What expectation of confidentiality should you expect when you consult with a rabbi? For instance, with the priest in the confessional, you expect 100% confidentiality. But I heard the other night that there should be no expectation of confidentiality when you consult with the rabbi. I heard a story from a rabbi about a man asking him a question that indicated that the man had money. The rabbi knew the man had massive debts from two decades previous, so the rabbi later went to the debtors and alerted them that that the debtee now had money and they went after the guy and got their money. And the man was indignant that his confidentiality was violated. The rabbi said there should be no expectation of confidentiality when you consult with a rabbi.
A rabbi says: “This was a court case around 15 years ago in New York where a rabbi revealed something about a wife and she sued the rabbi. Shouldn’t be hard to find the details. If say the woman reveals she isn’t going to the mikveh, this is something that the rabbi will probably tell the husband about, just like if someone reveals he is going to hurt another.”
Another rabbi says: “Great question. It is worth clarifying when ever speaking to clergy – “this is being said in confidence.” I think the rabbi sees the entire community as his concern – and not just the person he is speaking with.”
Another rabbi says: “Nothing to write. There should be 100% confidentiality unless a life is in danger.”
A major rav tells me: “The concept of confidentiality of clergy is not a Jewish concept…”
I guess there are no clear halachas here that come to mind. It seems that the more western, more secularly educated the rabbi, more likely he is to give confidentiality and the reverse for the more haredi.
Rabbi Michael Broyde wrote: ” To the extent that the secular law is inconsistent with halakha with respect to these issues, the issue of Dina De’Malkhuta Dina (the obligation of Jews to follow the law of the land) invariably comes to mind. The halakhic parameters of the concept of Dina De’Malkhuta Dina are extremely complex and beyond the scope of this memorandum.[32] However, suffice to say that the concept of Dina De’Malkhuta Dina is mainly directed towards the sphere of taxation and certain other monetary matters (such as landlord-tenant regulations or certain creditor-debtor regulations aimed for the betterment of society [33]), but is not applicable when the secular law runs directly contrary to the exercise of a religious obligation. [34] Thus, to the extent that the halakha mandates disclosure of information, then disclosure is obligatory even if it will result in an inevitable violation of secular law. The discomfort heaved upon Rabbis due to the entanglement of secular law requirements with the dictates of halakha only serves to underscore the necessity for a more conscientious application of the free exercise clause of the U.S. constitution by the secular courts.”
Agudath Israel press release: ALBANY, NY — In a unanimous decision, the highest court in New York State ruled on November 27, 2001 that members of the clergy cannot be held legally liable for the disclosure of confidential communications made to them by their congregants.
The Court of Appeals dismissed a lawsuit brought against two prominent rabbis in the Lawrence/Far Rockaway community by a congregant who claimed they had revealed information she had given them in confidence. The rabbis’ attorneys, supported by a “friend of the court” brief written by noted Washington attorney Nathan Lewin and submitted by the National Jewish Commission of Law and Public Affairs (COLPA) on behalf of several Orthodox Jewish organizations including Agudath Israel of America, had argued that the rabbis considered themselves obligated by Jewish religious law to disclose the information, and that secular courts are prevented by the U.S. Constitution from involvement in matters of religious law.
The case, which grew out of a marital dispute, involved the wife’s disclosures to the two rabbis that she was no longer observing certain basic practices of Jewish family law. In such circumstances, each determined that Jewish law obligated him to inform her husband, as well as the court considering issues involving custody of the couple’s children.
The woman then filed suit against the rabbis, alleging that they had violated their duty to keep silent under the New York State’s “clergy-penitent privilege.” The rabbis countered that the “clergy-penitent privilege” was enacted only to protect members of the clergy from being forced to reveal, in court, confidential information relayed to them by their congregants, and does not grant individuals the right to sue members of the clergy. They further argued that they had been religiously required to make their disclosures, and that their actions were thus protected as a matter of freedom of religion.
Initially, a lower court ruled that members of the clergy could indeed be sued for violating their congregant’s confidences. That court went so far as to conclude that the rabbis’ defense – that they had been religiously obligated to disclose the information – was “wrong” and “outrageous” as a matter of religious law.
When the lower court handed down its ruling, the Conference of Synagogue Rabbonim of Agudath Israel issued a statement attacking the ruling as “troubling and dangerous.” In the words of Rabbi Dovid Kviat, chairman of the Conference: “To tell rabbis that they risk civil liability if they follow the dictates of halacha [Jewish religious law] in the extraordinary situation when they conclude that Jewish law mandates disclosure of confidential information is to undermine an essential component of the rabbinical function.”
The case proceeded all the way to the Court of Appeals, New York’s highest court. Agudath Israel of America and the other Jewish organizations participating in the COLPA brief argued that the ultimate effect of a ruling against the rabbis would chill all communications between a rabbi and his congregants, out of fear of civil liability. It further made the point that secular courts cannot and should not rule on issues of religious law – in this case, whether the rabbis were correct in determining that as a matter of Jewish law they were obligated to reveal the information provided them.
The Court of Appeals, in its ruling, agreed: “The prospect of conducting a trial to determine whether a cleric’s disclosure is in accord with religious tenets has troubling constitutional implications.” Citing past precedents, the court ruled that “civil courts are forbidden from interfering in or determining religious disputes,” and concluded as a matter of law that the “clergy-penitent privilege” does not provide a legal basis for suing members of the clergy for violating their confidences.
