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Commonwealth v. Daniel Vital, Appeals Court of Massachusetts, Plymouth

No. 12 P 845.

Nature of the case:

Indecent assault and battery on a child and violation of an abuse prevention order.

Facts and Issues on Appeal:

Defendant, a friend of the victim’s grandparents, molested the victim in her home while staying there. The defendant subsequently went to his pastor, who knew the defendant, the victim, and the victim’s family. The defendant asked the pastor to tell the victim’s family that he was sorry and did not intend to hurt anyone. He claimed that he was not taking his medication and blamed the abuse on his confusion with pornographic material on television. The defendant also requested that the pastor try to convince the family to resolve the sexual abuse issue through the church and not take it to court. After multiple requests, the pastor eventually relayed the defendant’s messages to the family, who had already reported the crime to the police and obtained an abuse prevention order for the whole family against the defendant. At trial, the pastor testified about his communications with the defendant, to which the defendant did not object. The defendant was convicted.

On appeal, the defendant argued that the pastor violated his priest-penitent privilege by testifying in court about his confessions and communications requesting that the priest communicate with the family on his behalf. The court disagreed, reasoning as follows:

Ruling & Rationale:

Privileges must be strictly construed and the priest-penitent privilege only applies to communications where the penitent seeks religious or spiritual counseling. The privilege does not apply when a penitent requests that his conversations be shared with a third party. Thus, because the defendant on multiple occasions requested that the pastor disclose their communications to the victim and her family, the privilege did not apply. Moreover, because the defendant requested that the priest disclose their communications in violation of an existing abuse prevention order, the priest-penitent privilege did not apply because his intentions were clearly to use the pastor to facilitate an illegal third-party communication.

Editorial Comment

Prosecutors and advocates should use this case to pierce all communication privileges (such as attorney/client, spousal, etc.) whenever perpetrators try to use privileged relationships to facilitate the intimidation of victims or otherwise interfere with the integrity of legal proceedings.

Additionally, prosecutors and advocates should use this case as a tool through which intimidation tactics can be investigated, especially when communications occur after restraining orders have been issued or "no-contact" orders are in place as a condition of bail. Such protective orders typically forbid defendants to contact victims by any means, including through third-parties. Defendants who bring unjust influence over victims either through incentives or threats that deter victims from participating in the criminal justice system often use third-parties to avoid being charged with a protection order violation.

While it is rare to see this tactic employed through the exploitation of the priest-penitent privilege, it is not uncommon that such tactics are facilitated through defense attorneys and family members, but it is exceedingly difficult to uncover evidence to prove such violations of protective orders when their occurrence is shielded by a privilege of confidentiality. This case can and should apply to all communications privileges to uncover evidence related to the intimidation of victims and the corruption of justice. Such evidence can also help prove the underlying charges because witness intimidation indicates consciousness of guilt.

Submitted By: Katherine Ramsey -- Law Student

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