Academic journal article The Journal of Gender, Race and Justice

An Examination of Why Permitting Therapy Dogs to Assist Child-Victims When Testifying during Criminal Trials Should Not Be Permitted

Academic journal article The Journal of Gender, Race and Justice

An Examination of Why Permitting Therapy Dogs to Assist Child-Victims When Testifying during Criminal Trials Should Not Be Permitted

Article excerpt

I. Introduction

"One reason a dog can be such a comfort when you're feeling blue is that he doesn't try to find out why."

-Unknown1

For the first time, state courts, such as those in New York2 and Connecticut3, have permitted children alleging sexual-assault to use therapy dogs to assist them while testifying on the witness stand during the criminal trial of their accused abusers.4 As a result, defendants such as Victor Tohom in the New York case People v. Tohom are appealing their convictions based on the fact that the presence of a dog unfairly prejudiced the trial.5 Courts must now decide whether, in Tohom and other similar cases, a court should permit a minor-child crime victim to use a courtroom dog as an emotional aid while testifying against the defendant.6

Ultimately, through analysis of the Sixth Amendment Confrontation Clause, related case law, relevant statutes, and scholarly studies, this Note will demonstrate that allowing therapy dogs to assist minor-child crime victims while testifying on the witness stand against defendants present in the courtroom during particularly stressful situations should not be permitted.7 First, this Note will explore the uses of and proper distinctions between "therapy" and "service" dogs in court.8 This Note then examines People v. Tohom, other unreported cases, and relevant Sixth Amendment Confrontation Clause jurisprudence including federal Confrontation Clause case law and analogous state case law.9 Second, this Note will analyze typical prosecution and defense arguments related to the use of therapy dogs in the courtroom.10 Third, this Note will conclude that, although defendants such as Tohom do not have an absolute right to unfettered face-to-face confrontation-particularly in cases where the defendant sexually abused children"-the alternatives to using therapy dogs during face-to-face confrontation prove to be more workable (and constitutional) solutions to dealing with this issue.12

This Note does not address all arguments that a defendant, such as Tohom, may have on appeal. It does not cover due process claims related to prosecutorial misconduct. This Note also does not cover claims based on Federal Rule of Evidence 403. Instead, this Note focuses on a defendant's potential Sixth Amendment Confrontation Clause argument, and, to a lesser extent, a defendant's due process right to a fair and impartial trial.

II. Background

First, this Part clarifies the focus of the subsequent analysis by specifying what type of service or therapy animal is relevant to the discussion. Second, this Part will examine the case of People v. Tohom and its significance to the current legal debate surrounding the permissibility of dogs in courtrooms to assist minor-child victims in a testimonial capacity.13 Third, this Part will explore the Sixth Amendment Confrontation Clause and related unpublished Confrontation Clause case law because no directly relevant published opinions exist.

A. Differentiation Between Traditional "Service"Dogs and "Therapy" or "Courtroom " Dogs Usedfor Courtroom Testimony

Contrary to popular opinion, "service" and "therapy" dogs in and out of the courtroom play different roles.14 The media often confuses or misuses these labels, complicating an already confusing discussion.15 The confusion necessitates distinguishing the two terms in order to discuss this Note's topic because "service" dogs are irrelevant to the discussion and only a particular type of "therapy" dog is pertinent to this Note.

Service dogs are not pets. A service dog is a formally trained working animal that plays a significant role in a disabled person's life.16 In the United States, the Americans with Disabilities Act (ADA) prohibits discrimination based on disability and protects the use of these animals.17 ADA generally states that a "service animal" must be allowed to travel everywhere with its owner, the disabled person.18 ADA forbids business owners from treating these animals as "pets. …

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