The Volokh Conspiracy

FLDS Pregnancy Statistics:

[See CORRECTION below.] I don't have a lot to say about the FLDS raid. It sounds to me like there might well be some criminal behavior by FLDS members, but at the same time I agree with David Bernstein that the raid seems vastly more intrusive than it needed to be, especially given the removal of small children as to whom (from all I've heard) there was seemingly no reason to fear imminent abuse. Such summary removal of small children, with no reason to fear imminent danger to them, is itself child abuse. As to the other details, I don't know enough to have a bottom-line opinion.

Here, though, is a non-bottom-line opinion on which I do have some confidence: This AP story (via Talking Points Memo and Victor Steinbok) is missing some very important data:

Child Protective Services spokesman Darrell Azar says 53 girls between the ages of 14 and 17 were living on the ranch in Eldorado. Of that group, 31 already have children or are pregnant....

Whatever we might think of marriages by 16- and 17-year-olds, Texas allows marriages at age 16 with parental consent. (It also seems to allow marriages of younger teenagers with a court order, but I set that aside for now.) Now of course this wouldn't count if the girl is a second or later wife in a plural marriage, since that doesn't count as marriage under Texas law. In such situations, the sex would be considered extramarital, and the age of consent would be 17 (unless the partner is less than 3 years older).

CORRECTION: The AP article that I cited was apparently a very much abbreviated version; the fuller version adds "Under Texas law, children under the age of 17 generally cannot consent to sex with an adult. A girl can get married with parental permission at 16, but none of these girls is believed to have a legal marriage under state law." So the AP at least noted the age of consent, and added a fact which suggests the 16-year-olds might not have been legally married (though I'd like to know more details about why this is so). Thanks to commenter jccamp for alerting me to this; I've corrected the post below accordingly.

So many of the 16- and 17-year-olds may have gotten pregnant with no law being broken, and in fact within a legally recognized marriage. Of course, many might have gotten pregnant at 14 or 15, or at 16 outside marriage and with an adult. And naturally if any of these pregnancies were the results of forced sex, that would clearly be a very serious crime. People who were complicit in this crime, or lesser crimes, should be held accountable. But the 31-out-of-53 number given by a Texas state spoken completely ignores the distinction that Texas law itself draws, and I suspect in a way that many readers won't immediately recognize on their own.

Some people might of course fault FLDS for encouraging the marriage of 16- and 17-year-olds [CORRECTION: or sex by 17-year-olds in a relationship they view as marriage but that is not a legal marriage], even if the girls are consenting and the marriages are permitted under the law. I wouldn't wish such a marriage on a 16- or 17-year-old daughter of mine. But I don't see such marriages as a justification for Child Protective Services action, unless there's some evidence of force or serious coercion (and evidence of force should of course be relevant even for marriages of adults).

It therefore seems to me CPS's statements in this case (or, if this is the AP's fault, the AP's report of CPS's statements in this case) should have focused on data that reflects illegal conduct and not on data that may reflect perfectly legal behavior. And if CPS doesn't know exactly which category any particular teenager falls in, the statements should have at least made that uncertainty clear.

UPDATE: The original version of my opening paragraph was apparently a bit confusing to some commenters -- I wrote, "... I agree with David Bernstein that the raid seems vastly more intrusive than it needed to be, especially given the removal of small children as to whom (from all I've heard) there was seemingly no reason to fear imminent abuse. Such a raid is itself child abuse." The "such a raid" referred to the aspect of the raid mentioned in the previous sentence -- the removal of small children, with no reason to think that they were facing imminent danger; I've revised that sentence to make that extra clear.

ithaqua (mail):
"Such a raid is itself child abuse."

THIS.

"Child Protective Services spokesman Darrell Azar says 53 girls between the ages of 14 and 17 were living on the ranch in Eldorado. Of that group, 31 already have children or are pregnant...."

Yeah, I'd bet, oh, 30 of them were 16 or older when they became pregnant, and the other one was a shotgun marriage :)

"And if CPS doesn't know exactly which category any particular teenager falls in, the statements should have at least made that uncertainty clear."

But that wouldn't have helped to smear the entire FLDS as pedophile rapists. I mean, this is a liberal/feminist government organization that goes by the rule of thumb that children are better off removed from their fathers, and you expect them to be honest? Come on now :P
4.28.2008 10:19pm
jccamp:
"And if CPS doesn't know exactly which category any particular teenager falls in, the statements should have at least made that uncertainty clear."

Here's a direct quote from the AP story:

"Under Texas law, children under the age of 17 generally cannot consent to sex with an adult. A girl can get married with parental permission at 16, but none of these girls is believed to have a legal marriage under state law."

The Talking Points version omitted this part of the AP story.
4.28.2008 10:22pm
Bill Poser (mail) (www):
Your point is well taken. What I don't understand about this is that, if they wanted a way to get access to the compound and a justification for interviewing its inhabitants about what was going on, why didn't they focus on welfare fraud? According to accounts of the economies of the Arizona and Utah communities of the FLDS, many of the women register for welfare as single mothers. Of course, legally, most of them are, in the sense that they are not legally married to their husbands, but as I understand it to get welfare they have to state that their children's fathers are absent from their lives and not supporting them. In short, there seems to be good evidence for welfare fraud, and insofar it is organized by the leadership of the community, there is a conspiracy to commit welfare fraud.

Assuming that the Texas community functions in the same way, I would think that the authorities could easily have opened an investigation, much less traumatic for the children and requiring far fewer resources, into welfare fraud. The kind of information they needed for this investigation, such as how people are related and who lives with whom, would also be relevant to the child abuse issues.
4.28.2008 10:24pm
ithaqua (mail):
"Of course, many might have gotten pregnant at 14 or 15, or at 16 outside marriage and with an adult. And naturally if any of these pregnancies were the results of forced sex, that would clearly be a very serious crime."

As long as we understand that an arranged marriage is not inherently 'forced sex', and that statutory 'rape' is not a 'very serious crime'... oh, wait, that kinda eliminates the justification for the State of Texas to intervene, doesn't it? Can't have that :P
4.28.2008 10:29pm
Eugene Volokh (www):
jccamp: Actually, the version of the AP story that I linked to omitted that item, but now I've found a longer version; will update the post accordingly.
4.28.2008 10:29pm
jccamp:
OK, thanks. I was sure it was inadvertent.
4.28.2008 10:30pm
ithaqua (mail):
"as I understand it to get welfare they have to state that their children's fathers are absent from their lives and not supporting them."

So welfare pays single mothers to cut their children's fathers out of their lives. Talk about a moral hazard... But anyway, as long as the government foolishly enacts policies like this, I don't see anything wrong with FLDS women taking advantage of them. A polygamous man with eight wives and 21 children, for example, is hardly going to be "supporting them", or present in their lives, in the same way that a man with only one wife and three children is able to be. And at least they're not spending the welfare money on crack :)
4.28.2008 10:33pm
Philosopher:
I agree that the distinction you refer to is legally important. I also think that the process is fundamentally flawed, because there should be an individualized inquiry for each child. These large-scale "cattle call" hearings are an embarassment.

That said, I think calling the placement of a child into foster care "child abuse" is ridiculous. We put children into foster care in order to help them escape child abuse. Foster care is not itself child abuse, as a general rule.

Moreover, while I agree the statistic you cited misses an important legal distinction, that doesn't change my view that on balance the actions of CPS were justified.

First, while it turns out that the initial "tip" was a fraud, that was not known at the time. No one claims that CPS's initial search was improper. They got a warrant and presumably acted in good faith.

Second, the search and subsequent investigation revealed an environment where young girls were coerced into sexual relationships with much older men. I'm not a member of the Texas bar, but I presume that there are laws that permit the removal of all children in a "household" where there is a finding of abuse or neglect. While I agree that there should be an individualized inquiry for each child, until those inquiries are completed I think it may very well be prudent to remove the children from an environment that could place them in danger.

Whether that is consistent with Texas law -- which, no doubt, requires a knowledge of how Texas courts define "abuse" and "household" -- I'll leave to a Texas lawyer. But it doesn't strike me as problematic as a policy matter to remove the children temporarily as a prophylactic measure based upon a finding that the children are being raised in an environment that represents an imminent danger to 14-17 year old girls.
4.28.2008 10:35pm
ithaqua (mail):
"Under Texas law, children under the age of 17 generally cannot consent to sex with an adult. A girl can get married with parental permission at 16, but none of these girls is believed to have a legal marriage under state law."

