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April 29, 2008

Comments

I shared a Client with Warren Jeffs’ Church. The group busted with Jeffs was employed in the home-building industry and did excellent work. After the raid (the earlier one), the job-sites had to be shut down because production fell apart.

Warren Jeffs should move his Church to Central America. There is more freedom down there and the housing market is booming. Since his Church has money and a work ethic, they would be welcomed.

In Islam, you can marry them off at 9. I think people are picking on the Mormons.

yeah, and the AP totally ignores that even the 14 year olds could have been artificially inseminated.

I find it so bizarre this defense of "States Rights" at the expense of the sexual exploitation of children, both girl and boy.

To bring this back to the crass political world, if HRC really wanted to prove her child advocacy/feminist bona fides, she would come out forcefully in favor of Texas' actions. Of course she won't do this, (1) because of the specter of Waco, and (2) because she's a coward and not really an advocate for children

Publius, I usually agree with you one-hundred percent, but here you are wrong. Taking children away from their mothers en masse, without any individualized showings of abuse is a blatant violation of due process. And yes, small children being taken away from their families and being broken up from their siblings (with their families having no idea where they are and how to get them back) is abusive. Just because these people live a "weird" lifestyle and dress funny does not mean they are not entitled to the same protections every other American is -- whether they are Mormon fundamentalists or Jose Padilla. Period.

"I find it so bizarre this defense of "States Rights" at the expense of the sexual exploitation of children, both girl and boy."

What are you talking about? No one is defending "states' rights" except those defending what Texas did. Those of us, like Volokh (who is rather tepid in his condemnation of Texas), who are condemning FLDS are not defending state's rights, but are condemning the state as exercising power it does not have and is in fact expressly denied by operation of the 14th amendment.

crazytrain -

i think you are missing publius's point. if eugene's objection is your objection, then say it. don't dress it up as some weird indignation about how the AP juked the stats.

moreover - and i admit i'm not super familiar with the facts here - but isn't part of the point that they don't know who the mothers are? whose due process rights are you then talking about? the child's?

Call me crazy Kovarsky, but just because the state says it doesn't know who the parents are without DNA tests does not justify DNA tests. In fact, a DNA test itself is a seizure and needs to be supported by an individualized finding, which there is not here. So there is violation number one of the fourth amendment (and hence the fourteenth). Second, we have close to 450 kids taken away from their parents without any individualized findings that there was any danger at all to the children. If you don't recognize that as a violation of a parent's due process rights, I suggest you sign up with the Bush DOJ. Third, we have this order almost certainly going out because the judge didn't like these people's religious beliefs -- another violation? Yes. I could keep going, but if you ain't convinced yet, then you really are not following what is going on here.

And Volokh's point stands -- it is child abuse. Read the post he links to (from David Bernstein who I agree is not always the most reliable dude, but on this one, he is just quoting from the Judge), and tell me that is not child abuse. Read what has happened here, and don't tell me that this type of action does not have the same potential to screw up kids' lives permanently as does the "potential" of the abuse we are speaking of -- child marriage, which certainly did not occur in every case of the 450 kids taken away. That is child abuse.

One point CT and then I need to go to bed.

First, kovarsky makes the point for me. Volokh is using a pretext to make a more substantive point.

But second, I agree with you that this raises some tough, wrenching questions. And I'll add that I'm not so concerned about raiding all polygamy compounds everywhere. If the people here are willing to leave underage girls alone, then the balancing test shifts.

but that's not going on here at THIS INDIVIDUAL compound. the chronicle noted that most of the girls in question were 15 to 16. i've read elsewhere (maybe someone else can provide a link) that the boys are kicked out. in this individual case, it seems clear that the young children are looking a life of either statutory rape and sexual exploitation or abandonment.

Yes, there aren't individualized showings for each one. but the statistics for this individual compound are enough for me. these children are in extremely unsafe environments.

yes, the state should wade very cautiously. but i (respectfully) dont have much of a problem with the state's actions

Were the little boys who were taken away being abused? The nursing infants? Texas went too far.

i was also fairly disgusted by volokh's glib treatment of sex with 14-16 year olds. "if" it's "forced," -- that's very careful language.

