To Testify or Not to Testify: A Comparative Analysis of Australian and American Approaches to a Parent-Child Testimonial Exemption

Article excerpt

SUMMARY

INTRODUCTION ............................................................................................................... 110

I. THE HISTORY OF A PARENT-CHILD PRIVILEGE IN THE UNITED STATES .......... 115

II . THE TESTIMONIAL EXEMPTION FOR PARENTS AND CHILDREN IN AUSTRALIA .......................................................................................................... 125

A. The Australian Legal System ...................................................................... 125

B. Federal Law of the Commonwealth of Australia ..................................... 126

C. The South Australia Evidence Act ............................................................. 130

D. The Victoria Crimes Act of 1958 ................................................................ 132

E. The Victoria Evidence Act 2008 ................................................................. 134

III. THE CORRELATION BETWEEN RESTORATIVE JUSTICE AND THE PARENTCHILD TESTIMONIAL EXEMPTION: THE A USTRALIAN EXAMPLE ................ 136

IV. THE CRIMINALIZATION OF THE AMERICAN JUVENILE JUSTICE SYSTEM: AN IMPEDIMENT TO RECOGNITION OF A PARENT-CHILD PRIVILEGE ......... 143

V. CONCLUSION ............................................................................................................ 150

INTRODUCTION

The notion of parents compelled to testify against their under-age children conflicts with deeply rooted societal values about familial privacy and the appropriate reach of government. As a society, we place a premium on time spent with children and the accompanying level of communication and care necessary to foster and maintain a strong parent-child relationship. Parents are the most important contributors to the socialization of their children.1 From birth they teach the child to act in socially appropriate ways and to become a productive member of society.2 Parents play a central role in determining the child's initial trajectories in life. Trajectories in crime and deviance are no exception1 Social scientists who have studied patterns between parental attachment and delinquent behavior have found that when parents devote time to their children, communicate about the child's feelings and frustrations, and provide guidance and advice, they prevent involvement in crime and delinquency.4

It is natural that children will share some of their most personal secrets with their parents in order to receive the benefit of their parents' counsel. In a close relationship, parents have considerable sway over their child's decisions. They are often the first to assess their child's predicament and can judge when to seek professional services, if needed. Children are by nature impulsive and frequently fail to consider the long-term consequences of their actions.5 Accurate and truthful information from the child provides parents the ammunition to make the best decisions. There is an implicit assumption of privacy with respect to the information shared between a parent and a child within the institution of the family."

Given these assumptions, why would any legal system not give the parent-child relationship the legal protection of a privilege? It is counter-intuitive to undermine the trust and confidence essential to the parent-child relationship by forcing a parent to testify against his or her child in order to assist the government. And yet, Australia is one of the few common law countries to recognize a testimonial exemption for parents and their children.7 Australia is also unique in that it protects the privilege in the context of a restorative justice approach to crime. When it comes to juvenile offenders, Australia's response strives to achieve reconciliation, reparation, and reintegration.8 The system incentivizes diversionary practices that accommodate offender-victim dialogue, family involvement, and community-based programs geared toward achieving offender accountability without stigmatizing the juvenile for transgressions committed at a young age. …