Child Abuse in the Name of Protecting Children:
Two snippets from the FLDS "child protection" case in Texas, in which 437 children have been forcibly removed from parental care while the state investigations allegations that adolescent girls were sexually abused by being coerced or "brainwashed" into "marriages" (religiously but not legally recognized) with much older men. (The raid was apparently prompted by a bogus call to CPS):
(1) "Children under 12 months will be placed in foster homes with siblings who are under 5, she said, and every attempt will be made to place [other] siblings together. Boys 8 and older are going to Cal Farley's Boys Ranch northwest of Amarillo, where 27 adolescent boys already have been staying."
The Texas judge overseeing the polygamous FLDS sect's case refused Monday to make any ruling that would allow breast-feeding mothers to remain with their children in state custody....Attorneys for the women asked the judge to consider letting nursing mothers remain with their children after negotiations with CPS on the issue stalled. They asked the judge to let the mothers stay until DNA results are in, likely to take up to 40 days. Walther acknowledged the nutritional and bonding benefits of breast-feeding. "But every day in this country, we have mothers who go back to work after six weeks of maternity leave," she said. "The court has made a determination that the environment those children were in was not safe," said Walther, adding that there is a shortage of suitable placements for infants in Texas.
Yep, having your mom go to work 8 hours a day is just like having no maternal contact at all and being placed in a foster home.
It's time for a nationally prominent civil liberties attorney to get involved.
UPDATE: And, courtesy of a VC commenter, a stinging op-ed from the Dallas Morning News:
Judge Barbara Walther, who is overseeing the YFZ Ranch case, yesterday declared: "The court has ruled the conditions those children were in were not safe for the children. I did not make the facts that got this case into the courts."
Excuse me, Judge? You issued a sweeping, house-to-house search warrant based on a highly questionable anonymous call that turned out to be phony. You refused to allow individual hearings for children, grouping them together like cattle. You accepted the testimony of an expert on "cults" who only learned about FLDS from media accounts, rather than an academic who'd studied them professionally for 18 years.
You've ruled the existence of five girls between 16 and 19 who were pregnant or had children was evidence of systematic abuse, even though in Texas 16-year-olds can marry with parental consent. You've ruled young toddlers are in "immediate" danger because of their parents' beliefs or what might happen 15 years from now, not because anyone abuses them.
The judge has decided to allow infants to remain with their mothers, but otherwise has not modified the order removing all of the children from their homes, despite no individualized showings of child abuse or neglect.
In the previous thread, some commenters seem to assert that the CPS may take all of the FLDS's children away because (a) there has been documented abuse of children at other FLDS communities; and/or (b) the "culture" of the FLDS is inherently abusive, as it encourages early marriage and leaves its children inherently isolated by homeschooling them and not exposing them to social events, television, and the like. The latter criterion, at least, would place Amish and some of the more insular ultra-Orthodox Jewish communities in jeopardy.
As one commenter, otherwise sympathetic to CPS, put it, "the judge should focus on current or past crimes and not the culture - this puts religious belief on trial rather than actual behavior." Relatedly, the focus of CPS, and the judge overseeing the case, should be on individualized evidence of child neglect or abuse. And it remains rather troubling that the CPS apparently had the authority to take 437 kids from their parents after launching an investigation based on an apparently fraudulent complaint of abuse involving a specific, apparently nonexistent, girl.
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.
My tentative sense based on media accounts, as I've mentioned before, is that there have been crimes -- likely very serious crimes -- committed at the FLDS compound. There are reports of outright forcible rapes, and it seems likely there was a good deal of statutory rape under Texas law. So it's very likely that there are lots of criminals living there; maybe most of the adults there are criminals; the police should be ferreting out evidence of this, and prosecutors should prosecute those who appear guilty. Nor do I have any sympathy for the FLDS people's lifestyle, which even if legal strikes me as pretty bad for the children.
But procedure matters, and it should matter when it comes to removing children from their parents and not just when it comes to criminal prosecution. There are good reasons why we don't just swoop in and arrest everyone who lives in a community where we think crime is taking place. If we could do that, we might find it easier to, say, prosecute the Mafia or street gangs; but we don't do that. Imagine what the nation would be like if we did.
