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View Full Version : Not allowed therapy after a child's murder?


Girl Hermit
06-02-2001, 11:30 AM
Friends of the family's daughter was murdered by her ex-boyfriend on Easter weekend of 2000 in her apartment while her 3 year old son stood watching. He is clearly traumatized as are the rest of her family. A few days ago the man who committed the murder was sentenced to life in prison. He pleaded guilty to 2nd degree murder. If he had not pleaded guilty who knows how long the trial process would have dragged on.

My question is regarding the fact that the family was told they could receive no type of therapy for any of them, including the toddler who watched his mother die, until after the trial was over for fear of jepordizing the case. They were in constant contact with the prosecutor right from the beginning but could not speak to family or friends about what had happened in anything other than vague generalities for the same reason.

The family, especially the child, needed some kind of therapy almost immediately. The, now 4 year old, child still remembers that night vividly and has many associated phobias stemming from it.

I have never heard of a family being told they could not seek counseling for this reason. Is this something that happens often in this kind of trial? I am unclear how them speaking to a someone who would have some sort of doctor-patient confidentiality could harm the trial.

Anyone familiar with the Canadian legal system out there to tell me if this kind of thing is normal practice and why?


jawofech

kinoons
06-02-2001, 04:23 PM
only kinda sorta related, but...

Occasionally my line of work puts me into a situation that is going to go to court, but can also have profound effects on myself and my coworkers -- We have what is called CISD -- critical incident stress debriefings. We are legally entitled to them, and are allowed to have one regardless of if the call we were on may go to court.

tomndebb
06-02-2001, 04:52 PM
It sounds to me as though a prosecutor did not feel he had an airtight case and wanted to preclude the defense using the therapy as an excuse to challenge any testimony (e.g., claiming that the therapist had "planted" memories in the child if the child was called to testify).
(It also, in my wholly personal opinion, was totally unnecessary. How inept is this prosecutor, anyway?)

Cartooniverse
06-02-2001, 06:37 PM
Originally posted by tomndebb
How inept is this prosecutor, anyway?)

Sounds like he was just inept enough to place his desire to obtain a conviction way ahead of the emotional and mental needs of a minor. Sounds to me like this fucker needs to be brought up before the Bar- or Canadian equivalent thereof- and made to explain himself in excruciating detail.

Bastard. NO CONVICTION is worth torturing a small child by witholding therapy following such a profound traume; the child has suffered enough. My angry two cents. :mad:

Cartooniverse

Girl Hermit
06-02-2001, 09:05 PM
Originally posted by Cartooniverse



Bastard. NO CONVICTION is worth torturing a small child by witholding therapy following such a profound traume; the child has suffered enough. My angry two cents. :mad:



That was how I originally felt as well. Now, I just don't know. While I know it was wrong not to allow any kind of counseling to happen, especially for the child, I wonder what would have happened if some little thing went wrong and this guy got off or got a lighter sentence because of it. About that issue I am very torn. My sense of seeing justice done to the man who killed her is at odds with my heart, which just wants to see this little boy get back onto some kind of path towards normality.

Originally posted by tomndebb

It sounds to me as though a prosecutor did not feel he had an airtight case and wanted to preclude the defense using the therapy as an excuse to challenge any testimony (e.g., claiming that the therapist had "planted" memories in the child if the child was called to testify).

That is pretty much what I think as well. But is this normal practice? I probably should have mentioned that the 2nd degree plea of guilty was made after a bargain was struck between his lawyer and the prosecutor. I have an inkling that the prosecutor was leaning towards 1st degree. I don't know if that makes a difference with the therapy issue or not.

kinoons I am wondering if it makes a difference that you are adults and can not, like tomndebb mentioned be said to have been swayed by the counceling.


But really, I mean come on, if he had not accepted the plea bargain and this had gone to trial it could have been years before it was over. Would they have been expected to stay out of therapy that long? I had just never heard of anything like this and thought perhaps it must have happened before.

Still wondering if this is normal practice.

Northern Piper
06-03-2001, 12:07 AM
Since we don't have the whole facts, I'm not prepared to judge the Crown's decision in this case, nor do I know if it's normal practice in whatever province you're in, jawofech. However, as a Canadian lawyer with some experience in the area of criminal law, I can give some background on the topic. I would simply say that the Crown's decision is not clearly inept or requiring discipline, given the state of the law in Canada with respect to access to therapist records. Much more information would be needed to make either of those assessments, in my opinion.

Some years ago, the Supreme Court of Canada held that an accused has a right to disclosure of records held by third parties, not just the Crown or the police. The Court held that right extends to medical and therapy records of the complainant, such as treatment of the complainant following rape: R. v. O'Connor (http://www.lexum.umontreal.ca/csc-scc/en/pub/1995/vol4/html/1995scr4_0411.html) and R. v. Carosella (http://www.lexum.umontreal.ca/csc-scc/en/pub/1997/vol1/html/1997scr1_0080.html). Doctor-patient privilege gave way in some cases to the right of the accused to see highly confidential records of therapy. This had a major "chilling effect" on a lot of therapists, especially rape crisis counsellors. Some stopped keeping any notes at all.

Since these cases came down, Parliament has amended the law in the area of third party disclosure, narrowing the scope of third party disclosure. The Supreme Court subesequently upheld those amendments in R. v. Mills (http://www.lexum.umontreal.ca/csc-scc/en/pub/1999/vol3/html/1999scr3_0668.html), which presumably will alleviate some concerns about broad third party disclosure. However, in the appropriate case, the courts can still order third party disclosure, including medical records.

Although R. v. Millscame down in late 1999, the scope of the amendments, and how they will apply in particular cases, is still the topic of some debate. I can understand a Crown taking the position that out of an abundance of caution, there shouldn't be any therapy, for fear of allegations that the therapist has influenced the child's memory, as tomndebb suggests.

This of course is a "rock and a hard place" decision, whichever way the Crown goes. Should the Crown ask that there be no therapy, with potential harm to the child, to avoid giving the defence an argument? Or should the Crown agree to therapy, thereby potentially creating a defence to a murder charge? Those are the sorts of balancing decisions which Crown counsel have to make on a regular basis, with no clear answer and a good chance that they will be criticised no matter what choice they make.

Girl Hermit
06-03-2001, 03:18 AM
Northern Piper Thank you for that answer. It clears up the question of why he chose to request they not seek therapy until this mess was over and, I think, explains that it is not necessarily normal practice to do so. It looks like it is the prosecutor's call when and if he deems it necessary. He obviously thought it was the right course of action. I still do not know if I totally agree, however I am sitting in a position where it is easier to critcize then to think it had to be this way at their expense. They have been through hell and back more times than I can count since this happened and the therapy thing is kind of a sore spot with me. Logically I realize it had to be this way but emotionally I am finding it difficult to accept I guess.

I am slightly shocked at my naive self, again, in that I was under the impression that doctor/patient confidentiality was exempt from ever being used in a court of law. It appears this is not so.

Northern Piper
06-03-2001, 11:37 AM
I can appreciate your unhappiness with the situation, jawofech, and I feel for your friends. It's a horrible thing to have to go through.

In response to your last point, in Canadian law there is no absolute privilege. The strongest ones of all are solicitor-client privilege and informers privilege, but the Supreme Court has ruled that even those can be set aside, in extreme cases where the matter covered by the privilege may be the only way to prove that the accused is innocent. (Called the "innocence-at-stake" exception.)