Hm, well, strike my previous comment. Although since the FLDS' "spiritual marriages" were arranged by the parents, 'parental permission' can be assumed, I don't see any way that they can be legal marriages, which means a few FLDS men are going to get hit with statutory rape charges :(

Two points, though:

1) In a culture where women are expected to marry and start having children at puberty, as is historically the norm, 'statutory rape' is a ridiculous conceit. Marrying off your daughters to older men early is far more pro-family than, for example, leaving them to get knocked up by some teenage punk who pulls a disappearing act and leaves the girl as a single parent spiraling down into an abyss of drugs, sex and poverty...

2) If the FLDS men are found guilty and have to register as sex offenders, doesn't that automatically break up the compound, since sex offenders can't live or work within umpteen feet of a school/park/day care center? Just wondering :)
4.28.2008 10:43pm
ithaqua (mail):
"That said, I think calling the placement of a child into foster care "child abuse" is ridiculous. We put children into foster care in order to help them escape child abuse. Foster care is not itself child abuse, as a general rule. "

Really? I think taking children away from a loving family and putting them into an abusive foster care system - and make no mistake, the allegations against the Texas foster care system are far, far worse than the worst the FLDS has been accused of - is itself abusive, or, at the very list, aiding and abetting abuse. YMMV, though.
4.28.2008 10:46pm
JBurgess (mail) (www):
It's my understanding that TX law requires that before a 16-y/o can be married, not only must parent consent, but the court also. There's the further fact that for a marriage to be legal, it needs to be registered with the state of TX, i.e., no 'common law' marriages permitted.

If these are indeed the facts, then none of the 16-y/o can be considered to have been legally married. Thus, all will be viewed as victims of statutory rape, which is considered a serious crime when not of the 'Romeo &Juliet' kind.

Is there any rational way to argue that minors should be permitted to stay within close proximity of child rapists?

The state has no really good answers to the questions raised by cults or organizations that seem to be cults. If they move in, they're just modern Black Shirts or SS, trampling on people's rights.

If they wait until after the Kool-Aid is passed around, then they're disfunctional, heartless beasts.

Perhaps a valid argument can be made about process, that A has to happen before the state can undertake action B. The peril of waiting for B may be excessive however.

It seems as though TX decided they'd rather be hung as over-reacting than under-reacting. That's not an unreasonable choice.
4.28.2008 10:57pm
Philosopher:
"Really? I think taking children away from a loving family and putting them into an abusive foster care system - and make no mistake, the allegations against the Texas foster care system are far, far worse than the worst the FLDS has been accused of - is itself abusive, or, at the very list, aiding and abetting abuse. YMMV, though."

Whether the family is, in fact, loving and a positive environment is an open question. The removal is based upon a finding of imminent danger -- if we didn't believe that, there would be no reason to consider removal.

As for the Texas foster system, if it really is in such bad shape that it constitutes "child abuse", then that is a far bigger problem than anything we're discussing here. It would mean that there would be no remedy to abuse or neglect in Texas, because the only alternative would be more child abuse. I have the feeling -- or at least the hope -- that those allegations are overblown.
4.28.2008 11:02pm
jccamp:
We pretty much beat this discussion to death in an earlier thread, but there was one other part of the same AP story that i found interesting:

"Of those 463 children, 250 are girls and 213 are boys. Children 13 and younger are about evenly split - 197 girls and 196 boys - but there are only 17 boys aged 14 to 17 compared with the 53 girls in that age range."


Kids are split 50-50 by gender, until they reach 14, and then about 2/3's of the boys leave before age 17. Which seems to fit with the government's theory that older men control the process (and access to the young girls).

Based on everything written, conjectured and testified to so far, the judge in this case really had no choice but to act to remove the children until the issues could be litigated in more detail. Had she failed to act, and a number of the children possibly at hazard simply disappeared, what we be saying about Texas's responsibility to protect those unable to protect themselves.
4.28.2008 11:04pm
Jen:

But the 31-out-of-53 number given by a Texas state spoken completely ignores the distinction that Texas law itself draws, and I suspect in a way that many readers won't immediately recognize on their own.


Is there is some sort of evidence that a large percentage of the 31 teens who are pregnant or are already mothers only became pregnant after their 17th birthdays? Assuming that it is correct that none of the 16 year olds are in legal marriages, all of the 14, 15 and 16 year old mothers impregnated by adult men are presumably the victims of statutory rape. You can add to that any 17 year olds who became pregnant before their 17th birthdays as well.
4.28.2008 11:12pm
alan:
The Volokh Conspiracy: Supporting the right of middle aged men to sleep with high-schoolers since 2008.
4.28.2008 11:25pm
Tom Hanna (www):
It doesn't take much to have a "legally recognized marriage" in Texas:
# Three elements must be present to form a common law marriage in Texas.

First, you must have "agreed to be married."
Second, you must have "held yourselves out" as husband and wife. You must have represented to others that you were married to each other. As an example of this, you may have introduced you partner socially as "my husband," or you may have filed a joint income tax return.
Third, you must have lived together in this state as husband and wife.


And in the case of plural common law marriage (?), if there was a crime, it would be bigamy, not child abuse. Right?
4.28.2008 11:26pm
Foster Abuse:

As for the Texas foster system, if it really is in such bad shape that it constitutes "child abuse", then that is a far bigger problem than anything we're discussing here. It would mean that there would be no remedy to abuse or neglect in Texas, because the only alternative would be more child abuse. I have the feeling -- or at least the hope -- that those allegations are overblown.


I know several survivors of foster care systems in different states, including California and Lousiana (but not Texas). They all reported suffering years of severe abuse, including rape, and they had no hope of escape because the social workers didn't believe that white parents (the main source of demand for adopted children) should be permitted to adopt black or mixed race children (the disproportionate supply) because they could lose their cultural heritage. Prevented from having families, these children either aged out at 18 after years of mistreatment or ran away as soon as they could live on their own.

Hearing their accounts, and after further study, I've concluded that foster "care" is the exception rather than the rule, and not just in Texas. That shouldn't be surprising, as foster care was invented as a government takeover of the mostly private orphanage system that previously existed. The takeover was "for the children" to protect them from media-hyped stories of private abuse. Sound familiar?
4.28.2008 11:35pm
Eugene Volokh (www):
JBurgess: Under Texas law, "[i]f an applicant is 16 years of age or older but under 18 years of age, the county clerk shall issue the license if parental consent is given as provided by this section." So no judicial discretion is involved.

Philosopher: Taking an infant or a toddler away from his parents, with no reason to think that the infant or toddler is in imminent danger of harm, is indeed child abuse -- the foster family may be perfectly wonderful, but they're not the small child's family, and the child will understandably be immensely distressed by this. If there was a threat of harm to the infants and toddlers, that would be a different story, but I've seen nothing that suggests such a threat of harm.

Alan: My point in this post was that Texas law supports the right of anyone to sleep with a 17-year-old (and the 17-year-old to sleep with anyone), and that Texas officials' statistics in cases such as this one should reflect the lines that Texas law itself draws.

If you think 18-year-olds should have the right to sleep with middle-aged men (and vice versa), but 17-year-olds shouldn't, you should by all means feel free to comment about it. But the threads on that subjects are attached to other recent posts; I don't see that issue as relevant to this particular post.
4.28.2008 11:43pm
Duncan Frissell (mail):
The LDS non-conformists have been around for more than 100 years without mass suicides.

I know that persons in state custody have a higher death rate than persons not in state custody. I don't know what the death rate is in these religious communities. Probably not too high

The last major raid was in the early 1950s in the Arizona Strip. That means that for most of the time they existed these communities were left alone.

I'm assuming that the NYC police will not be raiding the Islamic Harems recently discovered here. Why the difference? Likewise, Barak Hussain Oboma Sr.'s polygamy. No problem.

Only LDS types are busted.

Meanwhile fornication, adultery, sodomy, lewd cohabitation, and lacivious carriage were (implicidly or explicidly) OK'd by the Supremes in Lawrence. Why did they forget polygamy?

I thought that virtually all the Conspiricy readers favored the right to have sex with as many persons as one could stupp in a day, a week, or a month. Why is family formation with as many people as you could fit in a house, worse?

I guess the Indian Community with its numerous arrainged marriages better watch out too.
4.28.2008 11:46pm
Harry Eagar (mail):
Professor, why do you keep focusing on age? The issue is consent.

