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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 11:19pm
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 11:22pm
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 11:24pm
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 11:29pm
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 11:29pm
jccamp:
OK, thanks. I was sure it was inadvertent.
4.28.2008 11:30pm
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 11:33pm
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 11:35pm
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 11:43pm
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 11:46pm
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 11:57pm
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.
4.29.2008 12:02am
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.
4.29.2008 12:04am
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.
4.29.2008 12:12am
alan:
The Volokh Conspiracy: Supporting the right of middle aged men to sleep with high-schoolers since 2008.
4.29.2008 12:25am
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?
4.29.2008 12:26am
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?
4.29.2008 12:35am
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.
4.29.2008 12:43am
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.
4.29.2008 12:46am
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.
4.29.2008 12:49am
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.
4.29.2008 12:53am
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 1:03am
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 1:10am
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 1:11am
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 1:22am
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 1:32am
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 1:38am
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 1:42am
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 1:47am
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 1:51am
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 1:54am
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 2:03am
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 2:11am
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 2:19am
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 2:37am
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 2:44am
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 2:59am
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 3:10am
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 3:12am
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 3:15am
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 3:16am
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 3:31am
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 3:34am
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 3:47am
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 4:11am
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 4:32am
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 4:46am
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 5:05am
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 5:09am
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 6:39am
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 7:37am
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 8:46am
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 9:01am
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 9:50am
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 9:51am
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 9:58am
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 10:24am
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 10:33am
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 10:58am
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 11:05am
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 11:12am
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 11:17am
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 11:18am
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 11:24am
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 11:30am
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 11:37am
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 11:56am
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 12:19pm
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 12:19pm
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 12:31pm
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 12:44pm
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 1:09pm
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 1:18pm
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 1:23pm
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 1:26pm
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 1:31pm
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 1:36pm
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 1:39pm
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 1:39pm
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 1:42pm
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 1:48pm
Oren:
4.29.2008 1:50pm
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 2:02pm
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 2:07pm
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 2:11pm
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 2:11pm
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 2:18pm
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 2:18pm
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 2:43pm
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 2:47pm
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 2:47pm
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 2:48pm
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 2:49pm
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 2:55pm
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 2:58pm
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 3:01pm
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 3:04pm
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 3:08pm
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 3:23pm
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 3:34pm
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 3:38pm
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 3:38pm
c.gray (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?


I would not be surprised if, after a complaint of child abuse against a home, and an investigation that determines an underage girl is pregnant by an older male living in the home, the usual course of action by CPS is to remove all the minor children from the home. In fact, I'd be extremely surprised if this was NOT the case.

/shrug

I suspect that to anyone else who has actually spent time in family court, all the whining on this blog about this case being tainted by selective prosecution is kind of amusing. These sorts of laws are pretty much applied this way, every day, all over the USA, to parents who face allegations of child abuse. It typically goes much worse for parents accused of involvement in sexual abuse, either directly or via failure to protect. The only things unusual about this case are the sheer number of children involved, and a level of media attention that serves to encourage the state agency at issue to put forward a somewhat gentler, more cautious stance than normal.
4.29.2008 3:52pm
FoolsMate:
EV,
While I am open to the idea that the CPS press release might warrant some later scrutiny, I'm puzzled by your focus on what seems to me as minutiae given the larger context. If CPS made an error in its statement, whether in good faith or intentionally, what individuals were harmed by it and how severely?
4.29.2008 4:00pm
subpatre (mail):

Freelunch writes: "Why would we imprison the victims of crimes?"
Because you suggested it? "The FLDS" (your quote) includes men, women and children. "The FLDS" is a diverse group of people, a community.

It is my belief a large number of the adults in "the FLDS" (your quote) have committed crimes [of moral turpitude], but I would never dream of labeling every member of a community the way you have.
freelunch continues "Did you actually read what I was responding to?"
The allegation of "rape and child abandonment" (your quote) is attributed to "the FLDS" (your quote). If "activities of the FLDS" is not what was meant, I would suggest to refrain from writing that.
4.29.2008 4:16pm
subpatre (mail):
GatoRat writes How far must a religious society stoop before the larger community says enough is enough?

Why don't you just order up some Zykon-B for those that don't belong to the eight seven approved religions? That is what you mean by 'enough is enough' isn't it, to get rid of those filthy people?
4.29.2008 4:25pm
AngelSong (mail):
Although I am far far FAR from proud of my (Texas) legislature in general (the license plate idiocy, recent "Castle Doctrine" changes, Imperial Declaration of the Speaker come to mind for instance), I'm not sure that I see why it matters so much that the law was changed in anticipation of this very event two years ago.

Aren't many (most?) of our laws enacted in response to or anticipation of some factor? For instance, here in Dallas several municipalities have recently enacted laws prohibiting cell phone usage while in an active school zone. Why wasn't this enacted ten years ago? Well probably because people weren't driving in school zones while talking on cell phones ten years ago!

Likewise, although there were probably some marriages of individuals between the age of 14 and 16 before two years ago (I believe the change in law is in regards to marriage, not sex, but I could be mistaken), such marriages were infrequent. Moreover, I would be willing to bet that of the marriages that did come about by parental consent, almost none involved 14 year old girls and 60 year old men!

Quite simply, a law was not necessary to prohibit such a practice because it almost never happened. Now when there is evidence that such marriages are likely to occur with greater frequency, why would it be surprising that a law would quickly arise to address the situation?

The same kind of responsive legislation is happening right now after some highly publicized instances of minors "working" in strip clubs. The state has discovered that it has limited recourse in shutting down the club under current legislation and is quickly moving to remedy said situation. Surely no one would suggest that such a legislative response is somehow improper?
4.29.2008 4:37pm
freelunch (mail):
Subpatre writes "Because you suggested [inprisoning victims]."

Of course I didn't suggest it. What I suggested is that crimes are not given a free pass just because the crime was committed in the name of a religion. Just because an FLDS leader says its okay, or even necessary, to rape young girls, that doesn't make the First Amendment a valid defense at a criminal trial. People are tried for what they did, whether they were the rapists themselves or merely the criminal co-conspirators who were willing to force their own children into sex or kick them out into the street.
4.29.2008 4:48pm
GatoRat:
subpatre, your response borders on the offensive. I asked a highly legitimate question and deliberately framed in reference to the Taliban, rather than the FLDS church, since the abuses of the former are much more well documented.

Do you believe that a religion can engage in any behavior they wish with impunity? Yes or no.
4.29.2008 4:48pm
PLR:
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 pregnant girls were the result of legal sex.

But you've never been to one of those 17th birthday parties either.

(And ditto what zippypinhead said at 2:38).
4.29.2008 5:05pm
David Friedman (mail) (www):
"This discussion is bizarre.

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

This omits two important facts:

1. According to the Time Magazine web page (and the initial, but not the current, CNN page), of the 31 girls who "already have children or are pregnant," only two are pregnant. That puts the teen pregnancy rate a little below the Texas average. It also make it very hard to see how 29+ children could have been produced by mothers now in that age range, unless for some reason the pregnancy rate at the moment is something under a sixth of its average for the past four years (do the arithmetic for yourself).

2. The CPS has refused to accept birth certificates as proof of age. So far as I can tell from the published information, their statements about age are entirely based on how old they think girls look. That may be the best they can do for a first guess as to who is a minor and so should be held until further information is available. But it makes their published claims about how many under 18 girls have children or are pregnant flatly fraudulent, since they don't actually know which girls are what age.

