When clergy hear incriminating secrets. Should states be allowed to puncture wall of confidentiality?

JUST over a year ago, the Rev. John Mellish, a Florida clergyman, went to jail for something he did not do. The Rev. Mr. Mellish, of the Margate Church of the Nazarene, refused to disclose the nature of a confidential conversation he had had with one of his parishioners. The latter had admitted sexual abuse of a six-year-old girl. Mr. Mellish urged that the crime be confessed to authorities and even accompanied the perpetrator to the police station. But later, when asked by the court to detail his private discussions with the accused, Mr. Mellish declined -- invoking a long-accepted clergy-penitent privilege.

Mr. Mellish was cited for contempt and sentenced to 60 days in jail. He spent a night behind bars before being released on bond, pending appeal. Recently, the court vacated this conviction, ruling that the minister is covered in this situation by a just-revised Florida statute that protects the confidentiality between clergy and those they seek to help.

The Mellish case, however, has ignited a new debate over an old issue: the right of clergy to hold in confidence information shared with them in counseling.

Laws in 49 states now allow, in some manner, the keeping of clerical confidences. They also protect representatives of religious groups from prosecution. Most clerical-immunity planks define ``clergy'' as a ``priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church.''

Of late, however, prosecutors in many places have prodded clergy to come forward voluntarily during criminal prosecutions and reveal what they know about an alleged felony. And with a growing national concern over child abuse, 33 states now impose criminal liability for failing to report assaults on the young.

Aware of the dilemma for clergy, a few states -- among them Kentucky, North Carolina, Pennsylvania, and now Florida -- exempt clergy from prosecution under disclosure planks in child-abuse and neglect statutes. But the situation remains confused. At least 20 states don't exempt clergy from reporting under child-abuse statutes. And in 20 others the law is vague, says the Rev. John C. Bush, executive director of Kentucky's Council of Churches.

``The same thing that happened to Mellish could now happen to others,'' the Rev. Mr. Bush adds.

Meanwhile, the attorney general of Texas has released an advisory opinion suggesting he would have to prosecute church personnel who refused to divulge information about an alleged child-abuse case.

But even clergy who have contacted authorities with information about a possible crime gleaned from confidential conversations are sometimes being hauled into court by defendants. An Episcopal priest in San Francisco is being sued by a parishioner for $5 million for breaching a confidence about an embezzlement.

The broader question of clerical liability -- both legal and fiscal -- in situations of private counseling came to the fore recently in southern California. There, the parents of a young man who took his own life tried to incriminate fundamentalist ministers who had counseled him. A judge absolved the churchmen of legal blame before the case went to a jury.

The Rev. William Harold Tiemann, a national official of the Presbyterian Church from Charlotte, N.C., says he is troubled by the Texas attorney general's ruling and the attempts by law-enforcement agencies to urge ministers to reveal confidences.

But the Rev. Mr. Tiemann suspects the problem will worsen with the broadening of the so-called sanctuary movement and church leaders' protection of illegal aliens in the face of a federal government crackdown.

The Revs. Mr. Tiemann and Mr. Bush are co-authors of ``The Right to Silence'' (1983), a book that outlines the legal rights of clergy and discusses moral obligations in pastor-penitent relationship cases. Mr. Tiemann now explains that the issue is three-pronged. ``It has its theological side, its practical side, and its constitutional side,'' he says.

The Presbyterian minister points out that confidentiality is deep-rooted in Roman Catholic and Episcopal canons. And those priests who violate it are subject to discipline, even dismissal, by the church. In other religions, it is respected as an ``honor among clergy.''

From a practical standpoint, Mr. Tiemann says that if the law begins to require ministers, rabbis, and priests to violate confidences, many of those who seek pastoral help might shun it. ``Then it comes down to whether a person is free to practice his religion under constitutional guarantees,'' he says.

Jack Novik of the American Civil Liberties Union says the clergy-parishioner privilege has been likened to the lawyer-client and doctor-patient relationships. None of these three relationships enjoy official statutory sanction. But Mr. Novik states that if clergy were denied such immunity, it ``could interfere with the free exercise of religion under the First Amendment.''

In defending confidentiality, religious officials say their main role is to ``save souls'' and to help rehabilitate wrongdoers -- not to bring them to civil justice. They say the former could be greatly impeded if the right to counsel in confidence were hobbled.

What should be the ministerial position when a crime is revealed in the course of pastoral counseling? Mr. Tiemann puts it simply: ``Insist that the individual get help -- and immediately stop what he is doing; urge him to make restitution [which would include surrender to authorities]; but don't turn him in.'' A Thursday column