There would be serious questions whether these couplings were consensual even if the brides were 40.
4.28.2008 11:49pm
MarkO:
This is a clear and outrageous violation of civil liberties based on flimsy evidence and religious intolerance. I only wish I had the time and opportunity to file the Federal action against these bigots who have shown no respect for the law they wish to enforce. The FLDS are not an insular minority, but even the distasteful ( oh, say murders, rapists, terrorists) have civil rights. There are purported lawyers on this blog who should be ashamed of their positions.
4.28.2008 11:53pm
Philosopher:
EV: I'm not suggesting that removing infants and toddlers is warranted. That is obviously overbroad and unnecessary in the short-term, because the threat is to 14-17 year old girls.

However you and your co-blogger paint with too broad a brush. I don't think that removing 14-17 year old girls and putting them in foster care is "child abuse." Frankly, despite your retort, I'm not even sure if putting a 3 or 5 year old in foster care is "child abuse." It's not warranted here, but that doesn't mean it's "abuse." Traumatic, sure -- but I think abuse requires something akin to maltreatment by the foster parents. Is moving a child to a new school in a new town "abuse" just because it's traumatic?
4.29.2008 12:03am
Sean O'Hara (mail) (www):

The Volokh Conspiracy: Supporting the right of middle aged men to sleep with high-schoolers since 2008.


The conspirators support the rights of all sorts of people to engage in all sorts of deviated preversions. The only thing that makes this one unique is that historically it's been accepted as normal behavior.
4.29.2008 12:10am
BBB (mail):
I want to know the answer to the question an above poster alluded to: why is polygamy not legal under Lawrence? I think this would be a very interesting topic to discuss in a separate post. Also, if polygamy were to be ruled a substantive due process right, could these "spiritual marriages" somehow be deemed legal common law marriages after the fact. This is the only way that I can think of that the polygamy issue emerges in this child custody case.
4.29.2008 12:11am
Lake (mail):
Keep in mind the possibility that most of those women may be victims of marital rape, in addition to statutory rape.
4.29.2008 12:22am
Ben P (mail):

I want to know the answer to the question an above poster alluded to: why is polygamy not legal under Lawrence? I think this would be a very interesting topic to discuss in a separate post. Also, if polygamy were to be ruled a substantive due process right, could these "spiritual marriages" somehow be deemed legal common law marriages after the fact. This is the only way that I can think of that the polygamy issue emerges in this child custody case.


I have a feeling my old constitutional law professor would have responded "that's a good question."

I'm sure others can answer it better than I can, but as a starting point there is a Supreme Court decision directly discussing polygamy. Albiet, it's from 1878 and it is a case about Freedom of Religion not substantive due process like Lawrence.

But in that case the Supreme Court held that the Free Exercise clause protects Religious Belief but not Religious actions, and noted that Polyamy was a crime under English law and analogized polygamy to Human Sacrifice to justify it's prohibition.
4.29.2008 12:32am
Chairm (mail):
Philospher, removing a child (of whatever age) without strong reasons (rather than just speculative framing) is abusive of that removed child. Period.

The state has a high hurdle to clear in taking such drastic steps leading to foster care (whatever its level of quality).

This police action has become a fishing expedition, now, and authorities will be tempted to make too much of too little actual evidence of "imminent danger". This could be a disaster if the heavy-handedness is left unjustified at the end of what will probably be a process lasting years longer that it should. There will be much CYA-ing throughout.

There is evidence, based on pre-raid investigations, of children (and young women i.e. "brides") being treated like human chattel, as slaves. The compound was run by a quasi-government in the sense of passing children from one household to another and in assigning "brides" to polygamists. This was done with enforcement of various kinds that can be classified as coercive.

This was hidden in plain sight. Yet authorities did not act until a bogus accusation was made via the phone call of a hoaxer. This will likely undermine the action -- even if evidence of criminal behavior is dug-up in the wak of the sweep.

We wouldn't tolerate state authorities grabbing kids from a neighborhood in the typical American town, would we? Even if such an action led to the discovery of crimes in some households. Nor would we tolerate such an action based on, say, membership in this or that religious denomination, would we?

I'd add that this story will inevitably demonstrate how polygamy is an inferior form of marriage due to its tendnency to increasingly segregate the sexes and to undermine responsible procreation (which includes caring and educating children). Polygamy also tends toward insularity and with that a deterioration in the practice of self-government. This deterioration occurs both within the polygamous group (if, as in this case, it exists in its own seperatist compoud) and outside in the wider society.

On that last point, a good example is the state's over-zealous response to a hoax phone call.
4.29.2008 12:38am
Oren:
I thought that virtually all the Conspiricy readers favored the right to have sex with as many persons as one could stupp in a day, a week, or a month.
Indeed, so long as consent is freely granted. It might be possible that, in the totality of circumstances, many of these girls were coerced (statutory issues of consent entirely aside)into sexual relations by a combination of pressure from their family, the implied right of a 'husband' to control his wife, and the threat of expulsion. I'm not saying that it happened, or that it happened to everyone, but to completely discount the possibility is illogical under the circumstances. Consider Carolyn Jessop's experiences as, perhaps not damning, but at least making plausible the current allegations.

I guess the Indian Community with its numerous arrainged marriages better watch out too.
I knew a few girls in high school that were effectively disowned for refusing to go along with that decrepit tradition. Another one flew to India for a "cousin's wedding" and has never returned. Arranged marriages are everywhere and always an affront to basic human dignity.
4.29.2008 12:42am
jccamp:
Actually, all other disagreements aside, EV does make a point in his final paragraph. Why not just make the numbers released indicative of crimes committed, instead of including young girls who pregnancy may not be the result of crimes. If they had problem with, say, differentiating by exact dates of birth/pregnancy term, maybe they could have said so. Too bad no reporter asked the right question. Maybe there was an unstated rationale. But maybe not.

This does not change my personal opinion that this entire lifestyle of old men controlling the young girls of a community for sexual abuse totally creeps me out. I think the Texas authorities acted with alacrity in an abundance of caution to protect children at risk.
4.29.2008 12:47am
Oren:
Chairm, so what if the phone call was the trigger? If crimes were being committed (and you seem to think they were) then I applaud the decision to bring the perpetrators to justice. The fact that Texas tolerated the crimes for so long is a terribly poor excuse.

And if there were such clear evidence ("plain sight") that crimes of this magnitude were taking place in any other town and in any religious organization I would be of the same mind.
4.29.2008 12:51am
mlstx (mail):

they had no hope of escape because the social workers didn't believe that white parents (the main source of demand for adopted children) should be permitted to adopt black or mixed race children (the disproportionate supply) because they could lose their cultural heritage.


Lots of bad things can be said about foster care, but this is a bit dated -- in 1997, a federal statute was passed to deal with this issue. Now, no adoption can be delayed or prohibited because of race.
4.29.2008 12:54am
Barry P. (mail):
Groups like this are about (and only about) old and powerful men getting a tight new piece of jailbait ass every few years.

However, it seems like the right of 60-year-old men to get themselves a new 14-year-old girl to screw every few years is pretty strongly supported by a lot of readers here. I guess the old adage "if they're old enough to bleed, they're old enough to breed" never went out of style with a disturbingly large portion of the legal community, if the VC commentariat is any indication.
4.29.2008 1:03am
Dave Hardy (mail) (www):
"It doesn't take much to have a "legally recognized marriage" in Texas: "

I researched this a while back and seem to recollect that TX abolished common law marriage around ten years ago.
4.29.2008 1:11am
Blue (mail):
And here I was thinking that this would spell the end of VC's support of this cult.

The "17-is-legal" arguement is a particualy thin reed when one considers that a number of them were impregnated before turning 17.

And as far as the drastic decrease in teenage boys (to preserve tha ability of the old guys to get young girls) that is a clear case of child abuse.

Texas did the right thing--get these kids out of the hands of the cult and let the legal system sort it out later.
4.29.2008 1:19am
Dave Hardy (mail) (www):
This could be an interesting law review topic. Esp. considering that TX, like many other states, allows a 60 year old to bang a 16 yo, provided they get married first, and makes it a felony otherwise. Oh, and ask parental consent and survive the process. A trial by ordeal that will prepare the groom for marriage.

Article from the originalist side would note that while Thomas Jefferson apparently banged the underaged Sally Hemmings like a screen door in a hurricane, he did NOT include such a right in his draft of the VA bill of rights.

Article from the other side might have a provocative title using $10 words. Perhaps "Deconstructing The Right of Older Guys to Bang Teenagers: a Remnant of Patriarchialism, or of Phallocentric Jurisprudence?"

