Protecting the child witness in abuse cases
Abstract
There is, perhaps, no child more vulnerable or “at risk” than the victim of abuse who must testify against the perpetrator. It is often critically important that the child testify because the child is often the only witness to the crime. Without the child's testimony, the perpetrator may go free and continue the abuse perhaps even as to that same child. Asking the abused child to testify, however, may be exposing the child to additional harm. Not only has the child suffered the unspeakable trauma of the abuse, resulting in the charges against the defendant, but the child now faces a possible secondary assault by having to recount those atrocities in the frightening surroundings of a courtroom in the presence of the perpetrator and by being subjected to cross examination.
On the other hand, in our democracy, all defendants are presumed innocent until proven guilty beyond a reasonable doubt, even child abusers. Those defendants have constitutional protections designed to ensure a fair trial, which include the right of cross examination and the right to confront their accusers. The danger also exists that a child's testimony could be coached or influenced by repeated and suggestive questioning and used to support charges against an innocent defendant.
The challenge for the courts, attorneys, and legislatures is to balance these competing interests, the state's obligation to protect the child as well as its obligation to preserve the defendant's right to a fair trial. An additional problem is the allocation of responsibility to act in this area to protect the child. Whose job is it? Does the responsibility lie with the legislative bodies, or the courts, or the prosecuting attorneys? Each party has a role to play in protecting children while preserving defendants' constitutional rights. This article: (1) reviews the current law regarding the constitutionally protected rights of the accused as they pertain to the issue of child witnesses who testify at trial; (2) reviews legislation, court procedures, and other approaches that can and are being implemented to protect the child witness, consistent with the constitutional guarantees of the accused; (3) recommends additional steps that each of the major parties involved in this issue can take to better protect child witnesses and to lessen the trauma for children testifying in abuse cases; and (4) encourages renewed advocacy of reform measures to take advantage of increased federal funding recently signed into law.
Description
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Article
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Keywords
child abuse, court, child witness
Citation
Richards, J. (2000). Protecting the child witness in abuse cases. Family Law Quarterly, 34, 393- 420.