Child Victims Need Lawyers, Too: Tips for Child’s Counsel in Criminal Cases

Russell P. Butler

The harsh reality of the criminal justice system often forgets the special needs of the child victim.[1] Appointing counsel for a child victim can help alleviate fears the child might have about the criminal proceeding. The child’s attorney may protect the child from improper questioning during discovery or testimony, intimidation from the defendant or family members, and the general trauma of the courtroom environment. Some prosecutors have experience with cases involving child victims, but because they represent the government’s interests, they may not always seek what is in the best interest of the child.[2] Thus, anattorney who acts solely on behalf of the interests of the child is needed. This article explains how child victims can be assistedby independent legal representation in criminal court proceedings.

The Role of Child’s Counsel

Research shows that a child victim may suffer great emotional trauma during criminal proceedings.[3] The adversarial nature of criminal court[*]often neglects the victim. All states and the U.S. Congress have passed legislation protecting the rights of the victim in a criminal case. While these protections help ensure all victims are treated with dignity and respect, child victims need added assistance from an attorney to protect their rights.

Distinguishing Between GALs and an Attorney for the Child

Counsel for the child victim can either be appointed by the court as a guardian ad litem (GAL) or as a child’s attorney. The child’s family has the option of hiring an attorney to represent the child victim, if the parents are acting in the best interests of the child. The main difference between a GAL and a child’s attorney liesin their roles and responsibilities. A GAL must represent the child “according to the guardian ad litem’s independent assessment of the best interests of the minor.”[4] According to the ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases,GALs are appointed “to protect the child’s interest without being bound by the child’s expressed preferences.” These standards requirethe GAL, regardless of the wishes the child conveys tocounsel, to make recommendations to the court that are in his best interests and may not always follow the child’s wishes. Some GALs will tell the court the child’s wishes, but this is not mandated.

On the other hand, a child’s attorney must pursue the expressed wishes and views of the child as long as the child is capable of making considered decisions.[5] The ABAStandards stipulate that a child’s attorney “owes the same duties of undivided loyalty, confidentiality and competent representation to the child, as is due an adult client.”[6]An attorney for a child must also follow lawyer-client privilege, whereas, the GAL must represent the “best interest” of the child.[7]

For the child’s counselto effectively represent the child’s interest in the criminal proceeding, the role and duties need to be carefully defined. The role of counsel would be limited to the rights of victims outlined in state and federal legislation, depending on the governing law.

Authority for the Guardianad Litem

For decades, courts have appointed counsel for children in civil and juvenile proceedings to represent theirinterests. The Child Abuse Prevention and Treatment Act (CAPTA),42 U.S.C. §5101, first passed by Congress in the 1970s, requires states to appoint GALs “in every case involving an abused or neglected child which results in a judicial proceeding.”[8]

Congress has passed laws directly relating to theGAL in the criminal context since the first wave of CAPTA. The Victims of Child Abuse Act, 18 U.S.C. § 3509, directs in a criminal case that “the court may appoint and provide reasonable compensation and payment of expenses for, a guardian ad litem for a child who was a victim of, or a witness to, a crime involving abuse or exploitation to protect the best interests of the child.”[9]

If states do not comply with the appointment of GALs under CAPTA, then states can be denied certain federal funds for victims of child abuse and neglect programs. Following CAPTA’s enactment, many states provided for GALs in juvenile dependency cases, but not for criminal cases involving child victims. The term “judicial proceeding” in CAPTA’s § 5101[10] is inclusive of all cases arising from incidents of child abuse and neglect and should not be limited to juvenile dependency cases.

Several states have adopted legislation that requires appointing counsel for child victims in criminal proceedings as well as civil proceedings. For example:

  • Florida law mandates that a GAL be appointed to represent a minor “in any criminal proceeding if the minor is a victim of or a witness to child abuse, neglect or if the minor is a victim of a sexual offense.”[11]
  • Oklahoma requires that a GAL be appointed in every child abuse or neglect case that falls under the Oklahoma Child Abuse Reporting and Prevention Act.[12]
  • Iowa mandates that GALs be appointed in cases arising from violations of specific statutes and in which the child victim must provide testimony.[13]

Unfortunately, many state courts have not yet interpreted “judicial proceeding” as used in CAPTA to include criminal cases and thus do not appoint counsel for child victims in suchproceedings.As a result, many children lack representation within the criminal system.

Expanded Scope of Child’s Counsel

Appointing counsel for children in criminal courts should be more widespread and include clearly defined roles that allow the child’s counsel to protect the child.