The author should do anything to get it included in the Laidlaw.com database...
4.29.2008 1:37am
JB:
How do we know the phone call was a hoax? What if the person who made the call is too terrified of retribution to come forward? Or worse--was caught by the church leaders?
4.29.2008 1:44am
David Friedman (mail) (www):
I think you are missing the elephant in the room--evidence of good spin control by the Texas authorities. According to the Time magazine version, and I think the original (but now revised) CNN version, while they claim 31 girls 14-17 are pregnant or mothers, only two are actually pregnant!

A lot of the justification for the treatment of the FLDS is the claim that they routinely marry off girls when they reach puberty and then have them bear lots of children. It's hard to see how that can be true if, out of 53 girls 14-17, only two are pregnant. It's also hard to see how, at that rate, they could have produced the 29+ children that the authorities claim they did (31 women pregnant or mothers, of whom only two are pregnant).

It also appears that the CPS is reporting age based on physical appearance and refusing to accept birth certificates or other documentation. For links to a good deal of this see my blog:

http://daviddfriedman.blogspot.com/
4.29.2008 1:59am
UCLAW 07 (mail):
There is absolutely no comparison between the "abuse" of being taken away from your parents for a few days or months compared to a life time of misery in a cult that you cannot leave because you are unequipped to do so.

I grew up in an equally strange cult (before working in biglaw—and this is probably the first thing I've disagreed with you on) as and not a day went by where I didn't secretly hope that authorities would care enough to raid our compound—despite phsyically being able to left our compunds, I never left on my own because I had no idea how to survive outside.

I should also point out, that a far as parental rights, in a cult like this, parents have far less authority and responsibility over their kids than you imagine. The leaders and the "collective" are responsible for training the children. For example, most parents that questioned a leader administering corporal punishment to another minor or dating their daughter were told they had spiritual problems.

You also can't figure out in these circumstances the truth in an hour interview in these circumstances. Almost no kid in that situation will tell authorities who they've been told to fear that they were abused or don't want to live under the repressive regime. In the case of all my friends that have left, it takes months away from that environment before most will truthfully be able to state what abuses were perpetrated on them, and what they wish to do going forward.
4.29.2008 2:10am
Dave Hardy (mail) (www):
"How do we know the phone call was a hoax? What if the person who made the call is too terrified of retribution to come forward? Or worse--was caught by the church leaders?"

Actually, that much is pretty clear. I don't have time to find the link, but they traced the call and the caller turns out to have been someone in another state with a history of false reports to police (and a conviction, which normally only occurs when police are tired of someone annoying them with red herrings). Not that this affects the probable cause equation much, but apparently the Texas Rangers were much annoyed at what happened.

That in turn is a valid point. Unlike Waco, the matter was handled by local folks, and not as a publicity stunt. We can debate about kids being in CPS, but at least they're alive to debate about, nobody got shot, and the Rangers are pursuing, through out of state authorities, the false report that started the matter, rather than launching the cover-up mode.
4.29.2008 2:12am
Old Man River:
This is likely going to go down as a black mark on this community. There have been moments where the group has seemed out of touch, but as more details arise, this is just going to look atrocious. EV, you may be one of the smartest people I know, but you are going to have egg on your face for this one.

Paul Robeson is said to have been so depressed when he learned of the extent of Stalin's crimes that he eventually tried to kill himself. Eugene, you may never have Robeson's singing voice, but when you learn more about the internals of FLDS, you're going to wonder why you ever supported them. It's a good thing there's no accountability in the blogosphere.
4.29.2008 2:15am
Doc Rampage (mail) (www):
The state has a strong reason to remove all the children even though there is no allegation that the ones under fourteen are in any danger. You put them through a few hours of absolute terror as you rip them from their families and bus them out of the community where they spent their entire lives. Then a couple of weeks of gnawing fear and uncertainty as they are imprisoned by strangers of unknown motives in alien conditions, with alien customs and aren't allowed to see their parents except for brief visits where the parents can't even tell them what is going to happen. They see the continued powerlessness of their parents against the overwhelming power of the state and come to realize that their entire future welfare depends on the goodwill of a group that they don't know or understand. When someone comes to them with all the power of that overwhelming state and is nice to them and asks them leading questions, they will do anything they can to please the person asking the question, including fishing around until they come up with answers that the questioner seems to like. The questioners will start to encourage more and more damning lies about their parents, but the children, not understanding the consequences of their lies, understanding only that the lies make the representative of the overpowering state happy, will continue to give them. After several weeks of this, the children will start to believe their own stories. Then the State will have the justification it needs for the horror it committed against the children in the first place.

Oh, and the parents will spend the next ten or twenty years in prison. Small price to pay to cover up a grotesque overreaction to a crank call.
4.29.2008 2:16am
David Friedman (mail) (www):
JB asks how we know the phone call was a hoax.

The London Times had the story about a week ago; the U.S. major media have downplayed it, but at this point you can find it on the CNN site if you look hard. The day after the Texas call, and several days before that call was made public, an anti-polygamy activist in (I think) Colorado received a call from someone who claimed to be an FLDS teen with the same name given in the Texas call. That call was eventually traced to a 33 year old Colorado woman with a history of bogus phone calls and one past arrest. I gather from later stories that one of the Texas calls was later traced to a phone she had used for calls.

Even before that, the fact that the husband "Sara" named hadn't been in Texas for decades and the inability of the CPS people to identify her even with all of the children in their control might have been hints.
4.29.2008 2:31am
Vermando (mail) (www):
If we are looking to get a scale of the abuse there, isn't the number they give a pretty good proxy? Pregnant or already with a baby by 17 usually means sex at 16 or under. I know that it catches some people who only had sex once they were 17, but on a high level this would seem to be made up for by the number of current adults who were previously the victim of statutory rape, e.g., the 3 year olds by 18 year old mothers. So, if we are looking for a proxy to get a sense of the abuse, until the state releases full birthdays and parent lineage on every one of them, this number seems like a good place to start.

That assumes, of course, no bad faith by the person compiling the number, by their either deliberately lumping in the 17 year olds because they falsely inflate the ratio or their just reporting false data.

All of the speculation above is really helpful, by the way. Had no idea that so many corporate lawyers and litigators were experts in child psychology and Texas family law. This is not everyone, but the conviction of some of those posters - sheesh, it's possible that we don't / ever will know everything you know.
4.29.2008 2:34am
Laura S.:
David Friedman hits an important point:

It also appears that the CPS is reporting age based on physical appearance and refusing to accept birth certificates or other documentation. For links to a good deal of this see my blog:


This situation is like a reverse "I didn't know she was underage". Except it is CPS claiming the girls look young--after dismissing the birth-certificates provided as potentially forged but lacking any evidence to support that theory.

Agency officials... have in some cases disputed documentation provided, saying the girls look younger than 18.

This situation really seems like government covering it's ass after a very high-profile prejudiced, aggressive raid based faulty evidence...
4.29.2008 2:47am
David Friedman (mail) (www):
I just realized that I made a mistake in my calculations. If at any one time two women 14-17 are pregnant, then over four years about 10 children will have been produced by women who were in that age range when they produced them. But at the end of the four years, half of those women will be 18 or older. So if you count children produced by women currently 14-17, there will be about five.

The Texas authorities claim there are at least 29.
4.29.2008 3:11am
microtherion (mail):

On that last point, a good example is the state's over-zealous response to a hoax phone call.


The search warrant was not just based on those phone calls, but also on statements given face to face by a number of people, including a long term confidential informant who was a former FLDS member.
4.29.2008 3:32am
Frater Plotter:
This reminds me of those panicky statistics that say things like, "Such-and-such percent of kids between the ages of 16 and 20 have smoked a cigarette today."

What's wrong with that claim?

Well, usually, people over the age of majority are not considered "kids", so it's infantilizing to begin with. (As in this case, where young adults are being grouped with children in the media.)

Secondly, the statistic groups legal behavior together with illegal behavior. 18 is the legal age for smoking, so grouping 16- and 17-year-old "underage" teenagers with 18-to-20-year-old legal adults is muddling the legal issue. (As in this case, marriages and sex acts which are legal in Texas are being muddled with ones that are not.)
4.29.2008 3:46am
Nathan_M (mail):
I'm stunned. What standard of proof do you expect the state to have before it moves to protect children from what, if the allegations are true, is absolutely horrific sexual abuse?

It's obviously too early to conclude all the allegations are true, but there is a definite prima facie case. The claims are certainly plausible.

