Tell Mama All About It? Not Without a Lawyer

On Feb. 12, 1998, my mother appeared before a grand jury at the federal courthouse in Washington, D.C. She was not subpoenaed to testify about a robbery she witnessed, or to describe some aspect of a securities fraud, but to be questioned about me -- her only daughter.

I was horrified and sickened. Not unlike many young women, I had confided in my mom -- to a certain extent -- and expected our conversations to remain between us. In a million years I could never have fathomed a situation where we would find our bond -- a deep, important and inviolate one -- tested to the extent and in the manner that it was.

Few people are aware that, in our country, parents can be forced to testify against their children and vice versa; there is no parent-child privilege under the aegis of the federal government. We have a husband-wife privilege, a doctor-patient privilege, an attorney-client privilege and even a privilege between priest and penitent. But no comparable confidential boundary is recognized for parent and child.

All of these existing privileges place value on certain relationships in order to foster and then protect them. Their inviolability is deemed more important than the truth-finding function of the courts.

Isn’t the parent-child relationship every bit as important, if not more so?

It is paradoxical that in a country where we often say that our children are our future, and every parent has said, at least once, “you can always come to me,” that our system actually undermines the very values it extols.

Today, on Mother’s Day, it seems appropriate to express hope that this privilege will soon be nationally afforded.

Just because a parent wants to protect her child’s confidence doesn’t mean that objectionable behavior is being condoned. But such protection does help ensure a haven as children negotiate the labyrinth of life.

It is completely unreasonable that discussions between parents and children are not protected -- be it a teenager who has been caught at school with drugs or a parent who has been wrongly accused and needs to explain herself to her son. The Department of Justice Manual’s guidelines discourage a prosecutor from compelling testimony from a defendant’s parents or children. But without a formal parent-child privilege, a dodgy prosecutor is free to disregard the department’s guidance -- which is exactly what happened in my case. Trust me, the mere hint of a parent being subpoenaed -- and it’s often done just as a tactic to increase pressure on the defendant -- is terrifying for a child. (It is a lesser-known fact that there was a threat to subpoena my father too.)

While researching a paper for a Columbia University law and psychology class, I learned the term for the nightmare in which my mother found herself. It’s called the “cruel trilemma,” in which a person has a three-pronged choice: to commit perjury; testify truthfully and risk harming the relationship; or refuse to testify and go to jail for contempt of court without benefit of trial. No one in a society that calls itself civilized should have such a devastating Hobson’s choice.

Although a form of parent-child privilege has been recognized since the inception of Jewish and Roman laws, and exists in the civil law countries of Western Europe, this topic was not even introduced in the U.S. until the late 1970s. At that time, New York adopted a limited version of parent-child privilege. Massachusetts, Idaho and Minnesota followed suit. Despite these states’ advocacy, there remains no federal protection for filial communications. A few members of Congress have attempted to push legislation through on this subject. Unfortunately, their bills are still mired in the detritus of politics.

What does it say about us that we have yet to recognize the sanctity of the relationship between a parent and a child? Society rallies for some causes, yet this is an issue about which it has been passive.

Parent-child privilege was certainly a concern to which I had never given a moment’s thought before the investigation in 1998. The image of my mother -- wan and emotionally distraught -- as she left the federal courthouse just over five years ago will be forever fixed in my memory. She was not the first or last parent to be placed in the untenable position of having to violate a most basic parental instinct. Perhaps by next Mother’s Day this will no longer be a worry.