Note also that the subjective test of age provides another explanation for why there are many more teen girls than teen boys--CPS may simply be more willing to accept claims by boys that they are 18 or older than claims by girls.

And, finally, the fact that they emphasize the total of 31 instead of the individual numbers--two pregnant, 29+ not pregnant but believed to have had children--ought to set off an alarm in anyone familiar with the usual ways of using statistics to mislead.
4.29.2008 5:08pm
Duffy Pratt (mail):
freelunch:

I didn't say that people should defer to these religious practices. Instead, I said that we should at least take seriously the idea that they are religious practices. Basically, there seem to be alot of people who look at FLDS as a smoke screen to allow dirty old men to bang jail bait. That view entirely dismisses the idea that these people take their religion seriously. Also, I haven't yet seen an answer to my question about whether Texas raised its age of consent to criminalize the activities of this church. If so, then the squabble may be nothing more than Baptist disapproval of FLDS mores. And there is at least one law that addresses that sort of government action.

As for the other point, about getting DNA and tracking the children: I wasn't talking about protecting the children. Instead, I was responding to Oren's point about preserving evidence. The state could collect DNA by administering blood tests, or by taking hair samples. That doesn't require separating infants from their mothers. They could then take pictures and fingerprints of the children, which could also be done without taking custody of the children. To protect state interests, the court could issue an order that the children not leave the jurisdiction without first informing the court. If that's not good enough, they could be given monitoring bracelets. The state has other remedies for violating court orders. But any of these methods would be far less intrusive than taking custody of the kids.

Does anyone else know of any family law/custody type disputes that got class action treatment?
4.29.2008 5:29pm
Oren:
Basically, there seem to be alot of people who look at FLDS as a smoke screen to allow dirty old men to bang jail bait. That view entirely dismisses the idea that these people take their religion seriously.
I believe both. They certainly take their religion seriously (all the more so in the face of external opposition) but that doesn't excuse the fact that it is designed to allow the more powerful men in the community to control who bangs who and when.
4.29.2008 5:41pm
Oren:
Also, by "preservation of evidence", I largely meant the inability of the parents to interfere with the investigatory process by guiding the children's answers. One thing that caught my eye was that after the children were separated from each other and from their parents, their stories no longer matched up. This is suggestive (not dispositive) of a concerted effort to deceive CPS.

Even worse, so long as the children live with their parents they have a rational interest in lying on their behalf. Ask anyone involved in domestic violence, and they will tell you that everyone always defends the abuser - it's just the nature of the power relationship. By imposing a bit of space between the children and their parents, we give them the psychological power to distance themselves from the abusive situation and allows them to talk to investigators.
4.29.2008 5:47pm
Duffy Pratt (mail):
Oren:

Your second point about the evidence is a fair one. It might be a strong enough point to justify separating some of the children from their parents. But it certainly does not apply to infant boys, who aren't going to testify anywhere and who aren't in danger of any abuse.

As for your idea that FLDS is designed to put power in the men and give them the ability to control who bangs who: I don't see that as being much different from many other religions, and from some structures. For me, the amount of brainwashing is a matter of degree, as is the patriarchal domination. So maybe fundamentalist muslims, orthodox jews, strongly fundamentalist home-schooling baptists, Amish, Mennonite and other groups should pay strong attention to what's happening here.

By the way, one of my points about taking the religion seriously is because I find it hard to believe that anyone is going to be very successful in helping these kids unless they have a strong understanding of the belief structures the kids have had instilled in them. And that means thinking about the elder men as something other than leering pedophiles.
4.29.2008 6:01pm
freelunch (mail):
Duffy Pratt wrote: "Instead, I said that we should at least take seriously the idea that they are religious practices."

I don't really care about motivation. Behavior and results are what matters. If you hand your 13-year-old daughter to a church elder to be raped, the religious aspect doesn't free you from the responsibility for the crime you committed nor does it free the church elder from criminal responsibility.

I realize thet it is important and necessary for the law to work to excuse people for their actions if they either were unable to form intent consistent with criminal action or the results of their actions were sufficiently unforseeable that they are not responsible, otherwise, I don't have a reason to care.

Then he asked: "Does anyone else know of any family law/custody type disputes that got class action treatment?"

Does anyone know of a criminal conspiracy of such a maginitude? If the facts are as alleged, the adults appear to all be criminal conspirators to engage in or enable various crimes against children. The adult members of this compound appear to all be responsible for what has happened here.
4.29.2008 6:04pm
Oren:
Certainly patriarchal domination in religious teachings is nobody's business in the broader sense, but in the instant case it is part and parcel of the larger wrong-doing.

FWIW, I really don't consider the men to be leering pedophiles. I can believe that they sincerely believe their religion but, in the final analysis, that doesn't really change much.
4.29.2008 6:14pm
npr (mail):
Hi! Is this the North American Man-Girl Love Association website?
No?
Are you sure?
4.29.2008 8:30pm
Oren:
^^^ Not helping.
4.29.2008 9:25pm
ReaderY:
Texas has common-law marriage. All the elements, including being recognized and held as married by the community the partners live in, appear to be present and in good order. Can parents consent to a common-law marriage?
4.29.2008 10:01pm
Duffy Pratt (mail):
ReaderY:

For an informal marriage to be valid in Texas, both parties have to be at least 18 years old. Also, if one of the parties is already married, then the informal marriage is void. So the marriages at FLDS would only be valid as common law marriages if the girl were the first spouse, and if she were over 18.

And to answer your last question, since a common law marriage is only valid when the parties are over 18, then parental consent is not an issue.

Oren:

It's easy to agree that, in the "broad" sense patriarchal domination is nobody's business. It's those pesky details. First, the FLDS. Then the Christian Scientists, who abuse their kids by withholding medical care. Then, maybe the orthodox jews when we decide that a briss is child abuse. And then? And I'm generally not a fan of slippery slope arguments. So I'd really be happy if someone could draw an intelligible line for me.
4.29.2008 10:45pm
subpatre (mail):
Freelunch wrote: Just because an FLDS leader says its okay, or even necessary, to rape young girls . . . and later If you hand your 13-year-old daughter to a church elder to be raped . . .


If you know of any rapes at this community please post it. Any allegation from CPS/DCS, current law enforcement, the court, or even accusations from someone who's been there in the last year or two.

Anything else is intentionally inflammatory fictitious rhetoric; aka rabble-rousing lies. And that's all you have. It's shameful.

For the rest of the world, there have been no allegations of rape. None. CPS is reasonably sure that consensual sex with minors under 16 has occurred; but has no proof of it at this time. Certainly no charges have been filed.


NPR, you and GatoRat can turn on the gas water when these filthy FLDS folk get herded into the showers.
4.29.2008 10:48pm
subpatre (mail):
Oren (to npr)-- Not helping? As you said earlier "in the final analysis, that doesn't really change much."

If true, it's your own argument; just more candid than you'd like.
4.29.2008 10:52pm
Andrew J. Lazarus (mail):

only two are pregnant.
Is this visibly pregnant? Did the parents cooperate in giving the kids the rabbit test or are there perhaps several girls who just don't show yet?

Generally speaking a decent OB-GYN should be able to tell if a girl has delivered a child, which makes me think that after thorough medical examination we'll have an exact number.

As to the birth certificates, do they come from the FDLS medical clinic? Righhhht.

