Defense Lawyers Claim “Clergy/Congregant Privilege” in the Tina Anderson Rape Case

Here’s an interesting tidbit from the ABC 7 News about the ongoing trial of Ernie Willis for the rape of Tina Anderson.

Smukler [the judge in the Willis case] has yet to rule on whether Phelps must testify about admissions Willis made to him about the alleged assaults. Willis’ lawyers claim that they are privileged. Coull argued that Phelps had a lawyer present during the conversations and that undermines any privilege between a member of the clergy and a congregant

This is interesting on a couple of levels.

1. It means that Willis did talk to Phelps about his crimes AND had his lawyer present while he did so.

2. It means that Phelps is not voluntarily forthcoming about this conversation and the lawyers are trying to keep him from having to testify about what Willis told him.

3. The lawyers are invoking a religious privilege that is normally reserved for confessions made in the Roman Catholic church. So is Phelps tacitly agreeing that Willis was making a Roman-style confession to him…with his lawyer present?

The longer this case goes the more Phelps appears to not only be ignorant and impotent as a pastor but also to be plain evil. If you want the truth to come out, why not just take the stand, Chuck? Why not just tell the prosecution that you’ll make a clean breast of it and that there’s no such thing as a clergy/congregant privilege in an Independent Fundamental Baptist Church?

Someone needs to be asking these questions…

41 thoughts on “Defense Lawyers Claim “Clergy/Congregant Privilege” in the Tina Anderson Rape Case”

    1. As far as Constitutional Law, I agree with the defense, that Phelps is not REQUIRED to divulge the information. However, as far as the testimony of Christ is involved, I realize that Phelps must stop using the “duck and cover” tactic and actually come clean with what he knows.

      1. What in the Constitution are you basing that on? Some extrapolation of the religious clauses of the First Amendment?

        1. It’s not in the constitution, but at this point the Judge will be looking at prior legal precedent. The current legal precedent is that criminal offenses must be reported, while hearsay is not required to be reported. In the case of Phelps, it appears this is more than hearsay, and the Judge will likely make him testify if there is any relevance to his testimony. I got the previous information from a friend who is licensed on the Supreme Court bar.

  1. I’ve seen several cases in other states (including New England) where the congregant/clergy privilege has been struck down. I’ll have to look them up; one of my FB friends listed them.

    1. Interesting. I wonder how many people have an EXPECTATION of privileged discussion with their pastor when, in fact, it is not.

      Any I wonder how many pastors MAKE SURE the people who talk with them KNOW that fact? I’ve NEVER heard a pastor discuss this, and in Bible school this NEVER came up.

      Again, this is all very interesting.

      1. I worked for a while as a Nursery Coordinator in a (non IFB) church. While I was there it was evident that one of the children was being abused by one of the parents. There was no question ever of whether or not we were obligated to report it. It was reported and dealt with and there were never any expectations of privacy for anyone involved. There is a line. It should never be crossed. When it is a person’s “right to privacy” no longer exists.

        1. Perhaps a minor point, but a point nonetheless, as a nursery worker (in fact, as church worker but clergy acting as clergy) you have no privilege. You do have to report in all states. Only pastors acting in their role as pastors have privilege, and if it applies, then it only applies when there is no knowledge apart from the individual seeking spiritual advice.

          So as a nursery worker, you are right that there is no question that you have to report it. You cannot do anything other than report to the authorities (and in most states if not all reporting to church authorities or supervisors does not cover your obligations; you yourself must report to the legal authorities even though/if you report to the church).

          Another technicality perhaps, but it is not a “right of privacy” (which doesn’t apply), but a legal privilege. Again, we can complain about it, but it’s the law.

          As I have said, a pastor should not promise confidentiality, and should expressly say that particularly in these kinds of conversations. He should put himself in a place where he can report it legally by saying up front that he does not guarantee confidentiality.

  2. The confidentiality principle between ministers and people they counsel is not only for Roman Catholic priests. It also applies to clergypeople of any faith and their congregants, lawyers and their clients, medical doctors and their patients, psychiatrists, psychologists, and other licensed therapists and their clients, and probably certain other categories of professionals.

    However, Phelps has already spoken and written publicly about this particular case. For example, he has given his view that it was a “consensual affair” between Willis and Anderson, and that she was above the age of consent when it started. That makes it appear that he has already breached any confidentiality, so his invoking the privilege now seems pretty thin.

    The privilge is much more in doubt where harm to a minor is involved. Mandatory reporting laws kick in then. I take that to be why Phelps insists that Tina Anderson was above the age of consent, and why he doesn’t want to be cross-examined about his claims regarding the case.