Inform Child Victims of Their Rights

Child’s counsel can help child victims understand their rights. Adult victims are sometimes unaware of their rights within the courtroom, so child victims are even less likely to be aware of their rights. Under the federal Crime Victim’s Rights Act[14] and many state constitutions, laws and rules, a victim has the right to be informed of judicial proceedings, the right to be present at such proceeding, the right to be heard at the sentencing proceedings, the right to privacy, and the right to restitution.

For example, an Arizona court held that the “ability of the court to appoint representatives for minor victims is not just a ‘power’ of the court, it is also a ‘right’ of victims; parties in the case and courts have a duty to exercise this power on a minor victim’s behalf.”[15]

A federal prosecutor has a good faith obligation to inform victims and their parents or legal guardians of the child’s rights. This includes a duty to inform the victim of the right to counsel as provided in the Crime Victims Rights Act.[16]Thus, if there is no parent or legal guardian acting in the child’s interest, the only way for a prosecutor to comply with the rights of the child victim would be to have counsel appointed on the child’s behalf.

Federal law states that the child’s counsel should assist the child victim in writing a victim impact statement for the purpose of sentencing.[17] Counsel should ask age-appropriate questions of the child victim and make sure the material presented to the court reflects the interests of the child. Counsel could perhaps encourage a child to create a picture or other representation of the impact of the crime on the child or allow the child to address the court orally. In particular, counsel “shall make every effort to obtain and report information that accurately expresses the child’s and the family’s views concerning the child’s victimization.”[18] In the federal system, child’s counsel must obtain information, including from the child, and report to both the United State’s Probation Office and the court through the presentence report process.

The attorney for the child can also file for restitution on behalf of the child. Most states have codified a victim’s right to restitution, but child victims may have difficulty understanding and exercising a right to restitution. Child’s counsel should appropriately act to protect the client’s interests in restitution.

Practice Tips:

  • Child’s counsel should know general rights for all victims in the jurisdiction. (See, e.g.,18 U.S.C. § 3771).
  • Child’s counsel should know any special rights for child victims in the jurisdiction. (See, e.g.,18 U.S.C. § 3509).
  • Child’s counsel should discuss with the child their rights as victims.
  • Child’s counsel should help the child prepare a victim impact statement that makes appropriate recommendations consistent with the best interest of the child.

Prepare Child Victims to Testify

Before Trial

Providing testimony in court may be the most traumatic and intimidating experience for a child victim during the criminal proceeding. Child’s counsel can prepare the child for testimony and take measures to shield the child from intimidation or coercion by the alleged perpetrator before the child goes on the stand. When the court finds that the defendant’s presence may influence or chill a child’s testimony, appointing counsel can help protect the child from undue influence. In Miller v. Johnson, the U.S. District Court appropriately appointed a child counsel to prevent the child victim’s perpetrator from directly communicating with the child victim to persuade her to alter her testimony.[19]

During Trial

Many states have adopted several measures to protect the child witness from the trauma of the courtroom, while still upholding the defendant’s right to a fair trial. For example, in the past decade, courts have begun using closed-circuit television or recorded depositions to protect the child witness from directly confronting the defendant.[20] In Maryland v. Craig, the Supreme Court upheld the use of closed-circuit television for the child victim.[21] The Court’s rationale was that the “presence of the defendant will result in the child victim’s suffering serious emotional distress such that the child victim cannot reasonably communicate.” Maryland statutes now specifically allowan attorney for a child when courts decide to use closed-circuit television for the child victim’s testimony.

Other state courts have also upheld the rationale followed in Craig. In Florida, the Court of Appeals granted the GAL’s motion to have the child victim testify against the defendant, her mother, via closed-circuit television even though the child was over the statutory age to testify by closed-circuit television.[22] The Craig standard was later codified by Congress,[23] and GALs must now prove that the child victim will be traumatized by the presence of the defendant directly, and not by the general courtroom atmosphere.[24] Child counsel in federal criminal proceedings may seek either testimony by closed-circuit television or videotaped deposition. “In a proceeding involving an alleged offense against a child, the attorney for the Government, the child's attorney, the child's parent or legal guardian, or the guardian ad litem appointed under subsection (h) may apply for an order that a deposition be taken of the child's testimony and that the deposition be recorded and preserved on videotape.”[25]

Recent developments in the hearsay rules, and the strict enforcement of the Confrontation Clause for criminal defendants makes it more likely that child witnesses will be called to testify. This makes a child victim’s need for counsel even more palpable. Counsel can assist their clients in understanding the judicial process in a manner that the child will understand. Counsel can show the child a courtroom and the consequences and need for testifying truthfully. Adequate preparation may assist in avoiding trauma before, during, and after testimony. When closed-circuit television or video depositions will be used, counsel can familiarize the child with these approaches and how they differ from in-court testimony.

