Pastor’s Testimony Excluded from Rape Case May 22, 2012

Pastor’s Testimony Excluded from Rape Case

As you might expect from the headline, this case is disturbing, disgusting, and revolting.

What you might not expect is that the good guy in this story is the religious leader.

In 2009, an 11-year-old girl told her mother that, two years earlier, her 15-year-old male cousin had raped her (when she was nine). The facts in the case are horrific:

The victim awoke in the middle of the night when defendant pulled down her pants and underwear. He then penetrated her rectum with his penis. When the victim tried to yell, defendant allegedly pushed her face into a pillow and threatened to kill her if she told anyone. The second night of her visit, [the victim shared a bed with defendant’s sister] H. The victim alleged that defendant came into the room in the middle of the night while H was sleeping. Defendant allegedly put his hand inside the victim’s pants and fondled her buttocks and vaginal area.

Upon hearing this, the girl’s mother informed the police, her husband, and the pastor of the church which — as it turned out — both families attended. The pastor, Rev. John Vaprezsan, knew the defendant well and asked him and his mother to come to the church to speak with him. He didn’t tell them what it was about.

The Rev. John Vaprezsan
Rev. John Vaprezsan

During that meeting, he elicited a confession from the defendant. Later, he told the victim’s family what the defendant had said. The family, in turn, told the police what had transpired.

While this sounds like an open-and-shut case — we have a confession, after all — it’s not quite that clear-cut.

In court, the defendant said that the pastor’s testimony could not be used against him because he had made it in private to an acting member of the clergy. There’s precedent for that — many states agree that when a person tells their pastor (or priest or whatever) something that is necessary to allow the pastor to fulfill his function, that statement is considered confidential.

It didn’t matter here. The trial court allowed the pastor’s testimony to stand. To no one’s surprise, the ruling went against the defendant.

So there was an appeal. This time, the new court said that it was wrong for the pastor to testify because the defendant’s statements had been made within the clerical-congregant relationship and were therefore privileged, meaning that the court cannot compel the pastor to testify, and the defendant can prevent the pastor from testifying.

Normally, if another “unnecessary” person is present during what would otherwise be a confidential communication, the privilege is destroyed. For instance, if I bring my sister with me to see my lawyer and I tell the lawyer I committed a crime, the lawyer could potentially divulge that to the police. I said it in front of someone else, after all.

But naturally, if the person making the statement is a minor, the rules are different. It’s pretty important for parents to be allowed to accompany their children during important conversations (like police interrogations, attorney consultations, etc). So, in this case, having the defendant’s mother present didn’t break the “confidentiality” rule.

The Appeals court essentially ruled in favor of the defendant. Even though a confession happened, it was considered confidential. It couldn’t be used against him. They excluded critical evidence in the case of an abhorrent crime.

This leads to some important questions: Is this really the morally correct thing to perpetuate in our society? Should there be a special privilege that’s based purely on religious views and hinders the prosecution of horrendous crimes?

The answers to these questions are complicated. The privilege is rooted in the Free Exercise Clause. That is, courts have found that it would violate the First Amendment to require clergy to violate their conscience by betraying the confidence their parishioners place in them. On the one hand, I have no desire to see First Amendment protections reduced in any way. On the other hand, we infringe on people’s rights all the time in order to serve some greater societal good.

The way most other privileges work (physician-patient, attorney-client, psychotherapist-patient) is that the professional in question may not reveal statements about past crimes. If someone tells their lawyer about a crime they’re planning which involves serious harm to another person, in some states, the lawyer must tell the authorities. But, if the crime occurred in the past, then the statements are still privileged.

We often require “violations of conscience” where they would serve a public good, like when we punish parents for withholding medical care from their children. Because of this, the Free Exercise issue pales in comparison to the cost in this case: A child rapist walking free.