Instead, we insist on individualized evidence of guilt. It generally takes probable cause to justify arrest, search, and pretrial detention. It takes proof beyond a reasonable doubt to justify criminal punishment. It takes proof by a preponderance of the evidence (though sometimes perhaps just probable cause) to justify some civil remedies, such as asset forfeiture (and when those standards are relaxed enough, and stop being individualized enough, people complain about them, too). The police can generally question people without any individualized suspicion -- the point of the questioning is often precisely to see whether such suspicion is warranted -- but for more coercive steps, something more is needed.
Now naturally when there is evidence of likely imminent danger -- whether to children or to others -- the procedures understandably become somewhat relaxed. The police, for instance, can search a home just with probable cause if there are exigent circumstances, with no need for a warrant. In certain situations, the police can even enter a home without probable cause, under the rubric of community caretaking (though the boundaries of that are complex and in some measure rightly controversial). Child protective services can temporarily isolate a child from parents who seem to be abusing the child, or likely to abuse the child shortly. But all that is where there is indeed evidence of likely imminent danger to particular people.
So if Texas had gone in and arrested those people as to whom there was probable cause to believe that they had committed crimes, I wouldn't object. If Texas had gone in and seized those children as to whom there was evidence of imminent danger, I wouldn't object. If Texas had seized some children for a few hours to conduct a physical exam, that would be closer to the border (in the absence of individualized evidence of likely harm), but I probably wouldn't object much there, either. And certainly the evidence required wouldn't t itself have to rise to proof beyond a reasonable doubt; that's a standard for a criminal trial, not for a preliminary seizure because of a material risk of imminent danger.
But from all I've seen in press accounts, there is no serious evidence of imminent danger to children and to infants. There is some suspicion that some, many, or maybe even all their parents have committed crimes against some teenage children (including aiding other adults' crimes, which is itself a crime). There is some evidence of imminent danger to teenagers. But that other children who live in the same community are harmed by some adults in the community isn't by itself adequate reason, I think, to take a small child away from his or her parents, before any evidence of actual crime by the particular parents or actual danger to the particular child is provided.
Again, imagine that the police had the power to seize all the infants and toddlers in a cohesive, culturally homogeneous neighborhood because there was evidence of serious and potentially teenager-threatening crime among many adults of that neighborhood (for instance, drug dealing, drug abuse, gang crime, and the like). That would surely be a powerful tool for law enforcement, and a powerful means to get evidence. It might even help some of the infants and toddlers, if you assume a good foster care system (not because the small children are in immediate danger from the crime, which may mostly affect teenagers, but because many of their parents might indeed be bad parents).
But it would put far too much power, I think, in the government's hands. And the traditional procedure -- arrest those as to whom you have probable cause, and take away children when you have concrete evidence that there is a threat to them in particular -- would have much (though not all) of the benefit without this dramatic increase in government power.
By the way, the careful reader may well have noted that there is an area in which we have had much broader government seizure authority -- war, and the handling of enemy combatants. The government has vast powers over people seized in foreign theaters of combat, especially when they aren't citizens. The government has also of course famously and controversially asserted similar powers over alleged enemy combatants who are citizens, and who are seized in the U.S. I think the power over foreign citizens, especially those seized in foreign country, is justified by tradition and necessity; I think some such power over U.S. citizens may also be proper, and historically recognized, but it too requires substantial procedural constraints.
Yet in any event surely everyone would agree that any such power over U.S. citizens in the U.S. is extraordinarily perilous. Even those who would leave the procedural rules chiefly in the federal government's hands would, I think, agree, though they conclude that the exigencies of war and the dangers of terrorist attacks that would kill anywhere from hundreds to millions justify this risk. Protection of children from abuse is important, but I certainly hope that we won't adapt the warfare model to it.
Why I Don't Plan to Blog on the FLDS Case:
In light of the blogging here on the FLDS case
, and its relevance to my area, criminal procedure, I thought I would say a word on why I'm not planning on blogging about the case.
