OVC Provider Forum Transcript

Child Victims: Providing Effective Rights Enforcement Representation
Teresa Huizar, Rebecca Khalil  -  2015/4/22
What have been the most effective ways to advocate for non-verbal victims (i.e. infants) to not have contact with perpetrators of abuse to those children? Perpetrators include those not arrested for the abuse, but who were present when it occurred and knew or should have known it was occurring.
1.  R. Khalil
 Victims’ right to protection is multi-faceted, and often extends to requesting protective orders in connection with a criminal case, or no-contact conditions that are imposed as part of a defendant’s pretrial release or sentence. A non-verbal child-victim’s representative (which may be a family member or a GAL) can help ensure that the safety of a child-victim is protected through exercising victims’ rights to ensure the court hears and responds to these concerns. NCVLI offers a publication addressing the issue of who might exercise rights in the case of child-victims in more depth: law.lclark.edu/live/files/12271-child-victims-independent-participation-in-the.
2.  Teresa Huizar
 Depending upon the situation, there are two different avenues that may be available civilly: 1)there are times when it may be appropriate to seek an order of protection which prevents an individual from having contact with a child. The court then considers whether or not to grant this. 2)Alternatively, because of the importance of maintaining attachment between very young children and their caregivers/parents, if a parent is a perpetrator then the court has the option of ordering supervised visitation which recognizes that the child may not be entirely safe alone with the parent but can preserve the parental bond. This also requires a court order.
At times, prosecutors working child sexual abuse offenses may learn that an offender has a medical condition that poses a threat to child victims (e.g., the offender is HIV positive). What can we disclose to a victim under those circumstances, and are there any limitations imposed by virtue of an offender's privacy rights?
1.  Teresa Huizar
 First, one should carefully consult legal counsel familiar with federal health privacy laws prior to releasing any PHI (personal health information). States also have health privacy laws and these are different in every state so it would be critical to ensure your familiarity with these before taking any action to release such information. However, all children suspected of abuse--particularly sexual abuse--should undergo a complete medical evaluation. In the case of sexual abuse, this routinely includes testing for sexually transmitted infections, pregnancy, and follow-up care. Ensuring that all victims receive these exams with appropriate testing can ensure that health risks are accounted for in all cases.
2.  R. Khalil
 This is a very complicated question, and the specific answer you are looking for will depend on a number of different considerations, including the stage of the case and the jurisdiction. In general, however, victims’ rights often include a right to protection, and many jurisdictions have also enacted specific rights related to HIV or other STD testing that might mandate disclosure of certain medical risks to a child-victim. To request jurisdiction-specific information relating to victim notice of exposure to medical risks, please visit NCVLI’s website and fill out our technical assistance request form at http://law.lclark.edu/centers/national_crime_victim_law_institute/professional_resources/technical_assistance/
In a case where the accused is a parent, how do you go about determining whether or not the child should testify; whether or not to try to quash any subpoenas of the child, etc?
1.  Danielle
 Thank you for this resource. I represent children only, and do so under a traditional attorney model, both in custody actions and criminal matters. We get a lot of resistance to the express interest model.
2.  R. Khalil
 Part four: To request jurisdiction-specific information that is tailored to your role and representation, please visit NCVLI’s website and fill out the technical assistance request form at http://law.lclark.edu/centers/national_crime_victim_law_institute/professional_resources/technical_assistance/
3.  R. Khalil
 Part three: Of course, in all of this, working with children and representing them in criminal justice proceedings requires specialized knowledge to help ensure that the attorney is able to communicate effectively with them, to understand their expressed interests and wishes, and to be able to effectively counsel them about the potential implications of any course of action, including testifying in a case or responding to subpoenas for personal information. Participated in targeted trainings in these areas is often an important step for anyone working with child-victims. NCVLI is offering a three-webinar series addressing representation of child-victims, which starts tomorrow. See http://law.lclark.edu/live/events/35236-effective-legal-representation-of-child-victims
4.  R. Khalil
 Part one: Victim agency, empowerment, and voice in the criminal justice system are crucial, and lawyers advocating for victims’ rights can help ensure that victims, including child-victims, are able to participate to the extent they wish in the justice system. The first question you have to answer is whom you represent. If you represent the child-victim directly, what does the child want? Does the child want to testify? What is the child’s position re: the release of personal information versus moving to quash a subpoena? Has the child spoken with his or her mental health provider about the potential impacts? Do you represent the non-offending parent? What is his or her position, and how does that align with the child’s position? Are you the prosecutor, not representing the victim?
