The opinion
TAMILIA, Judge,
concurring:
I vote to join Judge Wieand’s majority Opinion and write separately to express my views concerning the complexity of this matter. I am troubled by the fact that there was no statutory authority for the procedure adopted here and the proceeding is viable only upon application of exceptions to the rule that a party has the right both to confrontation and cross-examination of a witness against him. The majority finds such exceptions, yet but for the overwhelming fact that we are dealing with a child victim, I would be compelled to join the dissent. We do not need the testimony or treatises of behavioral science experts to establish that, qualitatively, such a witness, who is also a victim, is not to be equated with a normal or average adult. Such a witness is at a considerable disadvantage in the courtroom search for truth, and to assure that the mythical scales of justice are evenly balanced, special consideration must be given to proceedings wherein a child is a victim. This country was recently shocked and dismayed by the trial in California involving alleged child molestation victims by day school personnel. Regardless of the merits of that case, the fact that the preliminary hearing lasted seventeen months is considered by virtually all legal and behavioral science experts as an abomination and a perversion of the judicial process in the harm it has done to the children (and probably many of the adults as well).
From the late nineteenth century, to the present, it is a time clearly perceived by most authorities to be the era of *375 enlightenment in the care and treatment of children. To illustrate where we have been and how far we have traveled in our treatment of children, the following excerpt from a law review article written -by this writer is illuminating.
Throughout history the child was considered chattel and even in Roman Law, “The Law of the Twelve Tables” granted the father the right to sell his child. During the Middle Ages the lot of the child was harsh with numerous children being abandoned as newborns or at an early age. The child’s position in the family came after the father, cattle and mother — in that order. A note found in an early writing indicated that five to six thousand abandoned children, mostly in Paris, were brought yearly to the house founded by Vincent DePaul. Because of the value placed on children and the lack of insight into their needs, child psychiatry, as a discipline, could not have existed before the 20th century. It was not until the end of the 18th century that laws were instituted for the prevention of crimes against children — in particular, the destruction of the newborn, easily practiced in the absence of compulsory registration of births. In France, the edict of 1556 instituted severe penalties for infanticide but with little effect, and infanticide progressively increased, reaching a peak in the 18th century. Prussion law existing in 1230 included the statement:
Be a man laden with sick women, children, brothers, sisters or domestics, or be he sick himself, then let them be where they lie, and we praise him too if he would burn himself or the feeble person.
The child was a common victim of witchcraft, and the Children’s Crusades resulted in mass death marches of children caught up in a state of religious hysteria, neither controlled nor protected by their parents or society. The Renaissance saw bright spots in Italy, France and England where enlightened families placed wives and mothers in prominent roles, educated their children, condemned corporal punishment and controlled children with love, rather than fear. These techniques, however, were limited to a very small elite class with the major portion of *376 society utilizing a most dismal barbarism in dealing with children. The practice of nourrices (foundling homes) resulted in the death sentence to children in France. From 1776 to 1790, one hundred thousand children were received in a foundling hospital. Of these only 15 thousand children survived. An unpaid nursing fee left a child to his own fortunes, and often to die from the neglect. The outcry of Rousseau led to a greater interest in children and the cruel practices came to be more fully noticed.
Between 1881 and 1890, 142 out of every one thousand English children died within their first 12 months. In the six years from 1870-1877 the school board had removed from the streets of London 8,508 homeless, lawless and destitute children. In 1816, three thousand children were imprisoned in various London jails, half under 17 years. Child labor was the general rule, and a certain factory employer reported before a House of Lords Committee in 1817 that he did not employ children under ten years of age — and he was more enlightened than most.
In colonial America, the lot of children was difficult but the child did not suffer the degradation and abuse of his European counterpart. Colonial puritanism required absolute respect, and the child was made to assume heavy responsibilities at a very early age. He was considered a small adult and at 14 or 16 years of age was expected to assume an adult role. The American child benefited from the closeness of the pioneer family and his economic value was high. European reports in the early 1800’s criticized the early emancipation of children, which developed from the closer unity of family life, and the American approach was considered revolutionary. This is not to say that there were no dark areas in American child treatment, but the 19th century did see a great upheaval in the attitude toward children in American society. (Footnotes omitted.)
Tamilia, J., Neglect Proceedings and the Conflict Between Law and Social Work, 9 Duquesne Law Review, 579-581 (1971).