It bothers me when we play around in the abstract theoretical clouds so much that we lose sight of reality on the ground. sexual exploitation on this magnitude is a big problem. if volokh wants to defend it on libertarian grounds, let him do so.

but don't pretend like just b/c a small fraction of 17 year olds maybe (maybe, maybe) were actually 17 at the time they became pregnant that the AP article is playing fast and loose with the facts.

sorry, but his post really got under my skin

crazytrain,

dial it down please. i share many of your concerns, but i'm just a little confused by the somewhat indiscriminate use of legal terminology that you deployed. i'm not really interested in the "why don't you go work for the Bush DOJ" garbage.

i too am troubled by the lack of individuation here, but i'm not sure what that has to do with publius's point, which is that a gripe about how AP cut its numbers is really a pretext for a preferred level of sexual autonomy to be accorded to 15 year old girls.

if i am missing something, and your point about due process bears on publius's more narrow point about pretext, please explain it to me. but if not, please resist the natural temptation to act like a child.

The point being so strenuously argued is that there's some small chance that these girls weren't being sexually abused, and that their children might somehow, by divine intervention, avoid winding up in the same situation?

[Expletive witheld; naught sufficeth]

Foster care is certainly suboptimal, but at least it doesn't come with a guarantee of teenage impregnation.

crazy train,

i'm sorry i'm being too generous. do you really think ordering the dna tests is problematic, or a violation of due process? there are throngs of under-age pregnant teenagers there; by using dna tests to id the fathers, authorities will be able to identify male parties guilty of statutory rape.

given the magnitude of sexual permutation at the compound, there's no other realistic way to match the fathers with the children.

sure, there are other problems with the way this has been handled, but you've honed in on the most absurd one to be exercised about.

Wow. I didn't really believe arguments like this were for real.

Sara Robinson at Orcinus in only one of the reporters and bloggers to point out that what was going on was systematic, ongoing, probable-cause child abuse.

The DNA testing is so the authorities can sort out who the mother for a given child actually *is*. These people were living communally, so it's impossible to say, "*this* child is at risk of abuse, *that* parent is abusive" without implicating everyone else. The testing is the first step in "individuating" the cases, so the law can figure out which mother has the legal right to a given child.

Even if the pre-teens aren't being sexually abused right now, they were in an abusive environment. Beleive it or not, knowing that you're going to be raped a couple years from now so you'd better look forward to liking it *already counts as abuse*, even if no-one has laid a finger on you.

Doctor Science, yeah I'm having trouble believing that people are seriously arguing that family structure trumps child safety.

Were the little boys who were taken away being abused? The nursing infants? Texas went too far.

Because clearly when kids live in a home with systematic and intense child abuse, it's okay to leave them there until they get abused!

Anyone remember the stirring libertarian attacks on the Right Wing attorney general of Kansas who tried to use Planned Parenthood's clients medical records against them? Neither do I. I think its hysterical that the same people who have no problem (I take it) with Phil Kline in Kansas riffling through women's private medical files and histories are all up in arms over forced DNA testing to ascertain identity. You do realize that Kline's excuse was that potentially and definitionally a sexually active 14 year old being treated for pregnancy or sexual issues should be forcibly treated as a rape victim and that Planned Parenthood should be held legally liable for failing to report the hypothetical imagined rape? And that *all* women's private medical records had to be opened up to prevent that hypothetical 14 year old from going without scrutiny?

Under the circs with actual pregnant teens, no legal marriages *to which parents could give consent* and confused paternity the State of Texas is perfectly within its rights, according to Kansas fundamentalist legal theories, in holding *every member of the compound legally liable for failing to report the absuse.* Hell, even if the abuse is hypothetical. Why not test all underage girls in the compoud for virginity, btw. And demand an accounting and a birth certificate for all children to determine whether some boys have been abandoned. Why not? What is sauce for the goose is sauce for the gander.

