The adolescent girl told a Vermont family court that her stepfather had sexually abused her repeatedly when she was between six and nine years old, and that he had recently beaten her and pinched her breasts. The court found clear and convincing evidence of physical abuse and held that sexual abuse had been proven by a preponderance of the evidence.
Two months later, the stepfather returned to court and requested that the hearing on the merits be reopened. At the re-hearing, the girl recanted her testimony and said she now recalled that her natural father, who had died five years ago, committed the more serious sexual abuse. The court credited her testimony and entered new findings of fact. The earlier determinations of physical abuse and breast pinching were upheld, however, and the teenager was ordered to remain in foster care. The court also upheld a social services reunification plan that compelled the stepfather to admit to sexual abuse and enroll in psychosexual counseling.
The stepfather appealed, arguing that his Fifth Amendment right against self incrimination was violated by the requirement that he admit to sexual abuse and complete counseling as a condition of reunification.
Holding: The requirement that the stepfather admit to sexual abuse was stricken from the family court's order. Under common law, a parent cannot be required to admit criminal misconduct in order to be reunited with family. [See In re M.C.P, 571 A.2d 627, 641 (1989)]. However, the portion of the order requiring counseling for sexually abusive parents did not violate the Fifth Amendment; when a court finds that a parent's denial of abuse interferes with effective therapy, the court "may act on that finding to the parents' detriment without offending the Fifth Amendment privilege." [See id. at 641].
| Robert Ward, J.D. Professor New England School of Law |
Professor Ward comments: It is frequently said that confession is good for the soul. This axiom may be true in church but it is not one that is necessarily recognized by the law.
The Fifth Amendment right against self-incrimination is one cornerstone of the American criminal justice system. [US CONST. AMEND 5; Berg, Give Me Liberty or Give Me Silence: Taking a Stand on Fifth Implications for Court-Ordered Therapy Programs, 79 CORNELL L. REV. 700 at 705 (1994)]. This constitutional right guarantees that no person shall be compelled by the police, or any agents of the government including the Congress, the courts or clinicians to give a statement that may lead to a subsequent criminal prosecution. [Kastigar v. United States, 406 U.S. 441, 444-45 (1972); see also Estelle v. Smith, 451 U.S. 454 (1981); State v. RH., 683 P.2d (Alaska App. 1984); Matter of Welfare of J.G.W, 433 N.W.2d 885 (Minn. 1989)]. While there are limited exceptions to this protection, the Supreme Court of Vermont decision is a reminder that CHINS (Children in Need of Services) and C & P (Care and Protection) cases do not necessarily fall within those recognized exceptions. A specific finding that continued denial of abuse interferes with effective treatment is also not precluded by the Fifth Amendment. [Id.; see also Matter of We/fare of J.S., 415 N.W. 2d 879 (Minn. 1987)]. Is this hairsplitting? Absolutely! But many courts have justified it because it is not a foregone conclusion that denial of abuse by a parent will automatically prevent successful treatment of a child. Failure to cooperate is not alone a reason to prevent the reuniting of a family. [Id.; see also In re James A., 505 A.2d 1386 (1986)].
A parent seeking reunification cannot be required to admit to criminal misconduct.
Courts from around the nation have struggled with these thorny issues, and their response has not been uniform. In Baltimore City Department of Social Services v. Boukwright, Justice O'Connor, writing for the Court, found that Ms. Boukwright's Fifth Amendment rights were not sufficiently implicated [(493 U.S. 549 (1990)]. Boukwright had been given temporary custody of her biological child after the juvenile court had made findings that the child was in need of services. As a prerequisite to maintaining custody, Ms. Boukwright agreed to meet conditions established by the court. One condition included producing her son when required to do so. She failed to comply with the terms and was ordered to produce the child. Ms. Boukwright refused and was held in contempt. The Court through Justice O'Connor acknowledged that there was the potential for a Fifth Amendment violation but not the particular facts. The Court offered two reasons; one, Ms. Boukwright because of the prior court order was essentially an agent of the government. She had agreed to cooperate. Secondly the statutory scheme under which she was being pursued was civil or regulatory, rather than criminal. Justice O'Connor stated that if the state chose to prosecute Ms. Boukwright for criminal matters learned after production of the child that the Fifth Amendment might limit such prosecution. Because of the U.S. Supreme Court's decision, it would appear that parents who are already in the system and whose custody is subject to court supervision may not invoke the Fifth Amendment when ordered to tell the court the location of their child. However this does not mean that criminal prosecution is automatic. If the parent complies and facts subsequently indicate abuse then the state may be barred from using that information at trial. The Court is clear that there may be a testimonial component to the revelation that is protected by the Fifth Amendment. In short, the Court seems to be carving out a kind of limited immunity from prosecution for a parent forced to disclose information.
