In Part 1 (March 2015), Joanne Solchany, PhD, ARNP, looked at child development from infancy through adolescence and how trauma interplays with these stages. In Part 2 (April 2015), Julie Kenniston, MSW, LISW offered guidance on forensic interviews with child victims in court. In Part 3, Steven Kelly, JD, shares tips on developing a litigation strategy in criminal court. The articles are based on a webinar developed for Navy Special Victims Counsel, co-hosted by the ABA Center on Children and the Law and the Center for Professional Development on Oct. 16, 2014.
If you represent a child abuse victim in criminal court, you may feel you have the lower hand. “Your client is not a party. Everyone will remind you of that,” said Steven Kelly, JD, a victims’ rights lawyer, describing some of the challenges. Kelly heads a crime victim litigation practice at Silverman, Thompson, Slatkin and White, LLC in Baltimore, MD. He shared his tips for attorneys representing child abuse victims in criminal cases.
Identify the Child’s Rights
A common client question is “What can I assert?” said Kelly. He stressed that clients have procedural rights. These include the rights to be informed of relevant proceedings, be present at proceedings affecting them, receive restitution, be protected, and be afforded privacy and confidentiality.
Beyond these rights, Kelly described child victims’ rights in criminal court as “a new frontier in law.” He explained that “the criminal justice system is a closed system and you are an outsider. You need to arm yourself and show that other courts have recognized victims’ rights.” (See Recognized Child Victims' Rights below for some recognized child victims’ rights violations.)
How? “There is a body of law that can help,” said Kelly. He encouraged child victim advocates to consult three organizations:
- VictimLaw—has a resource guide for attorneys on victims’ rights that includes cases and statutes on a variety of topics.
- National Crime Victims Law Institute—provides technical assistance, and amicus and appellate support on victims’ rights.
- National Center for Victims of Crime—network of civil lawyers representing child crime victims and offering assistance with civil law matters (custody, guardianship).
Victim advocates located in law enforcement agencies and at state Child Advocacy Centers may also be good resources when identifying your client’s rights.
Kelly also advised sitting down with the child victim, child’s parents/caregivers, the child’s therapist, and others who may have insights about the child. Use this time to gather information about what the child wants, any fears the child has about the legal process, what rights the child has, and how to protect those rights.
Assert the Child’s Rights
“Because victims’ rights are weak, you need to be very proactive in your approach to protect their rights,” said Kelly. A good place to start is with the prosecutor. Kelly urged child victims’ advocates to take these steps:
Reach out to the prosecutor early in the case:
- Call the prosecutor first. Explain you’re there to help, not run the criminal case.
- Express that you can serve as a conduit because you communicate with the child, the child’s therapist, and others involved in the case. You don’t have the same obligations regarding communications that the prosecutor has (e.g., turning over communications in discovery).
- Offer to act as a buffer between the child, child’s support network, and the prosecutor.
- Ask about the defense lawyer and flag any issues the prosecutor sees.
- Remind the prosecutor that she needs to consult with you about pleas, releases, and restitution.
Enter your appearance at proceedings immediately.
Demand your client’s rights, in writing, in a document that is filed with the court (many states have a victim notification form). Make the court aware you want to assert your client’s rights by making a record with the court.
Pursue Victim Impact Post-Trial
While you may not succeed at trial, “you often will score major victories post-trial with victims’ rights,” said Kelly. He urged child victims’ advocates to gauge their clients’ interest in pursuing victim impact after trial. Victim impact protects two important victims’ rights, he said. First, it protects the child from revictimization, and second it gives a face and voice to the victims.
When pursuing victim impact, Kelly stressed that the court needs to understand the child has been impacted. “Show how,” he said. Most child abuse victims will only recover money through restitution, so it is key to show the financial, as well as the emotional, impact, he said.
With quick actions early in the case and a creative approach to identifying and pursuing child victims’ rights, attorneys representing child victims can help shape the victims’ rights landscape in criminal court. Post-trial also offers good opportunities to protect child victims and prevent victimization by pursuing victim impact.
Claire Chiamulera is CLP’s editor.
Recognized Child Victims’ Rights
Child’s privacy not being protected through redaction. Federal rules require redaction of child victims’ names. It is also possible to request redaction of names of adults who are connected to the child victims.
Testimonial accommodations. In many cases, testifying in open court may not be good for the child and alternatives (2-way closed circuit television, video depositions, support people) may be used. Most victims will want accommodations. Steps to take: 1) get the prosecutor’s consent to accommodations in advance; 2) file a motion for accommodations well before trial. 3) line up an expert witness if required to prove need for accommodation.
Attempts to exclude child victim/victim’s advocate from court proceeding. Be prepared to address (1) your client’s right to be present, and (2) your right to speak on your client’s behalf.
Intrusive discovery (abuse by defense attorneys). Defense attorneys will seek every available record (e.g., social media postings). Steps to take: Resist these requests. Learn what information the prosecutor has and intends to share. File a motion seeking a protective order if necessary to prevent revictimization through intrusive discovery.