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Abstract

Should a child be compelled to testify against his parent under threat of criminal punishment? Ignoring for a moment the applicable legal doctrines, there are several reasons why one might answer no. First, if we value the idea of family loyalty, and believe that loyalty of a child to his parent is particularly important for traditional, moral, and practical reasons, then measures taken by a state to undermine such loyalty must be viewed critically. Second, children tend to accumulate tremendous amounts of information about their parents' activities and are party or witness to many communications made by their parents with an expectation of confidentiality. Obviously, children can provide an excellent source of evidence about and against their parents, particularly if they are too young to appreciate the implications of disclosing such information; those societies which have made extensive use of the practice of collecting information about people through their children are generally indifferent to what members of our own society call civil rights. Finally, when the question involves minor children, as the preceding comment suggests, the child's capacity to evaluate the implications of testifying about or against a parent is limited. The minor child's limited capacity suggests not only that he may lack the requisite intent to justify punishment for contempt of court, but also that he lacks an option available to the adult. The very notion that evaluation of the implications of testifying is involved suggests that an adult faced with a court order to inform against his parent would view himself as having an option, if he felt an overriding moral obligation to his parent, to choose "civil disobedience" and risk punishment for contempt of court rather than inform. But a minor child faced with the same moral dilemma would obviously be less well equipped to make that choice. If he cooperates and the parent suffers, the child may well blame himself for his parent's fate. If he refuses to cooperate and is punished, it is doubtful that the punishment will leave the child unscarred, even if it were knowingly incurred for reasons of conscience. The child who feels overriding loyalty to a parent, once punished, may form the conclusion that parents do not deserve loyalty and that conscience is a poor guide. Anyone who takes the foregoing concerns seriously, cannot help but be disturbed that the legal doctrines applicable to a child asked to testify against a parent take none of them into account. In general, no evidentiary privilege or immunity applies. The divergent assumptions behind two judicial decisions of early 1983 suggest, however, that these concerns should be receiving serious attention. In State v. DeLong, the Maine Supreme Judicial Court, sitting as the Law Court, upheld the seven day jail sentence of a fifteen year old girl for criminal contempt for refusing to testify against her adoptive father. In In re Agosto, the U.S. District Court for the District of Nevada recognized a parent-child privilege barring interrogation of the adult son of the target of a grand jury investigation.

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