Parental Privilege – Law Office of William J. Barabino

Testifying in court is a nerve-racking experience for many people. It often leads to the breakdown of professional relationships. Personal ones can also be affected. This includes family relationships, especially when family is on opposing sides.
Fortunately, Massachusetts law has protections in place to minimize the risk that the criminal justice system will cause lasting family divisions. One of the most important of these protections is called parental privilege.

What is parental privilege?

In Massachusetts, a parent is not allowed to testify against their minor child and a minor child is not allowed to testify against their parent when the victim of a crime is not a family member and not a person who resides in the family’s home. This is called parental privilege and it is defined in General Laws Chapter 233, Section 20. It is also explained in Section 504(c) of the Massachusetts Guide to Evidence.

Additionally, even in cases in which the victim is a family member or a person who resides in the family’s home, a parent is also not allowed under parental privilege to testify to any communications with the minor child regarding the child’s legal rights.

Who counts as a parent or minor child?

Parental privilege is all about parents and minor children. While these terms might seem obvious, they have specific legal definitions. In law, it is important to keep track of legal definitions because sometimes words are given definitions by lawmakers that do not necessarily match the expectations of ordinary people. When a word in a statute has a legal definition, that definition always controls over the word’s ordinary meaning.

For example, there is room to debate outside of the context of law that a minor child is a child under the age of 21. However, for the purposes of parental privilege, a minor child is under 18 years old. This means an 18-year-old maytestify against their parent and a parent is permitted to testify against their 18-year-old child when the victim of a crime is not a family member and not a person residing in the family’s house.

Similarly, some people might think a parent is limited to a biological or adoptive parent. Others might add a stepparent to this list. However, the legal definition of parent for the purposes of parental privilege is even broader. Parent includes a biological parent, an adoptive parent, and a stepparent, but it also includes a legal guardian or any person acting in loco parentis. In loco parentis is a Latin expression translating to “in the place of a parent.” A person who acts in loco parentis is a person who acts as a temporary guardian or caretaker of a child, taking on some of the responsibilities of a parent. For example, the US Supreme Court said in one case that during the school day, a teacher or school administrator could be acting in loco parentis.

When does parental privilege not apply?

Because the legal definition of parental privilege is narrow, there are several situations when parental privilege does not apply. Two examples include:

  • Civil Lawsuits. A minor child is allowed to testify under all circumstances against their parent in a civil case. This includes divorce and custody cases. The parental privilege does not apply in this situation.
  • In Defense of Child. A minor child who is accused of a crime is allowed to call their parent as a witness in their defense. If the parent is called and is not going to testify against the minor child, the parent cannot refuse to testify unless some other privilege applies for the parent. For example, this could include the Fifth Amendment privilege against self-incrimination.

Why does parental privilege exist?

Courts and lawmakers have long thought about the logic behind parental privilege. For the most part, the consensus is that parental privilege is a kind of compromise. Its purpose is to balance two competing ideas:

  • Idea 1: Parental Rights: A parent has primary responsibility over the care and upbringing of their child. Parents should be allowed to use a limited amount of physical force to discipline their children without being legally punished. Family harmony is important and communities should try to promote it.
  • Idea 2: Protecting Children: Communities need to protect children from being punished excessively by their parents. The government must prioritize protecting children from physical abuse over family privacy.

Parental privilege tries to take both ideas and combine them into one legal rule. The rule reflects the compromise by allowing parents to testify against minor children (and vice versa) but only under limited circumstances relating to domestic violence.

What are some other evidentiary privileges?

Parental privilege is a type of evidentiary privilege. An evidentiary privilege is a privilege that allows certain types of people to lawfully refuse to provide evidence to a court. Evidentiary privileges also prevent protected evidence that is not testimony from being used in a legal proceeding such as a criminal trial.

Parental privilege is not the only kind of evidentiary privilege. Several others exist. Some of the more commonly applied ones include:

  • Attorney-Client Privilege. This privilege protects confidential communications between a client and their attorney from being disclosed.
  • Privilege Against Self-Incrimination. Under the Fifth Amendment of the Constitution, the prosecution cannot call criminal defendants to the stand to testify against themselves. Other people also cannot be forced to testify to information that could lead to their prosecution for a crime.
  • Psychotherapist-Patient Privilege. Psychotherapist-patient privilege protects confidential information provided by a patient to a psychotherapist related to the patient’s mental and emotional health.
  • Marital Privilege. This privilege allows a spouse to choose not to testify. It also prevents another person from testifying about confidential communications between spouses during marriage.

Like parental privilege, the purpose of each of these other privileges is to balance privacy with the need to do justice. The appropriate balance is a question communities decide on their own through their elected representatives.

How can parental privilege help a criminal defendant?

Parental privilege can assist both parents and minor children charged with crimes. For any person to be convicted of a crime, the charge against them must be proven beyond a reasonable doubt. This is a very high burden of proof. If the Commonwealth cannot meet it, the defendant must be acquitted.

If parental privilege did not exist, a parent or minor child’s testimony could be enough to lead to a conviction. As a result, when the privilege applies, parents and minor children do not have to provide their testimony. There is less evidence to convict and the prosecutor is challenged with finding other evidence to meet their burden. Cases are often resolved favorably for criminal defendants before trial when prosecutors expect or know that parental privilege applies. There are methods experienced criminal defense lawyers use to bring to the attention of prosecutors the applicability of the privilege.



Related Articles:



No comments yet. Why don’t you start the discussion?

Leave a Reply

Your email address will not be published. Required fields are marked *