No Privilege For Parents

The Supreme Court was preparing to extend the evidentiary doctor-patient privilege to social workers practicing psychotherapy, and Justice Antonin Scalia was, as usual, dissenting. "Ask the average citizen: would your mental health be more significantly impaired by preventing you from seeing a psychotherapist, or by preventing you from getting advice from your mom," he wrote. "I have little doubt what the answer would be. Yet there is no mother-child privilege."

And there, in that last sentence, lies a tale of public ignorance, judicial conservatism and legislative stalemate, a tale that would do well to end where we just began: in the halls of the country's highest court.

The law, as Mr. Bumble so pithily observed in "Oliver Twist," is a ass. The absence of the N in that sentence is glaring, but not so glaring as the absence of the privilege Scalia mentioned in his opinion. While the United States counts as commonplace privilege between attorney and client, priest and penitent, doctor and patient and, of course, husband and wife, there is no generally accepted protection for parent and child which considers their conversations as confidential and not open to routine courtroom scrutiny. Parents can be compelled to testify against their child, children to testify against their parents. The end result is this: if your teenage son has done something wrong, he can talk to a lawyer, a minister, a pediatrician or a therapist with some confidence that they will not be obliged to repeat what he has said to a grand jury or on the witness stand.

You, on the other hand, might be well advised to raise your hand and say, "Son, don't say a thing or it could be used against you."

All the prosecutors out there scoff as one, because the prosecutorial response to this issue is that district attorneys, being frequently parents themselves, and often human beings, would not ask a mother to drop a dime on her daughter, or a son to rat out his dad. (This is made to sound high-minded, when in fact it is often expedient; juries don't like the idea, and juries must be kept happy.) But the insistence that parent and child are rarely asked to give evidence against one another has become increasingly lame in light of the high-profile cases of recent years. Monica Lewinsky's mother, looking like she was ready to keel over, was hustled into court in Washington, and the parents of Amy Grossberg, accused of killing her newborn son, were subpoenaed in Delaware.

Many foreign countries recognize the legal sanctity of what may be the most sacred of all relationships, and three states have passed limited parent-child privilege statutes, although each is in some way unsatisfactory. The Lewinsky matter led members of Congress to propose legislation, but so far it has gone exactly nowhere. "In this day and age anything that seems to limit prosecutors is unlikely to get very far," says Lawrence Goldman, who once drafted a parent-child rule for the National Association of Criminal Defense Lawyers. The Third Circuit U.S. Court of Appeals agreed not long ago to hear the case of a retired FBI agent who balked at testifying to a grand jury about conversations with his 18-year-old son. Unfortunately the appellate panel ruled against him, but not before its only female judge, Carol Los Mansmann, had written an eloquent dissent, tracing the right of parent-child privilege to ancient Roman and Jewish laws. "The protection of strong and trusting parent-child relationships outweighs the government's interest in disclosure," Los Mansmann wrote.

That's it in a legal nutshell, but an added civilian perspective might be this: the lack of the privilege is illogical, and defies both common sense and the public weal. In today's atmosphere of easy divorce, perhaps even since the first infant smiled up glassy-eyed at her mother, the ties of parent-hood often trump those of matrimony. If spousal privilege is taken for granted, how can there be no similar protection of communications between parent and child? It seems so obvious that I daresay many Americans believe it already exists. Of course, even for those who understand there is no such protection, it is a rare parent who would inhibit confidences from a child because of fear of a future subpoena or lawsuit. "Kids trust their parents, and parents protect their kids," says Catherine Ross, an associate professor of law at George Washington University who is in favor of the establishment of a parent-child privilege. "That's the way it is. That's the way it ought to be. By creating the privilege we would in effect legitimize a pre-existing condition."

By not creating it, we're suborning perjury. I would be fully prepared to lie under oath if I considered it to be the best thing for my kid, and I would consider that a more moral position than telling the truth. And I am certain I am in the majority. Yet each time a parent says to a troubled or confused kid, "You can tell me anything," there is a covert, perhaps unwitting lie at the center of the vow. That's untenable.

In the years to come the issue of parent-child privilege is likely to become even more problematic and important. Frustrated by school shootings and adolescent criminality, states are embracing parental-responsibility statutes that hold adults responsible for the heinous behavior of the young. It's certain that adjudicating such cases will require parent and child to be called to testify about what they knew and when they knew it. Whatever the outcome, how will those families ever be able to trust or confide again? Will the erosion of their bond be contagious, leading each of us, little by little, to be more guarded with those we love most? Perhaps sooner or later there will be a heartbreaking case, a clear case, a case that will rise step by step to the Supreme Court. And Scalia and his colleagues will consider, and reflect, what is so clearly true, both under the provisions of the law, and in the high court of daily life: that the first privilege, the most compelling of them all, ought to be the one between parent and child.