Doe v. Catholic Diocese , 2015 IL App (2d) 140618 ( 2015 )

Illinois Official Reports
Appellate Court
Doe v. Catholic Diocese of Rockford, 2015 IL App (2d) 140618Appellate Court JAIME DOE, on Behalf of J. Doe, a Minor, Petitioner-Appellee, v.
Caption THE CATHOLIC DIOCESE OF ROCKFORD and JOHN DOE,
Respondents-Appellants.
District & No. Second District
Docket No. 2-14-0618
Filed September 4, 2015
Decision Under Appeal from the Circuit Court of Kane County, No. 14-MR-57; the
Review Hon. David R. Akemann, Judge, presiding.
Judgment Affirmed.
Counsel on Joshua G. Vincent, Kimberly A. Jansen (argued), Gregory T. Snyder,
Appeal and Jennifer L. Johnson, all of Hinshaw & Culbertson LLP, of
Chicago, for appellants.
Philip J. Piscopo (argued), Peter M. Storm, and Stephen M. Cooper,
all of Cooper, Storm & Piscopo, of Geneva, for appellee.
Panel JUSTICE BIRKETT delivered the judgment of the court, with
opinion.
Justices Hutchinson and Zenoff concurred in the judgment and
opinion.
OPINION
¶1 Respondents, the Catholic Diocese of Rockford and John Doe, appeal the judgment of the
circuit court of Kane County granting the petition pursuant to Illinois Supreme Court Rule 224
(eff. May 30, 2008)1 of petitioner, Jaime Doe, seeking the identity of the writer of an allegedly
defamatory letter concerning her son, J. Doe. Respondents argue that petitioner’s Rule 224
petition was insufficiently pleaded and that, even if the petition were sufficient, disclosure is
prohibited under the clergy-penitent privilege, codified at section 8-803 of the Code of Civil
Procedure (Code) (735 ILCS 5/8-803 (West 2012)). We affirm.
¶2 I. BACKGROUND
¶3 We summarize the pertinent facts in the record. John Doe (Doe) is a pastor of a parish
located in Kane County and within the Catholic Diocese of Rockford. Petitioner and her son
both are members of Doe’s parish. In September or October 2013, an unidentified individual
wrote a letter containing the statements at issue here. The writer delivered the letter to Doe “in
his capacity as pastor of the parish.” The letter allegedly contained defamatory statements
about petitioner’s son.
¶4 On January 23, 2014, petitioner filed a petition pursuant to Rule 224, seeking an order
requiring respondents to produce a copy of the letter and the identity of the writer. Petitioner
alleged that the letter “as described by [respondents] contained several false allegations against
[her son],” namely, “that J. Doe engaged in a sexual touching against another minor child, who
is not the child of the [writer],” “that a parent of J. Doe admitted the improper sexual contact,”
“that J. Doe was older and larger than the other child,” and “that J. Doe threatened the other
child with harm if the other child told anybody about the touching.” Petitioner expressly sought
to proceed under a theory of defamation per se. She alleged that the allegations concerning her
son were false. According to petitioner, as a result of the letter, her son became “isolated and
ostracized in the community, including the parish community.”
¶5 Respondents received leave to notify the writer that the petition had been filed and that the
trial court had issued orders regarding anonymity and sealing the record. The writer has neither
appeared nor participated in the proceedings.
¶6 Next, respondents moved to dismiss the petition. Respondents argued that the petition did
not allege sufficient facts to state a claim of defamation. Respondents raised a number of
claims outside of the four corners of the petition, including a claim that the clergy-penitent
privilege applied to bar any disclosure of the information sought in the petition. In support of
this claim, respondents included Doe’s affidavit, along with documents from the Diocese
addressing sexual misconduct and reporting as well as standards of behavior applicable to
Diocesan employees and volunteers.
1
The purpose of Rule 224 is to allow a petitioner to learn the identity of one who may be liable in
damages. Ill. S. Ct. R. 224, Committee Comments (Aug. 1, 1989).
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¶7 In his affidavit, Doe averred that the writer “sought consultation and advice about Church
law, ethics and policy pertaining to [the writer’s] roles as a parishioner and a volunteer in the
parish with responsibility for monitoring children.” Doe further averred that his role as pastor
included guiding the parishioners in spiritual matters and providing counseling and direction
about canon law, religious law and policy, and the Catholic faith. Doe also averred that church
law required him to keep the confidentiality of requests for counseling and direction.
¶8 Petitioner filed a reply, generally controverting respondents’ arguments. Petitioner
included in her reply, as an exhibit, a copy of correspondence sent to her by respondents’
attorney. Based on that correspondence, petitioner argued that respondents viewed the letter as
an accusation against J. Doe of sexual misconduct, necessitating an investigation of the
incident pursuant to the Diocese’s sexual misconduct standards. Additionally, petitioner
attached an affidavit from her attorney describing how respondents portrayed to petitioner the
contents of the letter. Specifically, according to petitioner’s counsel, respondents described the
letter as relating an incident that involved “more than just two boys checking each other out”
(internal quotation marks omitted). Instead, respondents revealed that the letter specifically
stated that J. Doe “touched and fondled another boy’s private parts.” Further, petitioner offered
to submit an amended petition including more detailed allegations of conduct from the letter, if
the trial court deemed it necessary.
