Do parents belong on the witness stand?

Imagine your child finally gathers the courage to tell you about the time she smoked pot. You quickly stop her and pull out your Miranda card.

"You have the right to remain silent," you begin. "Anything you say can and will be used against you in a court of law."

No, this is not the latest episode of "Ally McBeal." It's a scenario lawyers and legislators use to tell parents that conversations with their children could wind up in court.

In almost every state, a mother or father can be forced to take the stand and break the "you can tell me anything" promise to their child. But now Massachusetts lawmakers are trying to keep prosecutors from using this controversial tactic - and other states are taking notice.

Last week, bills to protect the sanctity of family conversations were introduced in both the state House and the Senate. They came after two couples were subpoenaed to testify against their sons in a rape case.

"We would hope that if children came to their parents, they would be able to share their problems," says state Sen. Cynthia Stone Creem, who introduced one of the bills. But as it stands now, "if my children come to me, I have to say, 'Go talk to your priest, go talk to your doctor, because I can't hear it.' "

If passed, parent-child confidentiality would be similar to that already granted priest and penitent, lawyer and client, therapist and patient - though many argue the secrecy between a parent and a child is paramount to all those.

"What I hope we want to do as a society is to encourage a child to go to the person on earth that child most trusts, a mother or a father," says Lawrence Goldman, vice president of the National Association of Criminal Defense Lawyers. "What my kid tells me is none of the state's business."

Prosecutors say they ask for a parent's testimony only as a last resort. But the practice is on the rise - at a time when juveniles are more frequently being charged as adults.

Some parents want to testify against children - especially if the crime is particularly horrible, say prosecutors. Some are concerned a parent-child privilege could, in effect, bar parents from testifying, even if they wanted to.

"If your child comes to you and tells you they smoked a joint, as a prosecutor, I don't need to know that," says Gary Walker, co-chairman of the juvenile-justice advisory committee for the National District Attorneys Association. "But what if your child commits murder?"

As prosecuting attorney in Marquette, Mich., Mr. Walker says parents are not forced to testify in 90 percent of the cases. In the 10 percent when they are, "it's literally agonizing" for everyone involved.

Walker remembers one such murder case: "We had a mother who knew her testimony was going to help convict her son, but she also knew her son brutally raped and murdered a girl," he says. "As a parent, that must be the seventh ring of hell."

In the Massachusetts case, two 14-year-old boys were charged in June with raping a girl in their school. The parents of both boys talked to their sons about the incident, and prosecutors subpoenaed the parents to testify before a grand jury. "We feel it's important in weighing rights and privileges that the victim's right to redress should not be made secondary," says David Traub, a spokesman for the Norfolk County Attorney's Office, which is pressing for the parents to testify.

In an appeal last month, the state Supreme Judicial Court granted a temporary reprieve to the boys' parents until the end of the legislative session in July. The high court also said that any move to establish a parent-child privilege should come from the legislature, not the court.

While the SJC has the power to create a privilege by decree, it hasn't done so in more than 100 years. In the opinion for the court, Justice Roderick Ireland wrote that many sensitive issues are involved in creating a parent-child privilege - the age of the child, who is considered to be the parents, and how to handle child abuse and family violence.

For the most part, prosecutors believe confidential privileges make it harder to get convictions. They are watching the two Massachusetts bills - and their specific limitations - with caution.

What if a child confessed to his parents that he shot someone? "Should mom and dad be required to testify about that confession? Or can they be asked things like: 'Was Johnny home last night?' The possible ranges of a privilege are substantial," says Geline Williams, executive director of the Massachusetts District Attorneys Association in Boston.

As a lawyer and chairwoman of the Criminal Justice Committee, Senator Creem was familiar with many of the confidential privileges. But she says she never thought about the parent-child one until she saw Marcia Lewis being forced to testify in front of a grand jury about her daughter's relationship with President Clinton. "I said, 'I have a daughter. I can't believe that. That's terrible.' "

But Joseph Brodigan, who is representing one of the boys, draws a distinction between adult and minor children, and hopes the Massachusetts bill is limited to minors.

No matter the age of their children, many parents say they would simply refuse to testify. "There are many parents who would not be truthful if they had to testify against their kids," Creem says. "I know I would never go against the confidence of my children."

Besides, she says, "If all [prosecutors] have is the parent, they have a problem anyway."

Mr. Goldman agrees. As both a prosecutor and criminal defense lawyer, he has seen many parents forced to testify against their children. But he can't recall a single one where the parent's testimony was crucial.

"If 1 out of a million kids are not convicted, so be it," Goldman says. "The republic can get by without that."

(c) Copyright 2000. The Christian Science Publishing Society

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