Prosecutorial Discretion and the Neglect of Juvenile Shielding Statutes

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 341. Prosecutorial Discretion and the Neglect of Juvenile Shielding Statutes

Prosecutorial Discretion and the Neglect of Juvenile Shielding Statutes

Andrea L. Dennis(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 342

II. The Development of Juvenile Shielding Laws .......... 347
A. Child Sexual Abuse Reporting, Notoriety, and Research .......................................... 348
B. State Legislatures Spring into Action .............. 349
C. Supreme Court Approval .......................... 351
D. Unanticipated Prosecutorial Neglect ............... 354
III. An Autopsy of Juvenile Shielding Laws ................ 356
A. Infeasibility ....................................... 357
B. Needlessness ...................................... 357
C. Ineffectiveness .................................... 358
D. Impermissibility ................................... 359
1. Interference of State Constitutional Laws ...... 360
2. Concerns about Craig .......................... 360
i. Nebulous Rationale ........................ 361
ii. Multiple Open Questions ................... 363
3. Absence of Clarification ........................ 372
i. Rejecting Direct Review .................... 372
ii. Declining Indirect Reconsideration ......... 374

IV. The Revitalization of Juvenile Shielding Laws ......... 378
A. Standing: Choose Wisely .......................... 379

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B. The Protected Class: Broaden and Narrow ......... 382
C. Means: Avoid the Lure of New Technologies ....... 385

V. Conclusion ............................................ 386

I. INTRODUCTION

When legislatures enact statutes, furtherance of legislative intent depends on the behavior of actors in the executive and judicial branches of government. In the criminal justice system, prosecutors may frustrate legislative intent when they exercise prosecutorial discretion. This Article examines an instance in which prosecutors' choices work to the detriment of children. This troubling outcome is poignantly exemplified by the prosecution of juvenile prostitution cases.

University researchers conservatively estimated that 244,000 American children in the year 2000 were "at risk" of becoming victims of sexual exploitation-including prostitution.(fn1) While researchers could not precisely ascertain the number of juveniles actually participating in prostitution, they offered some generalizations about the characteristics of juveniles engaged in that practice. Most prostituted juveniles are girls whose average age when first engaging in prostitution is twelve to fourteen years.(fn2) The vast majority of prostituted girls are runaways, throwaways, or homeless; have been neglected and abused by their parents; and end up sexually exploited by pimps.(fn3) These girls' lives are full of violence and threats.(fn4) They are disconnected from family and friends, suffer from physical and emotional maladies, and may be drug-dependent.(fn5)

The United States Department of Justice has made it a priority in the last five years to prosecute U.S.-based pimps trafficking in juveniles.(fn6) The Department initiates federal cases and has established state-federal partnerships to assist in state-level prosecutions.(fn7) Some of these pimp prosecutions are resolved through trial rather

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than guilty plea.(fn8) When a case proceeds to trial, the juvenile is likely to be a prosecution witness.(fn9)

Prosecution should represent a space of apparent safety-both physically and emotionally-for the prostituted juvenile. The court has probably detained her pimp, thereby limiting his influence over her, and government officials can also provide her with ameliorative social and educational services. Yet, the adjudicatory process itself places burdens on the juvenile, particularly when the case proceeds to trial. At times, the government detains as material witnesses girls who are especially reluctant to cooperate with an investigation, so much so they might choose to flee before testifying.(fn10) At trial, the juvenile confronts the difficult and traumatic task of recounting episodes of sexual exploitation in open court in the defendant's presence.(fn11)

Some juveniles who testify at trial can navigate the process with little or no more difficulty than the ordinary witness. Trial usually results in conviction, and the child is either none the worse for wear or has benefited emotionally from having her day in court. Other teenage prostitutes, however, need support to cope with the general rigors of testifying and the particularized stresses that result from having to testify in the presence of a former victimizer.(fn12) For these girls, the experience of testifying will add new short-term and long-term emotional and social harms to the heavy burdens already borne by being the victims of child prostitution.(fn13)

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From the prosecutor's perspective, indicting the pimp and having the child victim available to testify at trial should be an advantageous position. However, special problems confront prosecutors in child-prostitution cases. Because of immaturity and fear, the child witness may be uncooperative on direct examination or vulnerable to the rigors of cross-examination.(fn14) An overly stressed child may produce testimony that is unreliable or difficult to test with follow-up questions.(fn15) The child witness may refuse to answer questions at all, provide vague or incomplete answers, or give false or misleading responses.(fn16)

The prosecutor may employ a variety of measures to help the child witness whose effectiveness is threatened by the danger of emotional trauma while testifying. Pretrial, prosecutors may limit the number of interviews, use specially trained interviewers, provide therapeutic counseling, and prepare the child for her role as a witness, including a tour of the courtroom.(fn17) Throughout the testimonial process, prosecutors might provide a child witness with a stress-relieving item, such as a hand-held ball or comforting toy, or request that a supportive adult sit near the child.(fn18) Additionally, prosecutors may ask that the court monitor the locations and movements of counsel during testimony, order the re-arrangement of seating during the child's examination, or instruct attorneys to remain seated while questioning a child witness.(fn19)

In addition to measures generally focused on remediating harms from testifying, a unique, particularized, and highly controversial measure prosecutors have available to them is the practice of shield-ing.(fn20) Unlike other measures, shielding is aimed exclusively at remediating the harms caused by the presence of the defendant while the witness testifies.(fn21) It is usually-but not exclusively-available for very young victim-witnesses in sexual abuse cases.(fn22)

Shielding limits the ability of the juvenile witness to view the de-fendant-and sometimes the defendant to view the witness-while

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the witness testifies.(fn23) The ability to request shielding of at least some child witnesses is available to prosecutors in virtually every ju-risdiction.(fn24) Most shielding laws took hold in the 1980s and 1990s, which saw an exponential increase in reported child sex abuse cases, excessive media coverage of notorious child sex abuse scandals, and research indicating that sometimes children were traumatized by testifying in the presence of the defendant.(fn25) In 1990, the Supreme Court approved shielding in Maryland v. Craig,(fn26) after sidestepping the constitutionality issue in the earlier case of Coy v. Iowa.(fn27) Justice Scalia vigorously dissented in Craig,(fn28) and many legal scholars joined him in offering critiques of the majority opinion.(fn29)

Legislators, vindicated in their efforts by the Court's decision, presumably expected that prosecutors would use the latest addition to their trial-practice toolbox, ultimately to the benefit of both children and the public at large. Yet almost ten years later, survey research revealed that prosecutors often declined to seek approval to shield juvenile witnesses, and more recent anecdotal evidence suggests this trend has persisted.(fn30) In short, it appears that the legislative aims behind shielding-remediating harm to child witnesses and facilitating prosecution in child sex abuse cases(fn31)-have been frustrated by the discretionary choices of prosecutors.

The failure of prosecutors to use shielding in many cases raises serious concerns. Especially worrisome is the risk that prosecutorial choices have produced inequities in the treatment of different categories of child witnesses. There is reason to believe that shielding is not broadly available to juvenile witnesses in teenage prostitution cases, as well as youthful witnesses in domestic violence and street crimes cases.(fn32) Rather, shielding is mostly limited to young children in sex

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abuse cases.(fn33) If one is committed to youth-centered advocacy-as contrasted with defense or prosecution-focused advocacy-or takes seriously the promotion of a stated legislative aim of protecting child witnesses while testifying, then there is much to learn from examining prosecutors' neglect of this unique aspect of criminal adjudication.

This Article reviews the failure of juvenile shielding statutes to take hold in the prosecution of cases involving child witnesses because of prosecutors' discretionary decisions...