There are two closely-related reasons. First, the facts are still unclear. In my view, the facts are everything in these cases; it's hard to judge what happened when you don't really know what happened. Second, cases such as this often trigger tremendous emotion among libertarians who identify to varying degrees with the targets. As a result of these two reasons, coverage of such cases usually emits more heat than light; folks often have extremely strong views even if no one really knows what is going on.
Some bloggers enjoy blogging in those situations, but I generally don't — or at least I don't unless I have a lot of time to delve into the details. With peak grading season upon us, I don't have that time, so I don't expect to blog on the topic beyond this meta-post.
I stress again — it may well be that many or even all the FLDS parents are guilty of various crimes. But it's also important, in this case as well as in others, for the media to report statistical information in a useful way.
Take, for instance, this MSNBC headline, "Official: History of injuries to polygamist kids
/ At least 41 had broken bones; possible sex abuse of boys investigated." At least 41 kids have had broken bones — sounds like a serious problem.
But 41 out of how many? Paragraph seven reveals this: "More than 450 children are in state foster facilities from the raid."
What about the other information that would be necessary to make this data make sense? I refer, of course, to how many kids normally have broken bones without abuse. I don't know the percentage, but a quick Google search found [UPDATE: this replaces a much less reliable estimate I'd originally found] this study, which puts the risk of bone breakage at 1.3% per year per child (for 0-to-12-year-olds). Assuming this carries over to 0-to-18-year-olds (perhaps a mistaken assumption, especially since "The incidence increased linearly with age" up to age 12, but let's use it as a back-of-the-envelope estimate), this yields an estimate of about 20-25% of all minors having had a broken bone, which is to say that a minor of average age would have about a 10-12% chance of having had a broken bone. This can't automatically carry over to the FLDS kids, of course, for a variety of reasons; this is just one study that I quickly found; and some part of the broken bones reported in the study of may themselves have been caused by abuse. But still the "41" figure (which, recall, refers to children who "have had broken bones in the past") seems a lot less striking when one turns it into "under 10%" (41/450), and even less striking when one asks how this compares to the normal broken-bone rate among unabused children, which the study I found suggests is roughly 10% for the average child.
Now I stress again: Many of the FLDS kids might have been physically abused, even beyond the seeming early marriages of some of the girls and the alleged forced marriages of some of the girls and expulsion of some of the boys. The abuse rate might be higher than average. Of course the total broken bone rate may well be much higher than 10%, because not all the broken bones might have been identified. Sexual abuse at any rate, whether of teenage girls or young boys, is a serious crime that should be punished. And if there was indeed evidence of sexual abuse of young boys (with "young" meaning very young) then the removal of even small children might have been justified, contrary to my arguments below, which were based on press accounts that at the time had focused solely on the alleged sexual abuse of teenage girls.
But the particular news account here strikes me as a highly unhelpful, and potentially misleading, use of statistics, because it (1) includes the numerator in the headline, and leaves the denominator for paragraph seven, and (2) suggests that the number is significant evidence of abuse, without even trying to provide a comparison with the broken-bone rate among ordinary, nonabused children. The story does later quote the state agency as saying, "We do not have X-rays or complete medical information on many children so it is too early to draw any conclusions based on this information, but it is cause for concern and something we’ll continue to examine," but that does little, I think, to undercut the attention that MSNBC focused on the 41 number in its headline.
Texas Appellate Court Rules Against State's Seizure of the FLDS Children:
From the opinion, which is a sharp and detailed rebuke of the Texas Department of Family and Protective Services (emphasis and some paragraph breaks added):
Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved. However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. [Tex. Fam. Code. Ann. § 262.201.]
In this case, the Department relied on the following evidence with respect to the children token into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201:
- Interviews with investigators revealed a pattern of girls reporting that "there was no age too young for girls to be married";
- Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen;
- Five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults; [footnote: One woman is alleged to have become pregnant at the age of thirteen. She is now twenty-two years old.]
- Of the five minors who became pregnant, four are seventeen and one is sixteen, and all five are alleged to have become pregnant at the age of fifteen or sixteen;
- The Department’s lead investigator was of the opinion that due to the "pervasive belief system" of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse;
- All 468 children were removed from the ranch under the theory that the ranch community was "essentially one household comprised of extended family subgroups" with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch "household"; and
- Department witnesses expressed the opinion that there is a "pervasive belief system" among the residents or the ranch that it is acceptable for girls to marry, engage in sex, and bear children as soon as they reach puberty, and that this "pervasive belief system" poses a danger to the children.