And stop already with the "muslims permit marriage at age 9"--this of course varies by country of origin and for the time period generally cited for this (Mohammed's time) the same was true for europe). If you want the state of texas go go with guns blazing into saudi arabia be my guest,but it isn't the issue here. No islamic groups in the US permit underage marriages because they are *way more respectful of the law* than the FLDS.

aimai

I’ve been torn on this from the start. Obviously something had to be done, but I don’t think that ripping the kids away from their mothers was the way to go. The court was not ready to handle this; the foster system was not ready, etc. I don’t know if this was even a valid legal option, but my first choice would have been to leave the mothers and kids together in the compound, remove all the men from the compound, and block them from returning until things got sorted out. After all - the children are victims here. The mothers are obviously accessories to the abuse but I assume not the primary abusers. The men are the obviously guilty parties. Removing them from the picture would have been enough to stop the abuse cold while not traumatizing the kids any further.

I previously posted this at TiO, but it’s worth reposting here I think. The San Angelo Standard Times had reporters kind of live-blogging the initial hearing. It was an absolute zoo. That page seems to be down but most of it was posted at Patterico’s.

Most importantly IMO, in the way they handled this things got pretty tense and they may have come pretty close to a Branch Davidian replay:

the witness is saying that things got “more scary” about 10 a.m. Friday on the ranch. There appeared to be a “situation of a huge magnitude,” with a great many officers around.

She says she heard there were men in trees with night-vision goggles. Asked about being afraid, she says men were videotaping her and the children, and men appeared to be posted at every entrance and around the buildings. It’s a feeling of being unsafe, she says.

Law enforcement had begun mobilizing a SWAT team and a tank. Law enforcement, she says, told her, “We are here to keep you safe, and we can’t do that when it’s dark.”

Think about that: “Law enforcement had begun mobilizing a SWAT team and a tank.” Yeah, that’s the way Child Protective Services should investigate child abuse with 400+ kids involved.

aimai and Doctor Science are the voice of reason. Believe it or not, if a woman's boyfriend rapes her 15 year old daughter the state will also remove, at a minimum, her other daughters and might remove all the children depending on all the circumstances, (like if the mother is just ignoring the situation and thus plainly not looking out for the welfare of her children). It's called creating an environment that endangers your children. If the state were required to prove individual abuse on the part of individual parents (by commission or omission) even before it can remove the children suspected of being abused, then the only thing this group would need to do is hide the parentage of the children, something that they apparently are only too willing to do. The state is not so powerless that it must stand back because it cannot gain the cooperation of the parents when a child has evidently been abused. The fact that this group has not provided the information to the state is in itself probably being used as evidence that even those who are not actually abusing the children are cooperating with the abuse by, at a minimum, shielding the abusers from identification.

If these folks were suspected of drug dealing or terrorism I doubt if your due process sensibilities would be nearly so refined. There's a line, obviously, in how far you can go to ferret out suspected criminal activity, but it doesn't seem like it's been crossed yet, or at least, not irremediably. Unlike raping a 15 year old who becomes pregnant, the women can get their children back. The 15 year old is never going to get her childhood back. Those who aren't yet pregnant are clearly being protected from imminent criminal harm.

IANAL.

Dunno why I think I have to mention that, but there it is.

I think if this were a single case, with no clear indication that there was systematic, culturally-approved statutory rape going on, then that's one thing. You'd proceed with caution. But this is a fairly decent-sized sample of pre-consent-aged girls, pregnant at many times (roughly 10x) the national average (which is about 7 or 8%, IIRC, for girls aged 15-19). I think there's clear indication of extralegal activity, and that said activity is condoned, even promoted by the adults is a fairly good bet.

What OCSteve said.

The communal abuse creates a unique problem, but child welfare workers have a natural tendency to overreact.

Polygamy as practiced by this group is child abuse. Girls are parceled out to the dominant men in the group, who will have multiple "wives" first taken when well underage. None are legally married, so its just older men having sex with 13 to 15 year olds. Obviously, the girls are not given a choice.

Volokh does note that it would not be right if they are not legally married, but they never are. They are never literal bigamists by having multiple legal wives.

