David L. Ryan/Globe Staff/File
As part of a sweeping Senate effort to rewrite criminal justice law, state legislators are attempting to forbid parents from testifying against their children in almost all criminal and juvenile delinquency matters, if the kids are under 18.
Advocates say they want to protect the parent-child relationship, make certain kids feel safe in asking a parent for help, and ensure parents cannot be pressured into testifying against their children.
But the change would mean a mother who saw her 17-year-old son stab someone to death couldn’t testify against him even if she wanted to. Same with a father who spotted his 16-year-old daughter stealing a car.
The only exception would be when the victim is a family member and resides in the household.
“The problem is right now the parent can be coerced to testify against their children. People tell them: If you don’t testify, we’ll call the Department of Children and Families on you. Or a court compels them to testify,” said Sana Fadel of Boston-based Citizens for Juvenile Justice, which helped write the language in the Senate’s wide-ranging criminal justice bill.
She said “the bond between parent and child is the foundation of any society” and a prohibition on parents testifying against children who are minors would help affirm that bond.
Advocates say the prohibition is not meant to apply in civil cases, or in probate cases, like custody and divorce. But in criminal matters, it would broadly expand testimonial restrictions that already exist in law.
Among those restrictions: A husband or wife cannot be compelled to testify against a spouse in most circumstances. But they can choose to.
And the law forbids a husband or wife from testifying about private conversations with the other except in limited cases, such as allegations of child abuse.
Under state law, it’s also forbidden for a minor child to testify against a parent in a criminal matter, except in cases where the victim is a member of the parent’s family and lives in the household.
“By the same token, it should run both ways. You want the child to be free to come to the parent,” said Senator Cynthia S. Creem, a key supporter of the new provision. “It’s in the spirit of keeping the parent-child relationship as it should be.”
Creem, a lawyer, said it’s important for children, whose brains haven’t fully developed, to be able to consult their parents without fear that the discussions could be used against them, and be able to make mistakes in front of parents, without fear their mom or dad could be forced to testify against them.
The measure to prohibit parents from testifying against their minor children has strong backing from the Massachusetts Bar Association.
Martin W. Healy, chief legal counsel of the association, said the group “vociferously supports” the change. “We think it’s regressive for parents to have to testify against a child,” he said.
Healy, who does pro bono work in Juvenile Court, said he’s seen the “harmful erosion of families due to drugs and their impact on the parent-child relationship.”
The Senate is expected this month to vote on a sweeping bill that would makes changes to everything from mandatory minimum sentences to solitary confinement practices to when consensual sex is illegal between teens.
However, the current Senate bill’s language creating the new parent-child testimony prohibition may be tweaked. Indeed, Fadel, of the juvenile justice nonprofit, said there was a drafting error.
State Senator William N. Brownsberger, Senate chairman of the Judiciary Committee, replied in an e-mail when he was asked about the potential error and the rationale for prohibiting a mother from, say, testifying before a grand jury that her 17-year-old son stole a car.
“Thanks for raising this question,” Brownsberger said. “We are taking a close second look at this section and possible drafting issues and unintended consequences.”
Still, there is support for creating the prohibition from key officials on Beacon Hill.
The Senate package is currently in the Senate Committee on Ways and Means, probably the final stop before it goes to the full chamber for a vote.
And Senator Karen E. Spilka, who chairs that committee, strongly backs the thrust of the provision.
“If parents can be compelled to testify against a child, this severely limits a parent’s ability to help their child,” she said.
Asked if she expected a version of the language to be in the bill that comes out of her committee, she replied: “I think that’s a pretty safe assumption.”
State Representative Claire D. Cronin, House chair of the Judiciary Committee, who is crafting the House’s criminal justice reform package, filed a bill this year with language similar to what’s in the big Senate plan.
Cronin didn’t reply to several requests for comment. Her spokeswoman said the representative filed that legislation “along with many other bills.”
The Massachusetts Office for Victim Assistance, which advocates for victims of crimes, declined to comment on the Senate provision. The chief justice of the Juvenile Court, Amy L. Nechtem, said through a spokeswoman that she prefers not to comment. Attorney General Maura T. Healey declined to comment.
Tara Maguire, executive director of the Massachusetts District Attorneys Association, which represents all of the state’s DAs, said the group “has not yet taken a position on the parent/child testimonial privilege in the Senate CJ reform bill,” using an acronym for criminal justice.
But Middlesex District Attorney Marian T. Ryan, president of the MDAA, spoke at a rally in favor of the Senate bill Thursday at the State House.
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