*377 In this century, we have turned away from child labor, infanticide, abandonment or sale of children, crippling children to exploit them as beggers, incarcerating them and trying them as adults or granting immunity to abuse by parents. We have provided exceptions to their being equated as adults in every conceivable manner, throwing a protective blanket over them by law, practice and treatment. We have denied them the protection of the constitution in many ways, both in court proceedings and in their status as persons, in their best interest. It requires no expert testimony to establish that a child in an adult court room, subject to most creative and stressful means of getting to the truth, will react not as an adult but as a child. While this procedure is calculated to arrive at the truth with an adult, a child can only be expected to respond with emotional and physical reactions derived from terror. For a child not to “freeze” is unusual and to present a clear unequivocal statement of the occurrence is even more unusual. If the constitution may be interpreted broadly enough to deny them the rights of adults for their protection and in their best interest (denial of jury trial, denial of emancipation, right to contract, etc.), it can also be extended to soften (not eliminate) the harshness of their testifying in court and for the same reasons. The juvenile acts, dating from 1898, universally adopted throughout the country, are testimony to this recognition. To do otherwise is to provide a defendant charged with sexual or other child abuse with an overwhelming advantage inconsistent with equal justice.
I can perceive of no case where a person is more subject to terrifying pressure than a child testifying against her father in a sexual abuse criminal case. In such a situation, assuming the claim is valid and she has already been hurt physically and emotionally, she has been threatened by him to remain silent, she has been punished by removal from her home, she believes that she is guilty of breaking up her family, frequently she is unsupported by her mother or other relatives, or after their initial support, it is withdrawn and she faces the prospect that if she testifies and is not believed, she returns to the same environment to face *378 retribution and, most likely, further abuse. Regardless of what we do in this case, society will not tolerate our abandonment of children to this process.
The scales of justice can only be balanced by providing a procedure, such as videotaping, to permit evidence to be presented, which would otherwise be crushed either from internally generated fear or externally created intimidation. Our legislature and most others in this country are adopting procedures similar to that utilized here in recognition of a grave problem. This case does not have the benefit of such legislation, but I believe the law is sufficiently resilient to permit it, without denying the defendant his constitutional rights.
Judge Cirillo expounds on the loss of freedom and enjoyment of the innocent man who suffers imprisonment and the horrors thereof. We all tremble at this possibility in all cases. He ignores, however, the countless thousands of children who live in daily terror of an abusive adult and who carry the scars throughout life, frequently to mirror the abuse by becoming abusers and killers themselves. Our streets are filled with runaway children, child prostitutes and drug addicted youngsters who find the only escape from situations such as these is to run to the streets and a living death. The law, as it is interpreted by the dissent, does not protect them. Society requires a balancing in the search for truth and modern techniques, such as videotaping, provide an opportunity to do so. One cannot say the constitution prevents, in the way of confrontation, that which the framers never could have conceived to exist. A constitution, federal or state, broad enough to permit wiretapping and electronic surveillance, intruding on the right of privacy and the sanctity of the home, is most certainly broad enough to permit a means of confrontation, such as videotaping, which allows a child to tell his/her story in court without exacerbating his/her injury and preventing the defendant from having an advantage which stifles es *379 sential testimony in a large number of cases. 1
. I question the suggestion by Judge Del Sole that the courtroom environment is more appropriate for the child victim witness and the jury should be able to observe the witness in person rather than on videotape. The case cited for authority, Matter of Appeal in Pinal County Juvenile Action, 147 Ariz. 302 , 709 P.2d 1361 (App.1985), was a juvenile court case in which no jury was present and the only intimidating factor to the six year old witness was the presence of the alleged juvenile delinquents who were then placed in an adjoining room, linked by video and audio transmission to the courtroom. The issue there was the constitutional right to confrontation. As Judge Lindsay Arthur states in Child Sexual Abuse, Vol. 37, No. 2, Juv. & Fam.Ct.J. (cited by Judge Del Sole), it is the total court experience that presents the problem. His article suggests a number of alternatives tailored to state laws and the needs of the situation partly to deal with the confrontation issue but also relating to the trauma of courtroom environment. There can be abuse with videotaping out of the court’s presence as traumatic as anything happening in the courtroom. He suggested a number of videotaping alternatives, some more restrictive than here, others less restrictive. I would not limit videotaping to the procedure applied in the Pinal County Juvenile Action as its purpose would be defeated in a large number of cases.