I recommend everyone go over and read Sara Robinson's analysis over at Orcinius (http://dneiwert.blogspot.com/) of just how close this came to a Waco like meltdown *on the part of this millenial cult* before they start faulting the State of Texas for taking measures more in keeping with a military raid than ordinary child endangerment proceedings. This group is an utterly standard millinerian cult which expects and exploits fear of external interference as a part of its internal patriarchal power struggles. Men, women, and children are controlled by the leadership, families have no permanence or integrity as we have come to know those concepts. Right now the men and women of this cult *who have not yet been exiled from it* are willing and able to use our legal system to protect rights they, themselves, don't grant to each other. Read up about this group--women don't have any kind of right *within the group* to ownership of property or control of their own marriages or children. Even men don't have real rights of disposition over their own wives, families, and children and can lose them (have them reassigned to other men) when they fall out of favor.

All this talk about how cruel and awful it is for the "children to be separated from their mothers" is based on a serious misreading of the facts of this case. For all we know there are fathers *and* mothers-in-exile from this community who will need that DNA evidence to sue for custody of their own children against the cult.

The sheer numbers in this case are astonishing--if you havent been paying attention to disputes over child welfare and state intervention on behalf of children. But compared to the numbers of kids who are removed from dangerous homes and placed in foster care for abuse from non religious nutcases or idiosyncratic and isolated religious nutcases? Its a drop in the bucket.

aimai

It's not polygamy. Polygamy implies some level of equality and fairness that is completely lacking here. What we have is child sex slavery imposed on girls and ejection from the community for boys.

What has happened to those boys? They are clearly superfluous to the structure of the organization. Are they killed? Put out on the streets of major cities to be prostitutes? Sadly, those are good bets absent better information.

I also don't want to hear that these are good mothers. They aren't. Good mothers don't knowingly encourage their daughters to be raped or their sons to be kicked out of a community without preparing them for life as an adult. It may be that these mothers don't feel they have any choice in the matter and, if they stay in this community, they probably don't. They may be forgiven for their failings as any parents can be, but no one is justified in defending that behavior.

I don’t know if this was even a valid legal option, but my first choice would have been to leave the mothers and kids together in the compound, remove all the men from the compound, and block them from returning until things got sorted out.

I don't think this would have worked well at all. This cult is closely associated with other organizations in the southwest and in Canada. In the past, they've moved people between the different sites as needed to avoid legal questions. Also, they have a long history of "transferring" wives and children to new husbands when needed. Under your solution, there is good reason to believe that either (1) surplus men from those other communities would be brought in to take on their patriarchal duties or (2) women or children would be sent off to those communities. Option (2) would have been particularly likely for those women and children who were most unhappy and thus most likely to complain (or testify against the community). The possibilities for witness tampering and obstruction of justice are simply staggering.

You seem to think the problem here lies in the behavior of the men; I would argue that the problem has been insitutionalized to the point where those mothers will carry it with them wherever they go.

After all - the children are victims here. The mothers are obviously accessories to the abuse but I assume not the primary abusers. The men are the obviously guilty parties. Removing them from the picture would have been enough to stop the abuse cold while not traumatizing the kids any further.

CPS is not taking children away because the mothers are "guilty". They are taking the children away because the mothers are unwilling/unable to provide their children with a safe environment. They have made the decision that because this community acts as a single unit and deliberately hides parentage, it should be treated like a single household. Do you disagree with that assessment? Again, that decision is based on the fact that these people are unable/unwilling to tell a consistent story about who parented who.

I think the real question here is why we want to give polygamists special rights. I mean, if this was an inner city family where some children were clearly being abused while the mother made no effort to stop it and CPS removed the abused children, would anyone complain if they removed the other children as well given that (1) the parents were unable/unwilling to provide an abuse-free environment, (2) future abuse was extremely likely, and (3) watching your siblings get raped is in and of itself abuse, even if you're too young to know what's going on? The truth is that as a society, we've always had this weird fascination with polygamists, and FLDS cultists have been very very smart at cultivating that using it to manipulate authorities in the press. Read "Under the Banner of Heaven" for more info on this.

