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Massachusetts Appeals Court Affirms Child Rapist’s Conviction that was Based on Confession to Pastor

On Wednesday, the Massachusetts Appeals Court affirmed the aggravated rape and abuse of a child convictions of a defendant who was convicted based, in part, on a statement he made to his former pastor.  The name of the case is Commonwealth v. Nutter.

The defendant’s stepdaughter alleged that he began sexually assaulting her in 2000, when she was six years old, and didn’t stop for nearly 10 years.   In 2010, the defendant and his wife were in the process of divorcing.  They met at a Dunkin Donuts in Westfield and the wife asked the defendant if he had sexually abused the victim.  The defendant said that he went into the victim’s room on two occasions in 2009 and 2010 and touched the victim, but he didn’t know if there had been penetration.  Following the meeting with his wife, the defendant telephoned Pastor Christopher Hazzard of St. John’s Lutheran Church.  Pastor Hazzard had previously offered counseling to the defendant and his wife.  The defendant told Pastor Hazzard over the phone that he did not remember whether he had sexually assaulted the victim, but he told his wife what he thought she wanted to hear so he could potentially retain custody of the children.

The defendant filed a pretrial motion to preclude Pastor Hazzard from testifying about his statement.  There is a law in Massachusetts that states, in part, that a licensed minister of a church cannot disclose a confession made to him in his professional capacity or any statement made by any person who is seeking religious or spiritual advice or comfort.

The judge held a hearing outside the presence of the jury where Pastor Hazzard testified that he had previously counseled the defendant and his wife on matters involving their marriage and parenting.  However, at some point the defendant’s wife obtained a restraining order against him and Pastor Hazzard recommended that he transfer to a different church.  Thereafter, the defendant occasionally called Pastor Hazzard but did not see or talk to him regularly.  Pastor Hazzard testified that the defendant seemed distraught when he called following the meeting with his wife.  Pastor Hazzard did not think the defendant’s statements to him qualified as a confession, which requires a formal process and is typically not conducted over the telephone.  The pastor further testified that he believed the defendant was looking for someone who could influence the rocky relationship between him and his wife.  The trial judge ruled that the defendant’s statements were not protected by the priest-penitent privilege and allowed the pastor to testify at trial.  Following his convictions, the defendant appealed.

The Appeals Court agreed with the trial judge that the defendant did not call Pastor Hazzard to seek religious or spiritual advice.  Instead, according to the Court, the defendant called the pastor in an effort to avoid the consequences of the admissions he had made to his wife.  The Court also pointed out that at the time of his conversation with Pastor Hazzard, the defendant was no longer his regular congregant, which was relevant to determine the defendant’s intent in calling Pastor Hazzard in the first place.

This case illustrates the danger inherent in a criminal defendant or suspect talking to anyone, including his or her pastor, about pending criminal charges.  Even when a privilege, such as the priest-penitent privilege, exists, anything a defendant says can, in some circumstances, be used against him at trial.  Anybody who is under investigation or being charged with a crime should talk to only one person – a criminal defense attorney.

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