(a) Definitions. As used in this section, the following words shall have the following meanings:
(1) A “clergyman” includes a priest, a rabbi, an ordained or licensed minister of any church, or an accredited Christian Science practitioner.
(2) A “communication” is not limited to conversations, and includes other acts by which ideas may be transmitted from one person to another.
(3) “In his professional character” means in the course of discipline enjoined by the rules or practice of the religious body to which the clergyman belongs.
(b) Privilege. A clergyman shall not disclose a confession made to him in his professional character without the consent of the person making the confession. Nor shall a clergyman testify as to any communication made to him by any person seeking religious or spiritual advice or comfort, or as to his advice given thereon in the course of his professional duties or in his professional character, without the consent of such person.
(c) Child Abuse. Any clergyman shall report all cases of child abuse, but need not report information solely gained in a confession or similarly confidential communication in other religious faiths. Nothing shall modify or limit the duty of a clergyman to report a reasonable cause that a child is being injured when the clergyman is acting in some other capacity that would otherwise make him a reporter.
Subsection (a)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20A. In Commonwealth v. Kebreau, 454 Mass. 287, 301, 909 N.E.2d 1146, 1158 (2009), the Supreme Judicial Court noted that the privilege is strictly construed and applies only to communications where a penitent “seek[s] religious or spiritual advice or comfort.” In Commonwealth v. Marrero, 436 Mass. 488, 495, 766 N.E.2d 461, 467–468 (2002), the Supreme Judicial Court declined to include the manager of a “Christian rehabilitation center” for drug addicts and alcoholics, who was not an ordained or licensed minister, within the definition of “clergyman.” The court also noted it was not an appropriate case to consider adopting the more expansive definition of “clergyman” found in Proposed Mass. R. Evid. 505(a)(1). Id.
Subsection (a)(2). This subsection is taken nearly verbatim from Commonwealth v. Zezima, 365 Mass. 238, 241, 310 N.E.2d 590, 592 (1974), rev’d on other grounds, 387 Mass. 748, 443 N.E.2d 1282 (1982).
Subsection (a)(3). This subsection is taken nearly verbatim from G. L. c. 233, § 20A. See Commonwealth v. Vital, 83 Mass. App. Ct. 669, 673–674, 988 N.E.2d 866, 871 (2013) (a communication by the defendant to his pastor with a request that it be passed on to a person who was the alleged victim of a sexual assault by the defendant was not covered by the privilege because the defendant’s purpose was not to receive “religious or spiritual advice or comfort,” but instead to circumvent the terms of a restraining order).
Subsection (b). This subsection is taken nearly verbatim from G. L. c. 233, § 20A. It is a preliminary question of fact for the trial judge whether a communication to a clergyman is within the scope of the privilege. Commonwealth v. Zezima, 365 Mass. 238, 242 n.4, 310 N.E.2d 590, 592 n.4 (1974), rev’d on other grounds, 387 Mass. 748, 443 N.E.2d 1282 (1982).
Subsection (c). This subsection is taken nearly verbatim from G. L. c. 119, § 51A.