I'll give a third recommendation for Orcinus' excellent coverage.

I just don't see the argument that Texas can't take these children away from their parents when that is exactly what the compound's leaders will do to anyone who dissents. A standard way of punishing someone who expresses any dissent, especially women, is to redistribute children to other families. And they kick out most of their male children, offloading them onto the state or worse as standard procedure. Doesn't that, you know, sort of, end the whole argument? Haven't they given up their right to prevent the state from taking their children into protective custody?

Following up on the recommendation for Orcinus, I'd also like to recommend Sara Robinson's post How Dangerous is The FLDS? at Campaign for America's Future.

Oh, thank you for posting that link, freelunch. That is one of the articles I was talking about but I couldn't remember where I'd seen it.

Quick question for the pro-rape/pro faux polygamy crowd: what's the real difference between the police stepping in in the Texas case and the police stepping in in the recent Austrian case of the man who kept his daughter and children/grandchildren in a basement cell for twenty four years? Aside from the religious excuse?

aimai

Barack Obama has a millstone around his neck named Reverend Wright who has peculiar ideas about the culpability of the U.S. Government ("Texas went too far." Maybe. Gosh, I hope they finally start going too far in other people "welfare" areas. Maybe they'll raise taxes, or would that that be too far?) in various and sundry evil deeds.

He's wrong, of course, but the two of them are now attacked by folks who believe that all government entities are culpable in every single evil, going-too-far deed known to man, except for 9/11 and AIDS.

How come liberals (generally speaking) aren't allowed to be paranoid about the government? And, why are conservatives (generally speaking) so selective about their paranoia?

Ah, yes, I know. Because government culpability in 9/11 and AIDS didn't require raising taxes, so what's the big deal, he kidded?

When underaged virgins have tanks, child welfare advocates will be able to stand down.

Bill:

The convolutions in my brain keep running into the convolutions in your brain. I've lived in third-world countries. Generally-speaking, underaged female virgins are strapped into figurative chastity belts unless some of the men around them choose otherwise.

If the girl says no, she's thrown into a volcano. If she says yes, she shuts up and/or hits the streets.

Warren Jeffs ought to pack up and head for Bangkok. There's no discrimination. Underaged boys get to succumb to rape and carpentry, too.


It is almost certainly systematized child abuse

AND

You can't take people's kids away for any length of time without individual and particularized hearings.

I don't see it as an either/or at all. If Texas had to run the courthouse for 14 hours a day and draft judges from other counties for a week, so be it.

You can't take people's kids away for any length of time without individual and particularized hearings.

Really? Any length of time at all? Even 20 minutes? I don't think this thing that you assert is true.

How exactly do you propose to hold individual hearings before the DNA tests come back? I mean, absent DNA tests, why should the state be forced to accept people's claims as to which children are "their's"?

I don't see it as an either/or at all.

OK...so which principle should be controlling if the two are in conflict?

If Texas had to run the courthouse for 14 hours a day and draft judges from other counties for a week, so be it.

TX will not be doing that. In the real world, resource constraints exist. So, what do you propose we do given that TX will not be acting in the manner you suggest?

Yes, there aren't individualized showings for each one. but the statistics for this individual compound are enough for me. these children are in extremely unsafe environments.

So statistics are o.k. in this situation but not others? For example, racial profiling? What's the difference? Simply because the removal is not for the criminal acts of the child? Would statistics be a good idea in other situations, e.g. recovering addicts? Since they are so likely to reoffend, should we not let them have their children back because statistically the children are at risk?

Also, the statistics were apparently based on "visual" identification of age. Wow.

No question it's child abuse if the facts are as Texas thinks they are. But given the suspected nature of what's going on there, did the state really need to take infants away from their mothers? Why did they take ALL the kids? OCSteve's point is well-taken: there were many other options that should have been followed rather than taking all the kids from their mothers.