In addition, the record demonstrates the following facts, which are undisputed by the Department:
- The only danger to the male children or the female children who had not reached puberty identified by the Department was the Department's assertion that the "pervasive belief system" of the FLDS community groomed the males to be perpetrators of sexual abuse later in life and taught the girls to submit to sexual abuse after reaching puberty;
- There was no evidence that the male children, or the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims of sexual or other physical abuse;
- While there was evidence that twenty females had become pregnant between the ages of thirteen and seventeen, there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation that the girls were living in an FLDS community with a belief system that condoned underage marriage and sex; [footnote: Under Texas law, it is not sexual assault to have consensual sexual intercourse with a minor spouse t0 whom one is legally married. Texas law allows minors to marry—as young as age sixteen with parental consent and younger than sixteen if pursuant to court order. A person may not be legally married to more than one person.]
- There was no evidence that any of the female children other than the five identified as having become pregnant between the ages of fifteen and seventeen were victims or potential victims of sexual or other physical abuse;
- With the exception of the five female children identified as having become pregnant between the ages of fifteen and seventeen, there was no evidence of any physical abuse or harm to any other child;
- The Relators have identified their children among the 468 taken into custody by the Department, and none of the Relators' children are among the live the Department has identified as being pregnant minors; and
- The Department conceded at the hearing that teenage pregnancy, by itself, is not a reason to remove children from their home and parents, but took the position that immediate removal was necessary in this case because "there is a mindset that even the young girls report that they will marry at whatever age, and that it's the highest blessing they can have to have children.”
The Department argues that the fact that there are five minor females living in the ranch community who became pregnant at ages fifteen and sixteen together with the FLDS belief system condoning underage marriage and pregnancy indicates that there is a danger to all of the children that warrants their immediate removal from their homes and parents, and that the need for protection of the children is urgent. [Footnote: The Department's position was stated succinctly by its lead investigator at the hearing. In response to an inquiry as to why the infants needed to be removed from their mothers, the investigator responded, "[W]hat I have found is that they're living under an umbrella of belief that having children at a young age is a blessing therefore any child in that environment would not be safe."] The Department also argues that the "household" to which the children would be returned includes persons who have sexually abused another child, because the entire Yearning For Zion ranch community is a "household." ...
The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief” that condones polygamous marriage and underage females having children. [Footnote: The Department's witnesses conceded that there are differences of opinion among the FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children—much as there are differences of opinion regarding the details of religious doctrine among other religious groups.]
The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child" rearing as soon as females reach puberty.
The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. [Footnote: The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.]
There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy.
Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community. [Footnote, slightly moved: The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.] ... Evidence that children raised in this particular environment may someday have their physical health and safety threatened is no evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.
Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children [as required under §262.201]. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. [Footnote: The authenticity of this call is in doubt. Department investigators did not locate the caller on the ranch.] After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children.
They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators....
Lawsuits Against the Texas Department of Family and Protective Services?
Some commenters on the earlier post raised this issue, so I thought I'd speak briefly about it.
1. Fourth Amendment and the substantive parental rights doctrine developed under the Due Process Clause: From what I've seen of the circuit court cases, both constitutional provisions have been read as requiring at least reasonable suspicion of imminent danger to the child (or of past abuse to the child, which will usually also lead to individualized reasonable suspicion of imminent danger) before a child can be seized by child protective services, even briefly. Some courts require not just reasonable suspicion, but the higher standard of probable cause. See Doe v. O'Brien, 329 F.3d 1286 (11th Cir. 2003) (probable cause); Hatch v. Department for Children, Youth and Their Families, 274 F.3d 12 (1st Cir. 2001) (reasonable suspicion); Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) (probable cause, especially when read together with Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000)); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (generally suggesting probable cause, though leaving open a "special needs" exception for unusual cases). The rule may be different when the child is detained briefly at a government-run school as opposed to in a private home or a private school, but that's not at issue here. As I read the Texas Court of Appeals decision, it looks like the state did not have probable cause or even reasonable suspicion of abuse as to many of the children involved in the raid, so the Fourth Amendment and the parents' parental rights have almost certainly been violated.