    1. Good points on forfeiting privilege by public disclosure. I’d still like to see Phelps charged as either a conspirator to obstruct justice, or as aiding & abetting. I doubt it’ll happen, but I know there’s no privilege if you’ve are actively involved in abetting or obstructing…

  3. Actually, it sounds like they’re at a stage where the judge is ruling on a number of things for next week, determining what different people will be allowed to say. Typical pre-trial stuff.

    The prosecutor wants Phelps to be allowed to tell the jury what Willis said to Phelps. The defense (Willis’ attorney) wants the judge not to allow Phelps to repeat those conversations.

    The whole clergy/congregant thing is the defense’s attempt to suppress that evidence. The thing about the lawyer being present is the prosecutor’s attempt to nullify the defense’s argument.

    In fact, it appears that the defense considers Phelps a hostile witness (hostile to Willis, that is). Otherwise the arguments would be reversed. At this point, it’s just a matter of the judge determining what evidence is legally permissible. You can’t really read much more into it than that.

    From a legal perspective, I don’t think this really tells us anything about any of the parties involved. If the prosecution and defense were not having these arguments right now, they wouldn’t be doing their jobs.

  4. There are mandatory reporting laws for counselor/counselee relationships right? I guess they think this wouldn’t fall under that?


    1. I believe lack of reporting would be a prosecutable offense against Phelps, which I’m fairly certain he should be prosecuted for (doubt he will be), and I don’t think would affect the privilege claim unless it was used to build a conspiracy or aiding & abetting type charge against Phelps.

        1. It is incorrect that “any professional who deals with people is a mandated reporter.” That is true in some cases, but some states do carve out an exception for privileged communication.

          You can look up the requirements of each individual state as

          For instance, Colorado (where some of this took place) says the following:

          Citation: Colo. Stat. Ann. § 19-3-304(2)(aa) (LexisNexis through 2009 Sess.)

          Persons required to report abuse or neglect or circumstances or conditions shall include any clergy member.

          The provisions of this paragraph shall not apply to a person who acquires reasonable cause to know or suspect that a child has been subjected to abuse or neglect during a communication about which the person may not be examined as a witness pursuant to § 13-90-107(1)(c), unless the person also acquires such reasonable cause from a source other than such communication.

          For purposes of this paragraph, unless the context otherwise requires, ‘clergy member’ means a priest; rabbi; duly ordained, commissioned, or licensed minister of a church; member of a religious order; or recognized leader of any religious body.

          Citation: Colo. Rev. Stat. Ann. § 13-90-107(1)(c) (LexisNexis through 2009 Sess.)

          A clergy member, minister, priest, or rabbi shall not be examined without both his or her consent and also the consent of the person making the confidential communication as to any confidential communication made to him or her in his or her professional capacity in the course of discipline expected by the religious body to which he or she belongs.

          This is a good reminder not to take legal advice (or any other kind of professional advice) from blogs and commenters on blogs because, while they are surely well meaning, they are often uninformed as to what they are talking about.

          If you are involved in a situation like this, you absolutely need to get an attorney involved immediately. Many insurance policies cover this type of situation.

          But as a general rule, clergy should not promise confidentiality, and should not invoke it in situations like this. And you need to say that upfront, but in places like Colorado, a pastor cannot be examined (by legal counsel; testify in court; etc.) without the consent of the congregant.

          Again, it’s what the law says.

        2. A good reminder that laws vary from state to state. I know much more about the laws in Texas, where confidentiality rules did apply in some of the jobs I’ve had, than the laws in other states.

  5. I hope someone (particularly in the prosecutor’s office) has taken screencaps of Phelps’s blog. I wouldn’t be surprised if he didn’t take it down so his “congregant/clergy” privilege isn’t affected.

  6. Even if there were such a thing, there are also laws requiring that abuse of children and vulnerable adults be reported to the authorities, even in cases when communication is normally privileged (therapist, minister, social worker, etc). It is the minister’s/counselor’s duty to inform the counselee of this prior to beginning the session.

  7. If Phelps is trying to pull this stunt, isn’t he pretty much saying Willis is guilty, he knows it, but doesn’t want to have to confess to it in court? Then again there’s nothing to stop him from committing perjury (which I thought he was going to be doing anyway.)

    Wonder if Phelps will try to take the fifth.

  8. The article reads as if Phelps’ lawyer was there.

    In most if not all states, clergy privilege extends to all clergy, not just Catholic. It includes any confession or seeking spiritual advice. It is a fairly long standing privilege and is designed to allow a person to seek spiritual advice.