I have a pet peeve with CPS in California and similar agencies in other states. Because what they do is so important, people at such agencies have a righteous sense that whatever they do is good. Local CPS doesn't think they should have to inform an out of state parent that they are removing a child and placing into foster care if the out of state parent doesn't have physical custody of the child, even where that parent has legal custody. Boggles the mind.

Removing children from their mothers is no small thing. The trauma of removal for those children who are nowhere near the age "fear of upcoming rape" far outweighs the interest in removal.

And here is the problem with a lack of individualized hearings: What about a family with only one wife and several small children (say under age 5)? Why remove the children in that situation? Are we clear that that did not happen?

When I see something like this, I suspect the hard thinking is not happening. Sebastian is absolutely correct. If you're going to remove all, get them an individual hearing ASAP no matter what.

And did they ever get to the bottom of whether the initial telephone call was a prank? The initial PC becomes very suspect if it was a prank and makes the subsequent investigation questionable.

Don't get me wrong. I am sickened by what was allegedly happening in the compound. But when it comes to kids and the state and parental rights, I get a bit riled up.

It is obvious that an ideal hearing process includes hearings concerning each child or group of siblings, but that assumes that there is some level of cooperation from the parents and the children. Apparently, that has not been the case to date.

If you cannot get a straight answer about who is related to whom and when a child was born, it's hard to have anything like an ideal hearing. Given what is known to have been going on, there is no rational way to give the parents the benefit of the doubt.

For those who criticized the child services folks and the Texas court, what alternative do you offer to protect these children?

"Really? Any length of time at all? Even 20 minutes? I don't think this thing that you assert is true."

Sorry for the confusion. I meant "any length of time" in the "not a long time" colloquial sense. But I see that wasn't helpful in context.

When I worked as a child advocate in dependency court (which is in California where these kids would end up), our rule of thumb was no more than a day without an indivdualized hearing and certainly not two. But we were a lucky place to have a court open on Saturday, so perhaps 3.

The point is Texas doesn't have any valid excuse to have avoided individualized hearings now. It has been a week.

"It is obvious that an ideal hearing process includes hearings concerning each child or group of siblings, but that assumes that there is some level of cooperation from the parents and the children. Apparently, that has not been the case to date."

If they won't answer questions, given the other circumstances you can take the kids away. Not cooperating with the hearing doesn't frustrate its existance. But that isn't the same as the group hearings they apparently have been having with multiple mothers and children. At the very minimum you need to have one hearing for each mother.

(If the women won't admit who is the mother of a particular child you aren't taking the child away from its mother so you aren't in the same situation).

It isn't pro-polygamy to say that you don't get to take kids away from their parents without an individualized hearing. It can't be a good precedent to have mass hearings based on what organization you're in.

Of course children are separated from their parents all the time--when its "illegal aliens" or "dark skinned people who can't produce their birth certificates" and who are working near people declared to be illegal immigrants. At that point the people fighting for their rights are the dread ACLU and local affiliates. But we don't hear a peep from people about that--even when those kids and parents are then brought together and imprisoned in a for profit prison institution in...hm...texas, I think it was.

Look, there's plenty of great time to stand on principle and fight for the rights of families to remain intact. But there is not only probable cause for the raid, their is strong evidence of sexual abuse and the abandonment of children. It would also be better to think of this group as an international conspiracy to commit tax fraud, child rape, kidnappping and brain washing. That gives you a sense of why the adult members ought to be regarded with extreme suspicion as flight risks and why the state should (in my opinion) be gathering information for some kind of organized crime like prosecution.

The children and the wives are pawns here. But its not the state that has made them pawns, it is the FLDS community that has treated them like property all along. Its going to take some time to tease out these issues. But although they aren't rendered less serious when it happens to fundamentalist white religious nuts, they aren't rendered more serious. This stuff happens *all the time* to non white, poor, illegal, or other individual families and communities. And state's get hammered for failing to protect kids by *not removing them promptly*. Although I'm an extreme civil liberties advocate the state isn't the only or, historically, the most significant source of repression for the indivdual woman or child--that honor belongs to the religiously inspired family unit headed up by g-d or his earthly substitute. In this case the state is breaking the monopoloy on coercive force held by a few FLDS fathers/owners/leaders. I'm all for it. Liberty for women and children is going to have to arise out of a combination of outside interference and freed personal choice. But until both women and children have been removed from this pernicious sub state authoritarian milieu and offered safe haven/jobs/security/ownership of their own bodies and labor we can't even begin to talk about this as a contest between individual liberty and state suppression.