Of course, before any damages award is given, there'd have to be a finding that the law is well-established (or else the defendants would have qualified immunity. My quick search didn't find any Fifth Circuit or Texas state precedent that's entirely on point. But my sense is that the need for at least individualized reasonable suspicion is likely clearly enough established (even if only in other circuits), especially given the broader background Fourth Amendment principles requiring probable cause for seizures in private homes.
2. Procedural rights under the Due Process Clause: I know much less about this than I do about the Fourth Amendment and substantive parental rights, but I strongly suspect that the Due Process Clause has been read as requiring a hearing before one's children are removed, even temporarily, unless there are some exigent circumstances preventing that. Given the Texas Court of Appeals' description of the facts, it sounds like exigent circumstances were indeed absent here, at least as to many of the children.
3. State law rights: I can't speak to whether Texas law provides its own damages remedy for the violations of the law found by the Texas Court of Appeals.
Future Legal Action Against the Texas Polygamists?
I should stress that many of the Texas FLDS members may still be in huge legal trouble, despite the conclusion that the raid was illegal (and likely unconstitutional) as to many of the children.
1. Rape / Statutory Rape Prosecutions: Most obviously, if indeed some girls (1) were physically forced into marriage or sex, or (2) had sex before age 17 with someone to whom they weren't legally married (whether there was no marriage ceremony or there was such a ceremony but it wasn't properly registered with the state for various reasons, such as the fact that it was an unlawful polygamous marriage), the people who had sex with them would be guilty of rape or statutory rape.
2. Prosecutions for Aiding and Abetting Rape / Statutory Rape: Criminal liability could also extend to those who sufficiently aided in the conduct, even if the aid consisted solely of encouraging the behavior (by which I mean encouraging the specific marriage, and not just teaching in the abstract that early marriage was good). This could include the girls' parents, religious leaders, or even friends and relatives who actively encouraged the conduct. The boundary between being a mere nonobjecting bystander (not criminal) and an active participant (criminal) is unfortunately sometimes quite vague. I suspect that celebrating the wedding with the couple or giving a wedding present wouldn't qualify as aiding and abetting, but even that's not completely obvious (see the English case Wilcox v. Jeffery, which some criminal law scholars see as being relevant to American law).
3. Bigamy (and Aiding and Abetting Bigamy): I suspect that the Texas bigamy statute -- which applies when a person "(A) purports to marry or does marry a person other than his spouse ... under circumstances that would, but for the actor's prior marriage, constitute a marriage; or (B) lives with a person other than his spouse in this state under the appearance of being married" -- wouldn't be interpreted as covering ceremonies that the parties understand not to be legal marriages. Clause A wouldn't apply, I think, if no marriage license were applied for, since without such a license the circumstances wouldn't constitute a legal marriage (Texas common-law marriage rules don't apply when one party is already married). Clause B is harder to figure out, but my guess is that this requires representation to others that one is legally married.
The Utah Supreme Court recently interpreted Utah bigamy law more broadly, to cover second marriages even when they aren't claimed to be legally valid marriages; but Utah law said simply that, "A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person," without the "under circumstances" language.
4. Regular Proceedings to Remove Children from Parental Custody: Naturally, if there is sufficient evidence of some past abuse of children, of imminent future abuse, or of parents' idly standing by when the children were abused by others, those children could be removed from parental custody, even in the absence of a criminal prosecution of the parents. It's just that this would have to be done through the normal procedures, at which specific evidence of abuse or likely future abuse of those children would have to be shown.
Removal of Children from FLDS Ranch "Was Not Warranted":
So holds the Texas Supreme Court, apparently 9-0 as to boys and prepubescent girls, and 6-3 as to pubescent girls. This thus lets stand the court of appeals decision from last week. More as I read further through the opinions.
Thanks to How Appealing for the pointer.
The Heart of the Disagreement Among the Judges in the Texas FLDS Litigation?