    In some states, clergy are not mandatory reporters of sex abuse unless the information is available other than pastoral counseling with the individual. In other words, if the abuser confesses to his pastor, or seeks spiritual advice from his pastor, and the pastor has no other suspicion, he cannot report the abuse. (Don’t blame me, it’s the law.) A pastor would be dumb to not report, but then a pastor should never promise confidentiality. But the privilege exists in the law, though it differs from state to state.

    In most cases, the presence of a third party removes the privilege. However, since the third party in this case was a lawyer, and the attorney-client relationship has a privilege, that could be an interesting call by the judge. My guess is that the privilege will hold, particularly if the attorney was Willis’s since Willis holds a privilege with both parties.

    As for Phelps, I have never been impressed with him and don’t have anything to do with him, but I am not sure what he would be prosecuted for, or what he would “take the fifth” for (unless it was a fifth of whiskey to drown all his troubles). He reported it (and no reliable source has disputed that that I know of), so it appears that he cannot be charged with a coverup. If the police asked him where Tina was and he refused to say, he could possibly be charged with obstruction, but I haven’t seen that from any credible source. That would not be covered by privilege in any way that I can think of.

    But the bottom line is that the police never followed through. Willis signed adoption papers in Colorado, so her location was not a secret. Furthermore, police are investigators. With things like phones, airplanes, and internet, there is no excuse for them not finding her in Colorado except they dropped the ball. Police have been cooperating across state lines for longer than 13 years.

    1. As Big Gary has already said, Phelps has spoken publicly about this case, so any sane, reasoning judge should rule that means that any clergy privilege has just gone out the window. He’s even been interviewed on 20/20 about it, for crying out loud. If he can talk to a reporter about it he can certainly talk about it in a court of law. It’s not like he’s kept silence for all these years and is suddenly being dragged into court.

      I could never be a defense lawyer. I’d never be able to last through a whole trial without vomiting if I had to defend scum like Willis.

      1. He has spoken publicly, and the judge might use that to compel testimony. He might not because it might simply be that the public information was not protected because it was known from other sources. In other words, the things already said may have come from sources other than Willis in a privileged setting.

        Without the facts, we don’t know.

  9. Some of the pastors I know, if there is such a thing as pastor/congregant privilege, have broken it many times over gossiping about members to other members, and generally belittling members from the pulpit.

  10. these fundy preachers like to rant and rave about how Christians should be going boldly before the throne of grace, and don’t need to talk to no feller in a dress to confess their sins, but they waste no time hiding behind a law which was intended to protect the dignity of the very action against which they hoot and holler. legally, he’s probably got a point, but if he were true to his “convictions”, he would say that he holds no special place between God & man and as such anything said to him is no different than anything said to anybody else.

  11. Here is my legal question for the day:
    Since Phelps went to great lengths to cover up the truth concering Willis’ involvement with Tina Anderson before the church body (ie he presented their sexual indescretions as unrelated to the church that evening)can Phelps be charged with Conspiracy to coverup an assualt on a minor?

    Obviously what he did was with foreknowledge and planning. Then he was complicit in moving her out of state. It looks like there is a pattern of evasion, and coverup on Phelps’ part. Secondly I would like to know did Phelps in anyway financially profit from his actions regarding salvaging Willis’ reputation or the eventual adoption of Tina’s baby? Did money change hands? If so how much? For What? And when did it take place?

  12. To Don,

    Phelps is under no legal obligation to reveal Willis’s acts to anyone except the authority. So morality aside, just in legal terms, it is hard to imagine that Phelps can be charged with conspiracy to coverup an assault. It appears that he reported it as he was required to do, and I haven’t seen any credible source doubt that or deny it. That is hardly consistent with a coverup.

    As far as moving her out of state, that is not a crime, and it may not even have been his choice. It may well have been her mother who wanted her to move, and Phelps assisted in finding a good family. And in fact it may have been the wisest thing to do from a number of angles. From what we know of her mother, it was probably a good idea to get her out of that situation and to a more stable environment. Only the worst of abusers and enablers would suggest that it was a good idea for her to stay in that home and in the area where Willis was living where he could continue to harass her. There is no indication that I know of that Phelps tried to hide her location. Again, if he was asked where she was and he refused to say, that is certainly wrong, and should be prosecuted. But there is no indication that I know of that he did that. Again, if the police couldn’t find her in Colorado, then they didn’t try very hard.

