¶1dissenting. According to Arkansas Rules of Evidence 505(b), the “religious” privilege clearly belongs to the “person” (Dewey Magar), and not to the clergyman (Reverend Rowe), to whom statements were made in confidence. The majority opinion seems not to question that point but focuses on whether the statement in this case can be said to have been “confidential.” Yet in the process of considering that question the opinion dwells on Rowe’s expectations rather than those of Magar. Therein lies the mistake.
¶2According to Rule 505(a)(2), a statement is confidential “if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.” The entire relationship between Reverend Rowe and his Church and Magar came about due to Magar’s felt need for counseling with respect to his sexual inclinations. Reverend Rowe testified he had informed Magar that what Magar said to him in their counseling sessions would not be disclosed, and it is undisputed that Rowe had not informed Magar he felt the counseling sessions had ended. While apparently the counseling sessions had been more frequent when they began, they continued every few months.
¶3The majority opinion concludes that, because Rowe called Magar to his office in a “confrontational” manner, Rowe had stepped out of what Rule 505(b) calls “his professional character as spiritual adviser.” Why? Suppose that when Rowe interrupted choir practice to call Magar to his office Magar had every reason to expect a “confrontation.” Does that mean Magar had reason to expect what he said to his confessor, who had counseled him on the very type of problem about which he then asked, would not honor the relationship and the promise of confidentiality? The majority opinion gives utterly no reason for concluding so. Again, the problem with the majority opinion is that it deals with Rowe’s expectations rather than those of Magar, and it is Magar’s expectations that count under the Rule.
¶4The majority cites cases for a “rationale” for denying the privilege along with a case in which the privilege was upheld. The reader is asked to credit United States v. Gordon, 493 F. Supp. 822 (N.D. New York 1980), and Burger v. State, 231 S.E.2d 769 (Ga. 1977), in support of the “rationale” of the majority opinion. The cases are not even relevant.
¶5United States v. Gordon involved a series of communications between Gordon and Father Meyers, a salaried executive in one of Gordon’s companies. These communications related purely to the business and consisted of messages Gordon asked Meyers to relay to a business acquaintance. Gordon knew Meyers was on leave of absence from the priesthood and specifically intended that the information go from the priest to another person. To say that the “rationale” of the decision that there was no privilege in such a case should influence us here is, to say the least, unfortunately illogical.
¶6Burger v. State involved conversational statements that Burger intended to kill his wife and her lover made to a clergyman characterized by the Court as a “friend and frequent companion.” Not only was there no showing of a counseling or confidential relationship, there was not even an objection to the testimony at Burgers’ trial. The failure to object was obviously for good reason. Such an objection would have been an indication of no knowledge of the law. I find it almost as egregious to cite the case here.
¶7Even if those cases were not so easily distinguished, or if there were the slightest evidence to support the conclusion that Rowe’s “confrontational” manner in some way should have informed Magar that this session was different from the others, there are important considerations with respect to the Arkansas codification of the privilege which require a result contrary to that reached by the majority.
¶8Arkansas Rules of Evidence 505(2) (c) states the privilege may be claimed by the person or communicant, and that a presumption exists that the privilege may be claimed by the clergyman only on behalf of the communicant. Subsection (2)(b) provides that the person or communicant has the privilege to prevent the clergyman from disclosing a confidential communication. This language makes it clear that the privilege is controlled by the communicant alone. This language was not used accidentally and manifests a clear preference on the part of the drafters. Note, Developments In the Law — Privileged Communications, 98 Harv. L. Rev. 1450, 1556 (1985), points out that some states grant the priest-penitent privilege to the clergy as well as to the communicant, citing the Alabama and California codifications. Other states provide that neither the priest nor the penitent may waive the privilege, notably, the Indiana, Michigan, Vermont, and Wyoming codifications. Still others provide that the privilege belongs to the clergy and the communicant has no standing to object to the testimony of the clergyman. Nothing in our Rule or the facts of this case supports the Court’s conclusion that intent or actions of the clergyman may dictate that which is or is not a confidential communication. Our codification of the privilege is substantially identical to our physician-psychotherapist privilege which is clearly controlled by the client or the patient alone.
¶9The policy considerations underlying the privilege were clearly enunciated in Trammel v. United States, 445 U.S. 40, 51 (1979), as follows:
The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.
¶10The majority opinion contradicts these considerations, apparently holding there can be no confidence in communications with a clergy person unless he or she decides the matter is one which warrants privacy. This conclusion is intolerable in view of the language of the Rule, the policy underlying it, and the facts of this case.
¶11I respectfully dissent.