A parent’s forced testimony

By James Alan Fox  |  July 20, 2010

IIMAGINE RECEIVING a call from the police informing you that your son or daughter has been arrested and charged with robbery. As a parent, your response would likely be that you need to speak with your child. You would want to hear his or her explanation. Well, Mom and Dad, not so fast.

Serving as a trusted sounding board could actually turn out to be a disastrous move. In Massachusetts, as in most states, anything a child says to a parent about an alleged crime may be used as incriminating evidence in a court of law. Parents may even be compelled to take the stand as a witness for the Commonwealth against their own flesh and blood.

In contrast, conversations between husband and wife are considered private; in Massachusetts, a defendant has the right to prevent his or her spouse from testifying, unless the charges involve a crime in which the spouse is the victim. The law seeks to maintain the sanctity of marriage and the trusting relationship between husband and wife. Society has an interest in not forcing people to turn on their spouses.

The same type of protection holds for communication between a defendant and certain types of counselors. With the exception of threatening words, people can discuss matters with their attorneys, clergy, or psychiatrists, comfortable in knowing that the conversation will remain out of court.

As for communication between parents and children, the protections are one-directional. Oddly enough, Massachusetts law bars children from having to testify against their parents (except in a domestic violence case), but in the reverse situation, anything goes. Parents may be compelled to testify not only about what they witnessed, but also about what they were told by their child — even if supposedly in confidence — when he or she is standing trial.

According to Hillary Farber, assistant professor of criminology and criminal justice at Northeastern University, “It is important for society and for the legal system to protect communication between a child and his or her parent. Maintaining trust between parent and child is central to the basic fabric of society.’’

According to Farber, four states — Connecticut, New York, Minnesota, and Idaho — have enacted legislation or have standing case law that extends the privilege routinely afforded spouses to the parent and minor child relationship. Parents cannot be forced to testify against their minor children without their permission. Massachusetts should join this small but enlightened club of jurisdictions. A bill pending at the State House would amend state law to insulate communication between minors living at home and their parents (or stepparents) and shield parents from being forced to testify against their offspring.

But with barely two weeks remaining in this legislative session, the bill, although brief and straightforward, must compete with a large agenda of pending legislation queued up for debate and vote.

The Legislature should approve the bill so that minor children in Massachusetts who are facing charges in juvenile or adult court can speak freely to their parents without fear of negative repercussions. Lawmakers should approve it for the sake of justice, basic fairness, and protecting the special bond of trust between parent and child.

James Alan Fox is a professor of criminology, law, and public policy at Northeastern University and writes a blog for boston. com about crime and punishment.