    As far as money, that is just silly and I think it is probably unethical. I realize that there is a lot of distaste for Phelps. I heard Phelps preach once in person fifteen years ago and I didn’t like him then. I have never met him personally and don’t care for his idea of church and ministry. I have nothing at all to do with him. So there is a part of me that welcomes you guys to where I have been for a decade and a half — rejecting Phelps and his idea of church and ministry. You are late to the party, but better late than never, the old saying goes. But to suggest that there is money involved goes beyond the pale, even for the critical atmosphere that is surrounding this case. Too much in this case seems to be a situation of just throwing all kinds of crap out and see what sticks.

    If I wondered if and how much you were being paid by the Tina Anderson Foundation to go around and make these kinds of comments, you would be incensed, and rightly so.

    So regardless of the rightness of your cause, don’t do stuff like this. The cause is strong enough by simply saying what we know. Throwing this sort of stuff out makes it sound desperate … like what we know is “iffy” and we better throw a little more out just to make sure. I suggest it doesn’t help the cause. The cause is too important to let it be derailed by this sort of stuff. Even those sympathetic will be put off by these types of charges.

    I am totally onboard with pursuing and prosecuting these people. I have actively refused fellowship with people even remotely connected with these types of situations such as Bob Gray in Jacksonville. But I am not the least persuaded by charges of extortion or bribery.

    1. I’m just asking questions. I have been personally involved with a pastor who did many outrageous things to cover his illegal activities and did whatever it took to try and salvage his reputation. (and yes, he is in jail now)
      So yeah, I’ll ask how much was Willis’ tithing to Phelps’ ministry? Set in on the Monday morning meeting of a large church and I’ll guarantee that money from the previous day’s take will be a primary topic. How big was Willis’ contribution? Did it increase after Tina was out of the way?

      One rule when it comes to ministries and coverup in ministries “Follow the Money!”

      1. If you are talking about offerings, then sure, that’s a legitimate issue. It sounded to me like you were talking about money given directly to Phelps for his direct financial profit. But I doubt that could be a legal consideration.

  13. I know I fall under a different set of rules, and believe me, I would never defend Phelps’ indefensible responses; but as a Navy Chaplain our privileged communication instructions are some of the strictest available in a legal sense. Civilian pastors fall under laws which differ from state to state, and it does seem to me in the case of child rape he probably was a mandatory reporter although those laws may not have been in effect at the time in that state.

    Clergy confidentiality is an important legal protection provided to ministers within our legal system, not just Catholic Priests. As a Chaplain, I can actually jeopardize a legal investigation by disclosing any information that was provided to me in confidence. Evidence has actually been ruled inadmissable as a result of its initial source being a chaplain statement.

    All that being said, if Phelps included someone else in on those conversations then it is doubtful that privileged communication actually occurred. Also, even in situations where you can’t report a crime (which this may not be one of those situations), you can do a lot more than he did to make sure the situation comes to law enforcements attention, and especially that the church members know who the criminal and who the victim is, instead of blaming the victim and covering for the criminal.

    1. This is a good point. I think the real issue is not how Phelps’ testimony might fit into the legal puzzle, but rather why as a professing Christian pastor he has made no effort whatsoever to see justice met in the case of the rape of one his “flock”. My pastor is a peaceful guy, but he would rip a dude’s face off if he raped a fifteen year old.

      1. “I think the real issue is … why as a professing Christian pastor he has made no effort whatsoever to see justice met in the case of the rape of one his “flock”.” Yeah. That’s been bugging me too. And in court today, he mentioned how he was worried that Ellis might commit suicide. It comes across that his concern was more for the perp than the victim.

  14. Reading the updates on the trial from WMUR. There was some discussion without the jury about Phelps’s website and his counseling notes, which he says were turned over to the police without his knowledge.

    “The judge says he believes there is no privilege. The judge will provide a written order that causes him him to conclude that the rule of privilege does not apply. The judge is addressing Pastor Phelps about being asked difficult questions that he may feel he cannot answer them without violating pastoral privilege. The judge says the court is ordering the Pastor to answer the questions rather them the Pastor offering the information.”

    Read more:

    1. It appears it was Chuck Phelps who wanted to hide behind Pastoral Privilege. 😈 👿

      1. Yes, and already we see why: in his notes taken at that time, Ernie Willis told him there were two sexual assaults and he was the “aggressor”. Up until now, Willis has claimed he raped Tina only once.

        1. Phelps and Willis must have pooped their pants when they heard the prosecution had Phelps’ notes.

  15. The news is reporting that Ernie Willis was found guilty on all four counts. Praise God for justice.

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