¶9 The trial court granted petitioner’s petition in part, ordering respondents to disclose only
the identity of the writer of the letter. The trial court held that petitioner “met her discovery
burden” because “[h]er proposed defamation claim would survive a section 2-615 [(735 ILCS
5/2-615 (West 2012))] motion to dismiss.” The trial court reasoned that the “complained-of
statement [was] not reasonably capable of an innocent construction, and it [could] be
reasonably construed as a factual assertion.” The trial court rejected respondents’ contention
that, in addition to surviving a motion to dismiss pursuant to section 2-615 of the Code, it must
also survive a motion to dismiss raising affirmative matters pursuant to section 2-619 of the
Code (735 ILCS 5/2-619 (West 2012)). Respondents timely appeal.
¶ 10 II. ANALYSIS
¶ 11 On appeal, respondents argue that the trial court erred in granting the petition. Respondents
contend that the petition was not sufficient to survive a motion to dismiss pursuant to section
2-615. Alternatively, respondents contend that the clergy-penitent privilege precludes the
disclosure of the writer’s identity. We address each contention in turn.
¶ 12 Before we turn to respondents’ contentions on appeal, we first address petitioner’s motion
for leave to amend the pleadings, which we took with the case. Petitioner requests that,
pursuant to Illinois Supreme Court Rule 362 (eff. Feb. 1, 1994), she be granted leave to amend
her petition to conform the petition to the record. Petitioner argues that all of the information
she seeks to add to the petition was within the various papers filed in the trial court. Petitioner
further argues that such an amendment would not prejudice respondents. Respondents contend
that an amendment is improper because it would not cure the petition’s defects and, in any
event, they would be prejudiced because petitioner argued the additional information only in
her reply, so respondents did not have an opportunity to directly respond below. We have
carefully considered the parties’ arguments and we deny petitioner’s motion for leave to
amend.
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¶ 13 A. Sufficiency of Petition
¶ 14 Respondents initially contend that the petition was not sufficiently pleaded. This argument
requires that we consider the text of Rule 224 and the standards under which a Rule 224
petition is reviewed.
¶ 15 Rule 224 states, pertinently:
“(i) A person or entity who wishes to engage in discovery for the sole purpose of
ascertaining the identity of one who may be responsible in damages may file an
independent action for such discovery.
(ii) The action for discovery shall be initiated by the filing of a verified petition in
the circuit court of the county in which the action or proceeding might be brought or in
which one or more of the persons or entities from whom discovery is sought resides.
The petition shall be brought in the name of the petitioner and shall name as
respondents the persons or entities from whom discovery is sought and shall set forth:
(A) the reason the proposed discovery is necessary and (B) the nature of the discovery
sought and shall ask for an order authorizing the petitioner to obtain such discovery.
The order allowing the petition will limit discovery to the identification of responsible
persons and entities and where a deposition is sought will specify the name and address
of each person to be examined, if known, or, if unknown, information sufficient to
identify each person and the time and place of the deposition.” Ill. S. Ct. R. 224(a)(1)
(eff. May 30, 2008).
¶ 16 Under Rule 224, the unidentified individual or entity does not bear the burden of
demonstrating that the discovery request does not satisfy the rule; rather, it is the petitioner
who bears the burden of showing that his or her proposed complaint supports a cause of action,
even if the unidentified individual or entity does not challenge the request. Hadley v.
Subscriber Doe, 2014 IL App (2d) 130489, ¶ 12, aff’d, 2015 IL 118000. This is because Rule
224 is intended to assist a petitioner in identifying a currently unidentified party who might be
liable; however, to employ the rule, the petitioner must demonstrate that the proposed
identification is necessary. Hadley v. Subscriber Doe, 2015 IL 118000, ¶ 25.
¶ 17 In order to show the necessity of the identification, the petitioner must demonstrate that a
potential defamation claim against the unidentified individual or entity would survive a section
2-615 motion to dismiss. Id. ¶ 27. A section 2-615 motion to dismiss is concerned with the
legal sufficiency of a complaint, posing the question of whether the allegations of that
complaint, viewed in the light most favorable to the plaintiff, state a claim on which relief may
be granted. Id. ¶ 29. We review de novo the trial court’s decision on a section 2-615 motion to
dismiss. Id.
¶ 18 In order to state a claim of defamation, a plaintiff must plead facts demonstrating that the
defendant made a false statement about the plaintiff, that the defendant made an unprivileged
publication of the subject statement to a third party, and that the publication caused damages to
the plaintiff. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 24. A statement
is defamatory if it harms an individual’s reputation by lowering the individual in the eyes of the
community or if it deters the community from associating with the individual. Id. Defamation
can be either defamation per se or defamation per quod. Id.¶ 19 A statement is defamatory per se if its harm is apparent and obvious on its face. Id. ¶ 25.
When a statement is defamatory per se, a plaintiff need not plead actual damage to his or her
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reputation, because the statement is deemed to be so obviously and materially harmful that
injury to the plaintiff’s reputation is presumed. Id. However, because a claim of defamation
per se relieves a plaintiff of the obligation to prove actual damages, it must be pleaded with a
heightened level of precision and particularity. Id. Illinois recognizes five categories of
statements that are defamatory per se: (1) words imputing the commission of a criminal
offense; (2) words imputing an infection with a loathsome communicable disease; (3) words
imputing an individual’s inability to perform his employment duties or a lack of integrity in
performing those duties; (4) words imputing a lack of ability in an individual’s profession or
prejudicing an individual in his or her profession; and (5) words imputing an individual’s
engagement in fornication or adultery. Id. In this case, petitioner contends that the writer’s
statements fall within the first and last categories. With these principles in mind, we turn to
respondents’ contentions.
