[Congressional Record Volume 144, Number 22 (Friday, March 6, 1998)]
[Senate]
[Pages S1508-S1510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY:
  S. 1721. A bill to provide for the Attorney General of the United 
States to develop guidelines for Federal prosecutors to protect 
familial privacy and communications between parents and their children 
in matters that do not involve allegations of violent or drug 
trafficking conduct and the Judicial Conference of the United States to 
make recommendations regarding the advisability of amending the Federal 
Rules of Evidence for such purpose; to the Committee on the Judiciary.


                parent-child privilege study legislation

  Mr. LEAHY. Mr. President, I recently spoke on the floor about the 
disgust that I share with most Americans about the tactics of Special 
Prosecutor Kenneth Starr and the disturbing spectacle of hauling a 
mother before a grand jury to reveal her intimate conversations with 
her daughter in a matter, which--even if all the allegations about the 
daughter's conduct were true--do not pose grave threats to the public 
safety. This matter does not, for example, involve any allegations of 
violence or drug trafficking conduct.
  In this instance, as in others, Mr. Starr has scurried to apply all 
of the legal weapons at his command, but none of the discretion that he 
is obligated to exercise as one invested with almost unchecked legal 
authority. I also expressed my intent to introduce legislation to study 
whether, and under what circumstances, the confidential communications 
between a parent and his or her child should be protected. A number of 
professional relationships of trust are already protected by legal 
privileges, but not familial relationships. This is the legislation I 
introduce today.
  Currently, under Rule 501 of the Federal Rules of Evidence, 
privileges are ``governed by the principles of the common law as they 
may be interpreted by the courts of the United States in the light of 
reason and experience.'' Thus, in the absence of any Supreme Court 
rules or federal statutes, courts look to the United States 
Constitution and the principles of federal common law to determine the 
applicability and the scope of privileges.
  Legal academicians have expressed support for a parent-child 
testimonial privilege. The public policy reasons favoring such a 
privilege are numerous and relate to the respect we accord to 
fundamental family values. Recognition of such a privilege could foster 
and

[[Page S1509]]

protect strong and trusting family relationships, preserve the family, 
safeguard the privacy of familial communications and intimate family 
matters against undue government intrusion, and promote a healthy 
environment for the psychological development of children.
  Despite these myriad reasons, there are indeed cases and 
circumstances when parents should be compelled in court to share what 
they know from their children. Indeed, courts have generally not been 
receptive to the parent-child privilege. Only four States--Idaho, 
Massachusetts, Minnesota, and New York--have adopted either by statute, 
or by judicial recognition, some form of a parent-child privilege. No 
Federal Court of Appeals have recognized this privilege nor has any 
State Supreme Court that has considered the issue. In my own State of 
Vermont, such a privilege is not recognized.
  To my mind, and as a former prosecutor, prosecutors should show 
restraint before putting parents in the untenable position of making a 
legal determination as to whether their children should come to them 
for advice, or whether the parents instead should feel legally 
pressured to refer their own children to professional therapists, or 
lawyers, or doctors in order to protect the confidentiality of the 
child's communications. To be sure, there are some categories of cases, 
particularly cases involving grave threats to the public safety, such 
as violent or drug trafficking crimes, where the government can and 
should appropriately seek testimony from a parent about what a child 
has said. But we should all be clear about when prosecutors should also 
show restraint.

  Courts have recognized privilege claims in a variety of professional 
relationships, ranging from attorneys to priests to psychotherapists. 
Yet the relationship between parent and child--the most fundamental 
relationship in our society--is generally not so protected in any 
circumstances. As one New York court explained:

       It would be difficult to think of a situation which more 
     strikingly embodies the intimate and confidential 
     relationship which exists among family members than that in 
     which a troubled young person, perhaps beset with remorse and 
     guilt, turns for counsel and guidance to his mother and 
     father. There is nothing more natural, more consistent with 
     our concept of the parental role, than that a child may rely 
     on his parents for help and advice. Shall it be said to those 
     parents, ``Listen to your son at the risk of being compelled 
     to testify about his confidences?''--In re Application of 
     A&M, 61 A.D.2d 426, 403 N.Y.S.2d 375, 378 (1978).

  We should consider the sorts of circumstances and the types of cases 
in which prosecutors should be asked to show some restraint before 
turning to parents to provide evidence against their children. That is 
why my bill calls for a study and report by the Justice Department on 
what these circumstances should be, and to develop prosecutorial 
guidelines accordingly. Specifically, these guidelines should identify 
when the communications between parents and their children should carry 
the same protections as preferred professional relationships, and the 
circumstances and types of cases when those communications should be 
subject to government scrutiny.
  We cannot rely on the courts to formulate an appropriate parent-child 
privilege. The Third Circuit recently declined to recognize the parent-
child privilege, noting that:

       The legislature, not the judiciary, is institutionally 
     better equipped to perform the balancing of the competing 
     policy issues required in deciding whether the recognition of 
     a parent-child privilege is in the best interests of society. 
     Congress, through its legislative mechanisms, is also better 
     suited for the task of defining the scope of any prospective 
     privilege. . . . In short, if a new privilege is deemed 
     worthy of recognition, the wiser course in our opinion is to 
     leave the adoption of such a privilege to Congress.--In re 
     Grand Jury Proceedings (Impounded), 103 F.3d 1140, 1148, 1153 
     (3d Cir. 1996).

