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Procedure:

My tentative sense based on media accounts, as I've mentioned before, is that there have been crimes -- likely very serious crimes -- committed at the FLDS compound. There are reports of outright forcible rapes, and it seems likely there was a good deal of statutory rape under Texas law. So it's very likely that there are lots of criminals living there; maybe most of the adults there are criminals; the police should be ferreting out evidence of this, and prosecutors should prosecute those who appear guilty. Nor do I have any sympathy for the FLDS people's lifestyle, which even if legal strikes me as pretty bad for the children.

But procedure matters, and it should matter when it comes to removing children from their parents and not just when it comes to criminal prosecution. There are good reasons why we don't just swoop in and arrest everyone who lives in a community where we think crime is taking place. If we could do that, we might find it easier to, say, prosecute the Mafia or street gangs; but we don't do that. Imagine what the nation would be like if we did.

Instead, we insist on individualized evidence of guilt. It generally takes probable cause to justify arrest, search, and pretrial detention. It takes proof beyond a reasonable doubt to justify criminal punishment. It takes proof by a preponderance of the evidence (though sometimes perhaps just probable cause) to justify some civil remedies, such as asset forfeiture (and when those standards are relaxed enough, and stop being individualized enough, people complain about them, too). The police can generally question people without any individualized suspicion -- the point of the questioning is often precisely to see whether such suspicion is warranted -- but for more coercive steps, something more is needed.

Now naturally when there is evidence of likely imminent danger -- whether to children or to others -- the procedures understandably become somewhat relaxed. The police, for instance, can search a home just with probable cause if there are exigent circumstances, with no need for a warrant. In certain situations, the police can even enter a home without probable cause, under the rubric of community caretaking (though the boundaries of that are complex and in some measure rightly controversial). Child protective services can temporarily isolate a child from parents who seem to be abusing the child, or likely to abuse the child shortly. But all that is where there is indeed evidence of likely imminent danger to particular people.

So if Texas had gone in and arrested those people as to whom there was probable cause to believe that they had committed crimes, I wouldn't object. If Texas had gone in and seized those children as to whom there was evidence of imminent danger, I wouldn't object. If Texas had seized some children for a few hours to conduct a physical exam, that would be closer to the border (in the absence of individualized evidence of likely harm), but I probably wouldn't object much there, either. And certainly the evidence required wouldn't t itself have to rise to proof beyond a reasonable doubt; that's a standard for a criminal trial, not for a preliminary seizure because of a material risk of imminent danger.

But from all I've seen in press accounts, there is no serious evidence of imminent danger to children and to infants. There is some suspicion that some, many, or maybe even all their parents have committed crimes against some teenage children (including aiding other adults' crimes, which is itself a crime). There is some evidence of imminent danger to teenagers. But that other children who live in the same community are harmed by some adults in the community isn't by itself adequate reason, I think, to take a small child away from his or her parents, before any evidence of actual crime by the particular parents or actual danger to the particular child is provided.

Again, imagine that the police had the power to seize all the infants and toddlers in a cohesive, culturally homogeneous neighborhood because there was evidence of serious and potentially teenager-threatening crime among many adults of that neighborhood (for instance, drug dealing, drug abuse, gang crime, and the like). That would surely be a powerful tool for law enforcement, and a powerful means to get evidence. It might even help some of the infants and toddlers, if you assume a good foster care system (not because the small children are in immediate danger from the crime, which may mostly affect teenagers, but because many of their parents might indeed be bad parents).

But it would put far too much power, I think, in the government's hands. And the traditional procedure -- arrest those as to whom you have probable cause, and take away children when you have concrete evidence that there is a threat to them in particular -- would have much (though not all) of the benefit without this dramatic increase in government power.

By the way, the careful reader may well have noted that there is an area in which we have had much broader government seizure authority -- war, and the handling of enemy combatants. The government has vast powers over people seized in foreign theaters of combat, especially when they aren't citizens. The government has also of course famously and controversially asserted similar powers over alleged enemy combatants who are citizens, and who are seized in the U.S. I think the power over foreign citizens, especially those seized in foreign country, is justified by tradition and necessity; I think some such power over U.S. citizens may also be proper, and historically recognized, but it too requires substantial procedural constraints.

Yet in any event surely everyone would agree that any such power over U.S. citizens in the U.S. is extraordinarily perilous. Even those who would leave the procedural rules chiefly in the federal government's hands would, I think, agree, though they conclude that the exigencies of war and the dangers of terrorist attacks that would kill anywhere from hundreds to millions justify this risk. Protection of children from abuse is important, but I certainly hope that we won't adapt the warfare model to it.

Blue (mail):
EV, understand that CPS operates under a lower standard of proof. In Texas to terminate parental rights the standard is preponderance of evidence.

As far as removal, the standard is more leinient:

§ 262.101. FILING PETITION BEFORE TAKING POSSESSION OF
CHILD. An original suit filed by a governmental entity that
requests permission to take possession of a child without prior
notice and a hearing must be supported by an affidavit sworn to by a
person with personal knowledge and stating facts sufficient to
satisfy a person of ordinary prudence and caution that:
(1) there is an immediate danger to the physical
health or safety of the child or the child has been a victim of
neglect or sexual abuse and that continuation in the home would be contrary to the child's welfare
;
(2) there is no time, consistent with the physical
health or safety of the child, for a full adversary hearing under
Subchapter C; and
(3) reasonable efforts, consistent with the
circumstances and providing for the safety of the child, were made
to prevent or eliminate the need for the removal of the child.
4.29.2008 4:20pm
Blue (mail):
Also this:

§ 262.104. TAKING POSSESSION OF A CHILD IN EMERGENCY
WITHOUT A COURT ORDER. (a) If there is no time to obtain a
temporary restraining order or attachment before taking possession
of a child consistent with the health and safety of that child, an
authorized representative of the Department of Family and
Protective Services, a law enforcement officer, or a juvenile
probation officer may take possession of a child without a court
order under the following conditions, only:
(1) on personal knowledge of facts that would lead a
person of ordinary prudence and caution to believe that there is an
immediate danger to the physical health or safety of the child;
(2) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that there is an immediate danger to the physical health or
safety of the child;
(3) on personal knowledge of facts that would lead a
person of ordinary prudence and caution to believe that the child
has been the victim of sexual abuse
;
(4) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that the child has been the victim of sexual abuse; or
(5) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that the parent or person who has possession of the child is
currently using a controlled substance as defined by Chapter 481,
Health and Safety Code, and the use constitutes an immediate danger
to the physical health or safety of the child.
(b) An authorized representative of the Department of
Family and Protective Services, a law enforcement officer, or a
juvenile probation officer may take possession of a child under
Subsection (a) on personal knowledge or information furnished by
another, that has been corroborated by personal knowledge, that
would lead a person of ordinary prudence and caution to believe that
the parent or person who has possession of the child has permitted
the child to remain on premises used for the manufacture of
methamphetamine.
4.29.2008 4:22pm
Frog Leg (mail):
As another commenter said in the other thread, the standard in family law is everywhere different than a particularized threat to a particular child that you mention. Perhaps if you discussed the actual standard used in family cases, rather than an analogized one that appears to come from other areas of law, your arguments might have more force.

And as for the breadth of the sweep against the entire compound, even from the criminal context, there is a one word answer to this: conspiracy. There was a conspiracy by all the adults in the commune to perpetuate a lifestyle which had statutory rape as a continuing component.
4.29.2008 4:23pm
Vermando (mail) (www):
Agree with your general point about the need to constrain the government but the above commenters about the fact that those safeguards have traditionally not been applied to these settings for a variety of reasons. It is similar to our overlooking mens rea for public welfare offenses - these administrative laws get a lot of slack that makes those schooled in classical notions of criminal law very uncomfortable.