¶ 20 Respondents argue that petitioner did not sufficiently plead facts that demonstrated a
defamation claim against the writer. Respondents contend that, because the issue is whether
petitioner’s claim would survive a section 2-615 motion to dismiss, we are limited to the four
corners of the petition. Further, respondents contend that petitioner failed to sufficiently allege
statements that are defamatory per se. We address respondents’ contentions in turn.
¶ 21 1. Scope of Review
¶ 22 Respondents’ initial contention is that we are limited to the four corners of the petition in
our review. We agree. Before our supreme court decided Hadley, there might have been some
room for debate, but that door has been closed by Hadley, 2015 IL 118000, ¶¶ 27, 29. Our
supreme court held that section 2-615 standards apply to the consideration of a Rule 224
petition. Id. ¶ 27. More specifically, when conducting a section 2-615 analysis, the court is
limited to considering “[a]ll facts apparent from the face of the complaint, including any
attached exhibits.” Id. ¶ 29. Thus, we agree with respondents and limit our consideration to the
four corners of the petition.
¶ 23 2. Precision and Particularity of Defamation Claim
¶ 24 Under a section 2-615 analysis, the court accepts as true all well-pleaded facts, as well as
any reasonable inferences that arise from them. Borcia v. Hatyina, 2015 IL App (2d)
140559, ¶ 20. The court does not, however, accept as true conclusions that are unsupported by
specific facts. Id. The court construes the cause of action liberally in the plaintiff’s favor and
should not dismiss it unless it is apparent that no set of facts can be proved that would entitle
the plaintiff to a judgment in his or her favor. Id.¶ 25 In the petition, petitioner alleged that the writer made false statements against J. Doe and
that, in September or October 2013, the allegedly defamatory letter was published to John Doe.
Petitioner alleged that she requested a copy of the letter but that respondents refused to provide
it.
¶ 26 Petitioner alleged that respondents “described” to her the contents of the letter and that the
statements regarding J. Doe were false. According to petitioner, the pertinent statements in the
letter included: (1) “that J. Doe engaged in a sexual touching against another minor child, who
is not the child of the [writer]”; (2) “a parent of J. Doe admitted the improper sexual contact”;
(3) “J. Doe was older and larger than the other child”; and (4) “J. Doe threatened the other child
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with harm if the other child told anybody about the touching.” According to petitioner, J. Doe
became “isolated and ostracized in the community, including the parish community.”
¶ 27 Petitioner thus alleged a claim of defamation per se, alleging that the writer accused J. Doe
of adultery or fornication and the commission of a crime. The allegations recounting the
allegedly defamatory statements are not to be read independently of each other; rather, they are
to be read as a whole (along with the other allegations in the petition). See Lloyd v. County of
Du Page, 303 Ill. App. 3d 544, 552 (1999) (consideration of a complaint subject to a section
2-615 motion to dismiss “requires an examination of the complaint as a whole, not its distinct
parts”). In our view, these allegations are sufficiently precise and particular to survive a section
2-615 analysis of the defamation claim.
¶ 28 Specifically, petitioner alleged that the writer stated, falsely, that J. Doe performed a
“sexual touching.” One of J. Doe’s parents purportedly admitted that the “sexual touching”
was indeed “improper sexual contact” and the contact was “against another minor child.” J.
Doe threatened the other child in order to prevent that child from revealing the contact between
them. Additionally, petitioner alleged that the writer published the false statements to Doe and
that, as a result, J. Doe experienced “isolat[ion] and osctraciz[ation]” in his relevant
communities. We believe that these allegations are sufficient to pass muster under a section
2-615 analysis.
¶ 29 Respondents rely on Green v. Rogers, 234 Ill. 2d 478 (2009), in support of their contention
that petitioner failed to plead with precision and particularity the facts supporting her
defamation claim against the writer. In Green, the plaintiff alleged, on information and belief,
that the defendant made statements about the plaintiff, including that the plaintiff “ ‘exhibited a
long pattern of misconduct with children’ ” and had “ ‘abused players, coaches, and umpires’ ”
in the Clarendon Hills Little League. Id. at 493. Our supreme court noted that a defamation
claim must be pleaded with “specific precision and particularity so as to permit both initial
judicial review[ 2 ] and the formulation of an answer and potential affirmative defenses.”
Id. at 492.
¶ 30 The Green court held that the complaint did not “set forth a precise and particular account
of the statements that [the] defendant allegedly made”; rather, the allegations “set forth only a
summary of the types of statements that [the] plaintiff may or may not have a reason to believe
[the] defendant made.” Id. at 493. The court noted that the allegations were “completely devoid
of any specifics, such as what type of misconduct [the] plaintiff exhibited; the nature of any
alleged ‘abuse’; or how that abuse manifested itself in relation to players, coaches and
umpires.” Id. Because the complaint left many questions unaddressed–like whether the alleged
abuse was verbal, physical, or a combination, or whether the alleged misconduct was “ ‘not
acceptable for [the little league’s] coaches’ ” under league rules or some other standard–the
court had “no way of assessing whether [the] defendant’s words were defamatory per se.”
