HD64 - The Study of the Role of Guardians ad Litem and the Modification of Courtroom Environment in Child Sexual Abuse Cases

  • Published: 1994
  • Author: Virginia Commission on Youth
  • Enabling Authority: House Joint Resolution 490 (Regular Session, 1993)

Executive Summary:
House Joint Resolution 490 was enacted during the 1993 General Assembly Session in response to testimony received in 1992 by the Legal Issues Subcommittee of the Commission on the Reduction of Sexual Assault Victimization in Virginia. Testimony was received on the poor quality of legal representation for children who were victims of sexual abuse and the negative impact of the courtroom experience on these victims.

Testimony before the Commission brought forward two key points:

• Children who are victims of abuse and neglect are unique clients whose representation requires special expertise and attention. Unlike adults, children do not have the ability to "shop around" in selecting their attorneys. They are totally dependent on the justice system to select qualified attorneys trained to represent their best interests. Child victims lack the physical and mental ability to protect their own interests and well-being, both in and outside the courtroom environment.

• Children are ill-equipped to understand court proceedings. Comprehending legal and judicial proceedings can be extremely difficult for well-educated adults. Children, whose mental and emotional abilities are not yet fully developed, have even greater difficulty understanding and advocating for themselves in these proceedings.

The original mandate for the study was written to address only children who are the victims of sexual abuse. However, given the similarity of issues, the study's focus was broadened to include all child victims of abuse and neglect. The goal has been to develop recommendations which reduce the trauma experienced by child victims in the legal proceedings and, ideally, increase their opportunities for healing.

Children who are alleged victims of abuse or neglect need representation by attorneys with specialized knowledge in the areas of juvenile court procedure, child psychology and development, and community treatment resources. Unfortunately, in Virginia, children often receive legal representation by attorneys with little or no expertise in these areas. Because Juvenile and Family Court law are not topics of study in law school or bar review curricula, many attorneys have no formal training in these relevant subjects.

Throughout the nation and Virginia there are several examples of model efforts to improve the quality of legal representation of these children. Several other states have model Guardian ad Litem programs in which full or part time attorneys with specialized expertise and experience in this area of the law handle all cases of alleged abuse and neglect.

In Virginia there are many judicial districts in which frequent efforts are made to improve the courtroom experience for children who must testify as victims of abuse or neglect. For example, the presence of a support person is allowed in some instances, depending on the judge and circumstances of the particular case. Few Virginia jurisdictions have Commonwealth's Attorneys available to prosecute all cases in which the victim is a juvenile. Some Virginia court facilities have separate courtroom entrances for child victims. Some have developed children's waiting areas and interview rooms with toys and furniture appropriate for children. Court staff in some areas provide informal introductions to the courtroom and court procedure. However, none of these modifications is available consistently to child victims across the state.

Virginia has neither model Guardian ad Litem programs similar to those in other states nor a statute specifically permitting the presence in the courtroom of support people for all children who must testify. Techniques which are permissible by statute, such as closed circuit television testimony, are used infrequently. In many instances there is no designated monitoring procedure to insure that court-ordered treatment services are actually received or delivered.

As a result, child victims in Virginia are frequently further traumatized by the justice system designed to protect them. Children who already feel betrayed by the trusted adults who abused them often feel further betrayed by the justice and law enforcement systems ostensibly there to help them. Multiple interviews, lengthy courtroom proceedings, and adversarial cross examinations compound their feelings of victimization.

LEGISLATIVE RECOMMENDATIONS

Improvements in the quality of counsel and courtroom environment are needed statewide. Through the establishment of standards, comprehensive training packages for allied professionals, legislative revisions, and the expansion of judicial guidelines, the Commonwealth can better meet the needs of children who are victims of abuse or neglect.

On the basis of its findings, the Commission on Youth offers the following legislative recommendations in the areas of:

• Improved Legal Representation
• Modifications of Courtroom Environment
• Increased Utilization of Closed Circuit Testimony, and
• Professional Development.

Improved Legal Representation

Recommendation 1
Introduce legislation which establishes criteria for attorneys to qualify for appointment as Guardians ad Litem for children. These standards should include:

a. license or permission to practice law in Virginia,
b. current training in Guardian ad litem representation,
c. familiarity with the Juvenile and Domestic Relations and Family Court systems, and
d. demonstrated proficiency in this area of the law.

Recommendation 2
Fund pilot model Guardian ad Litem programs in two localities in the state.

Recommendation 3
Institutionalize a mechanism through which a pool of attorneys meeting the standards established for Guardians ad Litem commit a specific number of hours annually to pro bono Guardian ad Litem work.

Recommendation 4
Develop and implement a statewide marketing plan to build a pool of pro bono attorneys to serve as Guardians ad Litem for abused and neglected children.