Add me to the zippy fan club.
4.29.2008 11:33pm
Oren:
sub, the sincerity of their religious beliefs matters very little in the final analysis because it has no bearing on whether or not a crime was committed. No country that I'm aware of exempts religious conduct pursuant to sincerely held beliefs from laws of general applicability.

I never said I was convinced there was marital rape going on (or statutory, for that matter), only that the evidence presented so far warrants a more complete investigation. No charges have been filed yet, but the investigation has just begun. Lab results from the most of the DNA hasn't even come back!
4.29.2008 11:37pm
subpatre (mail):
Oren writes - the sincerity of their religious beliefs matters very little in the final analysis because it has no bearing on whether or not a crime was committed. No country that I'm aware of exempts religious conduct pursuant to sincerely held beliefs from laws of general applicability. . . .

That's not true. Native American Church members are exempted from drug regulations and can use peyote or mescaline, many religious believers are exempt from school attendence and vaccination requirements. We grant almost any organized belief calling itself a religion —no matter how whacky or non-deity oriented— a blanket exemption from taxes.

And yes, the practice of polygamy has been known about by law enforcement and tacitly accepted for a half century. Utah and Arizona prosecute crimes inside polygamous societies like welfare fraud and sex with children, targeting individuals (such as FLDS leader Jeffs) for crimes, not the communities.
I never said I was convinced there was marital rape going on (or statutory, for that matter), only that the evidence presented so far warrants a more complete investigation. No charges have been filed yet, but the investigation has just begun.
It's been three weeks. If that isn't the definition of a 'fishing expedition' then nothing is. The state has found no crimes —though finding a few will surely help rouse the rabble— but is preparing to prosecute the FLDS belief system.

"The state will argue that the sect's children are at risk at the compound, but not because every one of them has been physically or sexually abused. Instead, they will say that the culture of the church, which encouraged girls to marry and bear children in their early teens, was a danger to any child immersed in it." --Washington Post, quoting Patrick Crimmins, CPS spokesman.
4.30.2008 1:38am
Ranvah (mail):
1. There are physical cues which allow a doctor or forensic specialist to identify a persons age with reasonable proximity. (Bone formation in the hands, head, hips, teeth, etc.)

2. Assuming that the physical cues for some meaningful portion of the children did not match the reported dates on the birth certificates, and all certificates were by the same issuer then all certificates become suspect and thus disregarded. Additional evidence may have been used such as the children's own self reporting of birth parents or birth dates or family names.

3. The ratio of males to females based on age was statistically problematic. Example: a near 50/50 split below the age of 13. Normal given US statistics. What was not on par was the steep decline in males to females after the age of 13 - roughly 3:1 ratio of females to males over the age of 13 (53 females versus 17 males). Where did 35 minor males between the age of 13 and 17 go? In the general population the ratio of males to females is roughly parity until after the age of 25 and then the difference is only a small percentage due to mortality.

4. Regardless of religious belief, historical evidence, or moral direction the state law in the case states that a minor - someone under the age of 17 - cannot legally consent to sex. They cannot legally marry without their parent's permission at 17 and under 16 they must have both their parents permission and the court's permission. Common law marriages only apply to adults - those people being 18 or over - who are not currently engaged in a legal marriage. The law applies only to parents providing consent for marriage. This means that parents cannot provide consent for their children to have sex. While they may approve or not disapprove of their minor child having sex, the sexual act of a minor with an adult or anyone 3 years older than themselves is still considered a crime of rape under the law.

4. An adult male having sex with a minor female is still considered child rape. A psychologist can excuse the behaviors by placing the person into the categories of ephebophile or pedophile and identifying associated risks for each category. The state makes no such distinction and errs on the side of caution. If an entire family and/or community appears to have colluded in the child rape then the risk to other children appears greater and hence the state acts in a seemingly extreme way by removing ALL children, not just those within a particular age range or gender.

5. Of 53 minor females between the estimated ages of 13 and 17, 2 are currently pregnant and 29 have previously been pregnant and produced one or more live children. That's 58% of the female children between the ages of 13 and 17 having been pregnant (or currently pregnant). Texas statistics state that the current rate for 15-19 year old pregnancy is 101 per 1000 (roughly 11%) with 84 per 1000 being the US average. It's unlikely that the 11% number would increase by shifting the state models age range down two years to 13-17. 58% is significantly higher than 11%.

6. 29 minor children have given live birth to 29(+) surviving children. 29 female children 17 or under are mothers. Assuming that 29 females gave birth to 29 children implies a 0% mortality rate. It is safer to assume that a 10% of pregnancies miscarried and at least 5% of children were still born or died soon after death. This means that at least 15% (4 or 5) of the females in question had more than one pregnancy. Additionally it cannot be assumed a 1:1 ratio of intercourse to pregnancy. This means that many of the minors engaged in sexual activity prior to conceiving. It's unlikely that all 29 girls birthdays fall within a window that would allow for both legal marriage, legal intercourse and a live birth. It is impossible for at least 4 of the girls to have had sex become pregnant, aborted, had sex again and delivered a live child within this very small window of legal opportunity. Since the state does not recognize spiritual marriages and does not recognize common law marriages of people under 18 and does not recognize multiple marriages then it is highly unlikely that any of the 31 girls can be considered legally consenting adults at the time of intercourse or conception.
4.30.2008 2:17am
Ranvah (mail):
Subpatre - what you say is misleading.

Native American's use of peyote and some other religious drugs is covered under federal law. This is a right that they fought for and not an exemption provided simply on the basis of "hey it's my religion dude"

Likewise any religion having a church and wanting to have tax exempt status must meet certain requirements under the law. The Church of Scientology for instance fought for years to gain tax exempt status. They even infiltrated the IRS in order to manipulate the system to get that exemption. Only recently in their history have they received that status. So it's not a blanket catch all "I'm religious, so you can touch my gun/peote/money/pedophilia/animal sacrifice"

All of these issues have been at some point in time before the court and ruled on. Either the law has been amended to account for certain conditions or legal precedences have been set during prior court rulings.

Similarly tacit acceptance does not equate to being legally viable action. A cop may not pull a person over 100% of the time for speeding. This does not in turn make speeding legal.

The problem isn't polygamy. I know of several polygamists living in open society without persecution. They are, at times, derided but not persecuted. No one calls the cops, no one can really charge them with anything as one marriage is legal and one is "spiritual" with a legal name change. Some states may still have some adultery laws that could apply but not this state.

Similarly I know people in arranged marriages, I know people who home school, I know people who don't get their kids vaccinated, people who grind their own grain and grow their own food, and people who do all of the above. While they are not the norm and some people may look at them skeptically, they still live within the confines of normal society.

As some have said, in other states FLDS members are prosecuted on tax, welfare, fraud, or child rape. All legitimate crimes. It is much more difficult to prosecute bigamy unless multiple legal marriage documents exist and someone inside the marriage complains.

People seem to tolerate people who have shacked up, serial polygamists, adulterers, and may/december romances. What people cannot tolerate is those that attempt to isolate themselves and their practices from the transparency of the normal world. Do not hide your light under a bushel.

The assumption is that if they can't live out here in the world, living their polygamy in front of God and everyone, then there must be something more sinister to it. Something unclean that needs to be hidden. Right?

I think the whole concept of either the FLDS or the Christian church being pursecuted is absurd. No one is being drowned, boiled in oil, enslaved, torn asunder, or anything truly life threatening en masse in this country due to their religious belief.