Id. at 493-94.
¶ 31 Green is distinguishable, but this does not mean that we cannot draw some guidance from
it, particularly regarding the initial judicial review of the allegedly defamatory statements. The
Green court was also concerned with the defendant’s ability to understand the allegedly
2
“Initial judicial review” might be a somewhat opaque phrase. In its context in Green, it meant that
the plaintiff must plead specific conduct to allow the court to assess, as with a section 2-615 motion,
whether the words are defamatory. It is in this sense that we use the phrase in the following paragraphs.
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defamatory words used, formulate an answer to the allegations, and develop any applicable
affirmative defenses. Id. at 492. That circumstance is not present in this case; rather, petitioner
is attempting to identify a potential defendant. Accordingly, the defendant’s ability to
formulate an answer and affirmative defenses is not yet in issue. Instead, the issue is whether
petitioner has sufficient facts on hand to eventually draft a viable claim against the
as-yet-unidentified defendant. Thus, we believe that the portion of Green devoted to the
consideration of whether the precision and particularity of a complaint is sufficient to allow a
defendant to formulate an answer and affirmative defenses is simply inapposite to the
consideration of the sufficiency of allegations against an as-yet-unidentified defendant in a
Rule 224 petition.
¶ 32 That leaves the former of the Green court’s concerns, permitting initial judicial review of
the defamatory content of the allegations. Id. We believe that Green is not inapposite in the
initial-judicial-review context, although it is factually distinct. In Green, the plaintiff was fully
aware of the identity of the defendant; here, petitioner knows only that the writer of the letter
has connections with Doe’s parish. In both Green and this case, the allegations of defamation
are made through information and belief. However, here, petitioner notes that she was apprised
of the letter and its content, because it was “described by [respondents]” to her. In Green, by
contrast, there was no indication as to how the plaintiff learned about the allegedly defamatory
statements. Thus, the record here is not so “devoid of specifics” as to prevent the sort of initial
judicial review contemplated in Green.
¶ 33 In Green, the court believed that there were many unknown aspects concerning the type of
conduct that the plaintiff purportedly performed. Id. at 493-94. Here, petitioner described that
the writer averred that J. Doe “engaged in a sexual touching against another minor child.” This
averment informs the reader that J. Doe is a minor, that he touched another minor in a sexual
fashion, and that it was “against” this child, leading to an inference that there was an element of
coercion or lack of consent. Petitioner further alleged that the writer averred that one of J.
Doe’s parents “admitted the improper sexual contact.” The phrase “improper sexual contact”
confirms the inference that the sexual touching was not harmless, but was overtly sexual and
against the mores of society. This is further confirmed by petitioner’s allegation that the writer
averred that J. Doe “threatened the other child with harm if the other child told anybody about
the touching.” This implies that J. Doe knew that the sexual touching was wrong and that he
faced definite negative consequences if the other child revealed the touching to anybody.
While it is true that petitioner did not describe the precise nature of the alleged touching, we
can reasonably infer (especially as we view the factual allegations in the light most favorable to
petitioner under section 2-615) that it was not the innocent explorations of two minors “playing
doctor”; rather, in light of the purported threat and parental admission of “improper sexual
contact,” we believe that the clear import of the alleged statements is that J. Doe engaged in
some form of knowing conduct that was nonconsensual and overtly sexual. We further believe
that this is enough to fall under the rubric of “fornication” for purposes of defamation per se.
See Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 93-94 (1996) (the term “slut”
was sufficiently specific to refer to the plaintiff’s sexual activities without requiring a detailed
description of those activities). Thus, we hold that, unlike in Green, the description of the
allegedly defamatory statements was sufficiently precise and particular to allow the trial court
to perform an initial judicial review.
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¶ 34 Respondents argue that, as in Green, the phrase “sexual touching” is imprecise and does
not adequately describe the specific conduct to which the writer was referring. We reject the
contention. The allegations are to be viewed as a whole and not distinctly. Lloyd, 303 Ill. App.
3d at 552 (consideration of a complaint subject to a section 2-615 motion to dismiss “requires
an examination of the complaint as a whole, not its distinct parts”). Moreover, viewing all of
the allegations together makes clear that petitioner means that the writer averred that J. Doe
committed an improper sexual act against the other, younger, child. This is sufficient.
¶ 35 Respondents complain that the allegation that the writer described J. Doe as “older and
larger” than the other child is still too imprecise to pass muster, because “[t]here is no way of
knowing the ages or sizes of the children.” Again, we view this allegation in light of all of the
allegations, especially in light of the allegation that the writer averred that J. Doe had
threatened the other child with harm if the other child revealed the touching to anyone. This
implies that J. Doe was in a position, being both older and larger than the other child, to enforce
his threat of harm. Additionally, it underscores the wrongful nature of the conduct, because if J.