Recommendation 5
Request the Commission on Youth to continue this study for six months to initiate a statewide network for Guardians ad Litem throughout the state. The Commission on Youth's tasks would be: (a) to determine the most effective method for establishing this network, either through existing related associations or the creation of an entirely new association, and (b) to secure funding to support network activities.

Recommendation 6
Through Judicial Guidelines and training, encourage all Juvenile and Domestic Relations Court judges in the state to be uniform in their payment of $40 hourly for out-of-court and $60 for in-court time, with no ceiling for documented hours.

Modifications of Courtroom Environment

Recommendation 7
Request the Supreme Court of Virginia, in conjunction with the Department of Criminal Justice Services, to develop and provide training to judges on courtroom modifications available to lessen the psychological trauma of testimony by child victims of abuse and neglect.

Recommendation 8
Request the Supreme Court, with the support of the Commission on Youth, and the Departments of Social Services and Criminal Justice Services, to develop a list of Judicial Guidelines on courtroom modifications. These guidelines should include, but not be limited to, the following:

a. Provision of separate entrances to the courtroom and separate waiting areas available to child witnesses whenever possible;
b. Avoidance of unnecessary interviews for child witnesses through the use of videotapes, consolidation of the investigation by Child Protective Services and law enforcement personnel, or the assignment of the same prosecutor throughout the entire court proceeding;
c. Provision of an informal introduction to the courtroom and court proceedings to the child witness prior to the actual hearing, when appropriate, as determined by the needs of the child;
d. Allowance of frequent recesses due to the child's limited attention span and developmental stage; and
e. Appointment of the same Guardian ad Litem whenever a child returns to court on a subsequent petition. In his/her role as Guardian ad Litem, the attorney acquires special knowledge which allows him/her to better represent the child's best interests.

Recommendation 9
Request the Department of Criminal Justice Services to develop a training package on courtroom modifications available for adaptation and implementation by Court Appointed Special Advocates (CASA), Court Service Units, Child Protective Services, Victim Witness programs, and the Association of Commonwealth's Attorneys.

Recommendation 10
Include the following changes for Juvenile and Domestic Relations Courts in the next revision of the Virginia Courthouse Facility Guidelines originally published in March 1987 by the Judicial Council of Virginia:

a. Increase the availability of separate and private witness and/or conference rooms to protect the child from unnecessary exposure to public scrutiny and defense witnesses;
b. Incorporate into the design or function of new and old courthouses a separate entrance for victim witnesses, including children; and
c. Include in the design a specific seating place for a support person with enough proximity to reassure, but not to touch, the victim.

Recommendation 11
Introduce legislation which entitles any victim or witness under the age of 18 to have in attendance a person of his/her choosing who is not a witness in the proceeding to provide support at any judicial proceeding in which the juvenile must testify.

Recommendation 12
Introduce legislation to require that Commonwealth's Attorneys be involved in all misdemeanors against the person of a juvenile.

Recommendation 13
Request the Department of Criminal Justice Services to provide training and develop an informational brochure for Commonwealth's Attorneys and the defense bar about the availability and accessibility of technology and personnel for the utilization of closed circuit television testimony.

Increased Utilization of Closed Circuit Testimony

Recommendation 14
Request the Department of Criminal Justice Services to develop statewide protocol for the utilization of closed circuit television testimony in cases which involve children who are the victims of abuse or sexual assault.

Recommendation 15
Amend Virginia Code § 18.2-67.9 for seven-day written notification for the use of closed circuit television testimony in the emergency removal hearings and requiring 48-hour advance notice.

Professional Development

Recommendation 16
Request the Commission on Youth, in conjunction with the Supreme Court, to develop continuing legal education training for Guardians ad Litem which enhances their skills in providing quality representation for children who are the victims of sexual abuse and neglect and deliver it in 1994 to Guardians ad Litem throughout the state.

Recommendation 17
Support the Prevention Subcommittee of the Governor's Commission on Violent Crime's budget request of $60,000 in 1995 and $120,000 in 1996 to start new Court Appointed Special Advocates (CASA) programs throughout the Commonwealth.

Recommendation 18
Support the Department of Criminal Justice Services' request for $80,000 in 1995 and $100,000 in 1996 to fund Court Appointed Special Advocates (CASA) programs which have been in existence for a minimum of three years.

Recommendation 19
Request the Supreme Court to assess the feasibility of developing an automated tickler system to monitor the follow-through of court-ordered treatment for children who are the victims of abuse or neglect, either through the Clerks of Courts' offices or the Department of Youth and Family Services so that, if services are not received, the case is brought back to the attention of the presiding court within a specified time.

Recommendation 20
Through Judicial Guidelines and training, encourage all Juvenile and Domestic Relations Court Judges in the state to designate in their court orders a specific agency responsible for monitoring follow-through of court-ordered treatment for children who are victims of abuse and neglect.