The idea of the seal of the confessional has fascinated lawyers, ethicists and the public at large for centuries. Secrets, by their very nature, hold a certain mystique; and the question of when, if ever, it is acceptable to break a solemn promise of silence is at the heart of many folktales. However, in the contemporary world, the practice of religious confession is necessarily placed within boundaries set by the criminal and civil jurisdictions of states. Courts are forced to examine the issue of whether, and to what extent, confessional practice is shielded by both constitutional protections and international human rights instruments. This is the core concern at the heart of Mark Hill and Keith Thompson's illuminating edited collection of essays on religious confession and evidential privilege.
This central theme is both evergreen and of striking contemporary relevance. On the one hand, the appropriateness of secular authorities compelling priests to testify about disclosures made in the course of confession, and of punishing individuals who refuse to comply, is a long-standing debate. It has always provoked strong feelings on both sides of the aisle, especially where the penitent may have revealed details of terrorist activity or other particularly heinous crimes. Nevertheless, as societal knowledge has grown about the level and extent of the sexual abuse of children and vulnerable adults, the context of the dialogue has shifted to a different and darker paradigm. The unpalatable truth that many instances of abuse have occurred within faith communities, and have been perpetrated by clergy and laity who were outwardly manifesting signs of devotion and religious observance, has heightened tensions.
This book is written in the shadow of that ugly reality and grapples with a difficult theme, applying both intellectual honesty and analytical nuance. At the same time, while the volume gives the topic of sexual abuse in this context fitting weight and consideration, it encompasses wider questions in its examination of the law in this area. The editors are to be commended for having given adequate space and attention to this crucial topic while not allowing it to obscure all other angles of the investigation.
The volume opens with an insightful foreword from Rowan Williams, and a well-structured introduction from the editors, which provides context and framework for the three principal sections of the book. Part I is devoted to the Australian Royal Commission into institutional responses to child sexual abuse, and in particular the recommendation that Australian states and territories legislate to override the confidentiality of religious confessions. Although this discussion is rooted in the Australian experience, many of the practical, social and legal controversies examined have parallels with, or are even isomorphic to, problems found in other jurisdictions. Certainly, questions around the desirability and feasibility of mandatory reporting, as well as its effectiveness as a child protection tool, are currently occupying those who make and interpret laws in many other national settings.
Part II moves on to look at privacy, confidentiality and the seal of the confessional in Europe. The four chapters of this section cover a wide range of different frameworks, looking at jurisdictions with contrasting cultures, history, religious traditions and models of Church–State relations. The discussions examine Italy, England, Sweden and Ireland, providing the reader with a variety of comparative perspectives. As might be expected, the points of both divergence and convergence are instructive in considering how legal responses in this arena can best be managed.
The final segment of the book looks at the issue of priest/penitent privilege in the USA. This again provides a suite of insights, with a paradigm expressing a unique constitutional culture in respect of not only freedom of religion but also personal liberty and collective responsibility. It is helpful too that the discussion encompasses some consideration of the unique practices of Scientology, as it serves as a timely reminder that the principles at stake have a much wider application that the context of sacramental Christian traditions.
It is obviously not the aim of this work to provide a universal response to the challenges of constructing and interpreting law in this area. It is a more sophisticated and useful book in refraining from attempts at an artificial, one-size-fits-all solution to a many-faceted problem, which presents itself in distinct ways, depending on the religious and cultural backdrop. Furthermore, the breadth of the considerations addressed and the distance provided by a comparative approach mean that sensitive questions can be examined. For example, authors such as Natanek and Parkinson have space to ask whether placing a mandatory requirement on priests to disclose information will in fact make children safer. Given the justifiably strong feelings that child abuse scandals continue to arouse, there can be a temptation in popular discourse to clamour for any or all means to be employed to tackle such evils. However, a genuine commitment to child protection necessitates interrogating whether the methods being adopted are in fact the optimal strategy for keeping children safe. Legal analysis must be part of the work in this area, if robust legal frameworks are to be developed, which meet their objectives in terms of protecting the vulnerable and balancing conflicting rights. Therefore, there is undeniably great social benefit to be gained from this volume, in contributing to the literature in this area and adding to the resources available to policy makers.
Despite the complex nature of the dilemmas being examined and the often painful nature of the factual backdrop, all of the authors in this edited collection do an exemplary job of outlining their arguments with clarity. Although the book does not shy away from some very technical discussions of both canon law and secular law, it is accessible to readers who do not necessarily have a strong legal background. In summary, this is an important work for any scholars in the field of law and religion, but it will certainly draw interest and achieve impact beyond that discipline.
