Public Policy vs. The Constitution: Confronting Minor Victims of Sexual Assault

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Ratified in 1791, the Sixth Amendment of the United States Constitution sets forth rights
related to criminal prosecutions. The amendment requires a speedy and public trial as well as
an impartial jury; it also encompasses the confrontation clause. The Confrontation Clause
provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted
with the witnesses against him.” The purpose of this provision is to allow defendants to
question their accusers in a courtroom setting so that a jury can assess whether or not it finds
the witness to be credible. Generally, having the opportunity to cross-examine a witness at trial
will satisfy the Confrontation Clause’s guarantee.

The Confrontation Clause in History

In the landmark Supreme Court case of Crawford v. Washington (2004), the Court
examined the history of the confrontation right at common law and concluded that “the
principal evil at which the Confrontation Clause was directed was the civil-law mode of
criminal procedure,” which allowed the “use of ex parte [without the other party’s knowledge]
examinations as evidence against the accused.” The Court explained “the Framers would not
have allowed admission of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.” With this finding, the Court rejected its previous “reliability approach” to
the Sixth Amendment’s confrontation right, which had allowed admission of statements of an
unavailable witness if those statements possessed an “adequate indicia of reliability.”

The Issue at Bar

A main point of contention surrounding this provision is whether or not minor victims
of sexual assault should be exempt from testifying in the presence of the accused. In many
cases, the trauma of abuse endured by children is aggravated by the emotional stress of
testifying at a trial. Thus, children often refuse to testify, resulting in acquittals of the accused. In
response to low conviction rates and concerns about the mental well-being of children, some
states have enacted laws that permit alternative ways for minors to testify about sexual abuse.
18 U.S. Code § 3509, titled “Child victims’ and child witnesses’ rights” lists a few examples of
alternative ways for child testmony to be introduced in court. These include presenting a child’s
live testimony by 2-way closed circuit television, or using a videotaped deposition of child.

Victims’ Emotional Conditions Result in Low Prosecution Rates

In the New Jersey court case of State v. Sheppard (1984), the court observed that in most
cases relating to the sexual abuse of minors, prosecutions are either abandoned or result in plea
agreements because the minor victim’s emotional condition prevents them from testifying. One
attorney, who has handled 30 to 40 of these cases for the state of New Jersey, was able to
complete a trial in only one case. In most cases, while the minor victim was able to provide
information sufficient to support a prosecution, they were emotionally unable to testify in court.

A longitudinal study of long-term outcomes of participating in criminal cases following
child sexual abuse, performed by Jodi A. Quas in the 1980s found that testifying repeatedly in
childhood sexual assault legal proceedings resulted in poorer psychological functioning later in
life. In her research, Quas reported, “[t]hese associations [between testifying and the resulting
poor psychological functioning] were often moderated by the severity of both the childhood
abuse, and the perpetrator’s sentence. Testifying repeatedly in cases involving severe abuse, and
not testifying when the perpetrator received a light sentence, predicted poorer current mental
health . . . “ Quas’ study further explained the consequences of victims testifying by noting, “
Greater distress resulted in poorer adjustment in adulthood, especially in individuals who were
adolescents when they went to court.”

Implementation of Child Shield Statutes

The American Bar Association has voiced support for the protection of child witnesses
by approving guidelines for the treatment of child abuse victims during testimony. Ratified in
1985 by the ABA House of Delegates, these guidelines, called “child shield statutes,” offer
procedural reforms designed to limit the emotional impact of children testifying while still
protecting the accused’s right to confront the witnesses against them. These guidelines advise
that child witnesses should be able to testify through “closed-circuit television, a one-way
mirror, or in any other manner that does not impair the defendant’s right to confrontation.”
However, these guidelines do not apply to every case of childhood sexual assault. Application
of the statutes themselves usually are conditioned upon a judicial finding that the child would
experience at least some sort of emotional trauma from testifying in open court. This begs the
question: how does a court quantify emotional trauma?

