A ruling by the Colorado Supreme Court has changed how attorneys appointed to represent children in domestic violence and sexual assault cases are allowed to treat information the child gives them. The decision, which removes attorney-client confidentiality from that relationship, has divided child safety advocates, and may affect how those accused of abusing a child conduct their defense.
The attorneys affected by the decision are called guardian ad litems. A guardian ad litem represents the child's interests in a court case by filing motions and so on. In a 5-2 decision, the state Supreme Court held that since the guardian ad litem does not represent a party in either a criminal trial or a civil lawsuit, attorney-client privilege - which prevents attorneys from divulging almost anything their clients tell them in confidence - does not apply.
Some child advocates supported the decision because it frees attorneys to disclose information to help the child, even if the child does not wish it. But others argue that the court has stripped minors of the right to confide in their guardian ad litem.
The ruling stems from a 2005 sexual assault of a minor case. The accuser recanted her story shortly before the trial. Prosecutors wanted the girl's guardian ad litem to tell the court what she had said in confidence, but the court ruled that the guardian could not do so without the accuser's consent, which she did not give.
Looking at the ruling from the criminal defense angle, it appears that those accused of domestic violence or sexual assault of a minor may have to deal with statements made by the accuser to his or her guardian ad litem as evidence at trial. This is likely to change how defense attorneys handle such cases.
Source: Denver Post, "Colorado Supreme Court removes attorney-client confidentiality from children in some cases," Karen Auge, Nov. 3, 2011
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