But also realize that BELIEF and PRACTICE are two different things. I believe that polygamy should be okay, hemp should be legal, and that I should be able to drive 100 on the highway. That doesn't mean that I can turn my BELIEF into PRACTICE.
4.30.2008 2:48am
David Friedman (mail) (www):
"1. There are physical cues which allow a doctor or forensic specialist to identify a persons age with reasonable proximity. (Bone formation in the hands, head, hips, teeth, etc.)"

And do you think it likely that the CPS has actually done that sort of detailed examination of 460+ people? Is there any shred of evidence, in their statements, that they have?

"2. Assuming that the physical cues for some meaningful portion of the children did not match the reported dates on the birth certificates, and all certificates were by the same issuer then all certificates become suspect and thus disregarded. Additional evidence may have been used such as the children's own self reporting of birth parents or birth dates or family names."

Again, do we have any evidence that they did anything more than estimate age by appearance? It isn't as if the authorities have provided any. And their explanation of why they rejected birth certificates wasn't anything so fancy--it was just that they could be bogus. And, of course, they could be; I wouldn't rule out the possibility of the FLDS juggling birth certificates.

But once the authorities reject existing documentary evidence, all of their statements about specific ages, such as the claim of how many have given birth, become suspect--they can't know that accurately, yet they are claiming to.

"3. The ratio of males to females based on age was statistically problematic."

Indeed it was.

But if, as seems to be the case, the attributed ages are simply guesses by CPS, an alternative explanation suggests itself. I'm not certain, but I think the story that mentioned the number of people who had recently been reclassified as minors--I think it was in the twenties--described them as female. If they wanted to generate evidence in defense of the seizure, one obvious way would be to take all the young adult women who had had children and reclassify them as minors. And one side effect would be to skew the gender ratio for the "minors."

...

"5. Of 53 minor females between the estimated ages of 13 and 17, 2 are currently pregnant and 29 have previously been pregnant and produced one or more live children."

Don't you mean that of 53 females who CPS claims are minors, CPS claims that 2 are currently pregnant and 31 are either pregnant or have produced at least one live child?

The CPS spokeswoman also claimed, some time back, that several of the girls had said they knew the Sara who had made the phone calls--who we now know was a 33 year old Colorado woman. How many false statements does it take before you become at least mildly skeptical of the source? Are you at all disturbed by their making confident public statements about minors without mentioning that they don't actually know their ages?

"That's 58% of the female children between the ages of 13 and 17 having been pregnant (or currently pregnant). Texas statistics state that the current rate for 15-19 year old pregnancy is 101 per 1000 (roughly 11%) with 84 per 1000 being the US average. It's unlikely that the 11% number would increase by shifting the state models age range down two years to 13-17. 58% is significantly higher than 11%.

Yes. And the 4% pregnancy rate--two girls out of 53--is below the state average.

It's also very difficult to make the two figures consistent. Try it. You have to assume that the current pregnancy rate is about one sixth of the average rate during the past four years. That isn't impossible, but it's at least suspicious.

"6. 29 minor children have given live birth to 29(+) surviving children. ..."

I think you mean "CPS says that 29 women who CPS says they think are minors have given live birth ... ."
4.30.2008 4:48am
subpatre (mail):
Ranvah writes: I think the whole concept of either the FLDS or the Christian church being pursecuted is absurd. No one is being drowned, boiled in oil, enslaved, torn asunder, or anything truly life threatening en masse in this country due to their religious belief.

Children were torn away from their parents; babies from their mothers' breast. And the FLDS is being prosecuted for their religious beliefs — that's why there's a hyperlink to the Washington Post article quoting the spokesman from Texas Department of Family and Protective Services saying exactly that; the FLDS is being prosecuted for their religious beliefs.

What part of "being prosecuted for their religious beliefs" are you failing to comprehend?

Under foster care, a large number of the children will be physically, sexually, and psychologically abused. That's a cold hard statistic that can't be denied. It will happen, and the state is a party to it.

What people cannot tolerate is those that attempt to isolate themselves and their practices from the transparency of the normal world. Do not hide your light under a bushel. The assumption is that if they can't live out here in the world, living their polygamy in front of God and everyone, then there must be something more sinister to it. Something unclean that needs to be hidden.

That's simple xenophobia, a culturally reinforced neurosis leftover from a tribal past. You have our sympathy, but it's not disabling if you get prompt treatment. Medication and therapy can help you overcome it, and should; left untreated it can lead to genocidal urges.
4.30.2008 10:44am
Oren:
And do you think it likely that the CPS has actually done that sort of detailed examination of 460+ people? Is there any shred of evidence, in their statements, that they have?
I think they will do those examinations in due time. Like I said earlier, there will undoubtedly be a trial on the merits of these allegations in the coming weeks where the CPS will lay out its case.

Also, sub, what evidence do you have that this is a fishing expedition? It's quite possible the CPS has considerable evidence that has not been disclosed (since they have no duty to report publicly on the progress of an ongoing investigation). Again, we will see at trial who has what evidence - until then, your bombast is a bit out of place.
4.30.2008 1:50pm
subpatre (mail):
In America, arrest first and then search until you find some evidence (of something) is called a fishing expedition. This is a fishing expedition.
4.30.2008 3:47pm
Oren:
There was plenty of evidence prior to the search, including a consistent CI that was independently corroborated.

What you don't seem to understand is that the threshold for a CPS investigation is not ironclad evidence of specific wrongdoing. We'll save the hard evidence for trial.
4.30.2008 6:29pm
Andrew J. Lazarus (mail):
Let me point out again that by the same argument the children have not had medical exams, the number of pregnant girls is probably underreported. I suspect the number "pregnant" referred only to those far enough advanced to show.

I don't like using the word "cult" because one man's cult is another man's religion. So let's try society. This is a society organized around the leaders' scoring a lot of young quail. To believe otherwise is counter to the statements of refugees and otherwise naive. I don't think their defenders on this thread are naive. Some of them are probably lost in the fantasy. Others have decided this is the right-libertarian equivalent of defending the Nazi march in Skokie.
4.30.2008 6:31pm
subpatre (mail):
Oren says - There was plenty of evidence prior to the search, including a consistent CI that was independently corroborated. What you don't seem to understand is that the threshold for a CPS investigation is not ironclad evidence of specific wrongdoing. We'll save the hard evidence for trial.
- CPS used third-hand anonymous information to initiate the search.
- There was no corroboration or confirmation of information.
- You and CPS ignore Constitutional promises of due process.
[ Above based on CPS report to Texas Senate ]

CPS believed what they wanted to, raided the community, arrested hundreds of people, and is now going to find legal justification for what they already did. It's called a fishing expedition.

And yes, I'm sure they'll find hard evidence in the end. Law enforcement has throwaway guns &meth packs. CPS must have their own versions.

Andrew J. Lazarus writes - This is a society organized around the leaders' scoring a lot of young quail
It's bad enough you stack seven (!) unfounded assumptions on each other just to label others as brownshirts. But "quail"? What a sordid, sorry confession about your own sexual fantasies . . . and your perspective of jealous hatred.

This subject seems slimy enough without your help. Yuck! Please go wash your keyboard.
4.30.2008 11:46pm
Oren:
(1) You couldn't possibly know what information CPS has so statements about what information they used in determining when to search are completely fatuous.

(2) Due process rights are considerably fewer in the civil custody arena than in criminal law. Guardianship of children is a right held by parents solely to further the child's best interest, not for any other reason. Even EV agreed that the usual criminal prohibitions do not apply (see his earlier post). Quit pretending that this is primarily a criminal investigation and you'll start to understand quite a bit more.