There are are some potential holes in the state's case, but isn't that to be expected in the early stages of an investigation of an (allegedly) secretive cult? I'm just absolutely stunned that anyone would call it child abuse to take children out of the custody of people the state has probable grounds to believe are rapists.
4.29.2008 4:05am
Pliny:
A few things to point out here that I think might have been mised.

1.) According to media reports (as reliable as they may or may not be) The children at the YFZ compound have been... inconsistent about their ages and parentage. Even if Texas wanted to be more selective in which children they removed, how were they supposed to know which ones belong to which parent?

2.) Reports from former FLDS sources indicate that some of the children at the ranch were "reassigned" from other families / communities. Until the DNA is in, it's an open question as to if some of the children even had legally recognisable parents or guardians at the ranch.

3.) The Arizona/Utah and Bountiful, BC FLDS enclaves have a documented history of moving people back and forth in the face of scrutiny. Anything short of the blanket removal Texas did would likely have resulted in some of the remaing children disappearing.
4.29.2008 4:09am
David M. Nieporent (www):
First, while it turns out that the initial "tip" was a fraud, that was not known at the time. No one claims that CPS's initial search was improper. They got a warrant and presumably acted in good faith.
It is bad faith to act on a completely anonymous tip without any investigation to determine whether the tip had any validity.
4.29.2008 5:39am
Normie:
"if polygamy were to be ruled a substantive due process right, could these "spiritual marriages" somehow be deemed legal common law marriages after the fact. This is the only way that I can think of that the polygamy issue emerges in this child custody case."

There was a law review article about this a few years ago. Tom Green (IIRC) was arrested and convicted of bigamy in Utah. At the time of his initial arrest, he had married and divorced a number of women and was married to no one. (He also was convicted of sex with a minor, which seemed to stoke the prosecutor's zeal in aggressively pursuing other charges.) After his initial arrest, the state district court ruled that he was common law married to one woman (with whom he'd had a "spiritual marriage" but had specifically acted to avoid being "legally" married in the process), at the prosecutor's request.

Later, when after several months he continued co-habitating with multiple women, including his recently-declared-wife, the state brought cohabitation (read: bigamy statute) charges and he was convicted of "cohabiting" with another woman while married. The conviction was upheld on appeal.

While I am no fan of despicable older guys trying to have sex with underage girls (under color of marriage or not), I think that the declaring someone common law married to get a bigamy conviction poses serious due process and civil liberty problems.
4.29.2008 6:37am
Gaius Marius:
How do we know the phone call was a hoax? What if the person who made the call is too terrified of retribution to come forward? Or worse--was caught by the church leaders?

JB, the Rocky Mountain News reported last week that Rozita Swinton made the phone call and she has a history of making false accusations to law enforcement of sexual abuse against various other denominations. Not surprisingly, Ms. Swinton also happens to be a delegate for Barack Hussein Mohamad Obama to the Democratic National Convention.
4.29.2008 7:46am
ithaqua (mail):
"I'm assuming that the NYC police will not be raiding the Islamic Harems recently discovered here. Why the difference? Likewise, Barak Hussain Oboma Sr.'s polygamy. No problem. "

To be fair, Barack Hussein Obama Sr. is dead.

"This situation is like a reverse "I didn't know she was underage". Except it is CPS claiming the girls look young--after dismissing the birth-certificates provided as potentially forged but lacking any evidence to support that theory. "

Never let the facts get in the way of a good prosecution, right, Nifong?

"There is absolutely no comparison between the "abuse" of being taken away from your parents for a few days or months compared to a life time of misery in a cult that you cannot leave because you are unequipped to do so."

If a child is 'leaving the cult' via government intervention, he or she isn't being separated from his family for 'a few days or months', but forever. And, on a general note, the people who leave a cult lifestyle are likely to be the people most dissatisfied with that lifestyle and the most likely to be biased against it (and other cults). I discount, for that reason, the horror stories being pushed by ex-FLDS members bearing grudges.

"The Volokh Conspiracy: Supporting the right of middle aged men to sleep with high-schoolers since 2008. "

It's not about age; it's about keeping families together.
4.29.2008 8:01am
Brad Ford (mail):
Under Texas law, a legal marriage prevents the prosecution of a spouse under age-based statutory rape provisions for sexual activities DURING the marriage. The spouse, however, can be prosecuted for statutory rape for sex prior to a legal marriage.

Generally, Texas has extremely liberal rules allowing for the creation of legal marraiges through common law. If the women were of age, agree to be married, hold themselves out as married, and cohabitate (even for a single night) with the spouse, the marriage would be legal with a few exceptions:
1. Both parties must be unmarried at the time of the common law marriage; and
2. Both parties must be over 18.

From what I have read, it appears the members believed the marriages involving young women were “legal,” but I seriously doubt they complied with all the requirements of a legal marriage.

Therefore, the men involve can (and should) be prosecuted for statutory rape. Furthermore, the adults in the group could be prosecuted for aiding and abetting and/or conspiracy.
4.29.2008 8:50am
Philosopher:
Philospher, removing a child (of whatever age) without strong reasons (rather than just speculative framing) is abusive of that removed child. Period.


That's an assertion, not an argument. Removing the child "without strong reasons" may be unwarranted, but what makes it abusive? The definition of abuse I linked in my last post suggests that something akin to maltreatment is needed for an action to be abusive. I have no problem with the argument that CPS is wrong or overreaching -- that's one thing -- but saying that putting a child into foster care for a temporary period is "child abuse" is a pretty aggressive claim, to put it mildly.


The state has a high hurdle to clear in taking such drastic steps leading to foster care (whatever its level of quality).


Once again, that doesn't go to the question of whether foster care = child abuse. I think that the hurdle should be lower for a temporary period -- just as the hurdle to detain someone pretrial is much lower than the hurdle to imprison someone for an extended period -- but reasonable minds can disagree on that point. I don't think reasonable minds can disagree on the point that foster care is not child abuse, as the term is commonly understood, without additional facts/claims about the state of the foster care system.
4.29.2008 8:51am
Prufrock765 (mail):
I operate under two rather serious burdens when it comes to commenting to people like ithaqua:
I am a CPS attorney (we call it DCS here, but it's the same thing), so I know all the law and process at least in my jurisdiction;
also, I have never seen a black helicopter hovering over my home or office.

Maybe someone from Texas who reads this blog can favor us with a precis of the law governing the agency in question.
I am pretty sure that that will tell us a couple things--first, the agency is not required to wait until a crime has been committed or has been alleged, to begin an investigation--or even to detain a child;
second, that having been said, there is a relatively high barrier to meet before a child can be held in protective custody for more than a little while (here, it's 2 days)
Placement in foster care is indeed almost always traumatic, but the instances in which the foster care home is objectively worse than the bio-parents home are few.
Not that horror stories do not happen, but the blanket universal condemnation is based on anecdotal ignorance.

Also, please bear in mind that an agency like this CPS is much more likely to get major heat from the press and the blogs for FAILING to intervene than for intervening too zealously.

Lastly, as someone pointed out in a comment to a previous post--this is a nightmare scenario for any CPS office.
4.29.2008 8:58am
freelunch (mail):
It is bad faith to act on a completely anonymous tip without any investigation to determine whether the tip had any validity.

Which is why Texas did not do that. They had an ongoing investigation.

Yes, all foster care systems have problems, but that doesn't mean that they are worse than a place that systematically rapes girl children and kicks boy children out of the community without preparing them for it. The FLDS demonstrated that it treats its children in an evil manner and the State of Texas followed both the law and good sense. If there are any complaints, it is about the delay in dealing with this cancer.

I'm baffled about the welfare program argument. Did Texas not reform its program when the rest of the country had to? Does Texas really subsidize child rape?
4.29.2008 9:24am
freelunch (mail):

It's not about age; it's about keeping families together.


Sadly, the victims of domestic abuse often agree with you. They are unwilling to do anything to stop the beatings, murders, exiles and rapes because they fear a future without the criminal abuser who controls their family.

When someone decides that one particular value, in this case 'keeping families together', trumps all other values, they have set the stage for horrific crimes. This is a perfect example of such crimes. Even if polygamy had been made legal in Texas a century ago, these children deserved to be freed from the oppressive ciminality of this compound. Parents don't have the right to sell their children as sex slaves. Ever.
4.29.2008 9:33am
Anon!:
It's threads like this that make me wonder why I read this blog. I keep forgeting about our own home-grown wackos that largely went into hiding after 9/11. Just for a quick show of hands, how many people here are still upset about the branch davidians and ruby ridge, and think Tim McVeigh did the right thing?

