Parent-Child Privilege

By: Tristan Walsh, CfJJ Intern

Prior to starting my internship here at CfJJ, I had limited experience in the world of juvenile justice.  As such, there have been a number of things I’ve learned in the past few weeks that have surprised me, but perhaps the most was that here in Massachusetts parents can be compelled to testify against their minor children.  When I was asked to work on a memo regarding a proposed bill that would prevent this by establishing a parent-child testimonial privilege here in Massachusetts, my reaction can only be summed up as: “wait, don’t we already have that?”

Judging by the reactions of friends and family that I told about the bill, I’m far from the only person who thought this privilege already existed in Massachusetts.  This isn’t surprising, given all the other relationships that the Commonwealth protects with testimonial privileges.  In recognition of the importance of an individual receiving medical, legal, psychiatric, and spiritual help, the state has created doctor-patient, attorney-client, therapist-patient, and clergy-penitent privileges.  Also, because of the importance of familial relationships, there is not only a spousal privilege in Massachusetts, but also the nation’s only child-parent privilege, which prevents children from being compelled to testify against parents.  Yet despite acknowledging and taking steps to protect the important role that family plays in most people’s lives, the state does not prevent parents from being forced to testify against their children.  Massachusetts is not alone in this omission.  Only four states have a parent-child testimonial privilege.

This is in spite of the fact that, for most children, parents serve as the conduit to most, if not all, of the professional relationships that are protected, such as the attorney-client or therapist-patient privileges.  Children are far more likely to first turn to their parents for advice and counsel then they are a stranger.  In fact, Antonin Scalia, writing in dissent on a Supreme Court decision that adopted the therapist-client privilege at the federal level, noted that a person was far more likely to seek out advice from his or her mother than from a therapist.  Yet any conversations children might have with their parents that result in their going to an attorney or therapist seeking help are fair game for a prosecutor’s subpoena power.  If children are to receive the full protection the law offers in the form of the already existing privileges, we must also protect the relationship that is most crucial their exercising their rights, the parent-child relationship.