Doe and the other child were only “playing doctor,” a threat of harm to prevent disclosure
would have been unnecessary and unlikely. Finally, respondents complain that “[t]here is no
way of knowing what ‘harm’ J. Doe purportedly was said to have ‘threatened’ if the other child
told anybody about the ‘touching.’ ” Respondents suggest that the threatened “harm” could be
as innocuous as a threat to no longer be friends. Like the precise nature of the sexual touching,
however, the precise harm is immaterial. The point of the allegation is that, in order to coerce
the other child into silence, J. Doe threatened that some negative action would occur if the
child disclosed the conduct. This leads to the inferences expressed above and confirms that the
conduct averred by the writer was more than simple innocent exploration. Accordingly, we
reject respondents’ contentions about the imprecision of the allegations of the allegedly
defamatory statements.
¶ 36 Respondents also take issue with the description of the “factual basis informing”
petitioner’s information and belief regarding the contents of the letter. We find that, in totality,
the petition alleges circumstances adequate to allow initial judicial review and to suggest that
petitioner can state a viable claim against the writer. Respondents attempt to analogize
petitioner’s allegations to those of the plaintiff in Green. This analogy fails because in Green
the plaintiff offered no information as to how he arrived at his information and belief regarding
the defendant’s allegedly defamatory statements; by contrast, here, petitioner alleged that the
writer’s letter was described to her. We find this sufficiently distinguishing to render
misplaced respondents’ reliance on Green. Accordingly, for the preceding reasons, we reject
respondents’ contention that petitioner did not allege a claim of defamation with sufficient
precision and particularity to pass muster under section 2-615.
¶ 37 3. Defamatory Per Se Statements
¶ 38 Respondents next contend that petitioner did not sufficiently allege that the statements
made by the writer were defamatory per se. As noted above, among the categories of
defamation per se are statements imputing the commission of a crime and statements imputing
fornication or adultery. Hadley, 2014 IL App (2d) 130489, ¶ 20. Respondents argue that the
statements fall into neither of these categories. We disagree.
¶ 39 Respondents first focus on the defamation per se category of fornication or adultery.
Respondents contend that there is nothing in petitioner’s allegations indicating that the writer
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accused J. Doe of sexual intercourse with the other child. Respondents further argue that,
because the fornication-or-adultery category was added by statute to the tort of defamation
per se (see 740 ILCS 145/1 (West 2012)), the statute, which was adopted in derogation of the
common law, must be strictly construed. Respondents conclude that, because petitioner has not
expressly alleged a statement accusing J. Doe of fornication, she has failed to adequately plead
a defamatory per se statement within the fornication-or-adultery category. We disagree.
¶ 40 We note that our supreme court in Bryson held that the allegation that the plaintiff was a
“ ‘slut’ ” implied that the plaintiff was “ ‘unchaste,’ ” so that the defendants falsely accused the
plaintiff of fornication. Bryson, 174 Ill. 2d at 90. The court reasoned that, in the context of the
allegedly defamatory article, the term “slut” was intended to describe the plaintiff’s sexual
proclivities. Id. at 93-94. The court was untroubled by the lack of a precise description of what
sort of activities the plaintiff was accused of engaging in. Id. at 90, 93-94. Similarly, albeit in
the imputation-of-a-crime context, our supreme court in Hadley was untroubled that the
alleged defamer did not expressly state that the plaintiff was a pedophile or had actually
molested children. Hadley, 2015 IL 118000, ¶ 37. The natural effect of the words used, along
with their context, conveyed the idea that the plaintiff was a pedophile or had engaged in
sexual acts with children.
¶ 41 Here, petitioner related that respondents informed her that the writer accused J. Doe of a
“sexual touching,” and that it was “improper sexual contact.” We believe that these words,
given their context, are sufficient to impute activities akin to those found to be implied by the
defendants’ use of the word “slut” in Bryson. We have discussed above that the allegations,
read together, paint a picture of nonconsensual sexual activity that J. Doe forced upon the
younger, smaller child. We believe that these alleged statements are sufficient to fall under the
fornication-or-adultery category in the same way as the use of the word “slut” in Bryson.3
¶ 42 Respondents turn to the Slander and Libel Act (740 ILCS 145/1 (West 2012)) for their next
argument. Section 1 of the Slander and Libel Act provides, pertinently: “If any person shall
falsely use, utter or publish words, which in their common acceptance, shall amount to charge
any person with having been guilty of fornication ***, such words so spoken shall be deemed
actionable, and he shall be deemed guilty of slander.” Id. Respondents argue that “unchastity”
and “sexual misconduct” are not within the terms of section 1 of the Slander and Libel Act
(id.), and so a statement imputing “unchastity” or “sexual misconduct” cannot constitute a
defamatory per se statement. We disagree. While respondents are correct that section 1 does
not contain the words “unchastity” or “sexual misconduct,” we do not believe that this lack
forecloses our holding. We note that Bryson expressly analyzed section 1 of the Slander and
Libel Act. Bryson, 174 Ill. 2d at 89. The court expressly held that the use of the term “ ‘slut’ ”
implied that the plaintiff was “ ‘unchaste,’ ” so that the “defendants’ statements [fell] within
this statutorily created category of statements that are considered actionable per se.” Id. at 90.
3
We also note that respondents’ attorney characterized the contact referred to in the letter as a
fondling of the genitals. While we do not consider the attorney’s letter in determining the sufficiency of
the allegations in the Rule 224 petition pursuant to a section 2-615 analysis, we mention this
characterization as a sort of reasonability check. This type of conduct clearly falls within the
fornication-or-adultery category of defamation per se. Additionally, this information was included in
petitioner’s offer of proof supporting a proposed amended petition. While the original petition was
sufficiently specific and properly alleged defamation per se, we note that the additions proposed by
petitioner further convince us that our construction of the alleged statements is, in fact, appropriate.
