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Pennsylvania Appellate Courts Have Abandoned Children
Do the Pennsylvania appellate courts have a direct impact on the lives of children in our state? They sure do. Will the new Pennsylvania Supreme Court Justices, Russell Nigro and Sandra Newman, reverse the courts' historic position of callous indifference to children? We sure hope so.
As the number of cases of reported child abuse has risen and our knowledge of the risks that children face expands, child advocates have promoted measures to remedy the harm caused by both physical and sexual abuse. They have repeatedly been thwarted by the holdings of our state Supreme Court. Unfortunately, aggressive and innovative steps which have been taken in other states to protect children have been repeatedly rejected by our appellate courts as unconstitutional under the Pennsylvania constitution.
The Pennsylvania Supreme Court has shown a disposition to issue opinions against the interests of children, such as the very recent elimination of college support for children after divorce. In the abuse area, our state appellate courts have for the last decade repeatedly thwarted the possibility of prosecuting child abusers. They have prohibited experts from testifying to a child's behavior after abuse. They have held that a child witness must be treated just like an adult. That child must be seated opposite his or her assailant in face-to- face confrontation in the context of a criminal prosecution. The very worst cases, such as the rape and sodomy of young children, tend go unprosecuted because of the difficulty of eliciting testimony from a child terrified in the presence of their assailant. Similarly, children who are the only witnesses to the murder of a parent cannot testify and the prosecution of their parent's murderer will frequently fail. District attorneys, police and social workers are frustrated, on a daily basis, by the prospect of revictimizing children in the courtroom.
Pennsylvanians have voted to remedy this situation by approving an amendment to the Pennsylvania Constitution which will allow the legislature to pass laws which will permit children to testify out of the immediate presence of their assailant.
Those opposed to the amendment point to the abuses and apparent false testimony given in the day care cases. The rational for their opposition is misplaced. In those cases, the children testified in front of the accused. The problem was the absence of a professional, standardized protocol for the investigation of abuse claims and the diagnostic interviews of children. The remedy which would have protected any persons falsely accused in those cases would have been increased professionalism, research, and training for child welfare agencies and prosecutors.
Fortunately, many members of the Pennsylvania legislature have proven responsive to the needs of children and the arguments of their advocates. They have engaged in a continuous dialogue with those people who understand how difficult it is to protect children and maintain due process rights for the accused. They deserve our support in their struggle to aid the abused children in our midst. We can now anticipate that the legislature will pass laws which will make possible the prosecution of the worst crimes against children. Those that are fearful that the right to confrontation may be eroded should keep in mind that a hearing will be required under the United States Constitution at which the Commonwealth will have the burden of establishing cause for any modification to the traditional trial setting and the judge will still have the discretion to determine the manner in which testimony will be taken.
Although the role of the courts as a check on the power of the legislature and guardian of constitutional rights has been an important component of our democratic system, the Pennsylvania appellate courts, in this area, have failed to grow with the times and have shown a unfortunate hostility towards our smallest and most vulnerable citizens. We can only hope that Tuesday's vote will give the legislature the mandate it needs, to make changes and remedy our current inability to provide children with equal protection through equal prosecution of the criminal laws against their assailants.
By: Elizabeth L. Bennett, Esquire
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© 2015 by Elizabeth L. Bennett, Esquire. All rights reserved.
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