GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2003

Status

Accepted

Abstract

This article advocates for the creation of a parent-child privilege by focusing on the parental contribution to raising their children. The article argues that children cannot fully exercise their constitutional rights without being able to confide freely in their parents and consult them before waiving rights and while working with their attorneys. I begin by describing the current state of privilege law and suggest that there is already a “de facto” tendency to observe a parent-child privilege. I show that courts have failed to distinguish among three distinctive kinds of confidences: (1) testimony concerning confidences from a minor child to a parent; (2) testimony concerning confidences from adult children to parents; (3) testimony concerning confidences from parents to their children; and have failed to distinguish all three from testimony not based on confidences at all. The first category should be at the heart of any parent-child privilege. Finally, I provide three justifications for recognizing an official parent-child privilege: 1) parents’ interest in a parent-child relationship without governmental intervention, 2) parents serving as intermediaries between their children and professionals working with their children, and 3) the child’s ability to employ his constitutional rights only with open parental communication.

GW Paper Series

GWU Legal Studies Research Paper No. 2012-103, GWU Law School Public Law Research Paper No. 2012-103

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