aimai

No question it's child abuse if the facts are as Texas thinks they are. But given the suspected nature of what's going on there, did the state really need to take infants away from their mothers? Why did they take ALL the kids? OCSteve's point is well-taken: there were many other options that should have been followed rather than taking all the kids from their mothers.

First off, I believe mothers were permitted to stay with their infant children. And several people have already explained why all the children were removed. For example, I did so here. If you find that explanation insufficient, please explain why. That would be more productive than simply pretending none of these explanations exist.

Removing children from their mothers is no small thing. The trauma of removal for those children who are nowhere near the age "fear of upcoming rape" far outweighs the interest in removal.

The issue is not just "fear of upcoming rape": the issue is also flight risk or witness tampering. If you don't remove those children and they end up "transported" to the related compound in British Columbia, they will face problems far worse than fear.

Also, if you're going to talk about tramau, would you mind qualifying how serious you think this tramau is? I mean, do anything remotely unpleasant is tramautic for a child, yet we still send them to school, give them their shots, make them eat broccoli, etc. So, how tramautic do you think it is to be separated out from the sex slave cult for a few weeks while being together with your friends and siblings? I mean, is this as tramautic as getting shot? Watching your parents die? Watching your sister get raped? Watching your infant brother get "disciplined" by drowning (as some people who have escaped this compound claimed was a widespread practice)? Going to school? Eating broccoli?

When I see something like this, I suspect the hard thinking is not happening. Sebastian is absolutely correct. If you're going to remove all, get them an individual hearing ASAP no matter what.

I didn't read Seb's comment as saying they should get an individualized hearing "no matter what", but perhaps he can clarify. When I see statements about doing things "no matter what", I suspect hard thinking is not happening. I mean, if criminals make it impossible to get individual hearings right away, does that mean there can be no investigation?

And did they ever get to the bottom of whether the initial telephone call was a prank? The initial PC becomes very suspect if it was a prank and makes the subsequent investigation questionable.

I really think you would benefit from reading more about this case. This organization has a long history of interaction with the state: the leader is already in prison for related crimes. The notion that everything in the compound was hunky dory until crazy TX police officers burst in and invented a vast number of non-existant crimes is too fantastic to consider.

"And did they ever get to the bottom of whether the initial telephone call was a prank? The initial PC becomes very suspect if it was a prank and makes the subsequent investigation questionable."

Betcha that technicality's going to end up in a future episode of Law&Order:

"But your Honor, the fact that 14 year old girls were being sexually violated by elderly Church Officials is inadmissable due the to 'prank exception.'

Really? Any length of time at all? Even 20 minutes? I don't think this thing that you assert is true.

Most states require a hearing within 48-72 hours of removal to make sure that the state has jurisdiction over the children, i.e. that the children really are at risk and fall within the statutory definition of at risk kids. In California, a petition has to be filed within 48 hours of removal by CPS and then the detention hearing that same day or the next day, I believe. But the fact is, the judges typically rubber stamp whatever the social worker says. The first real chance the parents have to contest is about 15 days later.

How exactly do you propose to hold individual hearings before the DNA tests come back? I mean, absent DNA tests, why should the state be forced to accept people's claims as to which children are "their's"?

This case presents a very difficult situation. But the state being "forced"? I crossed the border from Canada one time with my family in our RV. It was the middle of the night and everyone but my three year old was asleep. Rather than make me pull out identification and wake my wife, the customs officer asked my little girl, "who is this guy?" Her sleepy response that I was her dad and her mom was asleep in the back and the rest of the kids were her sisters was all the customs officer needed.

I'll bet you would get a pretty good idea from questioning the younger children. DNA tests where that doesn't work.

