Conflict Over Child Abuse

Lawmakers in Sacramento are struggling with a bill that could create a conflict in the courtroom between defendants’ rights and the special legal protections that have often been given to children. The legislation (SB 46) would allow children who are allegedly victims of sexual abuse to testify and be cross-examined over closed-circuit television rather than in open court.

The Sixth Amendment to the Constitution gives defendants the right to confront witnesses against them. But how absolutely must that right be enforced when the accuser is a child who says that he or she has been sexually molested? Or should the law soften the trauma of direct confrontation between a vulnerable child and the person whom the child accuses of abuse?

Parents involved in some of the current court proceedings in sex-abuse cases attach some urgency to the bill. They hope that it will pass in time to make it unnecessary for their children to testify in an open courtroom. They are concerned that their youngsters may be intimidated when confronted with the people who they say did them harm. Thus, the parents argue, guilty adults could go free while children are further traumatized by a courtroom scene.

But victims’ rights are not the only rights, and that is what makes the issue so complex. The state Senate committee that will study and take testimony on the legislation must balance humane concern for children and constitutional protection for defendants. Suppose that a child is confused or wrong. Shouldn’t his or her testimony be subject to direct confrontation between accuser and accused if that would reveal confusion or error?

Both the California Public Defenders Assn. and the California Attorneys for Criminal Justice oppose the concept of the bill precisely because it would prevent confrontation. Legal precedent buttresses their case: Several years ago a state court of appeal held that a judge’s decision to place a child in the courtroom but out of sight of the man against whom she was testifying violated the defendant’s rights.

Does the Constitution allow limits on confrontation? How much more vulnerable to intimidation are children than adults? How much discretion should be left to judges?

Only with the most thorough and dogged pursuit of answers to these questions can the public be assured that the fairest possible legislation, if any, is passed. The problem demands the hardest work that the Legislature will do in any field this year. Society could not live with a rush to judgment.