Iowa lawmakers, advocates ponder: Should child witnesses be required to face accused abusers in court?

DES MOINES — Whether children should have the option to testify remotely — rather than be in the courtroom, in front of their accused abuser — was the subject of debate Wednesday over Iowa Attorney General Brenna Bird’s proposed amendment to the Iowa Constitution.

For years in Iowa, children in certain court cases were allowed to testify from a remote location, in front of a judge. But the Iowa Supreme Court last year, in the State of Iowa v. Derek Michael White, ruled that the constitutional right for an individual to face his or her accuser in court is violated when a child gives witness testimony from outside the courtroom.

As a result, Iowa is now the only state in the country that does not permit any form of remote testimony from children, the Iowa Attorney General’s Office says. Bird has proposed amending the Iowa Constitution to allow state law to provide for exceptions when children can testify remotely.

Bird’s proposal, House Study Bill 35, would, in effect, make a state law that already is on the books constitutional. It received its first legislative hearing Wednesday at the Iowa Capitol.

During the hearing, many advocacy groups spoke in favor of Bird’s proposal, citing the need to protect children from being re-traumatized by being forced to testify mere feet from their accused abuser. Supporters also noted how difficult it is for children to testify in court, and how being forced to confront their alleged abuser makes that even more challenging.

“It’s our job to protect children. And if we can’t stop abuse from occurring, the least we can do is protect children after it’s occurred,” Danica Haas, executive director of the Iowa Chapter of Children’s Advocacy Centers, said during the hearing.

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The lone dissent from the public during the hearing came from a representative of a state advocacy group for trial lawyers.

Nathan Mundy, a defense lawyer and representative of the Iowa Association for Justice, said he sympathized with the speakers who advocated for child victims, but questioned how many of those speakers had talked to an individual falsely accused of assault.

“I just think this would greatly limit our right to confront people who have accused us of crimes,” Mundy said.

Mundy said his group would be more amenable to addressing the issue through state law rather than a constitutional amendment. He said a legislative proposal is in the works.

The Iowa State Bar Association has not taken a position on Bird’s proposal and does not have a comment on the legislation, a spokeswoman said. The bar’s membership is divided on the proposal, and the group could support an amended proposal that addresses the bar’s concerns, the spokeswoman said.

The bar is working on alternative legislation, but the details are not yet available, the spokeswoman said. The bar’s conversations similarly have revolved on whether the issue can be addressed in state law rather than in the Iowa Constitution.

Officials with the Attorney General’s Office said a legislative solution would be insufficient because of the 2024 Iowa Supreme Court ruling. That court opinion — that remote testimony is unconstitutional — would find any new state law unconstitutional, the Attorney General’s Office officials said.

“The only way to fix this is via a constitutional amendment,” Susan Krisko, the deputy attorney general for criminal justice, said during the hearing. “We cannot legislate our way around that, other than going back and saying our citizens find that the constitution needs to be amended such that we can now legislate that particular right in certain circumstances.”

Under Bird’s proposal, Article I of the Iowa Constitution would be amended to include the following section: “To protect children under the age of eighteen and any witness with a mental illness, intellectual disability, or other developmental disability, the right of an accused to confront such witnesses may be limited by law.”

Amending the Iowa Constitution is a multiyear process. A proposed amendment must be approved by two consecutive Iowa General Assemblies — two meetings of the Iowa Legislature separated by an election — and then by popular vote in a general election.

The Iowa Association for Justice is the only group registered in opposition to the proposal, according to lobbying records. Registered in support are the Iowa County Attorneys Association, Iowa State Sheriffs’ and Deputies’ Association, Blank Children’s Hospital and the Iowa Coalition Against Sexual Assault, and others.

A three-member legislative panel advanced the proposal, but with some hesitation. The bill is now eligible for consideration by the full Iowa House Judiciary Committee.

Comments: (515) 355-1300, erin.murphy@thegazette.com

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