The only remaining consideration, then, is whether there are any other reasons to respect the confidentiality of the relationship between a pastor and his flock. We protect communications between the other professionals and their respective clients/patients because we believe that frankness is crucial to those relationships.

Without believing you could privately tell your doctor the truth, you might not get the proper treatment. Without being able to tell your lawyer the full truth, no lawyer could adequately represent you. Does the same principle apply to clergy? Well, if you’re religious, I’m sure it does. I presume that the members of that church believe that their ability to receive spiritual counseling depends heavily upon the degree to which they can be sure it’s confidential. The question is, to what degree should a secular society be concerned with the spiritual health of church-goers, when it potentially has terrible consequences for crime victims?

Personally, I’d rather put this on the list of Free Exercise rights that are not absolute than allow such critical evidence to be excluded. The benefit of respecting the sanctity of that relationship just doesn’t rise to the level of overshadowing the benefit of putting a child-rapist in jail.

Would your cost-benefit analysis be different?

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  • Is it really violating the clergy’s conscience if they testify on their own choice? Are we forcing (say)
    Vaprezsan to go against his better judgment of what was told to him in confidence if he himself is the one that chose to testify using the information? I don’t see how this is possible. 

    To say that clergy shouldn’t be forced to testify using information is one thing, but to say that they cannot is entirely different, and, in my opinion, absolutely wrong.

  • On the other hand, we infringe on people’s rights all the time in order to serve some greater societal good.” I would say that’s so true it hurts, but I won’t considering the things that happen as a result of infringing on rights hurt much more. But then more of the same can happen when we don’t infringe upon them with certain things. Such a warped justice system we use and such odd people that come out of it. Where’s Rapture when you need it? (The Godless, underwater city, not people flying out of their clothes and into the sky, only to be surrounded by nudity and then come crashing down violently due to impure thoughts or some such). On topic, I believe this reminds me of similar stories like someone admitting to their crime after being found innocent (couldn’t be charged twice). There’s always going to have to be exceptions to laws. A law cannot account for everything, and laws are always changing because of that. Which is why, with the ideals of a never perfect but hopefully better justice system, we need to learn from our mistakes. Someone admitting that they did something… unless under an insanity plea found to be factual… is incriminating evidence and should by all means be used against him.

  • EivindKjorstad

    I think, clearly, the pastor should be -allowed- to testify. It does not violate his conscience to testify from free will.

    If we should -compel- him to testify, is  trickier. Laws vary by jurisdiction, but where I’m at, people in a priviledged position such as doctors, lawyers and priests can only be compelled to testify if and when the subject-matter is a clear and serious threat to someone, i.e. the testimony must be needed to prevent further serious harm, not merely to get a conviction for former wrongdoings.

    Being able to tell a doctor or a psychiatrist about things without fear of having it used against you serves and important function, I don’t see any similarly important reason why people must be able to trust their priests with criminal secrets.

  • Denis Robert

    Wait a minute: the pastor violated the confessional by telling the girl’s parents what the kid had said. He himself showed that there could be no expectation of confidentiality; the pastor clearly didn’t consider it a privileged conversation, since he showed no scruple is repeating what was said. Why would the court consider something confidential that the pastor himself didn’t?

  • hoverFrog

    Rev. John Vaprezsan going to be charged with interfering with a police enquiry?  That is essentially what he did when he decided to question the rapist in private.  An untrained and unsupervised member of the public got a confession out of a legal minor.  There was no reading of rights, no legal representation made available and probably no assumption of innocence.  He has no legal standing as an officer of the court so why is a well meaning amateur taking on the role of the police and jeopardising a criminal investigation?  We have the police for things like this.   

    At the very least he should apologise to the victim and her family.

    That said the damage was done.  There are certain professions that have an obligation to protect those people who tell them privileged information.  Doctors and lawyers are obvious.  Pastors and bar staff are less obvious. 