Post-Trial

Just as the attorney for the child can file motions for protective orders before and during the trial, so too can the attorney ensure the child is protected after the defendant is sentenced. At the post-trial phase, child’s counsel can continue to advocate for their client by seeking no-contact orders and appearances at modification and parole hearings to ensure the child is protected. In some cases, such as when children have been victimized in pornographic material, the child may be revictimized by repeated distribution of viewing of the material,so child’s counsel may need to assist their client in future cases.

Practice Tips:

  • The court should appoint a child counsel in any crime in which the child victim must testify in front of the child’s alleged perpetrator.
  • Child’s counsel, with the assistance of therapists and experts, should evaluate and then inform the court of the child’s ability to testify in front of the accused.
  • If the child appears to be traumatized by the defendant, then child’s counsel should file a motion to provide the child’s testimony by closed-circuit television, recorded deposition, or alternate means.
  • If the child appears intimidated by the courtroom generally, child’s counsel should file motions for appropriate relief to facilitate testimony (see 18 U.S.C. §3509).
  • Child’s counsel can petition for a support person to sit with the child during testimony.

Address Familial Conflicts of Interest

Many child victimization cases involve intrafamilial conflict. In such cases, prosecutors should handle the case with heightened sensitivity, particularly when there may be a conflict of interest between the child and parents. In addition, the child may be emotionally torn between their desire to punish and their need for emotional support from family.[26]The court should always appoint counsel to represent the child’sinterests under these circumstances.[27] For example, in Arizona v. Dairman, the state asserted in the trial court that the legal guardians were not “accurately expressing the views of the minor victims” but “were instead attempting to protect the defendant.”[28] The Dairman court held it was not just the ability of the court to appoint a GAL, but it was the right of the child victim to be heard as a victim of crime. Parents may want the offender to return to the community and may not truthfully represent the interests of the child. Counsel can ascertain the child’s interests, rather than the parents’ interests, and make the court aware of them.Assume, for example, that one child sexually assaulted a sibling or one parent assaulted the other parent’s child. These circumstances may create a conflict and the parent may not act in the interest of the child victim, but in the interest of another family member.

Practice Tips:

  • The court should always appoint a child counsel in the case of intrafamilial abuse.
  • Child’s counsel should make a recommendation to the court regarding the child’s best interest at each stage in the criminal proceeding.

Determine if Privacy and Privilege of Nondisclosure Should be Waived

What happens when a privilege or confidentiality provision exists and the child legally cannot waive the privilege? Normally, a parent can make this decision. However, what if the parent has a different, perhaps conflicting interest?

In Nagle v. Hooks, the Maryland Court of Appeals ruled that a GAL should be appointed in child custody proceedings to determine whether the minor child should waive their privilege to patient-psychiatrist evaluations because the parents had a conflict of interest and no person could adequately act in the best interest of the child.[29] Because of parental conflict, the GAL was instrumental in determining whether waiving such a privilege was in the best interest of the minor.[30]

In Fisher v. State, the court ordered that an attorney be appointed for the child victim “to inform her of her psychotherapist-patient privilege, to ascertain her wishes with respect thereto, and to report those wishes to the court.”[31] When parents may have divided loyalties, courts must appoint child counsel to protect privacy rights. Even if there are not divided loyalties, parents may not be capable of effectively protecting child victims.

Federal law allows child counsel to seek a protective order to shield the name and other identifying information of the child victim[32] and the closure of a courtroom.[33]

Practice Tips:

  • Child’s counsel should also consider motioning for protective orders during the pretrial phase of a criminal proceeding.
  • Child’s counsel should not allow privileged or confidential material to be obtained or distributed.

Access Court Documents

To effectively represent the interests of the minor, child’s counsel must have access to all discovery evidence and reports. Oklahoma and North Carolina have laws that require the court to give child’s counsel access to all reports relating to the case and to the child.[34] Federal statute also mandates that the attorney for the child have access to “all reports, evaluations and records, except attorney’s work product, necessary to effectively advocate for the child.”[35]Where allowed, child’s counsel shouldobtain access to pretrial release and presentencing reports to ensure that the child’s views are appropriately considered.