Coy v. Iowa (1988) was the first case in which the Supreme Court addressed the
constitutionality of a child shield statute. In Coy, the defendant was charged with and convicted
of sexually assaulting two 13-year-old girls. Under an Iowa child shield law, Iowa Code 910A,
the victims were allowed to testify at trial from behind a screen. Although the victims could not
see the defendant, they were informed of his presence in the courtroom. In addition, the
witnesses were in full view of the judge, jury, and defendant’s counsel. Post-conviction, the
defendant claimed that his right to confrontation had been violated because he was not allowed
to confront his accusers face-to-face. He also claimed that the code violated his right to due
process, arguing that having a screen placed between him and the victims made him appear
guilty before he was properly tried.

The Iowa Supreme Court affirmed the defendant’s conviction, stating that because
defense counsel’s ability to cross-examine the witnesses had not been impaired, there had been
no violation of the confrontation clause. However, upon appeal, the United States Supreme
Court struck down Iowa court’s decision.. Justice Antonin Scalia delivered the opinion of a 6-2
Court. Scalia wrote that “[t]he Sixth Amendment explicitly states that the accused has the right
‘to be confronted with the witnesses against him.’ Face-to-face presence may, unfortunately,
upset the truthful rape victim or abused child . . . but by the same token it may confound and
undo the false accuser. A trial court cannot abridge the right to confrontation using a
generalized law, and in Coy’s case, no specific reason was given for using a screen.” While the
Coy Court’s interpretation of the confrontation clause recognizes the need for exceptions to a
defendant’s confrontation clause protections, it also emphasizes the importance of guarding the
constitutional rights of defendants in child sexual assault cases.

The significant impact of the Coy decision is that it demonstrated the Supreme Court’s
interest in adopting federal child shield statutes. However, as Scalia stated, prosecutors of
sexual violence crimes against minors must be able to prove to the court that an alternative
method of testimony is necessary to protect the psychological health of the child.

More recently in 2015, the Supreme Court heard a case involving a 3-year-old boy who
told his daycare teacher that he was physically abused by his mother’s boyfriend. At the state
court level, the boy was deemed too young to testify in court. However, a judge allowed his
statement that identified his mother’s boyfriend as the perpetrator to be used at trial. After the
boyfriend was found guilty of sexual violence on a child, the Ohio Supreme Court ruled that the
boy’s statement wasn’t admissible in court because the defendant had a constitutional right to
cross-examine a witness testifying against him at trial.

The Supreme Court later unanimously overturned the Ohio decision and reinstated the
conviction, holding that the child’s comment to his teacher could be used in the trial. Justice
Alito wrote in his opinion that the defendant’s constitutional rights were not violated by the
admission of the boy’s testimony “because the statements were not made with the primary
purpose of creating evidence” for the prosecution.

The significance of the Clark decision is that the ruling make it easier for prosecutors to
try sexual abuse cases without forcing young children to testify against their alleged abuser in
court. It demonstrates that there are some circumstances when statements made outside of court
can be admitted through another witness’s testimony instead of putting the victim on the stand.

Where We Stand Today

The United States Supreme Court has emphasized the need for procedures that can
provide particularized findings of substantial trauma to a minor sexual assault witness
sufficient to justify an exception to the accused’s constitutional right to confront the witnesses
against him. Specifically, the Supreme Court has called for scientific evidence that proves a
correlation between a child’s in-person sexual violence testimony, and long term psychological
damage that resulted. As it stands, there are no federal protections for minor victims of sexual
assault. The United States Supreme Court has made it clear that they are inclined to revisit this
issue once concrete research emerges that can demonstrate causation between testifying in front
of an alleged abuser and resulting emotional trauma.

Fortunately, the Court has given the public a bit of clarification on this issue. In a 1990
case involving an alternative method of testimony to protect the psyche of a minor victim of
sexual violence, the Supreme Court declared that a state’s interest in protecting child witnesses
from the trauma of testifying in a child abuse case is sufficiently important to justify the use of
its special procedure, provided that the State makes an adequate showing of necessity in an
individual case. Therefore, as long as a prosecutor can make a persuasive argument, the Court
will permit alternative methods of testimony for minor children on a case by case basis.