By the way Eugene, it is really beginning to look like you want to have sex with underage girls.
4.29.2008 9:58am
Eugene Volokh (www):
Philosopher: Sorry, I was unclear -- when I said "such a raid is itself child abuse," I was referring to what I condemned in the preceding sentence, which is removal of the small children. I've revised the post to clarify this.

Harry Eagar: I'm focusing on age because the statistic I'm responding to focuses on age. If they had said "31 of the 53 teenage girls reported being forced into marriage," I would have thought this is extremely relevant information, and wouldn't have faulted the failure to give a more specific age breakdown.

Old Man River: As I noted in the opening paragraph, it sounds to me like many of the FLDS people may well have committed crimes, and deserve to be punished. I'm all for that. But that doesn't justify taking infants and toddlers away from them before any finding of criminal guilt, and without reason to believe that the infants and toddlers are at imminent risk. Nor does it justify mushing together data on criminal activity with data on legal activity.

Nathan_M: Before the state removes an infant or a toddler from a parent, I'd like to see some reason to think that the infant or toddler is in imminent danger (i.e., that the state can't wait until actual adjudication of whether the parent is guilty of something). Reason to think that some or even many in the community abuse 14-year-old-girls isn't sufficient reason, I think, to remove a 6-month-old boy from his mother before any adjudication of whether the mother is actually guilty of something.
4.29.2008 10:05am
Frog Leg (mail):
This post is based on an odd cross section of the reported data. Last week, Texas CPS reported that there were at least 20 girls who became pregnant when they were 16 or younger. That is the real news.
4.29.2008 10:12am
freelunch (mail):
At what age would you automatically take children out of this compound then? Both girls and boys are abused in early adolescence, either by rape or by being kicked out, unprepared. Why should they have to spend one day in the clutches of parents who have no regard for them?
4.29.2008 10:17am
Aultimer:

Foster Abuse:

I know several survivors of foster care systems in different states, including California and Lousiana (but not Texas). They all reported suffering years of severe abuse [...]


I have contrary anecdotal evidence. My neighbors have fostered more than a handful of children (of various and mixed races) over many years. Several were adopted into their family, and all had a stay-at-home parent or, once old enough, were sent to a fine private school. None have complained of abuse.
4.29.2008 10:18am
PLR:
Is there any literature out there on the development, financing and operation of teen girl breeding farms? I tried to do a Google search, but the results didn't yield any useful information.
4.29.2008 10:24am
c.gray (mail):
I'm all for that. But that doesn't justify taking infants and toddlers away from them before any finding of criminal guilt, and without reason to believe that the infants and toddlers are at imminent risk.


Maybe not. But the law is otherwise in just about every jurisdiction of the USA.

A finding of criminal guilt is never necessary to deprive a parent of custody temporarily. And probable cause that one child has been abused is usually enough to justify removal of _all_ children from a home, at least temporarily. The only thing extraordinary about this case is the sheer number of children involved.

The problem the FLDS faces is that actually fighting back in court to regain custody of these children will allow the state to investigate facts the cult leadership would probably prefer remain hidden, both from the public and the State of Texas. These facts include the exact parentage of each child, the exact age of each child, and the exact age of each child's mother at the time of birth. The FLDS members have been extremely reticent about sharing any of this information, unlike ordinary parents faced with losing custody.
4.29.2008 10:30am
Frog Leg (mail):
c.gray, these are some very good points. And the postings here on the FLDS exhibit a common ignorance in academic circles of family law, which has many of its own particular rules which have no direct connection to any other area of law.

In fact, this ignorance of family law is a good example of the irrelevance of academic research. For many people, family law touches their lives much more strongly than any other area of law; yet in academic circles family law is at or near the bottom of the pecking order.
4.29.2008 10:37am
Seamus (mail):
Is there is some sort of evidence that a large percentage of the 31 teens who are pregnant or are already mothers only became pregnant after their 17th birthdays?

I find the very fact that the authorities are citing figures about people aged 14-17, when the legally relevant ages are 14-16, is itself enough to make me suspect that a substantial number of the pregnancies were among 17-year-olds, whose statistics had to be thrown into the mix in order to yield a sufficiently shocking percentage. It's the same game played by the gun controllers when they cite the large number of "children" killed by guns, only it turns out that they're talking about people up to age 19 or 20, or by the anti-smoking propagandists that Frater Plotter cited above.
4.29.2008 10:56am
john w. (mail):
I hope I'm not hijacking the thread, but since y'all are talking about Child Protective Services,and how wonderfully competent they are; you might be interested in this story from Michigan:

http://www.wzzm13.com/news/news_article.aspx?storyid=91319

(SNIP)
If you watch much television, you've probably heard of a product called Mike's Hard Lemonade.

And if you ask Christopher Ratte and his wife how they lost custody of their 7-year-old son, the short version is that nobody in the Ratte family watches much television.

The way police and child protection workers figure it, Ratte should have known that what a Comerica Park vendor handed over when Ratte ordered a lemonade for his boy three Saturdays ago contained alcohol, and Ratte's ignorance justified placing young Leo in foster care until his dad got up to speed on the commercial beverage industry.

(SNIP)
But it would be two days before the state of Michigan allowed Ratte's wife, U-M architecture professor Claire Zimmerman, to take their son home, and nearly a week before Ratte was permitted to move back into his own house.
(SNIP)

But at least, the little boy didn't get raped or sodomized or anything while he was in foster care, so I guess there's nothing to complain about, right?

Welcome to America, the Land of the Free!
4.29.2008 11:19am
Prufrock765 (mail):
Seamus and others are missing the point.
You, again, are concentrating on whether a crime has been committed--this is not the relevant question.
The reason the stats include 17yo's is, quite simply, that 17yo's are minors. Every child under 18 falls under the aegis of the CPS mandate.
That a 17yo has given birth is by itself, of course, not evidence that her parents are deficient in any way.
But in the context of the investigation--especially THIS investigation--a 17yo mother will cause the investigator to inquire further, and is a useful piece of information.
4.29.2008 11:19am
Prufrock765 (mail):
john w:
I am not sure what your complaint is.
Dad and his son are at a Tigers game. Dad sees the vendor. He says, "Give me one". Everyone sees Dad hand the alcoholic drink to his son.
What would you expect the investigator to do?
The idea that CPS should have assumed that a sophisticated person does not know what Mike's Hard Lemonade is is certainly not obvious.
If he didn't know what it was, then why did he give it to his son without looking at the bottle?
The son was detained for the weekend and then returned.
The case went away in a few days when the investigation yielded no reason for further involvement.

Assuming this is Wayne County, Michigan--a huge jurisdiction---that is pretty good outcome. Unless you are requiring investigators to be clairvoyant.
4.29.2008 11:31am
Blue (mail):
Ahem. A 17-year old who has given birth has only a 3/12 chance of being impregnanted while of legal age.

THAT is why they are included in the count.
4.29.2008 11:44am
darelf:
Prufrock765:
If someone attempted to detain my son for a similar ignorance on my part, I am afraid that violence would have ensued. ( And to forestall, the answer is yes, I would be willing to risk my own life as well as that of the rest of family in defense of any one of us )

To the issue at hand, I have no problem with the way they acted. They had reason to believe ( and apparently evidence that ) serious sexual abuse was being committed. This is sufficient, in and of itself, to raise suspicion that such abuse was likely among all the children regardless of age.
4.29.2008 12:09pm
Blades (mail):
The original search warrant was supported by 2 pieces of information. The original outcry witness and the statement by the sheriff that he had supporting evidence from an confidential informant.

From the affidavit supporting the warrant request
"On April 6, 2008, Sheriff Doran advised Affiant that over the past four years, Sheriff Doran has worked with a confidential informant who is a former member of the FLDS; that the confidential informant has provided Sheriff Doran with information regarding the FLDS on more than twenty occasions over the past several years and that on each occasion, the information was proven to be reliable, true and correct; that the confidential informant has continued to provide Sheriff Doran reliable information as recently as April 5, 2008...".

Reading this, it looks like it was written to be allowed to mislead. What is missing is that whether the informant (as a former member of FDLS) was a member in the last 4 years, was a member of the Texas branch, had ever lived in Texas or has any first hand knowledge about the compound at all.