Of course, perhaps it would be good to discuss what standards should apply for such situation, and there is more of that point in this post than in previous ones. However, a failure to comply with theoretically necessary but actually inapplicable norms is neither a basis for criticizing the state's actions in this particular case, nor, more importantly, for engaging in the outraged histrionics of some posters and commenters (amongst whom I do not include Professor Volokh, for clarity's sake).
4.29.2008 4:39pm
Pyrrhus (mail) (www):
I'm sympathetic to EV's point, but I can't help wonder if the environment at the FLDS compound makes a comparison difficult. If a child is abused in a normal environment, it is generally by a family member, with acquaintances and neighbors standing in as possible witnesses.

If my impression of the FLDS compound is correct, there were no such easy witnesses. Everyone who was there, by default of their decision to live there, was idealogically commmitted to the actual abuses that were taking place. In a cloistered community where everyone except possibly the victim is an accomplice, how are we ever supposed to have proof?

If in fact a certain sort of community cannot yield evidence of abuses, doesn't that community warrant greater surveillance? Or are my assumptions about some communities being "different" not really valid?
4.29.2008 4:41pm
SpenceB:
["..Instead, we insist on individualized evidence of guilt. It generally takes probable cause to justify arrest, search, and pretrial detention. "]

If CPS law/regulation contradicts the Texas State Constitution — which prevails ?

The Texas Constitution
Article 1 - BILL OF RIGHTS
Section 9 - SEARCHES AND SEIZURES
The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
4.29.2008 4:44pm
Daniel San:
In juvenile abuse and neglect cases (in many states), a child is deemed abused or neglected it a child who is a member of the same household or family has been abused or neglected. In a situation such as this compound, the term "same household or family" becomes muddy, it seems. I have been involved in hearings that concerned four children, four fathers, and one mother.

Of course, removal also requires a finding of (some standard of) necessity to remove the child from the home. I have always argued that this should be a truly individualized determination. Most courts at least give lip-service to the individual needs of each child if there are strong and relevant differences in their situations.
4.29.2008 4:55pm
BruceM (mail):
Keeping children away from religion and religious fundamentalist is more important than any other interest at issue here.
4.29.2008 4:56pm
rex talionis (mail):
to repost the question i asked in the other thread:

what would happen to a child born today on the YFZ ranch?
what will happen to future children? if texas successfully makes the case that the FLDS religion is inherently dangerous to children, will all FLDS believers have their children seized? will there be forced abortions of pregnant FLDS members? forced sterilizations?
4.29.2008 4:56pm
Alan Gunn (mail):
I agree with Blue and Frog Leg, and would just add this: People who abuse their kids always teach the kids to lie. As a practical matter, the way you get evidence of abuse when you have reason to suspect it is to take the kids out of the house, put them somewhere safe, and work from there. In the normal family situation, if you think one child is being abused, you take them all. In the Texas case--about which I have no solid information--my impression is that the equivalent to the "one family" is the whole bunch. To be sure, you need real evidence to keep the children away from their families permanently (or even long-term), but to insist on even a preponderance of the evidence, let alone proof beyond a reasonable doubt, before children are removed would mean that a lot of serious child abuse would never be detected.

I have represented the interests of about twenty abused or neglected children over the past several years. I don't think that more than half of those cases--in all of which abuse or neglect was substantiated--would have gotten off the ground under your approach.

A few years ago, we had an eruption of absurd claims of child abuse, especially in day-care, based on stories that were force fed to kids by investigators; false charges of abuse do occur, and it's a serious problem. But there's a lot of real abuse out there, too, and if you don't catch it early enough the kids will never lead normal lives. The best approach is to be careful about how the investigations are done, not to prohibit investigations until you've got the evidence.
4.29.2008 5:03pm
Extraneus (mail):
In Blue's first two comments, the bolded sections of the cites both refer to the child's having been the victim of "sexual abuse." From what we've read, I can imagine that there might have been this concern relating to the teenage girls, but not to the infants or toddlers of either sex, or boys of any age.
4.29.2008 5:04pm
Amber (www):
I wouldn't be so sure to say that children and infants aren't in danger. Pre-teen children, especially boys, seem to die mysteriously at disproportionately high rates in FLDS compounds.
4.29.2008 5:19pm
Oren:
EV: I think that, on the balance of things, the procedures from criminal law are not at all applicable to CPS cases. For example, the general refusal by most states to apply the exclusionary rule to civil abuse/custody proceedings seems eminently logical. See here
4.29.2008 5:24pm
freelunch (mail):
Extraneus -

Sexual abuse is not the only abuse discussed in the law, nor is it the only risk that children living there face. There are both stories from the few who have broken away as well as strong statistical evidence that a boy on the verge of puberty is at serious risk of harm, possibly death. Younger children may be 'punished' in horrific fashion.

I think the religious aspect is a red herring. Would we allow the people running an orphanage to remain in control of those same children with the same known set of facts (particularly girls pregnant by older men and boys gone missing)? Would we wait until all of the hearings were held before we got these children out of the clutches of such caregivers?
4.29.2008 5:27pm
nicestrategy (mail):
I just wanted to commend EV for weighing in on this matter and in so doing making all the rote anti-government ideologues and child sex apologists that popped up in other threads look ridiculous by comparison.
4.29.2008 5:29pm
Extraneus (mail):
The state may have used a justification other than sexual abuse, but from those cited by Blue, there are only four choices:

1. an immediate danger to the physical health or safety of the child

2. the child has been the victim of sexual abuse

3. the parent or person who has possession of the child is currently using a controlled substance

4. the parent or person who has possession of the child has permitted the child to remain on premises used for the manufacture of methamphetamine

Do we think the state used a justification other than sexual abuse in order to take the infants, toddlers and boys?
4.29.2008 5:30pm
Harry Eagar (mail):
I'd say the legal question is not procedural, at least not as Professor Volokh views it. I'd say the governance problem is that FLDS terrorism has been going on for over a century, and everybody knew it, and government has been unable or unwilling to devise a procedure to protect children.

Harry Leon Wilson wrote a novel, "Lions of the Lord," about this in 1904. Yes, it was a novel, but Wilson was the first oral historian and his novel was based on his interviews throughout the West in the '90s about Mormon behavior in the '70s and '80s.

If the law cannot deal with it, then it's the law that's bad. Fix it.
4.29.2008 5:46pm
Thoughtful (mail):
EV: "There are good reasons why we don't just swoop in and arrest everyone who lives in a community where we think crime is taking place. If we could do that, we might find it easier to, say, prosecute the Mafia or street gangs; but we don't do that. Imagine what the nation would be like if we did."

Baltimore?
4.29.2008 5:47pm
Eugene Volokh (www):
Blue: The statute you describe itself requires some individualized evidence -- it requires, among other things, "facts sufficient to satisfy a person of ordinary prudence and caution that ... there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child's welfare." What's more, the danger must be imminent enough to lack "time, consistent with the physical health or safety of the child, for a full adversary hearing" before the removal. I don't see how that's satisfied as to a small child simply by evidence that some other people in the community were colluding in crimes against teenagers.

As to the view that "Texas to terminate parental rights the standard is preponderance of evidence" (a separate matter from the one we had been discussing, but I respond because you raised it), isn't that unconstitutional under Santosky v. Kramer (1982)? The Supreme Court in Santosky held that "Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence."