The Texas Supreme Court opinions in this matter are short. The majority gives little analysis, perhaps relying on the analysis in the court of appeals decision:
Having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted. The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care.
The majority then points to the court's ability to "make and modify temporary orders 'for the safety and welfare of the child,'" the court's ability to "order the removal of an alleged perpetrator from the child's home," and the court's and prosecutors' ability to punish removal of children and other obstruction with investigation.
The 3-Justice concurrence and dissent agrees as to the boys and the prepubescent girls, but reasons otherwise as to the pubescent girls. In particular, it points to five girls ranging in age from 13 to 16 who had children, were pregnant, or had been pregnant (seemingly the same ones noted by the lower court opinion). It then goes on to reason that "[e]vidence presented thus indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the Ranch — evidence sufficient to satisfy a 'person of ordinary prudence and caution that other such girls were at risk of sexual abuse as well.'"
The partial dissenters then go on to explain why they think — again, contrary to the court of appeals opinion — that the Department can't be faulted for failing to show that "reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal": The FLDS members, the dissenters conclude, thwarted any such alternative efforts by refusing to disclose the family structures on the ranch, and in some instances by lying about such matters.
Here, though, is what strikes me as the heart of the disagreement: The dissenters stress (see note 2) that "In determining whether there is a 'continuing danger to the health or safety' of a child, the Family Code explicitly permits a court to consider 'whether the household to which the child would be returned includes a person who ... has sexually abused another child.'" The court of appeals, which the majority seems to agree with, says to the contrary (note 10) that:
The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.
And this is important because the factual evidence of underage sex on which the dissenters relied didn't seem to be focused on the particular pubescent girls at issue in this case, or specific threats those girls faced
After all, pubescent girls get pregnant in all sorts of communities; the five pregnancies on which the dissenters relied — I realize there may be other pregnancies out there, but these are the ones the Justices cited — aren't even so unusual for a group of 250 or more girls (I believe that's the rough number seized at the FLDS ranch): The pregnancy rate for 14-year-olds and younger this decade seems to be a little under 1%, and for 15-to-17-year-olds seems to be a little over 4%, though I take it that for 15- and 16-year-olds the fraction would be less than the aggregate for 15-, 16-, and 17-year-olds. Texas reports a roughly 4% pregnancy rate for 16-year-olds, a roughly 2% rate for 15-year-olds, and a roughly 0.1% rate for 13-year-olds (no numbers are given for 14-year-olds). The rate of teenage sex is obviously even higher.
A particular girl's mere presence in a community that tolerates this sort of behavior, it seems to me, can't be enough as a legal matter for a finding that the girl is in enough danger to be seized. If the government swept through many a neighborhood in the country, it would probably find lots of underage girls who are pregnant, many through illegal sex — yet I take it that this wouldn't justify even a temporary removal of one girl from her parents because of the pregnancy of other girls in neighboring houses. And I take it there would be no justification for such temporary removal even if it was clear that most people in the neighborhood had nothing against early marriages (for instance, because they were emigres from a region, such as East Asia or Latin America, where the age of consent for sex and for marriage was low), even if people knew each other's families and socialized often with them, and even if many community members were refusing to cooperate with authorities. "[A] pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, [in such a neighborhood]" wouldn't dispense with the need of showing some individualized evidence that each particular girl who was to be seized was subject to a high risk of danger, beyond just the fact that she lived in a neighborhood were those things happened and were condoned.
So this is why it seems to me that the heart of the partial dissenters' argument must be that "the Ranch" is different from a normal neighborhood, presumably because it counts as a single "household" (something the dissenters don't expressly say, but that they seem to point to by reference to behavior "on the Ranch" coupled with the mention of the "household" principle in note 2). And the majority's disagreement, I expect, probably stems partly from the majority's accepting the court of appeals' contrary view that the Ranch consists of many separate households.
Now I can't speak with confidence about how dispositive the "single household" vs. "multiple households" distinctions ought to be, or how the lines ought to be drawn in close cases if the distinction is used. But my sense is that this issue — which more broadly relates to the degree of responsibility that can be ascribed to any particular child's parents for the abusive or neglectful actions of other parents in their community — is what the dispute in this particular stage of litigation is really about.