    If we assume that pastors as professional in the confession business have a legal obligation to protect their charges’ confessions from being spread then they cannot be used as evidence.  On the same note Rev. John Vaprezsan has already broken this trust by telling the family, the police and a court room what the rapist told him.  Surely there should be some restitution made for that for consistency sake?  

    Even if there is an obligation I believe that there should be exceptions.  For example a psychiatrist must inform the police if their patient is planning on committing a crime (I think).  Was the rapist a danger to others?  Was he planning on repeating his crime with new victims?  If Rev. John Vaprezsan thought so then he was obliged to report the confession and to testify against the rapist.

    Personally I don’t believe that a pastor should have any legal protections to withhold evidence or to have their testimony protected.  Isn’t there a no establishment clause after all?

  • Dan

    Doctor-patient privilege is waived in many states for child abuse or sexual assault, so if legal exceptions can be made in those cases it seems much more obvious that exceptions should be able to be made for clergy. My dad was a pastor, and I thought it was required for him to notify authorities if he suspected child abuse or assault?

    Anyways, in many Protestant denominations confession is not required to supposedly be forgiven. Since there isn’t a belief in the spiritual ‘need’ to confess, it isn’t like a psychologist-patient relationship where full disclosure is necessary (again, for most Protestants ministers at least).

  • Heather

    I would kill the kid. I literally would. Mess with my kid and the “Justice System” won’t do it’s job? Then I’m taking the law into my own hands. Period. Then I’d lawyer up and stonewall the police so they had to work hard for evidence against me.

  • Benjamin Kay

    It would be nice if the law would clarify the pastor-congregant privilege. I could see a compelling argument for making it similar to psychotherapist-patient privilege, not for any religious reason, but because congregants often use their pastors for this purpose. One might also make it so that a secular exam is required for licensure, and one need not necessarily be Catholic clergy to apply.

  • Janice C.

    It seems to me that the pastor was working as an agent for the victim’s family (even though he serves as clergy for both).  He called the boy and his parents in to question them; the boy didn’t seek him out for counsel.  In that respect, I personally don’t see it as counseling for spiritual well-being, therefore in my opinion his testimony should be admissable.  

  • Paul_Robertson

    I think the thing we tend to forget in these discussions is that people confide in their priests because it is confidential. Take away the confidentiality and people will stop confiding. If the aim is to convict more criminals, removing this privilege is not going to get us there.

  • RebeccaSparks

    Do we have any lawyers in house that know the rules for mandatory court reporters?  

    Is this case being treated in a different way than for a secular occupation mandatory court reporter?

  • Patrick

    Alright, I’m inferring this, so if its factually wrong I apologize.

    It seems like no one knew the exact nature of the alleged privilege in advance.  This means that decisions weren’t made with full information, and virtually guarantees bad outcomes.

    For any other context, I’d recommend either licensing subsequent to education (like doctors, lawyers, etc), or eliminating the privilege.

    But with clergy, there are obvious social norms precluding that sort of thing.

    So… I don’t really have a solution.  I’d personally adjust the norm so that the clergy can refuse to testify if they choose, but cannot be prohibited from testifying if they desire.  That’s the best compromise I can come up with, given that there’s no means of guaranteeing even the most minimal competence or ethics amongst clergy.

  • Lorimakesquilts

    Michigan law is pretty clear that the pastor was required to report the crime (
    Mich. Comp. Laws Ann. § 722.631.)  So the question seems to be is he *allowed* to testify.  Vaprezsan didn’t seem think it was a confidential matter.  And why would he, Bragg was 17, certainly old enough that I wouldn’t consider it a confidential confessional when his mother is there.  The pastor was also representing the other family, so again, not confidential.  Not to mention they were discussing a crime against a child not a spiritual or church matter.  I think he should be allowed to testify and the defendant cannot invoke privileged communication.