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Further, the court deemed that “slut” described the plaintiff’s sexual proclivities, not that it
necessarily meant that she had engaged in fornication or sexual intercourse on a specific date
and time at a specific place with specific individuals. Id. at 93-94.
¶ 43 Likewise here. Respondents related to petitioner that the writer’s letter accused J. Doe of
engaging in a “sexual touching” that constituted “improper sexual contact.” This activity is
clearly akin to the type of sexual conduct about which a statement is actionable, as approved by
Bryson. Accordingly, we reject respondents’ contention.
¶ 44 The Bryson court then considered whether the defendants’ words were capable of an
innocent construction. Id. at 90-96. The innocent-construction rule renders an allegedly
defamatory statement nonactionable if it is reasonably capable of an innocent construction.
Hadley, 2015 IL 118000, ¶ 31. In applying the innocent-construction rule, the court must give
the allegedly defamatory words their natural and obvious meaning and interpret them as they
appear to have been used and according to the idea they were intended to convey to the
recipient. Id. Because the context of the statement is important to understanding its meaning,
the court must consider the allegedly defamatory words in the context of the entire
communication. Hadley, 2014 IL App (2d) 130489, ¶ 23. The innocent-construction rule does
not require the court to strain to find an unnatural and innocent meaning for a statement when a
defamatory meaning is far more reasonable. Hadley, 2015 IL 118000, ¶ 32.
¶ 45 As noted above, we cannot conclude that the writer’s allegedly defamatory statements are
subject to an innocent construction. Although a “sexual touching” could mean only that the
two children were engaging in normal, consensual exploration, we note that the writer further
stated that J. Doe’s parent “admitted” that the conduct amounted to “improper sexual contact.”
This takes the conduct out of the realm of innocent sexual exploration. Further, the fact that the
writer accused J. Doe of attempting to intimidate the other child into silence through a threat of
harm suggests that the activity both was known by J. Doe to be improper and was even
nonconsensual. Accordingly, we do not believe that the statements attributed to the writer can
be innocently construed. Thus, we conclude that petitioner has alleged defamatory per se
statements under the fornication-or-adultery category.
¶ 46 While our conclusion that petitioner alleged defamatory per se statements means that we
do not need to consider whether she also alleged a defamatory per se statement under the
commission-of-a-crime category, we choose to address the parties’ arguments on this ground
as an additional and alternate basis for our holding. For a statement to constitute defamation
per se as imputing the commission of a crime, the crime must be an indictable one, involving
moral turpitude and punishable by death or imprisonment rather than by fine. Jacobson v.
Gimbel, 2013 IL App (2d) 120478, ¶ 27. While the allegedly defamatory words need not meet
the pleading requirements of an indictment, the words must fairly impute the commission of a
crime. Id. The innocent-construction rule also applies to whether an allegedly defamatory
statement imputes the commission of a crime. Id. ¶ 28. Respondents contend that the alleged
statements about “sexual touching” and “improper sexual contact” fail to impute the
commission of a crime.
¶ 47 At oral argument, we indicated our concern as to whether the alleged statement that “J. Doe
threatened the other child with harm if the other child told anybody about the touching”
constituted the imputation of the commission of a crime. In the trial court, neither party
addressed whether this statement imputed the commission of a crime. We directed the parties,
on our own motion, to present supplemental briefing regarding the adequacy of the petition on
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the issue of defamation per se by imputation of a crime, specifically, the offense of
intimidation. The parties each submitted the requested supplemental brief. Respondents argued
that we should not consider whether petitioner alleged that the writer imputed the offense of
intimidation. Therefore, upon reflection, we will not further address the issue.
¶ 48 Next, we turn to the imputation of the commission of a sexual offense. Respondents
contend that the remaining allegations are insufficient to demonstrate that the writer was
imputing to J. Doe the commission of criminal sexual abuse or any other sexual offense. “A
person commits criminal sexual abuse if that person: (1) commits an act of sexual conduct by
the use of force or threat of force ***.” 720 ILCS 5/11-1.50(a) (West 2012). In turn:
“ ‘Sexual conduct’ means any knowing touching or fondling by the victim or the
accused, either directly or through clothing, of the sex organs, anus, or breast of the
victim or the accused, or any part of the body of a child under 13 years of age, *** for
the purpose of sexual gratification or arousal of the victim or the accused.” 720 ILCS
5/11-0.1 (West 2012).
Respondents argue that there is no statement that J. Doe was committing the “sexual conduct”
for the purpose of sexual gratification or arousal. Respondents further argue that there is no
allegation that the other child was under 13 years of age. We reject respondents’ arguments.
