Should parents be forbidden from testifying against their children?

Gov. Charlie Baker wants lawmakers to change a new law that bans parents from testifying against their kids, but opponents say doing so could "destroy" family relationships.

 Massachusetts State House
–David L Ryan / The Boston Globe

Earlier this month, Gov. Charlie Baker signed a bill with which he didn’t completely agree.

The bipartisan legislation, signed into law by the Massachusetts governor, includes a wide-ranging number of reforms to the state’s criminal justice system. It eliminates mandatory minimums for lower-level drug offenses. It looks to reduce unnecessary incarceration through bail reforms and expanded access to diversion programs. It imposes stricter sentencing on opioid traffickers. It raises the minimum age of children who can be charged in juvenile court from 7 to 12.

The list of reforms is extensive and, according to Baker, “takes our criminal justice system and makes it better.”

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That said, there are a few parts of the new law that the Republican governor wants the legislature to reconsider. One provision in particular he wants changed bans parents from testifying against their children, if the child is under the age of 18 — even if they have committed a serious crime.

The prohibition excludes domestic cases, in which the victim is a family member and resides in the family household, and advocates note that it does not prevent parents from, if necessary, reporting their children to police. The aim of the ban is to protect the “parent-child relationship,” allowing children to seek help from their parents without the fear their conversations could come back to haunt them in court.

If a child knows that a parent can make a decision, a child isn’t going to be willing to confide in their parent,” Sen. Cynthia Creem, a Newton Democrat and longtime advocate of the parental disqualification provision, told Boston.com.

Creem said Tuesday that the provision furthers the “sanctity of the relationship between a parent and child.” She sees the prohibition as an extension of the ban on children testifying against their parents, which was already existing law.

“The crux of the reason for doing this is to strengthen the parent-child relationship and make it the same both ways,” she said.

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But Baker says he has “serious concerns.” For example, the provision would forbid a parent who witnesses their teenage child commit a murder from testifying against him or her in court.

“While there are certainly circumstances in which a parent or child should not be forced to testify, I believe we should respect the decisions of parents or children who want to be heard in court,” Baker said in a press conference following the April 13 bill signing.

He warned that the ban would result in more cases where “justice is not found.”

Upon signing the bill, Baker announced additional legislation to tweak the new law. In addition to some technical amendments, his bill would change the ban on testimony to a privilege that could be exercised by parents. By changing the language from “a parent shall not testify” to “a parent shall not be compelled to testify,” the governor’s bill would give parents the right not to speak against their children in court, but the option to decide otherwise. His proposal would also convert the ban on children testifying against their parents to a privilege.

“If they don’t want to testify, they don’t have to,” Baker said in his press conference,

Proponents of the ban say that statement isn’t necessarily true. Without the prohibition, juvenile rights advocates say parents could be coerced into testifying against their children by a zealous prosecutor.

“People tell them: If you don’t testify, we’ll call the Department of Children and Families on you,” Sana Fadel, the director of the Boston-based Citizens for Juvenile Justice, which helped draft the language of the provision, told The Boston Globe last October.

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And under Baker’s proposal, a child wouldn’t be able to stop their parents from testifying against them.

Hannah Legerton, an advocate with the Citizens for Juvenile Justice, says minors usually need the support and help of their parents during the legal process, such as to hire an attorney. Baker’s bill would undermine the importance of that relationship, Legerton said in a recent interview.

“An attorney doesn’t have the choice to testify against their client,” she told Boston.com. “A therapist doesn’t have the choice to testify against their client.”

Legerton said the reason for privileged relationships is to protect confidential conversations. Allowing the possibility that a parent could testify, even if they can’t be legally compelled, would result in parents being excluded from talks so that their child could talk more freely with his or her lawyer, she said.

“A child, especially a child who is trouble with the legal system, needs their parents,” Legerton said.

The Massachusetts Bar Association has also thrown its support behind the prohibition, while state prosecutors (with some exceptions) actually would like Baker’s bill to remove the ban to go further.

Baker’s proposal does carve out an exception forbidding parental testimony regarding communication with their child “for the purpose of seeking advice regarding the minor child’s legal rights.” Josh Dohan, the youth advocacy director for the Committee for Public Counsel Services, the state’s public defense agency, says that language could throw many situations into a gray area.

“That’s the kind of thing that is begging for litigation,” Dohan said. “What is legal advice?”

Another technical issue in Baker’s bill with which critics take issue is the definition of parent. The proposal would change the new law’s broad definition of legal guardian to “the natural or adoptive mother or father.”

Patience Crozier, an attorney for GLBTQ Legal Advocates & Defenders (GLAD), says those terms “do not clearly and unambiguously capture the wide range of legal parents that exist in our Commonwealth.” In 2018, state law should not enshrine a definition of parent tied to biology or gender, Crozier said in a statement.

“The definition should cover all legal parents and legal guardians — all those who are empowered and entrusted to care and make decisions for their children,” she said. “The aim should be simplicity, clarity and inclusion.”

Dohan says the revised definition in Baker’s proposal would leave poor, abused, minority, and LGBT children — who are all less likely to live with their natural or adoptive parents and who are already disproportionately represented in the justice system — disadvantaged and vulnerable.

“We want them to go to those people for advice, and we certainly want them to have the same opportunity as wealthier children,” Dohan said.

In a radio interview last week, Baker said his opposition to the ban on parental testimony is because there are “lots and lots of cases” in which a parent alerts law enforcement about issues involving their child. While the new law doesn’t prohibit them from doing that, it would forbid the parent from speaking out in court.

“I think parents should have a privilege,” Baker told WGBH’s Boston Public Radio. “I have no problem with that. I do have a problem with a prohibition.”

While the Massachusetts District Attorneys’ Association hasn’t formally voted to take a position on the question and Middlesex District Attorney Marian Ryan has been outspokenly supportive of the larger criminal justice reform package, state prosecutors are generally on Baker’s side.

Norfolk District Attorney Michael Morrissey, the association’s president, says there have been discussions within the group about the potential damage to victims — and even parents — of an outright ban on parents providing testimony. Morrissey said there was even concern with Baker’s proposal to provide a parental privilege.

“There are times when desperate parents turn to the courts to address destructive behavior,” he said in a statement. “The Governor’s proposal is a step in the right direction, but there is still significant concern about the impact that parental privilege will have on victims’ ability to seek justice for the crimes committed against them.”

Juvenile rights advocates counter that the potential damage from not having a ban on a child’s long-term health is more substantiated. Creem says that allowing parents to testify against their young children has the potential to “destroy a relationship.” Dohan said there’s good reason why the state’s laws have forbidden children from speaking against their parents in court.

“We have for a very long time said that children can’t be called as witnesses against their parents,” Dohan said. “We say ‘No, the family is more important.’ Might we lose a few cases here and there? Sure. But it feels like a truly hypothetical problem.”

In the WGBH interview, Baker suggested that he doesn’t have high expectations for the legislature to pass this part of the proposal, adding that lawmakers have been “pretty dug in” on the issue. Creem said Tuesday that she expects the Senate to take up some of the technical aspects of Baker’s proposal this week, while leaving the ban of parental testimony in place.

“I think it’s a good thing,” she said. “Evidently, my colleagues were convinced it was a good idea, too.”

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