Continuing where I left off at Tony Ortega’s post on the latest developments in the Laura DeCrescenzo lawsuit against Scientology, which finds Scientology suddenly between a rock and a hard place as Laura’s attorneys successfully moved to compel Scientology to hand over Laura’s PC folders…
The motion papers contain a fairly interesting dispute concerning the scope of the priest-penitent privilege, both generally and in California. One key question was (and may yet be if Scientology is permitted to appeal) is whether the privilege was lost when Scientology permitted Laura’s PC folders to be handled by third parties. In Roman Catholic Archbishop of Los Angeles v. Superior Court, 131 Cal.App.4th 417 (2005), the California Appeals Court found that any communications transmitted to a third party, even if that third party also is clergy, is a violation of California’s priest-penitent statute. Scientology attempted to distinguish itself from this case by arguing that Scientology is different because, well, it’s different, a subject about which Warren McShane, as part of Scientology’s opposition papers, blathers on and on
In some ways McShane is right, because the religious aspects of Scientology only vaguely resemble Catholic confession, the most obvious model for the type of communications the priest-penitent privilege has in mind to protect. It seems unlikely that any Catholic in history has confessed to the sheer number of confessions contained in an average Scientologist’s PC folder. Scientology confessions given in auditing also differ in that they’re written as opposed to spoken—and therefore more potentially detrimental to the penitent should they happen to be divulged. A priest’s memory isn’t nearly so reliable as the written word.
The body of priest-penitent case law doesn’t make much sense when you try to apply it to Scientology, who of course argue for a preposterously expansive interpretation, all the more convenient given Hubbard’s fastidious micromanaging and contention that his every word is scripture. If the law and its own reality don’t quite line up, Scientology contends that the law must treat it preferentially. And if everything within Scientology is religious and deserving of protection (except when it’s conveniently not. See, e.g., Narconon, Study Tech), Scientology is effectively impenetrable by the law.
It’s an argument that has served them well before, as the Headleys can attest. Their claim was ultimately denied by the Ninth Circuit as it found that Sea Org workers fell under the ministerial exception, a principle which, like priest-penitent, was also built around conventional religions with limited application, but which Scientology successfully managed to distend and enlarge into a bulletproof shield. A disturbingly perverse outcome to be sure.
Here, Scientology’s argument is even more perverse because of the policy upon which the priest-penitent privilege rests, namely the protection, privacy, and religious liberty of the parishioner who chooses to divulge secrets to a religious figure. The priest-penitent privilege exists to encourage discussions of the most private sort between religious followers and designated church figures. Without the privilege, such communications would not occur.
But if the underlying policy of the priest-penitent privilege is to allow parishioners to confess their deepest vulnerabilities without fear of greater disclosure, why is Scientology able to claim it? Different states view the question differently, as to who may claim the privilege, the priest or penitent. While the penitent may always assert the privilege, only in some states may the priest also lay claim. California is one of those states.
There may well be sensible reasons to allow the privilege to be asserted by the priest/church, but it is a dark perversion of the law to allow the priest to wield it as a weapon against the penitent, as is the case here. It is further troubling to allow Scientology to hide behind the privilege where the subject matter at issue is Laura DeCrescenzo’s PC folders, because the spiritual content of those folders pertains exclusively to Laura, and only incidentally, if at all, to Scientology. Upon Laura’s departure from and repudiation of Scientology, her PC folders should properly be viewed as having no further religious value to Scientology. It should be Laura’s privilege to waive if she likes, not Scientology’s to protect themselves against claims brought by Laura. But should it really surprise anyone that Scientology would take the legal position that a Scientologist’s PC folders are not really theirs, but Scientology’s?