Frog Leg et al.: As the Texas statute and Santosky show, family law does impose substantial procedural constraints on government power to terminate parental rights, and even to seize children on an interim basis. But to the extent that some family law rules don't require this, my argument is that those rules are indeed highly constitutionally troublesome.

I agree with Oren that not all the criminal law rules apply to family law cases, or to other classes of cases; the Fourth Amendment exclusionary rule, for instance, doesn't apply to ordinary civil cases, family law cases, and many other cases. But I think that the requirement of individualized reason to fear imminent harm should indeed apply before the government may seize children on an interim basis.

Alan Gunn: Your argument may make sense when there was a concrete tip that infants and toddlers were being sexually abused. But if your argument is that it's OK to take the infant or toddler away (not just for a brief interview or a physical examination, but for days on end) without any such evidence, simply because you suspect their family members -- or other community members -- of crimes as to teenagers, that strikes me as quite unjustified.
4.29.2008 5:51pm
stunned:
I don't disagree with any of the points made. Adapting typical procedures to deal with insular communities who distrust the police is plainly very difficult, and I think taking steps to build trust are more critical than anything else. This, for example, is why I'm very in favor of keeping local police officers out of immigration enforcement.

Regardless, I think it's pretty easy to distinguish between a group of people living in a compound under absolute control of a religious leader and a "culturally homogeneous neighborhood [where there is] evidence of serious and potentially teenager-threatening crime among many adults of that neighborhood (for instance, drug dealing, drug abuse, gang crime, and the like)."
4.29.2008 6:00pm
clever and snarky guy (mail):
Yeah, but these people are so weird. Did you see the women in this group interviewed. Like aliens. Like there's nothing going on upstairs.

Seize the kids.
4.29.2008 6:03pm
darelf:
After your more careful explanation, I agree. They should have examined all of the children, and detained them further only with evidence of abuse.

Previously, I had construed you to mean even temporary custody ( enough for medical/psychological examination ) would be overreaching.

The mere fact that the perpetrators would sexually abuse teenaged minors is enough to raise suspicion in any reasonable person that they might also be prone to abuse children as well, and that it would be negligent not to at least examine the children for signs of abuse.
4.29.2008 6:05pm
Doc Rampage (mail) (www):
You could find neighborhoods in inner cities in the US where half of the teenage girls are pregnant and a frightening number of the teenage boys are dead due to violence. Why don't we send in the police to take away all the children in those neighborhoods?

Look, I don't want to defend the FLDS but I have not yet seen any explanation about what is so especially horrible about this group when compared with American society in general. Teenage girls are getting knocked up by adult men all over the country and not only is there not this level of hysteria over it, the men are actually protected because abortion clinics don't have to report them. Rappers can molest fifteen-year-old girls on stage in other countries and face no consequences here. Movie producers can rape thirteen-year-old girls, escape to Europe and still sell movies in the US. There is a T.V. show about that sexy, rascally 70-year-old Hugh Hefner who lives with half a dozen beautiful young platinum blonds. Where is the outrage over this common-law polygamy?

What is going on here is not that the country is unified over the evil of polygamy or the horror of sex with teenage girls, it is that no one likes the FLDS. The Left doesn't like them because they are religious conservatives, and the Right doesn't like them because of their icky cultural practices, so the government can take away all their children and everyone cheers.
4.29.2008 6:08pm
Philosopher:
I agree with much of what EV said. However I think CPS has a strong case for temporary removal of teenagers into foster care based upon an imminent threat to the teenagers.

Yes, there should be an individualized inquiry for each teenager, to determine whether there is a danger. But in the meantime, given that there is evidence of an imminent danger to those teenagers, I think temporarily putting teenagers into foster care until the proceedings are concluded is warranted.

A useful analogue is pretrial detention for adults. Judges routinely detain defendants until the completion of their trial based upon, among other things, a finding that the defendant poses a danger to the community. Pretrial detention is based upon a recognition that the judicial system does not move at lightning speed. Sometimes measures must be taken to protect the public (or, in this case, the teenager) until a full-blown inquiry can be undertaken.

I don't think the standard for a temporary transfer of custody should be much higher than probable cause. Under federal law there is a presumption that a defendant is a danger to the community and a flight risk if the judge finds there is probable cause that the defendant committed a violent crime, a serious drug offense, etc. I can imagine something similar here -- a rebuttable presumption that the household is a danger to the child (in this case, the teenager) and thus that temporary foster care is warranted if the judge finds that there is probable cause that the child is in imminent danger.

EV -- What would be the problem with something like that? Assuming a system like this would be unproblematic, what distinguishes what Texas is doing with teenagers to this system? (Let's bracket the question of infants/young children, which I agree is not an imminent danger.)
4.29.2008 6:14pm
zippypinhead:
Having read the previous Volokh posts and thread comments on this topic with an increasingly queasy stomach, it almost sounds a bit like the old "when you find yourself in a hole, keep digging" mindset is at work here, Professor Volokh. As noted both above and in previous threads, the civil standards for protecting minors aren't analogous to criminal burdens of proof, for many good reasons.

And then there are the alleged facts -- I daresay no one would be bothered by a decision to temporarily remove the minors from a single-family house where 8 or 10 children, adolescents and adults lived, and where there was probable cause to believe adults were commiting criminal acts against at least the adolescent minors. If 14-year old Jenny is being raped and 15-year old Johney has disappeared, you certainly don't leave their 4 and 5-year old siblings in the custody of the suspects while you complete the criminal investigation. At bottom, the threshold decision to take the FLDS children into temporary protection comports with the general duty of care that child protection authorities are expected to follow.

The problem here is that the large number of minors found in the compound simply overwhelmed the system. The number of children exceeded the court's ability to provide prompt, individualized review to ensure that they were not being returned to an unsafe environment.

That may be a legitimate area for discussion, but certainly not at the volume level some folks in earlier threads on the topic were using. Unlike what some commenters in earlier threads suggested, the FLDS situation was not controlled by The Evil Silent Black Helicoptor Cabal, nor is it an affront to some warped application of Lawrence that allegedly permits, um, "alternate lifestyle choices" by adults against underage adolescents... it was just local authorities trying in good faith to do their job -- to protect children -- in an almost impossible situation.
4.29.2008 6:23pm
Philosopher:
Great post, zippypinhead.
4.29.2008 6:38pm
Blue (mail):
EV, you are missing the "or." Sexual abuse does not require immediate danger for the provision to hold:


(1) there is an immediate danger to the physical
health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child's welfare;
4.29.2008 6:46pm
Ryan Waxx (mail):
Yeah, great post Zippy.

Because "it was just local authorities trying in good faith to do their job -- to protect children" justifies anything and everything done. Think about how horribly HARD it was on the local authorities confiscate everyone and everything and... probable cause? What's that?

Because it's for the children.
4.29.2008 6:48pm
zippypinhead:
Waxx, as a legal matter there WAS probable cause here, at least post-Leon. The court issued the warrant upon a finding of probable cause, there are no allegations of bad faith on the part of the authorities who sought the warrant, and to my knowledge the authorities did not exceed the scope of the warrant as issued (earlier threads have already dissected the evidentiary basis behind the warrant so let's not go there again).

The system simply couldn't handle the unprecedentedly large number of potential minor victims allegedly in need of protection. I'd be more interested in hearing what sort of hearing procedures could have been (or could still be) adopted to comport with due process and protect the rights of both the minors and any [non-suspect] parents, particularly where in many instances even the identity of the biological parents appears to be somewhere between murky and hotly contested. What should the court have done differently, consistent with Texas law and procedure?

