Washington's Closed-circuit Testimony Statute: an Exception to the Confrontation Clause to Protect Victims in Child Abuse Prosecutions

• Publication year: 1992
• Citation: Vol. 15 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 15, No. 3SPRING 1992

Washington's Closed-Circuit Testimony Statute: An Exception to the Confrontation Clause to Protect Victims in Child Abuse Prosecutions

Karen R. Hornbeck(fn*)

I. Introduction

In 1990, the Washington State Legislature enacted Engrossed Substitute House Bill (E.S.H.B.) 2809, which permits a child abuse victim in certain circumstances to testify via one-way closed-circuit television at the trial of an accused child abuser.(fn1) The legislature enacted the statute in an attempt to deter future child abuse by facilitating the prosecution of abusers.(fn2) Child abuse cases, particularly child sexual abuse cases, are some of the most difficult cases to prosecute, in part because frequently no witnesses exist except the child victim. In addition, when child abuse is prosecuted, a child victim may suffer serious emotional and mental trauma from exposure to the abuser or from testifying in open court. The statute, however, raises the problem of how to mitigate the trauma for the child victim without abridging the constitutional rights of the defendant.(fn3)

Under the Sixth Amendment to the United States Constitution, the defendant in a criminal prosecution is entitled to a public trial and an opportunity to confront the accuser.(fn4) In contrast, "child witnesses, even if they were themselves the victims, have no constitutional rights to protection during the investigation of a crime or during the trial, despite the horror already done and the potential trauma caused by future legal involvement."(fn5) Consequently, a balance must be struck between society's interests in justice and the protection of its child victims and the criminal defendant's constitutional right to confrontation. The survival of E.S.H.B. 2809 depends upon the views of the United States Supreme Court and the Washington Supreme Court regarding the scope of confrontation rights.

This Comment argues that E.S.H.B. 2809 should be recognized as an exception to the Confrontation Clause by the Supreme Courts of the United States and Washington. This argument rests upon the premise that E.S.H.B. 2809 falls within the boundaries set by previously recognized exceptions to the hearsay rule and by federal and Washington case law. Indeed, the reliability and trustworthiness of the victim's testimony should not turn on the child's ability to withstand the additional psychological trauma often induced by in-court testimony.(fn6) Rather, the special problems that these children bring to the courtroom demand compliance with a statute such as the Washington closed-circuit testimony statute to increase the requirements of reliability and trustworthiness. Thus, the statute satisfies the strict constitutional requirements of the Confrontation Clause.

This Comment begins with a general outline of the problem of child abuse and the current protections available to child witnesses. Part III analyzes the Sixth Amendment right to confrontation and the various exceptions to the Confrontation Clause. Part IV addresses the Washington State Constitution and Washington State case law, concluding that the statute is likely to sustain constitutional challenge. Part V examines various provisions of the statute and concludes that E.S.H.B. 2809 satisfies the essential elements of the right to confrontation and is a viable exception to the Confrontation Clause. Part VI specifies the areas in which E.S.H.B. 2809 falls short of its underlying purpose and proposes the adoption of an additional statute authorizing the use of videotaped testimony to provide additional protection for victims of child abuse.

II. Double Victimization: Abused by the Abuser and the System

A. The Problem of Child Abuse

Abuse of children is an intractable problem of menacing proportions. Awareness and concern over child abuse, particularly child sexual abuse, has escalated greatly in recent years.(fn7) Increased frequency of child sexual abuse,(fn8) along with increased awareness of the extensiveness of the psychological scarring this type of abuse causes,(fn9) has contributed to public outcry on the subject.(fn10) Nevertheless, once child sexual abuse is reported, legal barriers often block the successful prosecution of these cases.(fn11)