¶ 49 We have noted that there is no possible innocent construction of the allegedly defamatory
statements. With that starting position, we note that respondents are essentially arguing that, in
order to make a claim of defamation per se based on the imputation of the commission of a
crime, even though it is based on statements in a letter to which respondents have denied
petitioner access, petitioner would have to allege that the writer included all of the elements of
the relevant crime. We note that this is not the standard; rather, the standard is only that the
statements must fairly impute the commission of a crime. We believe that the terms “sexual
touching” and “improper sexual contact,” along with other language in the statements, fairly
suggest that the writer accused J. Doe of committing a criminal sexual act with the other child,
especially in light of the fact that J. Doe threatened the other child with harm to prevent the
disclosure of the conduct. We disagree with respondents that petitioner needed to allege the
ages of the children involved, especially in light of the fact that petitioner is trying to preserve
the anonymity of both J. Doe and the other child in these pleadings. Identifying them by age
would serve only to lessen that anonymity and, because this case involves a parish community,
would risk actual exposure of the children’s identities beyond what has likely already occurred
through the inevitable rumors that have likely accompanied the conduct, the publication of the
letter, and this action. Accordingly, we reject respondents’ contentions and hold that petitioner
adequately pleaded that the writer’s allegedly defamatory statements imputed the commission
of a crime. Based on this holding, we need not consider the parties’ arguments concerning
affidavits and exhibits beyond the four corners of the petition.
¶ 50 B. Clergy-Penitent Privilege
¶ 51 Respondents next contend that the clergy-penitent privilege should bar the disclosure of
the writer’s identity. Strictly speaking, privilege is an affirmative defense (Johnson v. Johnson
& Bell, Ltd., 2014 IL App (1st) 122677, ¶ 15 (privilege is an affirmative defense susceptible to
resolution via a section 2-619 (735 ILCS 5/2-619 (West 2012)) motion to dismiss)), which
should not be considered when resolving a section 2-615 motion to dismiss (Becker v. Zellner,
292 Ill. App. 3d 116, 122 (1997) (generally, “affirmative defenses may not be raised in a
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section 2-615 motion”)). See also Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 712
(2010) (an affirmative defense is not considered under a section 2-615 analysis). However,
pursuant to section 2-619, respondents argued below that, if the trial court determined that the
Rule 224 petition adequately stated a claim of defamation, the affirmative defense of
clergy-penitent privilege would nevertheless defeat the petition. While respondents did not
clearly denominate their motion to dismiss as a section 2-619.1 combined motion (735 ILCS
5/2-619.1 (West 2012) (allowing for the promulgation of sections 2-615 and 2-619 motions to
dismiss in the same motion so long as they are clearly separate)), they otherwise complied with
the requirements of a section 2-619.1 combined motion, so we may and we will consider their
contentions on the clergy-penitent privilege.
¶ 52 Section 8-803 of the Code codifies the clergy-penitent privilege:
“A clergyman or practitioner of any religious denomination accredited by the religious
body to which he or she belongs, shall not be compelled to disclose in any court, or to
any administrative board or agency, or to any public officer, a confession or admission
made to him or her in his or her professional character or as a spiritual advisor in the
course of the discipline enjoined by the rules or practices of such religious body or of
the religion which he or she professes, nor be compelled to divulge any information
which has been obtained by him or her in such professional character or as such
spiritual advisor.” 735 ILCS 5/8-803 (West 2012).
¶ 53 In order to properly invoke an evidentiary privilege, the party asserting the privilege must
establish all of the privilege’s necessary elements. People v. Thomas, 2014 IL App (2d)
121001, ¶ 94. The clergy-penitent privilege “extends only to information that an individual
conveys in the course of making an admission or confession to a clergy member in his capacity
as spiritual counselor.” People v. Campobello, 348 Ill. App. 3d 619, 634 (2004). This court has
noted that a clergy member’s “professional character” is no broader than his or her role as a
“spiritual advisor” under section 8-803. Id. This is demonstrated through a close reading of
section 8-803. The first clause of section 8-803 accords protection to any “confession” or
“admission” made to a clergy member “in his or her professional character or as a spiritual
advisor in the course of the discipline enjoined by the rules or practices of [the] religious body
or of the religion which [the clergy member] professes.” 735 ILCS 5/8-803 (West 2012). Even
though “professional character” and “spiritual advisor” are linked disjunctively, the
requirement that a “confession” or “admission” to the clergy member be made “in the course of
the discipline” applies to all confessions and admissions received by the clergy member. Id.;
Campobello, 348 Ill. App. 3d at 634.
¶ 54 In this clause, “course of the discipline” is the crucial phrase: “the ‘discipline’ referred to in
section 8-803 is limited to the set of dictates binding a clergy member to receive from an
individual an ‘admission’ or ‘confession’ for the purpose of spiritually counseling or consoling
the individual.” Campobello, 348 Ill. App. 3d at 635. Thus, to qualify for preclusion under the
clergy-penitent privilege and section 8-803, “a communication must be an admission or
confession (1) made for the purpose of receiving spiritual counsel or consolation (2) to a clergy
member whose religion requires him to receive admissions or confessions for the purpose of
providing spiritual counsel or consolation.” Id.
¶ 55 Last, the final clause of section 8-803 prevents the compelled disclosure of “any
information” the clergy member has obtained “in such professional character or as such
spiritual advisor.” 735 ILCS 5/8-803 (West 2012). “The inclusion of ‘such’ is a
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reincorporation of the preceding definition of ‘professional character’ and ‘spiritual advisor,’
which as we have noted, is qualified by the phrase ‘in the course of the discipline enjoined by
the rules or practices of such religious body or of the religion which [the clergy member]
professes.’ ” Campobello, 348 Ill. App. 3d at 635-36. “Any information” given in the course of
a confession or admission for the purpose of receiving spiritual counseling or consolation falls
under the clergy-penitent privilege. Id. at 636. The privilege, however, extends only to a
confession or admission made in confidence. Id. With these principles in mind, we turn to
respondents’ contentions.
