church, sect, or organization;

(4) “penitent” means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God’s mercy or forgiveness for past culpable conduct;

(5) “penitential communication” means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent’s moral obligations, or to obtaining God’s mercy or forgiveness for past culpable conduct.

(b) Privilege. A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.

K.S.A. § 60-429.

Clark went to church to for advice on what actions to take. For the privilege to apply, this would mean Clark was a “penitent” under the law, who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligation… K.S.A. § 60-429(a)(4).

This means Clark Kent, the boy from another world who grew up on a farm in Kansas, is a Christian.

KalElZodThe communications with the pastor, who appeared a duly ordained minster, was for guidance on what moral direction to take on whether to surrender to the US government and be turned over to General Zod.

This would meet Kansas’ “penitential communication” definition under K.S.A. § 60-429(a)(5).

Based on the above, Clark Kent’s visit to the church meets all of the elements under the Kansas Rules of Evidence for his communications to be privileged, because he sought moral advice from his minister.

Kansas case law holds that a party who made a privilege communication to a minister can have the privilege waived if the penitent tells the facts to third parties. State v. Andrews, 187 Kan. 458, 357 P.2d 739, 1960 Kan. LEXIS 436 (1960), writ of certiorari denied by 368 U.S. 868, 82 S. Ct. 80, 7 L. Ed. 2d 65, 1961 U.S. LEXIS 784 (1961).

This opens the door for the minster to disclose Clark’s penitential communications if Clark told others about the facts discussed with the minister about surrendering to General Zod. While Superman did turn himself over to the military, he did not disclose he was Clark Kent, nor the underlining content of his penitential communications. As for Lois Lane, she had already figured out Clark Kent had extraordinary powers, but did not discuss content of his seeking moral advice from his minister.

There is a chance the minister could disclose the content of Clark Kent’s penitential communications seeking moral advice on the technicality a Christian was not from Earth, but it is unlikely a Man of God would do that to the Man of Steel.

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