But look at the bright side: at least so far nobody has attempted to defend the FLDS by saying "it takes a village..."
4.29.2008 7:13pm
Eugene Volokh (www):
Blue: Well, sure, if there are "facts sufficient to satisfy a person of ordinary prudence and caution that ... the child has been a victim of neglect or sexual abuse," and "there is no time, consistent with the physical health or safety of the child, for a full adversary hearing," the child could be taken away from the parents. But where is there evidence that there were facts sufficient to satisfy a person of ordinary prudence and caution that the infants or toddlers have been victims of sexual abuse?

Zippypinhead: Where was the probable cause to believe, for each of the seized infants and toddlers, that the infant or toddler was in imminent danger of abuse, or had been abused?
4.29.2008 7:21pm
AngelSong (mail):
Ryan Waxx, as several others have pointed out on this thread and others, while "probable cause" is necessary for certain actions by law enforcement authorities, this was a Texas CPS action that has its own (lower) standards. So even though your use of sarcasm might in other instances be a powerful rhetorical device, in this particular case your argument runs contrary to the facts. On the other hand, a common use of rhetorical devices seems to be to present an argument that has either no factual support or factual evidence that is contradictory, so...
4.29.2008 7:23pm
agesilaus:
Let me first insert the boilerplate "I spit on the FDLS" language here.

But a major point is that this was all triggered by a false phoned in accusation made from another state. There was zero knowledge by any local of any crimes.

Secondly a major class of victims in this whole affair has been completely ignored. The only way to provide a suffcient supply of wives, for polygamy to work, is to eliminate a large portion of the male population. Teenage boys have been reportedly tossed out of these compounds with no education and no money. I haven't heard any Texas functionaries commenting on the fate of the boys.
4.29.2008 7:30pm
Ryan Waxx (mail):
Angelsong: As others have pointed out, seizing persons or property requires probable cause, period. Its not my fault that lawmakers can't follow the constitution.
4.29.2008 7:33pm
Blue (mail):
Er, except that the children in question have not been "seized." They are not accused of any crime (and thus their persons are not seized) nor are the chattel of their parents (and thus not parental assets to be seized). They are being held by the state in its role as a custodian.
4.29.2008 7:45pm
Ryan Waxx (mail):
That's a very lawyerly evasion. Good job.

While we are playing word games, we can also rename all detainment to 'protective custody' and evade habeas corpus requirements, too!
4.29.2008 7:58pm
Ken Arromdee:
EV -- What would be the problem with something like that? Assuming a system like this would be unproblematic, what distinguishes what Texas is doing with teenagers to this system? (Let's bracket the question of infants/young children, which I agree is not an imminent danger.)

I think EV would agree with you,. He agrees that there's some evidence of imminent danger to teenagers, and doesn't think there's evidence for imminent danger for other children who aren't teenage.
4.29.2008 8:09pm
Oren:
Ryan, minors are required to have legal guardians, we cannot simply throw them to wolves the way the FLDS does to its sons. According to your logic, we should entertain every child that does not want to obey his curfew as being improperly denied his liberty.
4.29.2008 8:13pm
zippypinhead:
Professor Volokh: Per Blue's earlier posts, and as we were recently reminded by AngelSong, of course the CPS petition for protection need not meet a probable cause standard.

However, in this case, the entry onto the premises was pursuant to warrant (and substantial physical evidence was recovered), so there was, indeed, a judicial finding of probable cause that crimes had been committed. Whether that evidence can ultimately be excluded because of the questionable anonymous call included in the affidavit remains to be seen (in my own search warrant practice, which is almost exclusively Federal, I suspect I would have a good chance of keeping the evidence in at a suppression hearing, but that's a sideshow not worth debating here).

I'm not a Texas lawyer, but analogizing from the law of another state I'm quite familiar with, I assume the applicable child protection law and jurisprudence has a presumption that if one child in a household is found to be endangered, the other children are also presumed to be endangered. To rebut that requires an affirmative showing to the contrary by the parent or the guardian ad litem (at minimum a shifting of the burden of production, if not persuasion). And if the parent seeking restoration of rights is a suspect -- or worse, defendant -- in the abuse case, the odds of getting the other minors returned before the conclusion of the underlying criminal case approaches zero as a practical matter.

As pointed out in earlier comments here and in the related threads, concerns about obstruction of justice by the suspects may be very real, and by themselves may justify not returning minors to FLDS control before the conclusion of any criminal prosecutions, at least. Minor children old enough to testify against parents are succeptible to having their stories "shaped" by the suspects and their co-conspirators (who may include their mothers), and it appears that even infant minors are themselves potentially relevant "evidence," as their DNA will help unravel who the true parents are. If the minors are returned to the FLDS community, it is possible they may be removed from the jurisdiction, which apparently is something the group has been accused of doing in other contexts.

Why not just take DNA samples and then return at least the children too young to testify, you may ask? Because if I were an alleged father's defense counsel, I'd challenge the DNA sample extraction procedure (particularly the likelihood of confusion given the number of children), the lab procedures, etc., and demand the right to an independent test. But if the children are not available... well, that would be yet another ground for my various motions to dismiss the indictment, for judgment of acquittal, etc.

Anyway, even tho this explanation probably won't be satisfactory to RyanWaxx, it's the views of this pinhead, for what it's worth...
4.29.2008 8:20pm
Eugene Volokh (www):
zippypinhead: A warrant requires probable cause to believe that the property to be searched contains some evidence of some crime by someone.

That hardly equates to evidence that each particular child who was seized has been abused, or was in imminent danger of being abused. It certainly doesn't equate to, for each infant and toddler, "facts sufficient to satisfy a person of ordinary prudence and caution that: (1) there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child's welfare; (2) there is no time, consistent with the physical health or safety of the child, for a full adversary hearing ...; and (3) reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child."

As to obstruction of justice, can it really be the case that small children can just be taken from their parents at the start of an investigation -- with no probable cause to think that they have been abused or are in imminent danger -- simply because they might eventually be useful witnesses (or "evidence") and the parents might try to remove them from the jurisdiction or taint their testimony? I don't think so.
4.29.2008 8:27pm
Ryan Waxx (mail):
There are only three possibilities, when it comes to the status of any human's rights.

First, they belong only to themselves, that is to say they exercise rights and hold responsibilities in their own name. This is the "persons" who may not be seized without probable cause under the constitution.

Secondly, they belong to another person, that is to say the other person exercises their rights and responsibilities for them. This is called slavery when it is exercised to extremes, but children fall in between this category and the first. If slavery, then this is "property" that may not be seized without probable cause under the constitution. Note that simply because children do not fall neatly into one of the two categories - exercising their own rights or having someone else do it for them - does not mean that you can declare them outside constitutional protection and go grab them.

Thirdly, if neither (1) nor (2) apply, then they belong to the government. Its rather frightening how many people here apparently believe this even if they don't quite have the forthrightness to actually say it.
4.29.2008 8:33pm
ReaderY:
Termination of parental rights requires clear and convincing evidence.

The essence of the Court's pre-privacy cases, beginning with Meyer, was that the right of parents to educate their children is essential to, and hence penumbral to, a meaningful First Amendment. If parents can be prohibited from transmitting ideas to the next generation then any present freedom to think and speak has no future.