¶ 56 In this case, the writer wrote a letter to Doe outlining certain alleged improper sexual
conduct, committed several years previously, by J. Doe. The writer sought guidance in how to
handle the situation. The writer was a volunteer for a religious-education program conducted
by the parish and had the responsibility of monitoring the children in the program. In our view,
at least on the present record, the statements in issue are simply not of the character of a
confession or admission for which the writer was seeking spiritual guidance. Rather, they are
outlining a potential source of risk for the parish and the children if J. Doe were to repeat such
conduct while participating in the educational program offered by the parish. This is
fundamentally not a matter of conscience for the writer; rather it is a matter of risk
management for the writer as an agent of the parish and a guardian of children. Accordingly,
we hold that the clergy-penitent privilege is simply inapplicable.
¶ 57 Respondents first contend that petitioner admitted that the writer published the allegedly
defamatory statements to Doe “in his capacity as pastor of the parish.” Respondents conclude
that petitioner has conceded that the communication was made to Doe in his professional
character or as a spiritual advisor under section 8-803. We disagree. The position of pastor of a
parish includes significant bureaucratic responsibilities for overseeing the various programs
run by the parish and the diocese. “In his capacity as pastor of the parish” could refer to both
Doe’s duties to provide spiritual counseling and consolation as well as his administrative and
bureaucratic duties to oversee the running of the parish. We cannot say that petitioner actually
conceded that the communication was delivered to Doe in his role as a spiritual advisor.
¶ 58 Respondents attached Doe’s affidavit, in which he averred that his position required him to
“provide spiritual consolation and consultation as well as moral and ethical direction.” Doe
further averred that, if he identified the writer, it would breach the rules of the church and
“breach the confidence of a parishioner and volunteer who sought consolation and guidance.”
What respondents omit, however, is that the writer was a volunteer with a responsibility,
within a specific program of religious instruction, to monitor the children participating in that
program. Thus, the allegedly defamatory statements are more clearly seen as a request for
guidance in conducting the program and discharging the writer’s responsibility than as a
request for consolation or counseling over a matter of conscience. In other words, the request
for guidance was for the purpose of minimizing the risk to the parish and the children, rather
than seeking spiritual instruction. We do not believe that the clergy-penitent privilege extends
to bureaucratic and administrative purposes. See id. (the privilege extends to confessions or
admissions). Here, the writer explained the background of one of the children under his or her
supervision and asked for guidance in handling the problems posed by this background; the
writer did not make a confession or admission.
¶ 59 Respondents argue that, in effect, requiring a confession or admission effectively takes
communication about the acts of third persons outside of the clergy-penitent privilege, and that
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such a holding contravenes Snyder v. Poplett, 98 Ill. App. 3d 359, 363 (1981). We disagree.
The plain language of the statute applies to “a confession or admission.” 735 ILCS 5/8-803
(West 2012). Here, we discern neither a confession nor an admission; rather, the writer’s
statements are accusative, accusing J. Doe of certain improper sexual conduct. As a result, they
fall outside of the Snyder court’s refusal to create a blanket exception to the privilege for
communications relating to the acts of third persons instead of to the individual making the
communication.
¶ 60 Respondents note that, similarly, Campobello does not limit statements under the
clergy-penitent privilege to those regarding the communicant’s own conduct. See Campobello,
348 Ill. App. 3d at 636. We do not disagree. Campobello does not limit the statements to the
communicant’s own conduct, but the statements are still limited to those that are confessional.
Id. at 635. If the statement is not of such character, then it is, by statutory definition, outside of
the clergy-penitent privilege. See 735 ILCS 5/8-803 (West 2012) (prohibiting the disclosure of
“a confession or admission made to [the clergy member] in his or her professional character or
as a spiritual advisor”). Here, the writer sought guidance not for a spiritual matter or a matter of
conscience but in the writer’s capacity as a volunteer with the responsibility of monitoring the
participants in one of the parish’s religious-education programs. It is not the fact that the
statements concerned a third party, but the fact that the statements were not a confession or
admission, that takes them outside of the privilege. Accordingly, respondents’ argument is
inapposite.
¶ 61 Respondents note petitioner’s concession that Doe, in his affidavit, averred that the
writer’s letter was sent for the purpose of seeking spiritual counsel. Doe did indeed make such
a conclusion. However, this conclusion is not borne out by the factual averments in the
affidavit, especially when considered with the allegations in the petition. Accordingly, while
petitioner might have been constrained to concede that Doe averred the writer’s purpose, that
concession is of no significance, because it amounts to conceding that Doe said what he said.
Accordingly, we attribute no weight to the concession or to respondents’ argument on that
point.
¶ 62 For the foregoing reasons, then, we hold that the clergy-penitent privilege does not apply
under the facts so far elicited in this case. Accordingly, the trial court did not err in compelling
the disclosure of the writer’s identity. We note that respondents did not raise on appeal any of
the other arguments they advanced below. Accordingly, we need not address them.
¶ 63 III. CONCLUSION
¶ 64 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 65 Affirmed.
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