The low conviction rate of child sexual abusers has been attributed to several causes.(fn12) First, because child sexual abuse is rarely witnessed by anyone other than the victim, it is often difficult to prove. Consequently, many offenders who are arrested plea bargain to lesser charges and are often released and repeat the offenses.(fn13) Second, many people within the criminal justice system believe that sexual abusers have mental disorders and therefore should be treated by the mental health system.(fn14) Third, many parents fear that the pursuit of these cases would further traumatize the child. Hence, parents frequently elect not to prosecute in order to spare the child the emotional trauma of repeated interviews and of testifying in court.(fn15) Finally, prosecutors are often reluctant to undertake sexual abuse cases that rest primarily on the testimony of child victims.(fn16) One problem frequently cited by prosecutors is that the child freezes when asked to testify in front of the defendant.(fn17)

Despite the low conviction rate of child sexual abusers, children are increasingly called upon to testify in open court as a result of greater incidences of reported abuse among children. Frequently, no witnesses exist except the child victim.(fn18) Therefore, as traumatic as the experience may be, the child must testify or prosecution will likely be halted.

When a child victim of sexual assault testifies at trial, he or she may suffer serious emotional or psychological harm.(fn19) Many researchers believe that requiring a child, who may already be traumatized by the attack, to face the defendant in the courtroom is a major cause of such emotional harm.(fn20) In fact, some investigators believe that the child is traumatized more by the defendant's presence in the courtroom and the formality of the situation than by the actual assault.(fn21) Others believe that the process of bringing the abuser to justice can be a healthy part of the child's recovery.(fn22)

In State v. Sfieppard,(fn23) the Superior Court of New Jersey recognized the potential trauma to children when it noted: An adult witness, testifying in court, surrounded by the usual court atmosphere, aware of the black-robed judge, a jury, attorneys, members of the public, uniformed attendants, a flag, and religious overtones, is more likely to testify truthfully. The opposite is true of a child, particularly when the setting involves a relative accused by her of sexual abuse. She becomes fearful, guilty, anxious, and traumatized. In most cases, she will have been exposed to both pleasant and abusive associations with the accused. As a consequence, she has ambivalent feelings. . . . These mixed feelings, accompanied by the fear, guilt and anxiety, mitigate the truth, producing inaccurate testimony.(fn24)

In addition to problems with inaccurate testimony, numerous other problems face child victims who testify in court. The child must reveal the intimate details of the attack.(fn25) The child may be obligated to make repeated court appearances. And once in court, the child will eventually be confronted by the accused. The problems of the judicial process are often compounded by deeper psychological problems. In cases of known abusers, "[i]t is likely that the child is already psychologically disturbed as a result of emotional deprivation in a disturbed home, the trauma of sexual molestation, and guilt about his or her own part in the offense."(fn26)

The realities of giving courtroom testimony often result in parents' unwillingness to allow children to testify.(fn27) Thus, while reported cases are on the increase, relatively few result in convictions.(fn28) This leaves many child abusers on the streets and not receiving help. More importantly, children continue to be sexually assaulted and thus are not being as well protected as they could be with judicial intervention. Legal commentators, and those who work closely with abused children, advocate changes in the legal treatment of child abuse victims to spare them further psychological damage caused by the criminal trial process and its emphasis on the defendant's rights.(fn29)

B. Current Protections Available to Child Witnesses

Children stand in need of certain protections and privileges when the legal system requires that they participate by taking the stand and offering their testimony. Protections designed to shield child victims from the trauma of exposure to the abuser and the courtroom will facilitate prosecution of child abusers.

In response to the problem of courtroom trauma, many states have enacted legislation that attempts to minimize the psychological trauma child victims undergo in the court system while increasing the effectiveness of prosecuting child abusers. At present, thirty-one states have enacted laws providing for closed-circuit television testimony of child witnesses in lieu of testimony in the courtroom,(fn30) thirty-eight states have enacted statutes that permit the introduction of videotaped testimony,(fn31) and twenty states have enacted special hearsay exceptions for statements made by children.(fn32)...