I've always thought that a right of parents to eductate their children represents an interpretation of the First Amendment that is much closer to its literal core than later extension to matters such as abortion, sodomy laws, etc. Such a right necessarily requires a right of custody/

It would be truly astonishing if the orignal, legitimate foundation of the concept of privacy, after having been warped beyond all recognition to support matters having no relationship to the First Amendment or any other enumerated right, could then be made to vanish, leaving the First Amendment with no future, and with liberties between the legs gained at the complete loss of our minds. Brave New World, here we come!
4.29.2008 8:44pm
ReaderY:
Ryan,

Abraham Lincoln pointed out that calling a tail a leg, but this doesn't make it so.

Under the 13th Amendment, human beings are not property, so the concept of ownership simply doesn't have to apply to them. They don't have to "belong" to anyone. Saying there are only three possibilities doesn't make it so.
4.29.2008 8:49pm
PersonFromPorlock:
If I may introduce an issue that hasn't been addressed on VC, that I know of; an underaged pregnant female is one thing, proof that she was impregnated in Texas is another. What evidence is there that statutory rape has been committed in Texas? If the FLDS moves people around as they're accused of doing, there's arguably a chance it wasn't.

Whether or not this would impact Texas's ability to sieze the children I don't know, but it seems worth mentioning.
4.29.2008 8:54pm
Ryan Waxx (mail):

Saying there are only three possibilities doesn't make it so.


Ok, if they are not exercising their own rights, their parents aren't, and the government isn't, then perhaps you can explain just what the fourth option is.
4.29.2008 9:07pm
LM (mail):
EV,

Testing the limits of your reliance on individualized cause, if there were 100 minors, and strong evidence that 99 were frequently abused, but no clue which ones they were, would you oppose taking custody of the 100?
4.29.2008 9:20pm
zippypinhead:
Professor Volokh: you're right that a search warrant need not specify the identity of the victim (and often it deliberately does not for very good reasons). However, what the probable cause finding DOES assist with is in the civil showing that a crime has been committed -- since as I understand it the Texas child protection hearing procedure is not subject to standard trial evidence rules. If the crime subject to the probable cause showing is statutory rape or child sexual abuse by one or more residents of the premises to be searched, the state's job in its protection petition is roughly half done.

Remember, procedurally all children have been removed on an emergency basis, and now the question is which ones can be returned, and under what circumstances. And unfortunately this is where the system broke down because of the sheer number of children.

Our disconnect is only over the status of pre-adolescent children, as we're both assuming the evidence is that FLDS does violate the law regarding post-pubescent girls (and possibly boys). You think younger children should be returned to their parents, which obviously sounds reasonable. But there are some arguments on the other side. First, if Texas law has the presumption that all children are deemed endangered if any in the household are proven to be endangered, then even younger children may be removed unless the guardian ad litem or parent can make a contrary showing. Here that showing would be even more problemmatic, because at least the fathers (and maybe even some mothers) are apparently denying or obfuscating parentage, which seems to be a threshold question that must be answered before you ever get to the merits. And it gets even messier with children of underage mothers, since I assume Texas follows the general rule that legal guardians must be of age -- now you may need to identify and vet grandparents or other responsible adults, including ensuring that they are not complicit in the crimes that are alleged to have been committed. I simply can't see how a court can send children back to a situation where it isn't even clear who's legally responsible for them.

On the obstruction of justice issue: my views may be biased because at various times prosecuting such cases has been part of my job description. I've seen more witness tampering situations than I'd care to remember, and children are the easiest witnesses to mess with. And while I've not had this experience (and hope never to), my next door neighbor did have one witness's bullet-ridden corpse pulled from a lake -- so the possibility of physical harm should also be considered by the court. A couple of thread comments have suggested an unusually high death rate for minor males in the FLDS community; if there's anything to that allegation, I think a court would be *nuts* (that's a legal term of art) to return any children at this time.

As for younger children, it's pretty clear that both DNA and expert evaluation of infants' ages will be relevant and hotly contested at trial (a 17-year old girl with a 6-month old baby was pretty obviously impregnated while underage, while if it's a 2-month old baby and she's almost 18, maybe not). Here there have apparently been allegations that FLDS officials have transported community members interstate in the past, so the court should ask whether there's a danger of that pretrial, as much to preclude prejudicing the defense's right to evidence as for any reason. And if you don't buy the "evidence/witness" argument, don't forget that even if physical custody may be returned to the FLDS parents, the state will have an interest in exercising continuing jurisdiction over the minors' welfare at least during the pendency of any criminal litigation, whether they're witnesses or not. A reasonable likelihood that some minors may be removed from the jurisdiction should be a perfectly relevant consideration for the court.

And remember -- this is apparently NOT a permanent custody/parental rights revocation proceeding at this point, so the clear and convincing standard may well not apply (again with the caveat that neither of us know beans about Texas law).

As I read the Texas statutes folks have provided above, it appears the court should also consider whether there are conditions that can be ordered under which minors may be safely returned -- such conditions, I assume, could include intensive CPS monitoring of various types. That may not work very well when the children are back in a gated communal compound like we're talking about here, but again, I don't have the facts to argue strenuously either way.

But right now none of that's going to get decided until the overwhelmed system can get back on track. If there had been only 6 children seized, this all would have been resolved in a few days. I'd love to hear some practical ideas how to get that train back on the tracks...

OK, this is beginning to feel like a law school final. Geez, even after all these years, talking to professors is intimidating! ;~)
4.29.2008 9:43pm
Oren:
Ryan, you are confused as to what the second option means in the context of minors: guardians are given control to be exercised in the best interest of the child, not for their own benefit, i.e. guardianship is a responsibility.

Insofar as guardians fail at protecting the child's best interests (and there is a very wide berth given to guardians here, but not an unlimited one) they cannot continue to exercise that right.

ReaderY: "Termination of parental rights requires clear and convincing evidence."

We're not at that stage yet. Nobody's rights have been terminated. The only question answered so far is what will happen to the children while the case pends.
4.29.2008 9:44pm
zippypinhead:
PersonFromPorlock wrote:
[A]n underaged pregnant female is one thing, proof that she was impregnated in Texas is another. What evidence is there that statutory rape has been committed in Texas? If the FLDS moves people around as they're accused of doing, there's arguably a chance it wasn't.
That's undoubtedly a jurisdictional requirement of the statutory rape law that must be both pleaded and proven -- that the unlawful sexual conduct occurred in Texas.

There are many ways of proving this. In the absence of physical evidence (e.g., the defendant's and victim's DNA intermingled on bedsheets, or semen found during an internal examination of the victim), proof most typically would come from testimony by the victim or other witnesses who can place the illegal conduct in Texas. Or the mere fact that the underage victim and the defendant held themselves out within the FLDS community to be husband and wife in Texas may be enough to get to the trier of fact (especially if a pregnancy occurred). Here there may also be documentary evidence that the underage "spiritual marriage" or whatever FLDS calls it occurred in Texas, and it would not be out of bounds to conclude that consummation therefore also occurred in Texas. Other records, such as FLDS school records showing the victim was taking classes and doing homework in Texas at the time a pregnancy had to have occurred, may also exist. The state would obviously argue that any and all such secondary or circumstantial evidence is sufficient to get to the trier of fact on this issue. And it probably is.
4.29.2008 10:11pm
ReaderY:
The Texas code talks about minors applying for licenses for ceremonial marriages and says:

§ 2.003. APPLICATION FOR LICENSE BY MINOR. In addition
to the other requirements provided by this chapter, a person under 18 years of age applying for a license must provide to the county
clerk:

(1) documents establishing, as provided by Section
2.102, parental consent for the person to the marriage;
(2) documents establishing that a prior marriage of
the person has been dissolved; or
(3) a court order granted under Section 2.103
authorizing the marriage of the person.