(3) There will be a full and fair custody hearing for each child. After the trials, either you will be gone from this blog or you will eat your words about CPS "meth packs" (probably the former).
4.30.2008 11:59pm
Chairm (mail):
Philospher said: That's an assertion, not an argument. Removing the child "without strong reasons" may be unwarranted, but what makes it abusive?

Well, sure I asserted that unwarranted intrusion is abusive of children (and their parents).

Does that need further argument from me when you already appear to agree with this stated principle?

If removal is warranted, then, the intervention would be a rescue.

I hope you wouldn't imply that removal of infants, toddlers, and slightly older kids would just be a sort of vacation for them.

Many of these children will be sperated from their families for years. Some of them, especially those older than 12 years or so, will remain in state custody until they are adults.

And that's going to happen even if it is eventually admitted that their removal was unwarranted. The deed is done. All were caught in the net.

Given the nature of government agencies involved in this sort of stuff, and given the sad performance of our family courts, we can expect a great deal of CYA-ing as hundreds of lawyers and "experts" become involved.

Don't trust the system that routinely removes children from parents (non-polygamous) for far less than you might imagine is alleged in this blanket case.

---

Philospher said: 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.

Aggressively accurate, however.

The People have a government, not the other way around. The children of our society are not owned by the state authorities to do with as they wish.

That's also a big part of the problem inside the compound that was raided.

Hence my remark about how this form of polygamy undermines the principles of self-governance both within the compound and outside it.
5.1.2008 12:50am
subpatre (mail):
Oren says: You couldn't possibly know what information CPS has so statements about what information they used in determining when to search are completely fatuous.
I didn't claim to know what information CPS has; I know what information CPS had prior to raiding the FLDS families. [Assuming CPS was truthful to the state legislature —I copied from them and posted]

That's what a fishing expedition is: arrest first, find evidence later. As Oren consistently reminds us, CPS doesn't even need to find real crimes or surmount reasonable doubt to 'succeed' in destroying families.
Oren says: Guardianship of children is a right held by parents solely to further the child's best interest, not for any other reason.
Guardianship of children is held by parents solely to further what the state maintains is the child's best interest, not for any other reason.

Some years ago, it was in the child's best interest to start driving at one age; this year it's in their 'best interest' to start driving at a different age. In this Texas case it should also be added 'at the lowest cost to the state', but that isn't true in all jurisdictions yet.
Oren says: There will be a full and fair custody hearing for each child.
Full and fair hearing? This from the person who claims it's "a success" that the state eventually returns a child MISTAKENLY removed from his family and allowed the father to return home.

Volokh's already documented the statistical wool CPS has tried to pull over the media's eyes; another poster exposed their attempt to inflate pregnancy rates.
5.1.2008 1:22am
Chairm (mail):
Oren said: 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.

Well, what if the false trigger was the impetus for a raid in your neighborhood? Would you willingly give-up your children to the state investigators?

They might find something to justify the benevolent intervention, eventually. In fact, it is very likely that some abuse would be discovered and rescues made. If you have nothing to hide, you'd submit -- even if a little reluctantly -- to the authority of the government agents, right?

Or we could sweep-up teenaged girls in search of the adult men who have had sexual relations with them. A little DNA testing at abortion clinics and at maternity wards might be justified if these statutory rapists (in plain sight) are nailed, right? Surely if we sepearate the girls from their families (and those adult boyfriends) for the purpose of questioning them thoroughly we'd come up with all kinds of allegations to pursue.

If society is against polygamy because of what it is, rather than for mere (if tragic) symptoms, then, let's enforce the laws of marriage. Polygamy undermines the core of marriage. That's the crime that we ought to take more seriously, I think.
5.1.2008 1:25am
Chairm (mail):
Nathan_M said: 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.

If there are probable grounds, please point us all to the report that establishes that the government had such prior to the raid.

Provide safe haven to the children, and any others at risk, if there is strong reason to believe that the quasi-government in that compound was treating people like slaves.

Is it a cult and as such is it unlawful?

We know that the practice of polygamy is unlawful; that welfare fraud is unlawful; that slavery is unlawful. These are crimes, in fact, and it is far more plausible that these were being committed in plain sight. Afterall, these are the avowed beliefs of the adherents.

We can stop the abuse, if there is more than the mere appearance of abuse, by going at the root of the actual problem whereby a quasi-government illegitimatey imposed parental relinquishment and "reassigned" children within that compound. That's what needs fixing.

For that, we need to unapologetically reassert the nature of marriage and insist that the state, through the court system and the interventionist agencies, support marriage for what it is -- the most pro-child social institution that we have.

Instead we may be setting up a model of intervention based on a speculative framework, triggered by hoax tipsters, and the unwarranted removal of children from their parents. This can easily corrupt what's left that is still meritorious in the child welfare agencies.
5.1.2008 1:48am
Oren:
I didn't claim to know what information CPS has; I know what information CPS had prior to raiding the FLDS families.
Actually, that was a typo on my part. I meant "had" and I continue to assert that you have no idea what was in the CPS files at the time of the raid.

If there are probable grounds, please point us all to the report that establishes that the government had such prior to the raid.
Sorry, the government does not need to disclose the state of a pending investigation to every comer that wants to peek at the files. All the evidence will eventually be made public, just not quite yet.

The People have a government, not the other way around. The children of our society are not owned by the state authorities to do with as they wish.
Nor are children owned by their parents, to do with as they wish. We (rightly) give parents wide latitude on what constitutes the child's best interest, but to make this latitude unlimited is essentially to abrogate the rights of the child.

Many of these children will be sperated from their families for years. Some of them, especially those older than 12 years or so, will remain in state custody until they are adults.
You can assume the result of a hearing before its conducted, I prefer to wait.

Full and fair hearing? This from the person who claims it's "a success" that the state eventually returns a child MISTAKENLY removed from his family and allowed the father to return home.
Out of context. I claimed it was a success, insofar as the initial (gross) mistake was quickly reversed. No system is perfect, but a system that quickly repairs its errors is far better than one that attempts not to make any.

Well, what if the false trigger was the impetus for a raid in your neighborhood? Would you willingly give-up your children to the state investigators?
If they had on me the kind of evidence they have on FLDS, hell yeah.

Instead we may be setting up a model of intervention based on a speculative framework, triggered by hoax tipsters, and the unwarranted removal of children from their parents. This can easily corrupt what's left that is still meritorious in the child welfare agencies.
But it's precisely those parents that have set up a system of relinquishment and reassignment that you say needs fixing. Those parents will not testify to the crimes of their leaders, nor will they even admit that some of the practices even happen (despite mounting public evidence to the contrary). I see no reason to doubt that they will continue those practices that you have labeled objectionable.

Or we could sweep-up teenaged girls in search of the adult men who have had sexual relations with them. A little DNA testing at abortion clinics and at maternity wards might be justified if these statutory rapists (in plain sight) are nailed, right? Surely if we sepearate the girls from their families (and those adult boyfriends) for the purpose of questioning them thoroughly we'd come up with all kinds of allegations to pursue.
Surely you don't mean to separate children from their families when the alleged rapist is neither a member of the family nor committed the rape with the explicit support of the family. If the family had anything to do with the rape (like, say, marrying off a 13 year old to a 30 year old), then absolutely remove the child pending the result of an investigation. Otherwise, the family has nothing to do with it.