5.  R. Khalil
 Part two: Guardians ad litem do amazing work for children, but because they are often obligated to advocate for what they believe to be the best interests of a child, this may not necessarily align with what a child-victim wants. Lawyers who work directly with a child-victim can help ensure that the child’s voice is heard and his or her concerns and interests are represented directly in the process. For more information, see NCVLI’s publication discussing child-victims and GAL vs. Traditional Attorney representation at law.lclark.edu/live/files/8373-child-victimsbetter-served-by-a-traditional.
6.  Teresa Huizar
 I would also add not to assume that a child won't want to testify. Some children report finding it very empowering to do so (even if a little scary). Others may not... So, I would enter any discussions with an open mind.
7.  Teresa Huizar
 Every child is different in regard to their ability to effectively testify and their emotional resilience to do so. Some considerations include: age, verbal ability, the availability of closed circuit tv for testimony, the support of caregivers, progress in treatment, and the opinion of mental health providers treating the child as to the advisability of it.
Are you familiar with comprehensive programs\services available for children suffering from indirect victimization? (i.e. child exposed to violence\crime, child witnesses, children with parents suffering victimization, etc.)
1.  R. Khalil
 Each jurisdiction defines “victim” slightly differently, with respect to victims’ rights, so a child who might be referred to as an “indirect victim” might in fact be a “victim” entitled to assert and seek enforcement of victims’ rights. NCVLI’s Victim Law Library (http://law.lclark.edu/centers/national_crime_victim_law_institute/professional_resources/ncvli_library/) includes information about many victims’ rights nationally, and it may be a good place to start when researching which victims’ rights might be implicated in a given case involving a child-victim.
2.  Teresa Huizar
 I am not aware of any that deal specifically with secondary victimization. However, there may be some of which I'm unaware. However, local crime victims' compensation Boards have a fair amount of latitude in paying for treatment. So, in sexual abuse cases--for example--it's not uncommon for them to pay for treatment for the non-offending caregiver as well as the child victim. Where things get far more challenging is with kids who have witnessed repeated community violence and are traumatized by it. Finding a payee for that (outside of mass casualty events like school shootings) can be very difficult.
3.  M
 To follow up, are there any specific state\federal legislative acts that govern the rights of indirect-child-victims and their eligibility for services?
4.  Teresa Huizar
 One thing to also keep in mind is that certain trauma treatments have shown efficacy with children who have been polyvictimized (that is, suffered various forms of trauma). Ensuring children have access to those services is vitally important. More information about such evidence-based treatments (and also many helpful factsheets and videos) may be found at the National Child Traumatic Stress Network website www.nctsn.org
5.  Teresa Huizar
 Children's Advocacy Centers, which exist in nearly 800 communities around the country, serve children who have been exposed to many forms of violence and abuse. More information and a directory may be found at www.nationalchildrensalliance.org. Family Justice Centers have wonderful resources for adult victims of sexual assault and domestic violence and the children who have been exposed to those forms of violence. Many mentoring programs are intended for children who have been exposed to both community and familial violence and trauma--Big Brothers/Big Sisters, Boys and Girls Clubs of America, and Partners are all excellent resources.
How do you communicate to children who no longer trust adults?
1.  R. Khalil
 NCVLI is committed to empowering victim agency and ensuring victim voice in the criminal justice process, and part of this is helping victims’ rights practitioners be better prepared to communicate effectively with child-victims who have experienced trauma. As part of this effort, NCVLI is offering a three-webinar series addressing representation of child-victims, which starts tomorrow. See http://law.lclark.edu/live/events/35236-effective-legal-representation-of-child-victims. The first webinar will address the impact of trauma, the second webinar will focus on communication techniques specifically, and the final session will be a discussion, open to those who participated in the first two trainings, to share ideas about how to better and more effectively represent child-victims.
2.  Teresa Huizar
 Well, trust exists on a continuum. So, you have to meet children where they are. The goal isn't to have children 100% trust adults. Let's remember that adults don't 100% trust adults. The goal is to help kids develop skills to determine how to incrementally grant trust. The first step is not making promises that you can't keep or saying that everything will be ok.
I'm wondering about any courts that have allowed a child to testify via video?