§ 2.102. PARENTAL CONSENT FOR UNDERAGE APPLICANT.
(a) If 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.

However, these requirements by their express terms apply only to ceremonial marriages and to the issuance of ceremonial marriage licenses by the county clerk. Their application to common-law marriages appears to be disclaimed. The provision only prohibits county clerks from issuing ceremonial marriage licenses to minors without following certain procedures. Since a marriage license isn't required for a common-law marriage, I don't see how this language can read as prohibiting common-law marriages by minors.

Texas county court website information pages outline the elements of a common-law marriage, see e.g.

http://www.co.travis.tx.us/dro/common_law.asp
.
The elements outlined say nothing whatsoever about having to be a certain age or about minors being prohibited.

The FLDS community seems to have been very careful to follow the elements of Texas common-law marriage as outlined.

Texas recognizes common-law marriage and gives members the same rights and responsibilities as the ceremonially married. The FLDS community seems to have been diligent in following the elements of common-law marriage as described on these court websits. If the FLDS relied on these court websites and assuming the parties and parents involved actually consented and would say so if questioned in court, such a situation would appear to be more in the nature of not filling out a form properly than "child abuse".
4.29.2008 10:38pm
ReaderY:
Here's the relevant provision:

§ 2.401. PROOF OF INFORMAL MARRIAGE.
...
(c) A person under 18 years of age may not:
(1) be a party to an informal marriage; or
(2) execute a declaration of informal marriage under
Section 2.402.
4.29.2008 10:44pm
Blue (mail):
Ahem. ReaderY, perhaps you missed the bit about polygamy.
4.29.2008 10:57pm
Andrew J. Lazarus (mail):
ReaderY, I am not a lawyer, but I knew enough to find the appropriate Texas Statute (my emphasis).
(c)A person under 18 years of age may not: (1) be a party to an informal marriage; or
(2) execute a declaration of informal marriage under Section 2.402.
(d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.
4.29.2008 11:03pm
rwielgosz (mail):
It is my understanding that the YFZ ranch is a single property, owned by some kind of FLDS corporation, and that despite the presence of multiple residential buildings, all the residents pool their assets and labor to a great extent. There are other communal-living situations like this in the US: Hutterite farms being the most communal, and various "intentional communities" that range from co-housing to sixties-style communes.

It seems that Texas CPS considered the YFZ ranch as a single household rather than a community or neighborhood. Can communities like these be considered as a single household under the law? I guess for a search warrant it doesn't matter either way, but for the removal of all the children the household/community distinction is key in this case.
4.29.2008 11:21pm
mlstx (mail):

presumption that if one child in a household is found to be endangered, the other children are also presumed to be endangered


Even if there is no legal presumption, this is a pretty well understood factual matter. Child abuse is not just about beatings -- a child being present and observing the abuse of others is also a problem. For this reason, even spousal abuse, with no allegation of physical abuse to the child, can be child abuse to the child observing it.

This takes the age of children who are being neglected or abused way below teenage years -- as young as age 3, likely. Whether it takes it down to "babes in arms"? Don't know.
4.29.2008 11:50pm
mlstx (mail):
Professor Volokh's comparison of the government's use of power in fighting terror and in combatting child abuse at the FLDS compound is interesting in one respect -- how one comes down on these issues has a lot to do with perceptions of risk. Many who object to the government's actions in the war on terror do so because they find the actions disproportionate to the problem -- their assessment of the risk of terrorism is generally lower than those who approve of the government's actions.

As we can see in the various threads here, the reaction to the FLDS raid depends greatly on people's assessment of the risk the children face. Those who conclude the children are at great risk find the government's actions proportionate, those who see little risk find the government's response unreasonable.

The problem in both situations, of course, is that not only is it almost impossible to know the facts (with terrorism, so much is considered classified that it is hard to learn facts, with the FLDS thing the investigation is in its initial stage and we don't yet know what the facts are, and may never know), even when the facts are known, they are susceptible to different interpretation.

There can't be an absolute one-size-fits-all argument about how much power the government has or should have. It has to be assessed against the facts.
4.30.2008 1:10am
Suzy (mail):
Why should infants and young children be taken into protective custody too? Many reasons. First and perhaps most important in this particular situation is that it's not clear whose children are whose. If you come upon a three year old child in this compound, he may be referring to several different women as "Mother Firstname". No birth certificate is available to sort out the matter. The parents are already known to be lying about their family relationships. Under such circumstances, do we even know that any given child would still have parents responsible for him living in the compound? Is his 15 year old mother one of the girls taken into protective custody, yet nobody wants to disclose this information because it is evidence of a crime?

As some people have mentioned above, this group is functioning as one household, and not like a scattered group of neighbors in a given geographical area. The adults consider themselves part of a large family, and they together support the practices that are causing sexual abuse and physical abuse (let's not forget that aspect) of many of the children. That abuse does not pop out of left field with no prior warning; children are prepared for this, and we do not have sufficient evidence of how early this might be taking place. Are we willing to confidently assert that in a group where sex with junior high aged girls is normal, there is no possibility of abuse of even younger children?
4.30.2008 2:56am
Normie:
A bit tangential (and tongue-in-cheek), but, from another blog:

"If Roger Clemens, a resident of Houston, really had an affair with a 15 year-old, why doesn't the great state of Texas raid his home and take his children away from him? And maybe, while they're at it, they could take his neighbor's kids, just to be safe?"

Worth reading, just for the comments.

http://www.bycommonconsent.com /2008/04/ following-the-precedent/
4.30.2008 4:12am
Alan Gunn (mail):
EV wrote:


Your argument may make sense when there was a concrete tip that infants and toddlers were being sexually abused. But if your argument is that it's OK to take the infant or toddler away (not just for a brief interview or a physical examination, but for days on end) without any such evidence, simply because you suspect their family members -- or other community members -- of crimes as to teenagers, that strikes me as quite unjustified.



I don't know what the usual practice is in other states, but in Indiana, CPS usually takes all the kids when there's reason to think that one is being abused. If the reason this "strikes [you] as quite unjustified" is that you don't think people are going to have sex with infants, you're wrong. A common pattern is for abusers to have sex with all the kids they can, regardless of age. Your reference to "examination" makes me wonder if you share the common but erroneous belief that intercourse with an infant will leave permanent physical evidence. It doesn't, unless you're lucky enough to get a case where the infant has an STD. (My favorite--a guy whose baby got the clap from dad: he claimed that he mistook her for his wife because he was drunk). Anyway, is it your position that parents who are having sex with their teenagers ought to keep the younger kids if they haven't screwed them yet?

Now, it may be that the Texas situation is different--I haven't followed it closely. Perhaps the Texas authorities have gone too far. What I disagree with isn't so much your views on what should have been done there, it's your apparent belief that children should never be removed from their homes without specific evidence that the parents have abused those particular children. That approach would leave a lot of victims unprotected.
4.30.2008 9:45am
TheGut (mail):
There is still tons of nasty government doings going on here.

They used a single search warrant to search an entire community. Thats bad. If they do it here, they will start doing it in the suburbs, or inner city soon enough.