A newpaper article says

An April 1, 2004 article by The Eldorado Success concerning a press conference held in Eldorado by Flora Jessop, a former member of the FLDS and outspoken critic of the church, has the following quote attributed to Sheriff Doran:

"Flora has provided us with a lot of information and I find her to be very credible," Doran said. "However, at this time we have no firm evidence of any wrongdoing associated with the ranch.
If and when we have evidence that a law has been broken out there, we won't hesitate to act."

This sounds like who the informant is. (but is not certain). Note the dates, the raid was in Apr 2008, the compound is 4 years old. That puts it near Apr 2004 and in Apr 2004, this informant (former member even in 2004) provided info to the sheriff. It sounds like this informant has not had any first hand information about life in the compound, for the last 4 years. It sounds like the sheriff’s informant information is based only on info derived from out of state conditions and is 4+ years out of date, and provides no information about how the compound is run since the Texas marriage law changed in 2005.
4.29.2008 12:18pm
Seamus (mail):
What would you expect the investigator to do?

Oh, I don't know, give the father a talking-to about how he needs to pay more attention to what he gives his son, then consider the matter closed.

Oh, wait, that would involve the exercise of common sense. Never mind. I don't know what came over me.

They had reason to believe ( and apparently evidence that ) serious sexual abuse was being committed. This is sufficient, in and of itself, to raise suspicion that such abuse was likely among all the children regardless of age.

Except that the "serious sexual abuse" in question was statutory rape, which by definition can't be committed on a 17-year-old in Texas. And the fact that a 17-year-old is pregnant can't legitimately be cited as an indication that the suspicions of statutory rape were justified.
4.29.2008 12:23pm
FC (mail):
EV, do you not know about the lost boys? Or understand UCLaw's point about the impossibility of leaving voluntarily? Have you not inquired into the possibility of abuse of much younger children, including infants? Certainly there have been allegations of physical abuse of such; another question would be whether the environment of such a compound fosters persistent emotional and psychological abuse.

Newsflash for those who think it's misleading to include 17 year-olds in the statistics: the average gestational time for humans is nine months. A little math will reveal that it is not unlikely a pregnant 17 year-old entered that condition when she was 16.

Texas may not have stepped delicately in this situation, but reasons for removing all the children go far beyond the obvious evidence of sexual abuse.
4.29.2008 12:26pm
freelunch (mail):

Except that the "serious sexual abuse" in question was statutory rape, which by definition can't be committed on a 17-year-old in Texas.

Actual rape is still a crime in Texas, even for the seventeen-year-old victims. There is some evidence that there was no legally-qualified consent from any of these rape victims. There is also clear evidence that girls younger than 17 were raped and that boys were kicked out of the compound. Why focus on meaningless exculpatory speculation when there is clear evidence that does not exculpate the men who have been been running this evil totalitarian hell?
4.29.2008 12:31pm
rex talyonis:
the question nobody is asking is, what happens if another woman (of age) gives birth on the ranch today? will CPS step in to protect it? will all future children of FLDS members be confiscated upon birth? or will CPS force them to have abortions? very troubling to say one is not allowed to have children because of his/her religion...
4.29.2008 12:36pm
Oren:
provides no information about how the compound is run since the Texas marriage law changed in 2005.
Because YFZ really changes their MO when the law changes. Right. Listen to what Jessop had to say and it's rather hard to imagine some of the fanciful arguments being raised here.
4.29.2008 12:39pm
rex talyonis:

Actual rape is still a crime in Texas, even for the seventeen-year-old victims. There is some evidence that there was no legally-qualified consent from any of these rape victims. There is also clear evidence that girls younger than 17 were raped and that boys were kicked out of the compound. Why focus on meaningless exculpatory speculation when there is clear evidence that does not exculpate the men who have been been running this evil totalitarian hell?

why do you focus on meaningless inculpatory speculation... there is no evidence of forced sex and no evidence of boys being kicked out...
4.29.2008 12:39pm
just curious:
How does this pregnancy/motherhood rate compare to the highest teen parent rates in the "worst" square mile in urban or rural America? Are there neighborhoods in which most girls, or 60%, 0r 90%, are pregnant by 17? I'd think it maxes at 50-60, but don't know.

I understand that the FLDS situation is entirely different on several levels, whether age of the men of consent issues etc., but still curious how it compares.
4.29.2008 12:42pm
Oren:
there is no evidence of forced sex and no evidence of boys being kicked out...
Carolyn and Flora Jessop have provided evidence. Naomi Jeffs escaped at age 13 and tells a similar story.

As far as the "lost boys", it's fairly clear from the ratio of men/women that either they have discovered a way to influence the gender of unborn children, are performed selective abortions or kicking boys out. A number of boys from the CO/AZ church sued in '06 after their expulsion.
4.29.2008 12:48pm
Oren:
4.29.2008 12:50pm
Duffy Pratt (mail):
Here's something I don't understand. All the fuss seems to be about older men having sex with teenage girls. if that was the problem, then what was the justification for taking all the boys, including infant boys, away from their mothers?

Also, its pretty amazing to me how quickly people are willing to dismiss the religious beliefs of people simply because they find them abhorrent. I've heard, but haven't been able to verify, that Texas raised the age of consent from 14 to 17, at least in part, to criminalize FDLS' activities. Does anyone know if there is any truth to that idea. If so, would it change anyone's opinion about what happened?
4.29.2008 1:02pm
cato-9 (mail):
Cutting to the chase:

1.) Forcible rape is VERY, VERY bad.
2.) Polygamy can range anywhere from bad to VERY bad, depending on the details.
3.) Forced marriage is VERY bad.
4.) Arranged marriages can range anywhere from OK to VERY bad, depending on the details.

But, DAMMIT! The CPS is worse than all of the above put together! The cure is worse than the disease.

If you ask me to choose between CPS and polygamists, I'm going to instinctively side with the polygamists. If you ask me to choose between CPS and necrophiliac vampire cannibals, I'm going to side with the latter.
4.29.2008 1:07pm
Oren:
Duffy, preservation of evidence. The FLDS has a reputation for moving children around between their 3 compounds to avoid scrutiny. Given that, and the fact that the birth records are unreliable and the kids are inconsistent about their age and parentage, it seems reasonable to separate them all until we can at least get the DNA tests done.

I'd be just as averse to them if there was no religion involved at all, incidentally.

Oh, and I'm convinced that there are potential cases of actual rape, not just statutory rape. Certainly enough to investigate, at any rate.
4.29.2008 1:11pm
Anon!:
This discussion is bizarre.

53 girls 14-17
31 already have children or are pregnant.

How many of the 31 are likely not to have been the result of sex where the mother was below the age of consent? If the commenter above is correct that only 2 were pregnant, then 29 have children already. If we further assume that all 31 were born April 30, 1990, and are about to turn 18 tomorrow, then the two pregnancies occurred while the mother to be was above the age of consent, and any of the already existing children who were born within the last 12 weeks (given an average 40-week gestation period) were also the result of (arguably) legal sex. Any child born earlier than 12 weeks ago is the result of sex with a 16-year old or younger. Moreover, any child born within the last 12 weeks to someone born after April 30, 1990 can only be the result of arguably legal sex if the child's current age is less than the amount of time between April 30, 1990 and the mother's birthday.

Given the math, and the fact that the article talks about 14-17 year olds, it is highly unlikely that very many of the already mothers or pregant girls were the result of legal sex.

Eugene, you usually appear to be a thoughtful individual. Didn't this occur to you?
4.29.2008 1:11pm
Anon!:
One more thing, using the same math, any 14-, 15-, or 16-year old girl who is already a mother was likely impregnated when she was 13, 14, or 15, respectively.
4.29.2008 1:18pm
Seamus (mail):
Actual rape is still a crime in Texas, even for the seventeen-year-old victims. There is some evidence that there was no legally-qualified consent from any of these rape victims. There is also clear evidence that girls younger than 17 were raped and that boys were kicked out of the compound.

Talk about putting the rabbit in the hat. "Actual rape is still a crime in Texas, even for the seventeen-year-old victims." And the evidence of "actual" (i.e., forcible) rape on the 17-year-olds? Nothing has been cited other than the fact that they are pregnant. "There is some evidence that there was no legally-qualified consent from any of these victims." First, we have to establish that there are "victims." The ones under 17 may be counted as such, because they were incapable of giving legal consent (except to a husband recognized as such by Texas law); that, however, says nothing about those 17 or older, and there is no independent evidence (at least none that has been cited in connection with these pregnancy statistics) to show that those older than 17 are victims in the legal sense. "There is also clear evidence that girls younger than 17 were raped." Again, yes, because their pregnancy is evidence of intercourse, and since they are by law incapable of giving consent, any intercourse constituted rape under Texas law; QED. But again, this says nothing about those 17 or older.
4.29.2008 1:18pm
freelunch (mail):

But, DAMMIT! The CPS is worse than all of the above put together!