Also, most teenage girls sleep with teenage boys, making it a non-crime in most states.
5.1.2008 2:17am
Oren:
Actually, that last point is more interesting than I thought. Part of the reason why this case is particularly powerful is that the statutory rape was not the garden-variety teenage kind but rather involved the coercive pressure of authority figures (see, e.g. ) such as religious leaders and parents.

Institutionalized child abuse merits a different response than teenagers that refuse to listen to their parents and have sex. If you can't see the difference than we are really getting nowhere.
5.1.2008 2:24am
David Friedman (mail) (www):
I wrote:

"And do you think it likely that the CPS has actually done that sort of detailed examination of 460+ people? Is there any shred of evidence, in their statements, that they have?"

Oren replied: "I think they will do those examinations in due time."

So Oren is agreeing with me that the CPS has not done the sort of detailed investigation needed to determine age, given their refusal to accept documentary evidence. But, as Oren knows, the CPS has been making public statements about how many "minors" of what ages have done what. If they don't know what the actual ages are, they cannot have the information necessary to know if those statements are true. Hence the CPS has been publicly lying about the facts.

What part of the logic of that does Oren dispute? If he agrees, doesn't that behavior--along with the insistence by a CPS spokeswoman that some of the girls knew the (we now know nonexistent) "Sara," provide reason to discount all factual claims made by CPS?
5.1.2008 2:26am
Oren:
While we are at it, do you guys disapprove of Jeff's conviction as an accomplice to rape for ordering a 14 year old girl into a sham marriage and instructing her to submit to her husband.

I hope there's a special ring of hell for religious tyrants like him . . .
5.1.2008 2:29am
David Friedman (mail) (www):
Oren writes:

"There was plenty of evidence prior to the search, including a consistent CI that was independently corroborated. "

I believe another commenter already provided evidence suggesting that their other source was an anti-polygamy activist who left the cult fifteen or twenty years ago, and so could provide no first hand information at all about what was happening in Texas--merely her view of the FLDS in general. Do you have any reason to reject that interpretation?
5.1.2008 2:32am
Oren:
I am not convinced either way about the identity of the CI. I don't think it's relevant.

My basic understanding here is that the CPS has no desire to waste its time pursuing baseless claims of abuse. If they acted, I defer to their judgment of the evidence (temporarily, until a judge sorts it out).

I am perfectly willing to entertain the notion that they were mistaken about the facts and circumstances. I'm certainly willing to entertain the notion that their judgment was unsound. What defies all logic, however, are accusation that they are intentionally malicious for no reason at all other than being intentionally malicious. Some of the theories of CPS' ill-motives just don't make any sense.
5.1.2008 2:51am
David Friedman (mail) (www):
Oren writes:

"I am perfectly willing to entertain the notion that they were mistaken about the facts and circumstances. I'm certainly willing to entertain the notion that their judgment was unsound. What defies all logic, however, are accusation that they are intentionally malicious for no reason at all other than being intentionally malicious."

I think there are at least two obvious motives. The first is the desire to destroy or drive out the FLDS--very possibly motivated by an honest belief, perhaps correct perhaps not, that they are doing bad things such as forcing underage girls into sex. I think it is pretty obvious from the changes in Texas law three years ago—raising the age of consent for marital sex and making polygamy a felony, pushed by a legislator from the area where the FLDS ranch is—that there is serious political pressure to get rid of them.

The second is the desire of CPS to justify their actions. Presumably, when they made the initial seizure, they believed that "Sara" was real. They now know she wasn't. If the final conclusion is that the FLDS was doing nothing wrong, the CPS people responsible for the raid are going to be in serious trouble—reputational and possibly even legal.

My question to you is whether it is possible to make their public statements consistent with the belief that they are acting in good faith. How do you explain their making repeated statements about ages without specifying that they mean "our guess at age, even if contradicted by documentary evidence?" How do you explain the inconsistency between number claimed to have children and number actually pregnant? How do you explain releasing a figure for how many minors appear to have had fractures without mentioning that the fraction is about average--a point discussed in a later post on this blog? How do you explain the claim that several girls knew the Sara who had made the phone call, when we now know she did not exist?

All of that, it seems to me, indicates self-deception at best, and more plausibly a deliberate attempt to mislead by CPS.
5.1.2008 2:13pm
subpatre (mail):
Oren writes - I am not convinced either way about the identity of the CI. I don't think it's relevant.
Then you shouldn't have used it as a basis in claiming sufficient evidence, nor claimed the confidential informant (CI) was "independently corroborated" when you don't have a clue.

Oren's statement "I hope there's a special ring of hell for religious tyrants like him" might be a valid sentiment, but prejudice has warped your judgment. That was simply trumped-up, no different from cops planting evidence or CPS inventing sexual abuse.

Now you (should) understand why many experienced people are cynical about CPS motivations —unconscious or not— when your own led you to fabricate.
5.1.2008 2:55pm
Andrew J. Lazarus (mail):
I'm not an attorney, so the discussion of threshold of probable cause, etc. is a place where I have to let experts hold forth (even if this is the Internet). You don't need to be a lawyer, though, to understand what the sociological issue us here. And I'm really mystified by the way posters here are standing up, as a moral issue, for a society organized around obedience to the leader from birth, including, or more likely <i>especially</i>, the leaders' desires for plural "spiritual marriage" with teenage girls.

Let me summarize: <b>The Star Trek Prime Directive is make-believe and bad policy anyway.</b> We're under no compunction to allow a sub-society to exist in violation of our established laws against polygamy, statutory rape, compulsory education, and child neglect. Whether the raid met the appropriate legal standards, that's beyond my expertise. Whether we should try to get children out of this place, that seems like a no-brainer. I'm sure the kids in that Austrian basement (who knew the FLDS had an Austrian branch?) who had never been outside in their lives are pretty frightened and disoriented right now, too. Do you have a problem with that?
5.1.2008 5:00pm
Andrew J. Lazarus (mail):
Today's NY Times reports that according to CPS (which of course is a center of Cylons), many girls refused pregnancy tests on the advice (or at the behest) of older women. I'm shocked! Shocked!

So the number of pregnant girls has almost certainly been underestimated, missing those who don't yet show. And the entire demographic argument against CPS collapses.

Meanwhile, where are all those teen boys who would normally be courting the teen girls? Fresher tasting Soylent Green, perhaps?
5.1.2008 5:58pm
Chairm (mail):
Oren said: Sorry, the government does not need to disclose the state of a pending investigation to every comer that wants to peek at the files. All the evidence will eventually be made public, just not quite yet.

The files? Sorry? Not good enough.

Well, not good enough as far as I'm concerned but you may be comfortable with setting the wheels in motion on the basis of fraud?

The trigger was a hoax phone call and whatever gets added to that file will be added after the initiation of the sweep. The speculative framework has long-existed without such a raid being triggered. That's the main point.

I made that point in response to someone else who was appalled that we thought the threshold ought to be higher than hoax tipsters.
5.2.2008 12:45am
Chairm (mail):
Oren said: We (rightly) give parents wide latitude on what constitutes the child's best interest, but to make this latitude unlimited is essentially to abrogate the rights of the child.

Oren I did not say that children are owned by their parents, to do with them (and to them) whatever they desired.

But who is "we" in your remark? You make it sound like the government owns children and it is only by government permission that children may remain with their parents. I'd give you the benefit of the doubt and expect you probably meant to say something else, but perhaps you can explain further.
5.2.2008 12:52am
Chairm (mail):
Oren said: You can assume the result of a hearing before its conducted, I prefer to wait.

