Should parents be banned from testifying against their children

“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.

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.

“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.

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.

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.

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.

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.

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.

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.

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.