Most of the supposed crimes are "make believe" crimes as well. Stuff that is illegal, but which shouldn't be. 14 year old girls are having sex and getting pregnant all over the country, with a large percentage of the fathers being age 21 or older. My aunt married at 15, to a 21 year old, and they were married for over 40 years before her death of breast cancer. I suppose both my aunt and uncle are just lucky that they never got arrested for my uncle's clear sexual abuse of my aunt. (Heh, thats a point, we should scour the nursing homes and arrest all those old child molesters we find, who married a "kid" decades ago. After all, its a clear cut case of sexual abuse. And lets round up the grand kids as well, since their parents were clearly abused as well. Oh wait, we can't do that... those people aren't "weird"). The hypocrisy of this case just makes my skin crawl. Its only in the last 100 years that teens have come to be considered children. Its an asinine development that nobody even bothers to try and justify.
4.30.2008 11:51am
Oren:
TheGut, most of those crimes are beyond the statute of limitations.

As far as the search warrant, the community effectively operates as one collective body. All the property is jointly owned and "wives" and their children are passed around like fruitcake. IOW, the search warrant can't get any more particularized.
4.30.2008 12:18pm
subpatre (mail):
Alan Gunn posted : A common pattern is for abusers to have sex with all the kids they can, regardless of age.

Cite! [At this rate we’ll all have to wear hip-waders.]

Lets get things straight: as of today's press there have been no allegations of sexual abuse; the allegations all consist of illegal and inappropriate marriage or marital relations. The suggestions of sexual abuse are yours and yours alone; not even the most ardent of Texas CPS has alleged that.

“I don't know what the usual practice is in other states, but in Indiana . . .”

In Indiana, the usual practice was to sterilize ‘defective’ children. My genealogical research shows the practice liberally used on children with hearing and social problems. Upheld in 1927*, ear infection or shyness merited eugenic sterilization.

Volokh is posting what the Constitution directs the state to do —what should be done— as opposed to what the usual practice is.

____
*Of more than passing relevance, a retrospect to Buck v. Bell:
“Her case never was about mental deficiency; it was always a matter of sexual morality and social deviance. The annals of her trial and hearing reek with the contempt of the well-off and well-bred for poor people of “loose morals.” Who really cared whether Vivian was a baby of normal intelligence; she was the illegitimate child of an illegitimate woman. Two generations of bastards are enough.” -- Stephen Jay Gould in Natural History, July-August 2002
4.30.2008 12:37pm
subpatre (mail):
Oren alleges: . . .and "wives" and their children are passed around like fruitcake.

You have a cite for that? One that pre-dates the mass arrests and isn’t from salaried FLDS bashers Carolyn or Flora Jessop?

Texas CPS or law enforcement isn't claiming anything like that. ‘Fruitcake’ couldn’t possibly be a Freudian slip while defending you own sexual mores and social prejudices?
4.30.2008 1:03pm
Dan Weber (www):
The state has tremendous power to destroy in the course of investigations. Just because it happens to a group we don't like doesn't mean that there's nothing to worry about.

http://en.wikipedia.org/wiki/Steve_Jackson_Games#Raid

If the FLDS ranch deserves to be taken down because of forced marriage, statutory rape, welfare fraud, or child abandonment, then it should be taken down on those grounds. Not as a side-effect of an investigation.
4.30.2008 1:34pm
AngelSong (mail):
I wonder how far the "make believe" crimes argument would get in other situations. For instance, it is illegal to drive as fast as I want to, but it shouldn't be. Lots of people all over the country drive fast. In fact, my best friend never goes below 80 on the open road, and he has never gotten a speeding ticket at all.

Or better yet, it is illegal to smoke marijuana, but it shouldn't be. Lots of people all over the country smoke pot. In fact, my next door neighbor's boss's cousin's dog's vet smokes pot all the time, and he has never gotten arrested for it.

Good luck with that one...
4.30.2008 1:36pm
Oren:
One that pre-dates the mass arrests and isn’t from salaried FLDS bashers Carolyn or Flora Jessop?
If we can exclude evidence from the Jessops, I move that we exclude any commentary from CPS bashers like subpatre.

At the risk of just having you decide that whatever evidence I present can be summarily excluded because you don't like it, here are some citations you can look up at your leisure:

Court proceedings, under oath, alleging her (actual, not statutory) rape at age 14, FLDS pressure for her to "submit" to her husband, and the practice of reassigning wives.

CNN Transcript of an interview with former FLDS members.

Moore-Emmett, Andrea (2004). God's Brothel: The Extortion of Sex for Salvation in Contemporary Mormon and Christian Fundamentalist Polygamy and the Stories of 18. Pince-Nez Press. ISBN 1930074131.

Benjamin G. Bistline The Polygamists: A History of Colorado City, Arizona Published 2004 Agreka Books
ISBN:1888106743

AngelSong, do you believe that *any* consensual (in the colloquial sense of "not coerced") sex between 14 years old and 30 year olds should be legal as smoking pot? It seems to be implied.

Oh, and traffic engineers recommend setting the speed limit at the 80th percentile of what people would drive "naturally", since although speed isn't the most dangerous thing, per se, having a wide disparity in speeds is quite dangerous. Totally off topic, I know.
4.30.2008 2:05pm
AngelSong (mail):
Leaving aside my own personal beliefs about the legalization of drugs or the necessity of speed limits, the point of my post was to suggest that the argument of "make believe" crimes as presented is deficient as a defense...
4.30.2008 2:09pm
Extraneus (mail):

State officials raided the FLDS's Yearning For Zion Ranch in Eldorado on April 3. They took custody of 463 children on the belief that the sect's practice of underage and polygamous spiritual marriages endangered the children.

Is this all we know about the state's justification, or is there public or additional information about the actual proceedings?
4.30.2008 2:13pm
Oren:
Extraneus, the state has no duty to disclose the extent of its evidence until discovery starts. They might know much more than they let on.
4.30.2008 2:56pm
TheGut (mail):
Actually Angelsong, I agree that a "make believe" crime isn't an effective defense. It wasn't meant to be. It was meant to make the point that age of consent is an arbitrary standard, which is now set much, much higher than it was for the vast majority of human history. Its set higher than evidence will support. Its also showing that the charges of abuse are a sideshow to the real reason, which is to destroy a community of weirdo's who don't conform to a bunch of arbitrary standards that others want to impose.

Mind, Oren is also arguing that because we have a bunch of evidence of bona fide abuse at other FLDS locations, that we should suspect this group. I suppose then, Oren, that you support removing all Catholic choir boys from the Catholic church wholesale, correct?

The hypocrisy about this case is unbelievable.
4.30.2008 2:59pm
AngelSong (mail):
"Its also showing that the charges of abuse are a sideshow to the real reason, which is to destroy a community of weirdo's who don't conform to a bunch of arbitrary standards that others want to impose."

I disagree completely. As far as I have seen, the only issue that has been raised at all has been the treatment of minors. As far as an arbitrary standard, the arbitrary standard is that the people of the State of Texas do not want 14 year olds having sex with grown men. That's it in a nutshell. That's why we have laws against this "make believe" crime that we call statutory rape. And we don't really care what religion you are, if you are a grown man who makes it a practice to have sex with 14 year old girls, we don't like it. Period. Is it hypocritical that there are some grown men who have sex with 14 year old girls who don't get arrested for it? While I am not so naive as to think that there are no grown men having sex with 14 year old girls, I highly doubt that many are blatant about it, and I VERY highly doubt that those who are blatant about it get to continue for very long.

Now, there used to be a loophole in the statutory rape clause that allowed a grown man to have sex with a 14 year old if they were married. I would hypothesize without researching the legislative history that said loophole is a holdover from those days you seem to remember so nostalgically. I seriously doubt that in the last twenty years very many people were taking advantage of that loophole. You see, it is no longer in vogue for grown men to marry 14 year olds. But since it was rarely used, there was little public interest in closing said loophole.

