Protect Chaplain-Soldier Confidential Communications in SC Militia

S0870 creates a new Section 25-1-80 within Article 1, Chapter 1, Title 25 of the South Carolina Code. It is entirely new matter added to existing law and takes effect upon approval by the Governor. The American Council urges every member of the General Assembly to vote yes on this bill.

The bill opens by establishing two definitions that govern the entire section. A "confidential communication" is any communication made to a chaplain by an individual possessing the clergy-penitent privilege, provided that the communication is made either as a formal act of religion, or as a matter of conscience, or if it is made to a chaplain in his official capacity as a spiritual advisor. Note that the definition uses "or" across all three conditions: any one of the three pathways is sufficient to qualify a communication. "Militia classes" is defined to include four categories: the National Guard, the State Guard, organized militia not in National Guard service, and the unorganized militia.

Section 25-1-80(B) imposes three requirements on military chaplains, applicable regardless of militia class. First, a chaplain must be properly ordained and endorsed for militia service by a recognized military endorsing agency, and must hold any specific qualifications required by the militia class for which he serves. Second, a chaplain must wear uniforms that properly identify his status as a chaplain, appropriate to his militia status and as defined by his militia class. Third, a chaplain is granted authority to engage in privileged communications with all militia members, authorized dependents, and authorized personnel as defined by each militia class or organization. The bill further provides that the clergy-penitent privilege may be claimed on behalf of the communicating person by the chaplain who received the communication.

Section 25-1-80(C) establishes the core privilege protections. A person who holds the clergy-penitent privilege may refuse to disclose, and may prevent others from disclosing, a confidential communication made to a chaplain, provided that the confidential communication is made as a formal act of religion or as a matter of conscience. This subsection uses "or," meaning either condition is sufficient to trigger the protection.

Under Section 25-1-80(C)(1), chaplains are prohibited from disclosing any confidential communication revealed in the course of their duties without the informed consent of the person who made the communication. That consent must be freely given, not compelled, and must be specific regarding the information to be disclosed. The bill thus places three conjunctive requirements on any valid consent: it must be free, uncompelled, and specific. We believe this standard is appropriate and necessary; anything less risks turning consent into coercion under the pressures of a command environment.

Section 25-1-80(C)(2) prohibits both commanders and courts from requiring a chaplain or an individual to disclose a confidential communication when a clergy-penitent privilege exists. The bill then states a single exception: if a military judge or other presiding official determines that no clergy-penitent privilege exists, then that military judge or other presiding official may compel the chaplain to testify. The exception is therefore conditioned on a finding that no privilege applies -- it does not authorize compelled disclosure of a privileged communication; it authorizes compelled testimony only upon a determination that the privilege is absent.

Section 25-1-80(C)(3) directs the State to recognize the clergy-penitent privilege for all militia classes, and also for any active duty or reserve chaplain, whether currently in active status or not. Two conditions limit this extended recognition: the communication must be with a member who would normally be covered under the clergy-penitent privilege, and the communication must be made as a formal act of religion or as a matter of conscience. Both conditions must be satisfied; the bill uses "and" to connect them.

We note one point of potential ambiguity worth flagging for legislators. Section 25-1-80(C)(3) extends recognition to chaplains "whether in status or not." The bill does not further define what it means to be "in status" or specify whether "status" refers to active-duty orders, enrollment in the militia class, or something else. As drafted, the phrase appears intended to ensure that the privilege is not lost when a chaplain is between orders or assignments, but the text does not clearly define the boundary of that extension. Legislators and their counsel may wish to confirm that the intent is captured precisely.

The American Council supports S0870 because the conscience of a service member -- entrusted to a chaplain in a moment of spiritual need -- must be protected with the same seriousness that the law gives to any penitent before any clergy. South Carolina's militia members deserve to know that seeking spiritual counsel will never be weaponized against them by a commander or a court. We ask every member of the General Assembly to pass this bill.