NCJ Number
129001
Journal
Georgia Law Review Volume: 24 Issue: 3 Dated: (Spring 1990) Pages: 473-524
Date Published
1990
Length
52 pages
Annotation
This article analyzes the privilege against self-incrimination in child abuse cases in the context of the increasing number of statutes that either consolidate criminal and civil abuse proceedings or provide criminal prosecutors with access to data obtained through discovery in civil child abuse actions.
Abstract
To narrow the discussion, two sets of facts are used to illustrate how the fifth amendment is implicated in child abuse actions. The article first examines the situation presented in Baltimore City Department of Social Service v. Bouknight (1990), a case decided by the U.S. Supreme Court. The trial court held in contempt the natural mother for failure to bring her child to court for a dependency proceeding; the mother alleged that production of the child would violate her privilege against self-incrimination. Both the majority Supreme Court opinion and the dissent explicitly reserved decision on the fifth amendment issues posed by this case. A second scenario involves cases where a parent has been found to have abused a child and where the court, as part of a family reunification plan, has ordered the parent to cooperate in psychological counseling. In these cases, the courts, based upon expert testimony, may condition the return of children upon the parents' confession of the abuse. These cases raise a number of fifth amendment issues. They include possible coercion in the court-ordered confession of abuse, pressuring the parent to waive a constitutional right against self-incrimination in order to have the right of custody, and whether the court must grant immunity from criminal prosecution after requiring the confession. Another issue raised is what due process protections are required to prevent prosecutors from using evidence from civil proceedings to prosecute criminal charges. 234 footnotes