  Likewise, the Seventh Circuit Court of Appeals has made clear that 
``courts have been reluctant to create new privileges, preferring to 
leave such matters to the legislature despite any policy reasons 
supporting recognition of a particular privilege.'' United States v. 
Riley, 653 F.2d 1153, 1160 (7th Cir. 1981).
  Congress should accept this challenge. My bill is a start to the 
process of seeking expert input on the significant question of when the 
government may not compel parents to betray the confidences of their 
children, and when because of compelling need or the nature of the case 
or circumstances, parents should be required to reveal the substance of 
what their children have told them.
  Thus, the bill I introduce today directs the Attorney General to 
develop Federal prosecutorial guidelines to protect familial privacy 
and parent-child communications in matters that do not involve 
allegations of violent or drug trafficking conduct. In addition, the 
legislation would direct the Judicial Conference to undertake a study 
and then give us a report on whether the Federal Rules of Evidence 
should be amended to explicitly recognize a parent-child privilege in 
cases not involving violent or drug trafficking conduct, and, if so, in 
what circumstances that privilege should apply.
  While we should endeavor to provide the maximum protection for 
parent-child communications, we should also be careful not to unduly 
obstruct law enforcement. Nor should the rule be susceptible to 
litigious mischief.
  Accordingly, the Attorney General and the Judicial Conference will 
need to address, as part of the study and report called for in my bill, 
a series of important questions, including:
  (1) What communications should be considered confidential for 
purposes of the privilege and, specifically, should the privilege apply 
in both criminal and civil proceedings?
  (2) Should such a privilege apply only to unemancipated minors, or 
also to adult children?
  (3) Should only the child's communications be protected, or should a 
parent's communications to a child also receive protection?
  (4) Should such a privilege extend beyond a child's natural parents 
to include step-parents or grandparents?
  (5) Should such a privilege be subject to rebuttal if the government 
establishes a compelling need for the information?
  This legislation is the first step in evaluating the merits and 
difficulties inherent in protecting familial privacy and the parent-
child relationship against unwarranted intrusions by the government and 
by overzealous prosecutors. The public and these families themselves 
should not have to endure repeated scenes of mothers being marched into 
grand jury inquisitions to reveal intimate talks they may have had with 
their children about their private relationships. This is a far cry 
from allegations concerning violent or drug trafficking conduct. Let us 
find out what the Justice Department and Judicial Conference recommend 
about how we can best protect child-parent confidences in ways that 
comport with American notions of family, fidelity, and privacy, without 
compromising our public safety and the integrity of our judicial 
system.
  I ask unanimous consent that a copy of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1721

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. CONFIDENTIALITY OF PARENT CHILD COMMUNICATIONS IN 
                   JUDICIAL PROCEEDINGS.

       (a) Study and Development of Prosecutorial Guidelines.--The 
     Attorney General of the United States shall--
       (1) study and evaluate the manner in which the States have 
     taken measures to protect the confidentiality of 
     communications between children and parents and, in 
     particular, whether such measures have been taken in matters 
     that do not involve allegations of violent or drug 
     trafficking conduct;
       (2) develop guidelines for Federal prosecutors that will 
     provide the maximum protection possible for the 
     confidentiality of communications between children and 
     parents in matters that do not involve allegations of violent 
     or drug trafficking conduct, within any applicable 
     constitutional limits, and without compromising public safety 
     or the integrity of the judicial system, taking into 
     account--
       (A) the danger that the free communication between a child 
     and his or her parent will be inhibited and familial privacy 
     and relationships will be damaged if there is no assurance 
     that such communications will be kept confidential;
       (B) whether an absolute or qualified testimonial privilege 
     for communications between a child and his or her parents in 
     matters that do not involve allegations of violent or drug 
     trafficking conduct is appropriate to provide the maximum 
     guarantee of

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     familial privacy and confidentiality without compromising 
     public safety or the integrity of the judicial system; and
       (C) the appropriate limitations on a testimonial privilege 
     for such communications between a child and his or her 
     parents, including--
       (i) whether the privilege should apply in criminal and 
     civil proceedings;
       (ii) whether the privilege should extend to all children, 
     regardless of age, unemancipated or emancipated, or be more 
     limited;
       (iii) the parameters of the familial relationship subject 
     to the privilege, including whether the privilege should 
     extend to stepparents or grandparents, adopted children, or 
     siblings; and
       (iv) whether disclosure should be allowed absent a 
     particularized showing of a compelling need for such 
     disclosure, and adequate procedural safeguards are in place 
     to prevent unnecessary or damaging disclosures; and
       (3) prepare and disseminate to Federal prosecutors the 
     findings made and guidelines developed as a result of the 
     study and evaluation.
       (b) Report and Recommendations.--Not later than 1 year 
     after the date of enactment of this Act, the Attorney General 
     of the United States shall submit a report to Congress on--
       (1) the findings of the study and the guidelines required 
     under subsection (a); and
       (2) recommendations based on the findings on the need for 
     and appropriateness of further action by the Federal 
     Government.
       (c) Review of Federal Rules of Evidence.--Not later than 
     180 days after the date of enactment of this Act, the 
     Judicial Conference of the United States shall complete a 
     review and submit a report to Congress on--
       (1) whether the Federal Rules of Evidence should be amended 
     to guarantee that the confidentiality of communications by a 
     child to his or her parent in matters that do not involve 
     allegations of violent or drug trafficking conduct will be 
     adequately protected in Federal court proceedings; and
       (2) if the rules should be so amended, a proposal for 
     amendments to the rules that provides the maximum protection 
     possible for the confidentiality of such communications, 
     within any applicable constitutional limits and without 
     compromising public safety or the integrity of the judicial 
     system.
                                 ______