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Advocates of child victims said a proposed constitutional amendment allowing for remote testimony for children and people with certain disabilities could help young victims from being retraumatized in the courtroom, but others said the measure could abridge the rights of wrongfully accused defendants.
House Study Bill 35 is the constitutional amendment proposed by Iowa Attorney General Brenna Bird’s office, adding that the right of an accused party to confront their accuser “may be limited by law” when the witness is a person under age 18 or has a mental illness, intellectual disability or other developmental disability.
The proposal comes following a 2024 Iowa Supreme Court ruling in State v. White. The court sided with Derek White, who argued that his constitutional right to confront a witness was violated when two child witnesses were allowed to testify against him using a closed-circuit television system.
Before this decision, Iowa courts had been allowing children to remotely testify against their alleged abusers in cases where the prosecution provided sufficient evidence that in-person testimony would cause additional trauma to the child.
Daniel Breitbarth, legislative liaison for the Iowa AG’s office, said in a subcommittee meeting on the proposal Wednesday that Iowa is currently the only state in the country that does not allow exceptions for children and some adults with disabilities when granting a person their right to confront witnesses.
“We brought forward this constitutional amendment to reverse that trend, to ensure that we protect victims, that children, those that are the most vulnerable in our population, from having to experience trauma while still giving individuals their Sixth Amendment rights,” Breitbarth said.
Advocates who worked with victims of child abuse said allowing children to testify remotely is often a needed protection in these cases, as these witnesses would not be willing or able to testify if they had to confront their alleged abuser in person during court proceedings. Laura Christensen, who works at the Blank Children’s Hospital STAR Center, said it is already difficult for many child victims of abuse to talk about their experiences for fear of not being believed or facing further abuse — and that “putting them in front of the person who harmed them will only exacerbate the issue” when it comes to mental health impacts and trauma caused by the abuse.
Wendy Berkey said that as she works with parents and families of abuse victims at Blank Children’s Hospital STAR Center, many families are unwilling to pursue legal action because they do not want to retraumatize their child.
“The thing that I see almost daily, definitely weekly, and grapple with with parents is when they have to decide, ‘Is the price of justice worth it for my child?’” Berkey said. “And unfortunately, right now in Iowa, the answer they often have is no. … It’s just not something that children are able to face or that parents are willing to put their child through. And that leaves them without the ability, if they desire, to get a true sense of justice and to have a person who will harm their child held accountable.”
But Nathan Mundy, an advocate for the Iowa Association for Justice, said lawmakers need to consider that not all individuals accused of these crimes are guilty, and that the provision could “greatly limit” the right of people to confront those who have accused them of crimes.
“While I sympathize with everyone here who is advocating for victims, I question how many of you have talked to the accused of these crimes,” Mundy said. “When we have these cases, it is quite apparent which ones, frankly, know they did it, knew they had a problem, and which ones feel like they were falsely accused. And there’s a very small percentage of overlap where it’s just not determined.”
Mundy said the Association for Justice instead supports a proposal that would allow for two-way video during these situations, allowing remote testimony while preserving the accused person’s constitutional rights.
Susan Krisko, assistant attorney general who represented the state in State v. White, said two-way remote testimony is already allowed in Iowa Code, but the Iowa Supreme Court’s 2024 ruling found that face-to-face confrontation was required and did not specify whether two-way video testimony was allowed.
“They didn’t say it was okay, they didn’t say it wasn’t okay,” Krisko said. “So what would happen if you pursue that avenue, is that we would just punt. So we would go forward under the assumption that maybe the court would say, okay, maybe they wouldn’t. That many years would go by before the court actually makes a decision on that, and if they say no, then we’ve lost all this time. All these cases that we try that in would then have to be retried, all those (victims) would be retraumatized again.”
Rep. Lindsay James, D-Dubuque, questioned why this proposal needed to be a constitutional amendment. Krisko said the state Supreme Court decision found a state law allowing for closed-circuit testimony was unconstitutional, meaning other statutes on remote testimony could also be found unconstitutional when weighed by the courts.
“We have given a constitutional right to to defendants to have face-to-face testimony, so the only way to fix this is by a constitutional amendment,” Krisko said. “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 that particular right in certain circumstances.”
The subcommittee recommended moving the bill forward for consideration by the House Judiciary Committee, but Rep. Charley Thomson, R-Charles City, said he wants “to think about this a lot more” in considering potential changes.
If passed by the Iowa Legislature this year, the measure would need to be approved by lawmakers again in 2027 or 2028 before going before voters on the 2028 general election ballot for final approval.