[This is my latest in the CT Law Tribune and Part One of a two-part series. Part Two is here.]
Child abuse is a terrible thing. There is no dispute that in the hierarchy of most despicable crimes, the abuse – physical or sexual – of a child takes one of the top three spots. If the investigation, prosecution and punishment of child abuse were a policy that could be realized without coming into conflict with other important policies, this column would end here. Clearly it does not.
Currently, there is an untenable conflict between the law on mandated reporting of suspected child abuse and the Constitutional right to zealous, conflict-free representation of children and adults accused of crimes. The legislature had an opportunity to rectify this last session, but ultimately failed to do so. It should not be so remiss again.
While we, deservedly more so in recent times, have placed greater emphasis on the protection of children, we also, in this country, give great deference to our rule of law. Those great principles carry with them certain uncomfortable rights – that the accused has to be given notice of the charges, that he cannot be forced to give evidence against himself,that he has an attorney to represent him and that his attorney represents him free of any conflicts of interest.
Wigmore, in his seminal Treatise on the Anglo-American System of Evidence in Trials at Common Law, wrote that the importance of the social policy of attorney-client privilege has never been disputed. He wrote that by the end of the eighteenth century, the justification for the attorney-client privilege focused on the importance of providing an opportunity for a frank discussion between the client and the attorney. The risk of not having such a privilege is that clients would not feel free to provide all the information relevant to their legal conundrum and would this hinder attorneys from providing adequate representation. This would, in turn, diminish the ability of the court system to do justice.
This is why every code of professional conduct for attorneys involves rules on confidentiality and delineates a very strict set of circumstances under which attorneys can reveal information that would expose a client to criminal prosecution.
While attorneys thus far have escaped the reach of the child abuse reporting laws It seems as though some attorneys in CT are also now mandated reporters, but this post focuses on another integral member of the defense team has not: the social worker.
The social worker is an absolutely critical component of any individual’s defense because people charged with crimes involving the abuse of children typically aren’t evil people who do it for the sport. It is far more likely that the abuser himself has been abused or has mild to severe mental health issues and may come already diagnosed with a disorder. Many of them are low-functioning and have mild-to-moderate mental retardation or are on the cusp of such a diagnosis. Even those that the public might label as sociopathic have a diagnosis and require understanding and counseling. Sadly, a large number of them are also children themselves, stuck in an uncooperative juvenile system.
The defense attorney’s job isn’t limited to defending the accused at trial: It also involves investigating and providing mitigating information to help put the offenses and the individual who is alleged to have committed those offenses in context and perspective and thus negotiate a just and fair resolution. Lawyers, being lawyers, aren’t social workers or equipped with mental health training. Which is why every public defender office in the state employs one or more social workers.
The social workers can’t do this job, however, if there is a legislated divide between them and their client. Connecticut General Statute 17a-101a – the mandated reporter statute – does just that. Not only does it set an extremely low bar for the reporting of child abuse – “reasonable cause to suspect or believe that any child under the age of eighteen years has been abused or neglected…or (3) is placed at imminent risk of serious harm” – it also includes any social worker as a mandated reporter.
This means that if a social worker, during the course of fulfilling the Constitutional duty of providing effective representation of an individual accused of a crime, learns of information that merely causes her to suspect that a child under eighteen has at any point in the past, no matter how remote, been “abused” or “neglected”, that social worker must destroy that confidential relationship, must violate the individual’s right to conflict-free representation and essentially became an agent of the government in an instant.
The United States Supreme Court just granted certiorari in a case that implicates these very concerns. In Ohio v. Clark, the Court will decide whether being a mandated reporter – a teacher in that case – makes a person a law enforcement agent, thus rendering any statements made to them testimonial. If the Court rules that mandated reporters do become agents of the State then the already fraught reputation of public defenders will take a further hit. Clients are loathe to trust us public defenders because we are “paid by the State” and we only do this job while waiting to become prosecutors. Imagine if our social workers have to testify against our clients?
Last year, Chief Public Defender Susan Storey eloquently explained these problems [PDF] to the legislature in written testimony submitted. Language that would have solved this problem was added to a bill and passed out of the Judiciary Committee, but mysteriously removed from the final language that gained passage in the legislature:
(14) any social worker, except a social worker employed or retained by an attorney or law firm who, in the course of his or her duties for such attorney or law firm, has knowledge of a communication from a client of such attorney or law firm about such client that would otherwise require such social worker to make a report pursuant to section 17a-101a
Whether that was the result of scared legislators or intervention by DCF or some other state agency, I do not know. What I do know is that now, in our criminal and juvenile courts, every person accused of a crime will receive cautious representation. Attorneys will be hesitant to involve social workers and clients with mental health issues may have to make the difficult choice of being frank in an effort to seek treatment but exposing himself to potential further criminal charges, or being circumspect and not getting the help he deserves.
This is to say nothing of the horrors in juvenile court where delinquents are mere children who come from messy homes and complicated backgrounds. Making public defender social workers mandated reporters does nothing to help children in difficult situations and serves only to further mistrust and perpetuate the chaos and disaster in their lives.
As Chief Storey suggested in her testimony, public defender social workers should fall under the umbrella of the attorney-client privilege and the same standard for disclosure of confidential information that applies to attorneys should apply to social workers.
The policy interest in having any social worker report any suspected abuse cannot be so rigid as to not accommodate the defendant’s right to conflict-free representation.