A deal with the devil? The clergy-penitent privilege in the United States military.

Abstract

This dissertation seeks to answer the question, "How does the understanding and use of professional confidentiality—particularly its subset, privileged communications—affect the ministerial functionality of U.S. military chaplains?" Within the U.S. military, communications made to doctors, lawyers, social workers, and psychotherapists are either unprotected or protected to severely limited degrees. Communications made to chaplains and their assistants, however, are protected absolutely, and thus military law affords penitents far greater protection than that offered by current state or other federal statutes. Because of this singular protection, the influence of uniformed religious professionals upon individual lives, and upon the readiness and mission of the unit to which they and penitents are assigned, cannot be overstated. Yet, while the moral value of clergy-penitent confidentiality is a given among chaplains and their assistants, its historical, ethical, and legal dimensions are ill-understood by them, by penitents, military lawyers, and commanding officers. In this lack of understanding lies potential trouble that might reduce confidentiality from a pastoral tool that provides critical support to a unit's mission to a noble, but empty, ideal. This study provides an analysis of the protections provided to confidential and privileged communications made to military chaplains and assistants in the course of their ministry. The analysis is done with a goal to (a) defining the nature—legal, ethical, and theological—of the constructs placed by a variety of professions upon the protection of these communications and (b) assigning to confidentiality and privileged communications an appropriate weight as critical ministry tools within the military. Examination of this topic requires an understanding of the historical roots of the clergy-penitent privilege as it developed, first, within Western European religious traditions and, second, its translation into the legal arena. Hand-in-hand with historical-theological concerns, which primarily address the spiritual potential inherent in pastoral silence, are psychologically-rooted ideas about the benefits and dangers in the areas of privacy, human development, and identity. This study will address a multitude of ethical questions regarding the use and abuse, cause and effect, understanding and ignorance of the clergy-penitent privilege within the U.S. military. Finally, this study addresses the ways in which the concepts of confidentiality and privileged communications affect both military function and ethical concerns for the human and common good within the military environment. This examination of confidentiality and privileged communications will enable individuals working in the disciplines of religion, ethics, and law to reflect on the significance of this tool in an increasingly legalized culture and society.

Date of Award

1-1-2007

Document Type

Dissertation

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