The limited immunity approach is one followed by courts faced with parents who refuse to admit their misconduct during therapy. [See People in Interest of E.W, 780 P.2d 32 (Colo.App. 1989)]. Again, however, these jurisdictions readily acknowledge that a parent's statement might tend to incriminate and thus they cannot be compelled to do so unless the court insures that no prosecution will flow from disclosures made in the clinical setting [See In Re D.C., 613 A.2d 191 (Vt. 1991)]. The cases, which have followed this line of reasoning, assume that there has been no conviction for child abuse. If a parent has been convicted or the state has indicated it will not prosecute then some courts have held that there is no harm to the Fifth Amendment rights mandating disclosure because the criminal proceeding has already occurred. [See State v. Jones, 926 P.2d 1318 (Idaho 1996); State v. Mace, 578 A.2d 104 (Vt. 1990)]. The harm has been done and thus, nothing remains to be protected.
In conclusion, clinicians should be mindful that when they intervene with a family pursuant to a court order, the parent might have a constitutional right to decline to disclose information which might later result in prosecution. For the mental health professional whose only objective is to assist the child, this might seem obstructionist. While that may be true, it is also the law.
| Fred Berlin, M.D., Ph.D. Associate Professor John Hopkins University School of Medicine |
Dr. Berlin comments: The decision in this case raises an interesting conundrum. Can a rehabilitation program be expected to treat an individual for a problem or condition that he denies having?
In this instance J. A.'s stepfather denied abusing her sexually, and indeed he has never been criminally convicted of doing so. Initially, a family court judge had ruled that the preponderance of evidence suggested sexual abuse. However, the child subsequently made at least a partial recantation that was considered credible.
Programs providing treatment to alleged offenders must be careful to recognize their proper roles and boundaries. In providing treatment, which is their expected role, they should not attempt to function as judge or jury. This case aptly demonstrates that reality.
It is unclear from the facts presented whether sexual abuse did or did not actually occur. Any facility prepared to provide treatment to the stepfather, and to the family, should feel obligated to try its best to become as fully informed as possible regarding which elements of any allegations have been proven, disproven or remain uncertain. The stepfather in this case has admitted to at least some wrongdoing (grabbing, pushing and threatening J.A.) This can provide an entree into treatment to the extent that he appears to be in need of counseling regarding proper ways of parenting and disciplining. It also affords the opportunity to therapeutically reinforce the importance of not acting in ways that are physically, sexually or emotionally abusive. However, attempts at forcing the stepfather to admit to a prior history of being sexually abusive, when the validity of those allegations may be suspect, may in the face of his continual denial, serve little purpose. If the family is to be reunited, and it appears that this may be possible, this may be an area in which an agreement to disagree may be useful.
The most important goal of treatment is to try to be certain that all future conduct remains fully appropriate. In this instance, with therapeutic assistance, that goal may be attainable. Treatment programs that rigidly insist upon an acknowledgment of guilt under any and all circumstances may fail to do proper justice to the complexity of confusing and troubled interpersonal relationships. In attempting to help the family, all involved must be treated fairly. Sometimes the truth is obvious and devoid of contention. However, in other instances it may not be possible to be confident about truth. Therapy cannot become an endless debate about who did what, nor should it become a power struggle intended to extricate a confession.
The present case does not appear to be one in which the child is insisting that the stepfather confess. Rather, it appears that the entire family desires reunification. The goal of treatment should be to try to determine if this can be done safely and, if so, to aid in the accomplishment of that goal in a fashion that would be healthy and positive for all involved.
Failure to cooperate is not alone a reason to prevent reunification.