    This seems to be nothing more than trying to get a criminal out of punishment by any technicality they can find.  Bragg and his mother have denied the confession and they don’t want someone, who many see as inherently honest, countering their denials.  His lawyer made a comment to the effect that presumption of innocence would be eliminated if Vaprezsan testifies.  Not sure how that works.  Either he’s being honest or he isn’t.  That’s for the jury to decide, just as they have to decide for any witness.  The fact that he is clergyman and may be seen as more likely to be honest, than, say, the mother of a man under trial for child rape is not grounds for barring his testimony.  All witnesses have to be evaluated on not only what they say but the likelihood of honesty on their part.

  • MV

     Who cares if people confide in their priests if it is privileged information?  That by definition means it isn’t used in the justice system.

    Isn’t the fact that communication between a priest and parishioner is considered privileged just another form of religious privilege?  What is the good secular reason for its continued existence?

  • I think the key word here should be COMPELLED to testify. I don’t see that this is the case. The pastor testified voluntarily.

  • Miko

    Cost: People becoming unwilling to share these sorts of things with members of the clergy.  Those who would have been persuaded to stop or atone by talking with the member of the clergy instead continue and do not atone because they were unable to talk to the clergy member.
    Benefit: None, because the rapists you want to stop decided not to talk to the clergy member, so that there’s nothing for the clergy member to report anyway.

    Pretty obvious case in favor of clergy confidentiality.  And for exactly the same reasons that we guarantee confidentiality with psychological professionals.

  • Ibis3

    The thing is, that it is the right of the people who are doing the confiding to have insurance that the conversation is private and won’t be used against them later. If you confide in your spouse, they shouldn’t be allowed to testify against you because they’re mad at you now for some unrelated reason. You entrust yourself to a physician or psychiatrist, it shouldn’t be up to them to decide what to reveal in open court. Otherwise, no one would feel safe confiding in their doctors. Historically, clergy have been considered “spiritual doctors” or proxies of God (a.k.a. the soul’s “spouse”). Like a doctor or a spouse (the thinking is), you should be able to tell them anything without fear that they’ll turn on you and testify against you whether it’s their choice or not.

    The only question that remains is whether clergy should still be granted that privilege when there are now secular alternatives who are actually licensed. I’d have to go with yes (as long as the rules are clear and spelled out)*. If we’re going to give people the freedom to practise their religion, and their religion calls for people to confess to a priest to obtain absolution (for example), then this is one of the casualties. However, that doesn’t stop the clergy from saying true repentance requires you to confess to the authorities and take whatever secular consequences and punishments there are. That’s where the pressure should be placed.

    *For example, if someone is in danger, the privilege should cease to apply. In this case, given the family relationship between the perpetrator and victim, the victim is still being emotionally harmed and is still in danger of being the victim of another attack.

  • Ibis3

    It’s not about whether the pastor considered it privileged, but whether the accused (or the court, protecting his rights) considers it privileged.

  • Though such abuse incidents can breach the psychologist’s/psychiatrist’s privilege, depending on state, especially if there’s a chance they may continue. However, I suspect this is one of the basic social functions Confession serves– enabling more social value to be gained from an imperfect member than simply discarding the member.

    Between this, and the principle of Free Exercise (which is rooted in “we have more religious wars otherwise”), I’d be inclined to tolerate it for another couple decades. Perhaps re-examine the question in fifty years or so, when irreligion is a bit more common.

    Contrariwise, I’d also say that while the privilege here should allow a priest/rabbi/iman/houngan to refuse to testify, it should also allow them to choose to testify — again, as Religious Free exercise. Not every religion holds such consultations as absolutely sacrosanct as the Catholics.

  • I could confide in anyone, but that doesn’t mean that they cannot use what I say in the court of law. Could I not confide in an interrogator in hopes that the information I give them will be private? To say that just because someone confided in someone else means the information can’t be used would be the death of the Justice system.

    Even if a religion states that the followers must confess, this should not be a hindrance to justice. It should be up to the religious authority and their conscience as to whether information is worth testifying for.

