Debating The “Jane Doe” Case Without The Facts

I finally blew a gasket when actor/playwright Harvey Fierstein, of all people, decided that he knew enough about the facts of Connecticut’s Jane Doe case to write an op-ed in the New York Times. The troubling story of Jane Doe has been the subject of many articles, editorials and op-eds over the past several weeks.  Jane Doe is the transgender teen that the Department of Children and Families (DCF) asked a judge for permission to transfer to the York Correctional Institution for Women in Niantic because of her alleged history of physical violence towards other girls and DCF staff.

The transfer of a youth to an adult correctional facility–especially when the youth has not been convicted of a crime–is a very serious and newsworthy issue. It not only warrants, but demands, public attention and debate.

It is not possible, however, to have an intelligent debate about an issue without access to the facts. Most of the people who have taken strong public positions about the propriety of Jane Doe’s transfer to York don’t know the facts. And the reason they don’t know the facts is that proceedings in Juvenile Court, and records concerning persons committed to the custody of DCF, are closed to the public.

Let me walk you through the relevant statutory jungle. Let’s start with General Statutes section 17a-12.  That statute authorized the Commissioner of DCF (former state Supreme Court Justice Joette Katz) to ask a Superior Court judge to authorize the transfer of Jane Doe to York.  It states in relevant part:

When the commissioner. . . determines that a change of program is in the best interest of any child or youth committed or transferred to the department, the commissioner . . . may transfer such person to any appropriate resource or program administered by or available to the department . . . provided no transfer shall be made to any institution, hospital or facility under the jurisdiction of the Department of Correction . . . unless it is so ordered by the Superior Court after a hearing.

So, DCF did not unilaterally transfer Jane Doe to York; DCF went to court and presented evidence to a judge about why such drastic action was necessary.  Jane Doe and her attorney were present at the hearing and, presumably, were allowed to present evidence and argument in opposition to DCF’s request.  According to an op-ed by Jane Doe, that hearing lasted six days.  The judge ultimately agreed with DCF.  Maybe the judge was right, maybe the judge was wrong.  I don’t know. No one lacking access to the evidence presented at the hearing can possibly know.

The difficulty is that the hearing took place in Juvenile Court, which means that it took place behind closed doors and the records of that proceeding are confidential.  General Statutes section 46b-124 states that “all records of cases of juvenile matters . . . except delinquency proceedings, or any part thereof . . . shall be confidential and for the use of the court in juvenile matters, and open to inspection or disclosure to any third party, including bona fide researchers commissioned by a state agency, only upon order of the Superior Court.”

As noted, Jane Doe wrote an op-ed presenting her view of the hearing and her situation in general.  Despite the challenges she has faced, she is a highly intelligent and articulate person.  But the public cannot simply assume that her op-ed represents a full and accurate presentation of the facts.

Given the public scrutiny of DCF’s decision, Commissioner Katz also wrote an op-ed describing why she believed transferring Jane Doe to York, at least temporarily, was necessary.  But Commissioner Katz was constrained by law in what she could publicly say about the case.  General Statutes section 17a-28 provides for the confidentiality of DCF records and makes it a crime for any DCF employee to disclose confidential records or information without consent.  Subsection 17a-28(h)(14) authorizes a very limited release of certain information without consent. It provides that DCF may release information to “any individual”

when information concerning an incident of child abuse or neglect has been made public or the commissioner reasonably believes publication of such information is likely, provided such disclosure is limited to: (A) Whether the department has received any report in accordance with sections 17a-101a to 17a-101c, inclusive, or section 17a-103; (B) in general terms, any action taken by the department, provided: (i) Names or other individually identifiable information of the child or other family members is not disclosed, regardless of whether such individually identifiable information is otherwise available, and (ii) the name or other individually identifiable information of the person suspected to be responsible for the abuse or neglect is not disclosed unless such person has been arrested for a crime due to such abuse or neglect; (C) confirmation or denial of the accuracy of information that has been made public; and (D) notwithstanding the provisions of section 46b-124, in general terms, the legal status of the case.

In short, the obvious sources of facts about Jane Doe’s case–the Juvenile Court record and DCF–are largely off-limits to the public.

There are very good reasons why, as a general matter, Juvenile Court proceedings and DCF records are confidential.  But there are occasions, like this one, when strict confidentiality has the unintended effect of depriving the public, including the members of the General Assembly who will probably find themselves debating Jane Doe’s case and General Statutes section 17a-12 next year, of the facts necessary to have an intelligent, meaningful, informed debate.

Is there a solution to this dilemma?  Possibly.  The Appellate Court held in 2005 that the confidentiality provisions of section 46b-124 can be waived.  Jane Doe, with the support of a legal guardian (not DCF, but perhaps her attorney), could consent to the release of the records and transcript of the Juvenile Court hearing that led to her transfer to York.  (Of course, certain redactions would be appropriate, such as her name and other identifying information.)  I am not suggesting that she should consent; that decision is entirely for her to make in consultation with individuals that she trusts.

Jane Doe’s transfer to York has triggered a vigorous and important public debate about when, and whether, it is ever appropriate to transfer a youth who has not been convicted of a crime to a correctional facility.  But debating an issue without the facts will never lead to wise policy proscriptions.