No doubt our government is always worse than anything else. I assume you apply that argument to our occupations of Iraq and Afghanistan as well.
4.29.2008 1:43pm
freelunch (mail):

Also, its pretty amazing to me how quickly people are willing to dismiss the religious beliefs of people simply because they find them abhorrent.


So, any behavior is okay if you dress it up in religious costumes? Do you ever draw the line? I don't find polygamy abhorent, but it is criminal. I find rape and child abandonment, both repeat activities of the FLDS, to be abhorent, no matter what the religious claims. Can I murder you if I claim that God mandated it?
4.29.2008 1:47pm
subpatre (mail):

Oren writes: “Carolyn and Flora Jessop have provided evidence.”

No, actually neither has ever provided that. They’ve provided fanciful allegations, some of which may or may not be true. Many of their claims have been disproven, IOW proven to be lying.

Flora Jessop has never been at the Texas FLDS community; she left the FLDS denomination over two decades ago from an Arizona residence. [For relevance, what were mainstream church stands on homosexuality two decades ago? A lot can happen in twenty years.]

Carolyn Jessop deserted her former FLDS home in Utah 5 years ago. Her knowledge may be more relevant. I don’t know if she ever visited the Texas cooperative, but it seems doubtful.

Both Carolyn and Flora Jessop make money from opposing FLDS and glamorizing their former plights. Both stand to gain more as this saga continues. Flora has proven to be an unreliable witness to law enforcement on several occasions; making ‘mistakes’ (the scare quotes are justified) of event occurrences by years, and mistaking what state(s) in which her allegations occurred.


The law should needs to be enforced, but folks who go on fishing expeditions against minority groups weaken the case. The initial warrant already looks like it might not stand challenge, and the evidentiary warrant is overflowing with speculation and hearsay.

The law needs to be enforced. There's a procedure for doing that, but it's not as salacious, shocking or sensational as mass arrests of a commune chock full of people jiggling each other. But the right way protects the innocent as much as possible while it secures convictions on the guilty.
4.29.2008 1:47pm
Duffy Pratt (mail):
Oren:

I'm not sure I understand. How does taking an infant male child away from his mother preserve evidence? Also, if you are right about this non-spoliation idea, does the same standard apply as for taking a child away when there are allegations of abuse? Or does the state have to meet some higher, or lower, standard to preserve evidence?

It seems to me that there are lots of alternative ways to get the DNA and to keep track of the kids.
4.29.2008 1:48pm
GatoRat:
I agree with Anon that this discussion is very bizarre. Child services in any state have problems, but putting this case aside, what is that alternative? Continue to let children and young adults be terrorized? Continue to let women and men be battered by their spouses? If the state knows a sixteen year old has a child should they do nothing?

When the Taliban was whipping and executing women for minor violations of their religious laws, what excuses did many of you use then? That it was just a matter of freedom of religion? How far must a religious society stoop before the larger community says enough is enough?
4.29.2008 1:49pm
c.gray (mail):

there is no independent evidence (at least none that has been cited in connection with these pregnancy statistics) to show that those older than 17 are victims in the legal sense.


Except for the existence of large numbers of young children whose exact parentage is indeterminate, and about whose parentage and age the FLDS members have proven very reluctant to discuss on the record with CPS personnel.

The children and their putative mothers are unable to state consistently which child was parented by which woman, let alone who the fathers are. And the FLDS adults have proven strangely reluctant to allow DNA tests to clear up this rather unusual level of confusion. Any reasonable family court judge would be a tad suspicious, and perhaps a bit cautious about returning a minor to live with these people.
4.29.2008 1:55pm
FWB (mail):
Of course, laws restricting marriage to one partner is not based primarily on the christian ethic and do not violate the practices of many religions.

Right.
4.29.2008 1:58pm
FWB (mail):
Are these authorities going to raid EACH AND EVERY home in Tejas where a girl under the legal age is or has become pregnant? Not to do so would violate the 14th's equal protection and would be selective enforcement of the laws. Of course, the government NEVER selectively enforces laws solely against those the government doesn't like.

Right.
4.29.2008 2:01pm
freelunch (mail):

It seems to me that there are lots of alternative ways to get the DNA and to keep track of the kids.

Such as? I assume that the critics of what was done are serious about protecting the children, so it would be nice to see an alternative offered rather than just the drumbeat of attack on the government. How do you propose to protect the children?
4.29.2008 2:04pm
Frog Leg (mail):
FWB, the situation is not so simple in Texas. A person can be under the age of consent, but another person would not be guilty of statutory rape if two are within 3 years of each other's age (and no one is under 14).
4.29.2008 2:08pm
subpatre (mail):
freelunch writes: “I don't find polygamy abhorent [sic], but it is criminal. I find rape and child abandonment, both repeat activities of the FLDS, to be abhorent [sic], no matter what the religious claims.” [emphasis added]
M. Freelunch claims the FLDS rapes and abandons children. Interesting. Do the FLDS children get jailed —in Texas they can stand felony trial at age 14— when all the FLDS are convicted of these crimes (against themselves?) as M. Freelunch foretells?

What happens when people of A)tall stature, B)Scandanavian ancestry, or C) who wear brown shoes; are found to have a higher incidence of child abuse? Do we fry them all as M.Freelunch advocates . . . or should our society enforce laws against the individuals who perpetrate crimes?
4.29.2008 2:23pm
Andrew Janssen (mail):
The question that bothers me a little is how helpful are the DNA tests likely to be? From what I recall, the FLDS had a fairly small founding population; polygamy tends to highly amplify the presence of a handful of men's DNA in the local gene pool; and of course, there's the possibility of marriages between close kin or even out-and-out inbreeding which tend to homogenize the gene-pool.

So, how helpful are the DNA tests likely to be, when there's a good chance that the FLDS people being tested are much more closely related to each other than an equivalent number of people selected from the general population?

Oh, and count me among those commenters who are bemused by the lengths to which people here are willing to go to defend the FLDS.
4.29.2008 2:34pm
zippypinhead:
Reading this post and the resulting comment thread is stomach-churning, sort of like watching a slow-motion train wreck. From the standpoint of this pinheaded bystander, this sure looks like a low point for the Volokh Conspiracy. To summarize the state of this post/thread from the panoramic 30,000 foot level:

1. a few otherwise-respected academicians/libertarians, who don't have any understanding of family law, have parsed admittedly summary wire service reports for "facts" that they then use as the basis for opining on a theoretical level about something entirely outside their area of academic or practical experience;

2. who then compound the problem by ignoring (or quibbling at the margins about) what appears to be fairly compelling evidence of (a) a pervasive pattern of institutionalized unlawful sexual relations between underage girls and older men, (b) suspicious demographics that, together with other reported evidence, likely give rise to probable cause to believe underage boys are being forceably removed from the community [apparently to cut down on "the competition"], and (c) allegations [the veracity of which may still be untested] of a pattern of moving women, girls, and minor children of all ages from "family" to "family," possibly without informed consent or through coercion. All in a community dedicated to the practice of polygamy, a practice that has been illegal everywhere in the United States for over a century;

3. egged on by a few folks who are clearly still mad about a handful of past aberrational law enforcement disasters like Ruby Ridge and Waco, and therefore refuse to even entertain the possibility that the authorities here were acting in good faith, albeit in a very difficult situation;

4. and who have now also managed to surface a couple of rather free-spirited folks who seem to think that the FLDS "lifestyle" is just fine, and/or are just a wee bit too dense to understand the distinction between "alternate lifestyle choices" among consenting adults, a la Lawrence, versus imposing those "choices" on minors.

Yuck... Professor Volokh, this one doesn't do you any credit. I think "Old Man River" got it about right at 2:15 am:
This is likely going to go down as a black mark on this community. There have been moments where the group has seemed out of touch, but as more details arise, this is just going to look atrocious. EV, you may be one of the smartest people I know, but you are going to have egg on your face for this one.
So sad...
4.29.2008 2:38pm
freelunch (mail):
Subpatre:

Why would we imprison the victims of crimes? Did you actually read what I was responding to? Duffy Pratt was claiming that there wasn't enough deference being given to religious teachings. I'm not willing to allow people to rape or murder just because they claim their religion commands it.
4.29.2008 2:38pm
c.gray (mail):

Are these authorities going to raid EACH AND