  • But . . .

    Are we sure the preacher elicited a confession and didn’t coerce it? I thought hearsay was banned from trials as unreliable.

  • Byskwik

    If you replace Priest/Preacher/Rabbi/etc with Community Leader & it holds water, there’s a secular reason for it.

     I can see situation like this happening at a local community center if both kids were to go there after school, for example. If the center doesn’t have a qualified counselor on staff (& not all do) then perhaps this would have been handled by one of the volunteers.

    (Side note: I feel we should give credit to the preacher for doing the right thing. He could have blamed the victim or just hushed it up like other clergymen we’ve seen in the past.)

  • ReadsInTrees

    It’s hearsay if the parents testified that the pastor told them that the defendant confessed. It’s not hearsay if the pastor testifies that the defendant confessed. Hearsay has to have three parties (if I’m remembering my Courtroom Procedures course correctly), but if there’s only two (the confessor and the person hearing the admission) then it’s not hearsay.

  • Travshad

    The law in Michigan specifically defines what communication is subject to  privilege. Not all communication is privileged, but certain communication between pastors and pentinents are protected by the laws enacted by the representatives of the people of the State of Michigan. 

     The privilege belongs to the pentinent, not the pastor.  Baptists do not have a requirement to “confess”, so the pastor likely broke no denominational rules.  But as this appeals court panel found, his testimony did violate the secular laws of Michigan.

    If the people of Michigan do not want to allow this type of privilege than they need to change their laws.   

  • Travsad

    Actually he is also the employer of the boy’s mother (she is the church secretary).  At the end of this session the mother and the pastor prayed together.  The mother and the boy believe they were called in for counselling.  It appears to me the pastor was also acting as a counselor to this boy and his mother, and as such as a matter of law should not be allowed to testify.

  • Travshad

    The pastor’s conscience is not relevant.   The privilege is for the benefit of the penitent.  Only he is allowed to wave this privilege.  I don’t understand why so many people in these comments think privilege has anything to do with what the pastor wants to do.  He is not permitted to reveal to a court or anyone else what is discussed in a private counseling session. 

  • Travshad

    The key word is PRIVILEGE.  The courts have correctly ruled that this confession is, under of Michigan law, privileged communication between a pastor and a penitent   The pastor does not have the right to disclose privileged communication without the consent of the penitent.

  • Travshad

    I’m not a lawyer, but Michigan grants an exception for mandatory reporting for clergy if he or she learns of abuse “in his or her professional character in a confession or similarly confidential communication” (Mich. Comp. Laws Ann. § 722.631).

  • IronDragon

    There are other issues here too as well. Some people could argue that if there is not a means of creating a ‘privilege’ environment that it wouldn’t take much to turn the confessional into a tool of the state, IE either coercing or forcing priests to testify as well as possibly working as a violation of the free exercise clause. The situation is horrid but the problem is that no matter what is done there are going to be issues.

  • RebeccaSparks

    Today I have learned that mandatory reporting is a state’s rights issue–not every state even has mandatory reporting and only 26 states include clergy as mandatory reporters. However, others states do require clergy to come forward in cases of sexual abuse…

    This was my clearist, most direct source

  • Paul_Robertson

    I think that Byskwik has ably answered your question, although I would have personally substituted therapist for community leader.
    But my point was not to argue the merits of retaining the privilege, but rather to make the point that there’s no secular benefit to tearing it down. Yes, this one case would have ended differently but that would have been the end of it because criminals would stop confiding in the clergy. I think that secular policy should be based on more than a disapproval of religion; we should hold ourselves to the same standard that we demand of the religious people who would influence the law.

  • teressa81

    A child was raped. There was a confession. It is criminally immoral not to peruse and investigate it. Those who believe otherwise scare the hell out of me.