1.  Teresa Huizar
 I think it is important to distinguish between showing a video of a prior interview and testifying through closed circuit tv. Many courts do in fact allow (if they have the equipment) children to testify through the use of closed circuit tv. For a number of years DOJ even provided grants to courts and communities to install such equipment. However, there are significant legal limitations on using a video of a past interview of a child as the child's sole testimony post Crawford v. Washington (a very important US Supreme Court case dealing with the Confrontation Clause of the Constitution).
2.  R. Khalil
 It is very common for jurisdictions to provide procedures that allow for child-victims to testify via CCTV or other electronic means in some circumstances. For an overview of the topic and the law in this area, please see NCVLI's Bulletin on this topic at law.lclark.edu/live/files/11680-confronting-the-confrontation-clause-finding-the
Any suggestions for attorneys who are new to victims' rights enforcement but not necessarily new to child advocacy and legal representation? What are good resources and materials (e.g., conferences, written materials, professional associations) that can be used to learn the relevant laws and best practices? Thanks!
1.  R. Khalil
 In addition to the resources in NCVLI's Law Library, our conference, and our more specific technical assistance, you can view short video overviews (Quicktools) on our website at http://law.lclark.edu/centers/national_crime_victim_law_institute/about_ncvli/know_your_rights.php, and we also have longer videos, flowcharts, and other resources available as part of our online Toolkit at law.lclark.edu/centers/national_crime_victim_law_institute/projects/violence_against_women/toolkit_resource.php
2.  Teresa Huizar
 You may find some helpful resources at the ABA's Center for Children and the Law, as well as a complete list of their trainings and conferences at http://www.americanbar.org/groups/child_law.html
3.  R. Khalil
 NCVLI helps familiarize attorneys and advocates with victims’ rights and provides guidance and information relating to rights enforcement, specifically, and we have a range of different resources (including in-depth publications and recorded trainings) available in our online law library, free of charge! The direct link to NCVLI’s law library is: http://law.lclark.edu/centers/national_crime_victim_law_institute/professional_resources/ncvli_library/. We are always glad to help anyone who would like more information about victims’ rights enforcement, so please stop by. If you have any additional questions, you can also contact us through the form on our website, as well. Information about our two-day conference on victim law, coming up at the end of May, is also available on our website.
Has anyone had experience with objections to using court dogs?
1.  R. Khalil
 The National Crime Victim Law Institute has worked on the issue of facility dogs to assist child-victims in connection with criminal proceedings, and we have published an article on the topic that we would be happy to send to you, if you contact us directly through out website at: http://law.lclark.edu/centers/national_crime_victim_law_institute/professional_resources/technical_assistance/. We have also partnered with Courthouse Dogs Foundation on this issue, which has also worked nationally on these issues, and they have a number of valuable resources on their website at http://www.courthousedogs.com/
2.  Teresa Huizar
 Legal objections or cultural objections? For info on overcoming legal objections to court dogs, please contact Allie Phillips at the National District Attorney's Association, National Center for the Prosecution of Child Abuse. She is an expert on the use of court dogs/therapy animals and defending their use in court. I mention cultural objections because it is important to keep in mind that in some religious faiths dogs are viewed as unclean. So as a matter of respect to the victim this should be explored before use.
What are your suggestions for preparing a child to testify, when the non-offending caretaker is hostile to the entire court process, but demands justice for the child?
1.  R. Khalil
 Part two: It is also important to recognize that in some cases the interests and wishes of the child-victim may diverge from those of a caregiver, and separate legal representation for the child-victim might be necessary to ensure that his or her independent voice is heard and acknowledged in the process.
2.  R. Khalil
 Part one: It can be helpful to talk with the non-offending caregiver to flesh out the contours of his or her concerns relating to the court process itself. Victims’ rights can be a valuable tool that can be used to reduce secondary victimization/trauma resulting from interactions with the criminal justice system, and may assist with the process of reducing the barriers to accessing justice. For more information on this topic specifically, see NCVLI’s publication on victims’ rights and secondary victimization at law.lclark.edu/live/files/13798-polyvictims-victims-rights-enforcement-as-a-tool.
3.  Teresa Huizar
 I think it is critical to find someway to ally with the non-offending caregiver in support of the child. What is the basis for opposition to testimony? Can this be better addressed? Safety concerns? Concerns for the child's mental health? Concerns about repercussions or community stigma? Finding a way to provide support to the caregiver enough so that they can at least be neutral will be important to the child's experience post-trial.
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