The news that Aurora accused James Holmes had sought psychiatric help may broaden the Australian discussion of the secrecy of confession.
This debate has generally focused on whether priests can be exempted on religious grounds from the duty of disclosing to the authorities crimes revealed in confession. The inclusion of psychiatrists raises a larger and more important question: can the exemption of certain privileged conversations from the duty of disclosure be justified on the grounds of the public good?
Most arguments made for compelling disclosure do not address this question. They generally appeal to the consequences of the failure to disclose the crimes of, say, a recidivist abuser. The possibility that several more children may be abused, with all the lasting harm caused to them as well as to their families and friends, is simply assumed to outweigh the harm caused by the breach of confidentiality.
That this assumption is not self-evident can be seen if we consider the similarly shaped argument that has been made for torturing terrorist suspects. Some have argued that the lives that might be saved by extracting information about planned bombings would outweigh the suffering of the person tortured, and so justify its use.
Critics of this position argue, correctly in my view, that the use of torture harms more than the person tortured. It also damages those who apply and approve it, and weakens the respect for human dignity that is fundamental to any decent society. So it should be rejected on the grounds of the public good.
I believe it is also in the public good to offer legal protection for the confidentiality of confession and some other conversations. The public benefit arises from the importance of the intimately personal space in which we consider our lives, reflect on our desires and the fractures in our lives, and deliberate how we feel called to live.
This space of self-reflectiveness is cultivated by many religions and philosophies. It is a space of freedom both in the sense that we give ourselves freely to ideas, to ways of living and to people, and in the sense that it must be free from constraint if our humanity is to flourish.
It is in the public interest to recognise and protect this intimately personal space. Respect for other people, critical for a healthy society, depends on the recognition that others are like us in having a moral centre.
Its importance for society is recognised in the concern for the transmission of values in education and in the importance given to political and religious freedom. It may also be reflected in uneasiness about attempts to manipulate personal attitudes through subliminal advertising, genetic modification or chemicals.
The public importance of the personal space can also be seen in the way we characterise a totalitarian state as one that regards it as its business to discover and penalise wrong thoughts. Humane regimes value the freedom to hold divergent opinions and penalises their expression only when this causes clear harm.
All this suggests that it is important for society that the space in which citizens reflect on their lives and choose how to live should be free from forced disclosure.
I argue finally that some conversations are so inextricably connected with people's intimate personal space that they also require the same protection from forced disclosure. Although confidentiality is a high value in all conversations, most are not absolutely protected. In most conversations we intend to make public our inner selves and measure our communication to the trust we have in our hearers.
But some conversations have a public structure that makes it clear that in them we are articulating our inner selves with the other person there simply as a catalyst. The conversation between priest and penitent is so structured. Both parties agree that it is an inner conversation between the penitent and God in which the priest is simply a channel. The conversation between psychiatrist and patient seems to have a similar character.
My argument is that conversations of this kind — and there may be more of them — should be given the same respect as a person's inner conversation. They should be exempt from compelled disclosure.
The freedom of the personal space of our lives is so central to the good of society that it outweighs the consequences of the failure to disclose.
Andrew Hamilton is consulting editor of Eureka Street.