  • Dan

    Several people disagree with you above, citing specific parts of Michigan’s law. In many states privilege is waived for certain knowledge, including child physical and sexual abuse. I really don’t see why it is illegal for the pastor to testify, privilege was already broken when he reported the confession to police, as was required by law.

  • Dan

    Several people have pointed to specific places where Michigan Law requires the pastor to break privilege when he finds out about child abuse (this applies to the doctor-patient relationship in many states). It seems strange that the pastor is required by law to break privilege and report what he finds out to police, but then isn’t allowed to testify because it breaks the supposed privilege that was already required by law to be broken.

  • Travshad

    They are incorrect.  Michigan law specifically exempts clergy from reporting if they discover the information in privileged communication with a penitent during religious counseling. 

  • Travshad

    The relevant section of the Child Protection Law (Act 238 of 1975) is 722.631:

    Sec. 11.
    Any legally recognized privileged communication except that between attorney and client or that made to a member of the clergy in his or her professional character in a confession or similarly confidential communication is abrogated and shall not constitute grounds for excusing a report otherwise required to be made or for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to this act. This section does not relieve a member of the clergy from reporting suspected child abuse or child neglect under section 3 if that member of the clergy receives information concerning suspected child abuse or child neglect while acting in any other capacity listed under section 3.

    It is clear that Michigan law exempts Clergy from reporting evidence of child abuse if they discover the evidence through privileged communications with a penitent. 

    As the circut court and the appeals court found, the pastor’s testimony violated the priest-penitent privilege.  The defendant did not waive the privilege so the testimony was not allowed. 

  • Carrie

    When a defendant makes a statement, it’s not hearsay. I know that seems weird, but the law defines statements of adverse parties as non-hearsay. So, depending on the jurisdiction and all other things being equal, a person can testify to what the defendant said to them.  Readsintrees, that is not the definition of hearsay. It’s just an out of court statement used to prove the truth of the matter. So if you have a third-hand account, you just have to overcome to levels of hearsay challenges. The number of people involved has no effect on whether a statement constitutes hearsay.

  • Puffy

    And why exactly should they have this right? If they rape someone why should it be confidential if they tell someone? I don’t care if they tell their pastor, their doctor, their psychologist or their spouse, if they don’t report the rapist and testify, then they’re just as morally bankrupt, and should be tried for shielding a rapist.

  • Puffy

    Oh, you’ll tolerate it for another couple of decades will you? In the meantime lets simply ignore the victims and the future victims of these rapists, oh I’m sorry “imperfect members”. Where’s the net social gain from countless traumatised victims? If they go on to rape again (Lisak & Miller 2002 cite that around 63% of uncaught rapists will go on to do just that), what’s the social value that’s been gained?

  • Hannah

    I don’t see this as any different than talking to a therapist about the situation.  That’s what a “counselor”  is.  I think the same rules should apply to the clergy.  Religion has nothing to do with it: it is a privilege between the therapist/counselor and the client. 

    I have told my therapist about past crimes that I have committed.  I told her about a hit and run.  I told her about shoplifting.   Minor crimes, but  crimes nonetheless.  She did not report them, of course.  To do so would be reprehensible.  Ethically wrong, and probably morally wrong as well. 

    The “ethical” part is what sticks with me here.  It doesn’t sound like this priest was behaving ethically.  He called in this family without telling them why, and lead them to believe that they were speaking with that privilege in place.  That, to me, is ethically wrong.  As a clergyman, he should not have done that.  He lied to them to elicit the confession. 

    Mind you, I’m all about getting the child rapist behind bars, where he belongs.  But the point is, the priest had NO RIGHT to do this.  It wasn’t any of his business, and he should have known better.  He fucked the case up.  He should have turned it over to law enforcement, to someone who was legally capable of handling the case. 

    As a therapist does!  If another client told a therapist that I had done something to them, the therapist would not call me in and try to get a confession from me.  She would call the police. 

    Ethically speaking, the priest fucked up.  (You’d think they’d still have a case, though!)

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