And then a community of hundreds of people make it known that they intend to come to the State of Texas. And it is believed to be a common practice of said community for grown men to have sex with 14 year old girls. And the people of the State of Texas don't want grown men to have sex with 14 year old girls. So the duly elected representatives of the State of Texas acted to close said loophole in accordance with the will of the people of the State of Texas.

And the people of said community came to Texas (or stayed in Texas) anyway, which was certainly their right. And when the State of Texas had reason to believe that grown men were having sex with 14 year old children, the State of Texas acted to ensure that this would not be happening any longer. I fail to see the hypocrisy.

I would also argue that the argument that things have been different historically is similarly flawed. We could make a very long list of ways in which cultures have changed over the long course of human history. Some for the better, some for the worse, perhaps, but the mere fact that things and/or attitudes were different in the past does not on its own invalidate the way things and/or attitudes are now.
4.30.2008 3:32pm
subpatre (mail):
Oren writes - Court proceedings, under oath, alleging her (actual, not statutory) rape at age 14, FLDS pressure for her to "submit" to her husband, and the practice of reassigning wives.
That’s not court proceedings, it’s Time magazine. It’s about a trial and conviction for a crime in Utah, not Texas; in fact it doesn’t contain the word ‘Texas’.
CNN Transcript of an interview with former FLDS members.
. . . is about what happened in another state, not these people in Texas that have had their children taken from them.
Moore-Emmett, Andrea (2004). God's Brothel: . . .and Benjamin G. Bistline The Polygamists: A History of Colorado City, Arizona
Neither contains any events in Texas. Bistline claimed Jeffs, a FLDS leader and criminal, was in Texas, which was not true, and there were 1500 people moving there with him; again not true.

Oren’s claim . . . "wives" and their children are passed around like fruitcake is baseless. Nothing provided suggests imminent danger to the children in Texas.


The title of this thread is 'Procedure'; it is the law, and some people seem determined to ignore it. It is a shame.

I am convinced there have been crimes committed at El Dorado Texas. I am equally convinced that federal court review will (have to) strike evidence to date and convictions derived from it. Amazingly, religious intolerance and prejudice will probably free the very criminals Oren wants so badly to convict.
4.30.2008 3:50pm
Kent G. Budge (mail) (www):

Harry Leon Wilson wrote a novel, "Lions of the Lord," about this in 1904. Yes, it was a novel, but Wilson was the first oral historian and his novel was based on his interviews throughout the West in the '90s about Mormon behavior in the '70s and '80s.


If he portrayed mainstream LDS polygamy of the late 19th century as having elements of enophilia, rape, and possibly murder, then his novel was indeed a work of fiction.
4.30.2008 4:29pm
zippypinhead:
I suppose I should follow Professor Kerr's lead from his posting on this subject and run away from this toxic topic altogether, but I apparently don't have his self-control (or final exams to grade).

A fundamental problem with the way this comment thread has devolved is that some commenters firmly believe that polygamous sexual relations between 13-16 year old girls and men who are 2-4 times older than the girls is merely malum prohibitum (from Black's Law Dictionary, 5th Ed.: "an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law"), and others believe this same conduct is malum in se ("An act [that] is inherently and essentially evil, that is, immoral in its nature and injurious in its consequences").

On this issue, the two sides are simply never going to agree.

In point of fact, debating the moral question here is not only fruitless and leads to petty ad hominem attacks, it is largely beside the point for the issue raised in Professor Volokh's "Procedure" posting. EV assumes (correctly, IMHO) that the alleged conduct violates Texas criminal law, but fundamentally raises questions about the proper scope of the collateral child protection proceeding. But we seem to have gotten far, far away from there.

Incidentally, if you look at EV's more recent FLDS post (a/k/a his most recent self-flagellation attempt?), you'll see the alleged FLDS practices appear to initiate girls' sexual relations well below the median age of legal consent in both the U.S. and the Western world in general. But again, not very relevant to this particular thread's issues.

Yeah, Professor Kerr is one smart dude for staying out of this troll-infested swamp. Just one frustrated pinhead's opinion for what it's worth...
4.30.2008 4:37pm
TheGut (mail):
Nice post pinhead.

However, the discussion of the morality of the age of consent is indeed relevant. Its not the highest degree of relevance possible, but it is still relevant.

The government had/has very little basis to interfere here. They are doing it based on the theory that what is going on is malum in se, which, if it is, then Western Society as a whole has been evil for a long, long time. (And I'm waiting for someone to advocate taking away children from Spain parents, who come here as Tourists. Its the logical approach).

It was not a single household. It is/was multiple households.
4.30.2008 5:48pm
Oren:
I am equally convinced that federal court review will (have to) strike evidence to date and convictions derived from it.
You might strike the convictions but the exclusionary rule does not apply in civil custody hearings. I linked to a few cases earlier in this thread on that matter.

That’s not court proceedings, it’s Time magazine. It’s about a trial and conviction for a crime in Utah, not Texas; in fact it doesn’t contain the word ‘Texas’.
The Texas compound is owned by the same corporation that owns the land in Utah and has the same leadership: Warren Jeffs initiated the purchase of the YFZ land and set up its construction. Now, this isn't enough to condemn anyone, but it's certainly probative as to the general behavior of the FLDS folks.

The burden of proof for launching an investigation is nowhere near as high as you imagine it is. Think about how difficult it would be for inner-city police to ever start a drug investigation if they needed to have specific knowledge of wrongdoing before they started . . .

Of course, specific evidence of wrongdoing will be required at trial and I imagine will leave no doubt as to who committed what.
4.30.2008 6:15pm
Oren:
Actually, a drug investigation is a bad analogy, because the standard is even lower in cases where the state is intervening to protect a minor, not secure a conviction.
4.30.2008 6:30pm
Chairm (mail):
Oren, parents are not given permission to care for the well-being and education of their children. This responsibility pre-exists the governnmental authority to monitor parental practices. And so interventions into the child-parent relationship are based on a threshold having been crossed, rather than the government owning children and assigning or delegating "guardians" for their keep.

Your comments on this point sound disturbingly like the very thing about which you have objected -- passing children around like fruitcake.

Whether we lower this threshold where polygamists are the suspects of crimes is a very significant question. But your comments, and those of others which ring the same sort of bell, would lower the threshold for all parent-child relationships.

Eugene, I think we ought to follow the rule of law carefully and far more vigorously in applying the laws against polygamy -- based on what polygamy actually is -- rather than encourage the empowerment of the State to use a dragnet in the hopes of finding evidence of symptomatic crimes having taken place. I agree with your Procedure post's main points.

The root problem is the practice of polygamy, itself a species of criminal behavior.

Not only does it provide the context for the individualized crimes but it also is the glue in the speculative framework by which a conspiracy is presumed to exist community-wide such that a multitude of homes is treated as a single household by the interventing government agencies.

Polygamy is at issue here, not merely the potential for individualized (and tragic) crimes. However it is a kind of criminal behavior that needs to be tethered to society's affirmation of the nature of marriage itself.

Marriage is the most pro-child social institution we have. Its nature is to integrate the sexes; polygamy tends strongly toward increased segregation. The nature of marriage is to provide contigency for responsible procreation (including principles governing sexual behavior, childbearing, and the caring and education of children), which is affronted by the insularity of the communal type of polygamy practiced in this sort of compound.

In fact, the core of marriage is the combination of these two aspects -- sex integration and responsible procreation -- both of which are profoundly undermined by polygamous practices.

Eugene, would not the issue of process be better handled by pursuing the symptomatic crimes as part of a bigger pursit: the investigation and prosecution of polygamous practices?
5.3.2008 12:28am