Perhaps you know very little of how the system actually works when children are removed. In my experience -- years of involvement with foster care and with adoption in various capacities -- you will be waiting for years.

Yet you said: If they had on me the kind of evidence they have on FLDS, hell yeah [the government can take my kids based on a hoax phone call].

You mean that hoax call, right? Because the government did not act on the other stuff that was known prior to the raid. Or are you talking about stuff being reported in the midst of this sweep?

You also missed the point of my question. The government wouldn't necessarily have evidence on you, Oren, but they'd have a hoax accusation against your neighborhood.

Why would we even need a hoax accusation? Just assume that the government will find something somewhere in your neighborhood. We could even take the princple further and allow spot check searches of private homes.

Again you probably wouldn't approve of that, I'd expect, but maybe you think there is some evidence against the FLDS that the government should have acted on BEFORE this particular raid in Texas? Maybe raids should now occur across the country on all FLDS-type communities, in your view?

I'm in favor of enforcing the polygamy laws, the welfare laws, and the laws against slavery and human trafficking. But these transgressions were in plain sight before the raid. Did you advocate raids and removal of children before this particular incident?
5.2.2008 1:11am
Chairm (mail):
Oren said: Surely you don't mean to separate children from their families when the alleged rapist is neither a member of the family nor committed the rape with the explicit support of the family. If the family had anything to do with the rape (like, say, marrying off a 13 year old to a 30 year old), then absolutely remove the child pending the result of an investigation. Otherwise, the family has nothing to do with it.

Also, most teenage girls sleep with teenage boys, making it a non-crime in most states.


Last point first. So what? The issue I raised was statutory rape. Underaged pregnancies are very often caused by adult men. Cast a broad enough net and we'd probably catch them even if it meant sweeping up the teenaged boys.

Remove the girls from their homes? You missed the point.

The example was used to compare the use of fishing expeditions to discover evidence of criminal behavior.

But what about parents who have neglected their responsiblity to protect their daughters from these statutory rapists who just happen to be "boyfriends"? Is that neglect guilt-free? If we can take the guy to court to exact child support, for example, why not also establish that he is a statutory rapist and that providing child support does not shield him from being punished for that crime?

That just an example and not meant to be discussed in great detail.

Can you not see how the logic of this raid on this particular compound can lead to the dismantling of liberties, and self-governance, if it is permitted to take us where it leads us.
5.2.2008 1:27am
Oren:
Last point first, no. Self-governance is not license to do whatever you want, it's a license to live by the rules that are democratically agreed upon. If the FLDS does not want to obey the laws of the State of Texas, they can live elsewhere.

Second to last point next, the inability to keep one's child from sleeping around (or using a rubber) is not even close to neglect on the level of the abuse here. The older men that have sex with teenagers (below the aoc) should be held accountable, criminally and civilly - absolutely no reason not to. They have to live by the same rules everyone else does (and can petition their gov't for a new rule, if they wish). I don't see any reason why police cannot or should not investigate any case in which it is probable that someone violated the law.

Of course, in the instant case we have very strong reason to believe that FLDS girls below the aoc were not impregnated by other teenagers but by adults, often after significant coercion by their parents and religious leaders (see, e.g. the Warren Jeff's trial).
5.2.2008 1:42am
Chairm (mail):
Andrew J. Lazarus said: I'm sure the kids in that Austrian basement (who knew the FLDS had an Austrian branch?) who had never been outside in their lives are pretty frightened and disoriented right now, too. Do you have a problem with that?

That Austrain case has zilch to do with the FLDS. If you meant to draw some kind of rhetorical connection, please elaborate a little.

In this discussion about the raid and the unknown number of underaged pregnancies, well, would you have a problem with the government demanding DNA testing of every child and parent to try to catch incestuous culprits like that Austrian man? Or perhaps doing door-to-door spot checks in your neighborhood to look for kidnapped and enslaved people? Even as a non-lawyer you would surely expect some kind of just threshold.

In layman's terms: if there are good strong reasons to intrude in a particular instance, then, okay, a rescue would obviously be the right thing to do and it would be justifiable to err on the side of acting on rather than neglecting those strong reasons. Right?

Andrew J. Lazarus said: We're under no compunction to allow a sub-society to exist in violation of our established laws against polygamy, statutory rape, compulsory education, and child neglect. Whether the raid met the appropriate legal standards, that's beyond my expertise. Whether we should try to get children out of this place, that seems like a no-brainer.

That stuff was known before the raid but there was no action taken until the hoax call. So it obviously was not a no-brainer, for some reason that the authorities have yet to explain.

You are right about a sub-society -- or as I've described, a quasi-government -- within that compound.

The principles of self-governance and of liberty are at issue here. But they are also at issue with this raid and what appears to be a fishing expedition that will entail a great deal of politics -- and this, too, will tend to undermine the same principles of self-governance and of liberty.

I really don't think it was necessary to wait for children to be abused or for underaged girls to become victims of statutory rape. This approach entails the practgical risk of backfiring on the polygamy laws, for example, and, as your comment indicates, this is no small matter. It ought to be a no-brainer -- but the action taken ought to be principled and aimed at the root rather than the fruit of the problem.

My greatest fear in this is that the government will get bogged down in defending their over-reach breaches and theh public will be fooled into thinking that is how to respond to the practice of polygamy.

Reaffirm the nature of marriage and enforce the laws against polygamy.
5.2.2008 1:49am
Chairm (mail):
Oren said: Self-governance is not license to do whatever you want ...

That is not a point of contention between us, Oren. But parents have the status they do because they are responsible for the children they bring into this world. Not because the government grants permission for them to raise their children. That's the starting place, I'd hope you would agree.

Oren said: the inability to keep one's child from sleeping around (or using a rubber) is not even close to neglect on the level of the abuse here

Again, you miss the point of the comparison. If we follow the logic of this raid, we'd cast a very broad and intrusive net to catch statutory rapists via pregnancy centers and abortion clinics, right? The inability of the adult man from raping an underaged girl is the central issue because that's person committing the crime. If the parents are accessories to that crime, then, cast a net broad enough and intrusive enough to catch them too, right?

Oren said: I don't see any reason why police cannot or should not investigate any case in which it is probable that someone violated the law.

Yet they failed to do so for decades. The hoax call is what triggered this raid.

Oren said: ... in the instant case we have very strong reason to believe that ...

Yes, the practice of polygamy is against the law. Yet that was not the trigger for this raid. Nor was it in the case you mentioned. Nor was that case the trigger for this raid. What did you meant to say?
5.2.2008 2:01am
Chairm (mail):
Oren said: sleeping around (or using a rubber)

I want to emphasize that using a condom does not shield a statutory rapist.

Nor does the claim that the underaged girl "sleeps around" -- by virtue of her being statutory raped.

I have no idea why you added that bit. Maybe such odd beliefs provide the basis for the polygamists to also calim their beliefs -- odd or not -- also shield them?
5.2.2008 2:13am
Oren:
But parents have the status they do because they are responsible for the children they bring into this world. Not because the government grants permission for them to raise their children. That's the starting place, I'd hope you would agree.
I suspect this is our major point of contention. Parents have guardianship rights for the purpose of exercising them in the best interest of the child (in your words, because they are responsible). Fundamentally, guardianship is not an end unto itself (like freedom of speech) but rather a means by which a different end is achieved. In this sense, guardianship should more be considered a duty than a right, since it imposes a positive obligation on the parent to do what's best for the child. It is the child that has the right to a guardian that makes decisions based on her best interest.

The situation is analogous to an executor of an estate, an accountant or lawyer that certainly has considerable legal power but power that is understood to be used for the furtherance of specific goals.

Now, as I've said a dozen times, parents have wide latitude in determining what constitutes the best interest of their child but that latitude cannot be unlimited. At some point (to be determined democratically, I imagine), the decisions of the parents become so contrary to any reasonable interpretation of the child's best interest that to continue guardianship would be an affront to that child's rights. I don't take this decision lightly, but, since we are talking theoretically, I think it has to be acknowledged that such a point exists somewhere.
5.2.2008 2:47am
Oren:
Reaffirm the nature of marriage and enforce the laws against polygamy.
Quick point, before I get to the substantive responses: In the FLDS case, it would be virtually impossible to prove polygamy offenses because FLDS "spiritual marriages" records are not public information and there is no way to coerce the FLDS into releasing it.

The prescription to enforce polygamy laws is entirely bogus, IMO, because they are unenforceable except in the case of a compliant suspect.
5.2.2008 2:50am
Oren:
Actually, before I get much further, I get the sense that you guys are broadly against the current SCOTUS logic on pretextual stops and, more broadly, the objective standard criteria. If that is the core of your opposition to the raid, that it was merely an excuse to investigate crimes that the police long suspected but could not get PC on, then this discussion is far broader than I imagined.
5.2.2008 2:56am
Andrew J. Lazarus (mail):
Chaim, my Austrian crack was aimed at those people here upset about the short-term consequence that the children who have been removed from the FLDS compound are confused and unhappy. So, I suspect, are the Austrian children. That hardly excuses the state's attempt to look after their long-term interests.

Why Texas, Utah, and Colorado prosecute these cases only intermittently is a good question for which I have no answer.
5.2.2008 11:32am
Chairm (mail):
Oren said: At some point (to be determined democratically, I imagine), the decisions of the parents become so contrary to any reasonable interpretation of the child's best interest that to continue guardianship would be an affront to that child's rights.

I asked about the starting place. Parents are not merely guardians. The are responsible because they brought the child into the world. The connection pre-exists any government authority to dismantle, intrude upon, or otherwise monitor and review the child-parent relationship.

For a huge example, this principle is expressed in the marriage presumption of paternity which is one of the strongest and most significant laws in our society. It is expressed in the rather more intrusive laws regarding the presumption of paternity outside of marriage, as well. Nonetheless it is central to responsible procreation (which itself is a set of foundational principles that go beyond mere child bearing) which is at the core of marriage as a social institution.

The point, as you put it, and the threshold, as I've put it, exists whereby some transgression has moved the scenaior beyond THAT starting place.

If for you the starting place is the government's authority to grant permission to parents to care for the well-being of their children, then, it would appear to me that you believe that the government (democratic or whatever) owns society's children. This idea, if you hold it or if it is the basis for state interventions, would be a fundamental attack on self-governance and liberty.

Please clarify.
5.2.2008 10:44pm
Chairm (mail):
Oren said: The prescription to enforce polygamy laws is entirely bogus, IMO, because they are unenforceable except in the case of a compliant suspect.

As you put it, that is mere assertion not and not an arugment. Your IMO is noted, of course.

As I said previously, our society seems to have tied its hands behind its back. Marriage integrates the sexes and provides contingency for responsible procreation. The practice of polygamy, in its various forms, strongly tends toward increased segregation of the sexes and the undermnining of responsible procreation. It is by reason and empirical evidence that society can determine that polygamy is an inferior form of marriage and as such ought to be against public policy and against the law.

Granted, it seems that today's government authorities have taken the weak-kneed position that the enforcement of polygamy laws is no more viable than the enforcement of laws against illegal immigration and border protection.

Going after polygamists for statutory rape may be intermittently successful -- provided very broad sweeps of this kind are tolerable and based on more than mere hoax tipsters -- but it is not necessary to wait for rapes nor to wait for children to be abused.

Oren said: it was merely an excuse to investigate crimes that the police long suspected but could not get PC on

In practical terms, I don't think there can be any doubt that the hoax call was the trigger for this sweep.

As for what has been long suspected, I think this goes far beyond this or that police department.

In this discussion you have assumed much about the homes of people in the FLDS and I asked earlier if you had supported a sweep of this kind prior to current instance in Texas -- would you support this kind of intervention, sans hoax call, or sans compliant polygamist, in other FLDS communities across the nation. Not years after this particular instance is sorted out but today with what you know about the evidence?

If you hesitate then your hesitation would lend additional credence to the points I have been making. The actions need to be based on principles of justice that do not undermine the necessary prohibition on the practice of polygamy. That sort of state action, on behalf of society, needs to be based on what marriage actually is -- its nature or core -- in the context of what polygamy actually is -- an inferior form of marriage that segregates the sexes and is an affront to the contingency for responsible procreation.

The social institution of marriage, not the government's interventionist agencies (as benevelonent as one might optimistically presume them to behave even in sweeps like this), is the most pro-child institution we have. Removal of children from polygamous parents is not something that can be sustained, I think, on the basis of individuated allegations of crimes such as a specific case of underaged marriage or child abuse. Afterall, such cases entail the very thing you claim makes the call for enforcement of polygamy laws merely "bogus" -- the lack of compliant suspects.

But you might say that there are significant obstacles due to secrecy and the like. Well, sure but that's usually the case with that category of criminal behavior. You might say that the polygamous community conspires to shield the suspects, and again that's so even in the case of unwed mothers whose cohabitating male partners are suspect. The real obstacle is the nature of polygamy itself and that's why it needs to be addressed systematically, based on what it actually is, rather than on bits and pieces and an over-broad dragnet like in this instance.
5.2.2008 11:13pm
Chairm (mail):
Andrew J. Lazarus, I don't think your crack about the Austrian example says what you think it says about the objections raised here regarding the removal of children.

Prosecution of polygamy -- as polygamy -- has become very rare and not likely even in this instance where the homes of an entire community have been dismantled.

Across the border in Canada the government doubts that it can intervene due to the recent precedents set by the court system in is jurisprudence on the Charter of Rights and Freedoms. The "progressive" avante guard of the legal community there is already lining up for regulation of polygamy rather than the continued prohibition. This is at odds with the public's support for the prohibition and for enforcement of the rule of law in Canada.

If we can't affirm the nature of marriage, and attack polygamy for what it actually is, then, I suppose we leave ourselves the vain hope that by intruding based on hoax calls we can dig-up enough individualized instances of symtomatic crimes that we don't have to make a case against polygamy itself.

Hence he problem of self-governance whereby the threshold of intervention is lowered for polygamists and thus lowered for all parents.
5.2.2008 11:35pm
Oren:
I asked about the starting place. Parents are not merely guardians. The are responsible because they brought the child into the world. The connection pre-exists any government authority to dismantle, intrude upon, or otherwise monitor and review the child-parent relationship.


Sorry, that doesn't follow. Intervention in the guardian relationship doesn't presuppose government ownership of children any more than regulation factory emissions presupposes government ownership of the factories. Nobody disputes that citizens have a right to own factories but at the point where they violate the rights of others (say, by contaminating the drinking water), society has the right to intervene to prevent that violation.

You seem to arguing that because guardianship rights exist (and because they are construed as broadly as possible), they must somehow be inviolate. That's utter nonsense, and I suspect you know that. It's not true for any other right in our society (or any other society that I can think of) and it's certainly bad policy.
5.3.2008 4:56pm