I like the "if" and "forced sex" bit. Maybe I'm just a prude, but any sex with a 14 or 15-year old by a grown man (particularly in that setting) is forced sex in my book.

Definitions for crime trends from the FBI's Uniform Crime Reports :

Forcible rape - The carnal knowledge of a female forcibly and against her will. Rapes by force and attempts or assaults to rape regardless of the age of the victim are included. Statutory offenses (no force used - victim under age of consent) are excluded.

bc,
Uh, you really haven't bothered to do your homework. These women and children are subject to *reassignment* from one "husband" to another. In reality these children *don't know who* their biological parents are, much less who their legal parents are. In fact, they may well have been forcibly separated from their biological mothers and fathers who were, until this moment, unable to contest what under regular american law would be abduction. its really cute that the canadians or our police were so nice to you when you crossed over once. What does that have to do with anything? As I recall they let a *blood stained murderer* in last year because they were too trusting.

aimai

I'll bet you would get a pretty good idea from questioning the younger children.

Well, you probably would if the younger children were told the right information.

Given what I know...I don't think that's a very good assumption. Given a communal situation, I don't think that's a good assumption to make there, either. You might be overgeneralizing a bit from mainstream situations.

243,
the commenter to whom you are referring says that, contra volokh, they feel that "any sex with a child who is statutorily under age is "forced sex in my book." What does the FBI definition of the technical meaning of "forcible rape" have to do with that? The fbi is focusing on the "forcible" part of the definition but states place many forms of consensual sexual acts under the *statutory* part of the definition. That's why we have the crime of "statutory rape" which is rape, but doesn't have to be *forcible* and thus doesn't require force or "against her will" to be a crime and to be treated as a crime.

aimai

This case presents a very difficult situation. But the state being "forced"?

I wrote inartfully. But the question still stands. Given that this community has lied repeatedly about how paternity and maternity relations, why should the state accept any assertions about such relations without other evidence?

I'll bet you would get a pretty good idea from questioning the younger children. DNA tests where that doesn't work.

I don't see how this could work in practice given that we know that this cult "transfers" children to different parents. If your parents fall out of favor with the leadership when you're one year old and you get transferred to a different family (or you, your mother, and your siblings get transferred to a different owner), how could you possibly know that?

Plus, if the children have been instructed to lie, asking them gets us nowhere.

I want to be really clear. If the facts as presented to us now are accurate, I have no problem with termination of parental rights for child abuse. Believe me I've seen nasty cases in person and I know that a frightening number of parents are unfit and/or abuse their kids. Furthermore I fully believe that the facts as presented to us now are accurate in pertinent detail.

But I have also seen over-agressive CPS workers get involved and put parents and children both through an unnecessary nightmare. There are very good reasons to have strict procedures on taking kids from their parents. It can be EXTREMELY damaging to the kids if you are wrong (and in some sad cases can be extremely damaging even if you are right). Having group hearings isn't a good idea.

"Of course children are separated from their parents all the time--when its "illegal aliens" or "dark skinned people who can't produce their birth certificates" and who are working near people declared to be illegal immigrants. At that point the people fighting for their rights are the dread ACLU and local affiliates."

This comment and what follows has very little to do with the case at hand. The question is of options. If you are going to put the illegal immigrant parents in jail, you have to put their kids in some non-jail place. If you were jailing all these mothers right away, of course you would put their kids in foster care. But we aren't jailing all these mothers at this point, so you comparing it to cases where the parents are in jail doesn't make sense at all.

bc:

IIRC, what prompted the DNA testing is that it turns out that the younger children call *all* the women (in a given family or bunkhouse) "mother", and *all* their co-raised peers "brother and sister". So the usual "show me your mommy" questioning doesn't work for establishing presumptive parentage.

Watching your sister get raped?

I didn't know there were allegations that the young children watched. I understood that the young children would have known their underage sisters were "married." Is this what you mean by watching your sister get raped?

Watching your infant brother get "disciplined" by drowning (as some people who have escaped this compound claimed was a widespread practice)?

I couldn't find any reference to this. Link?

Uh, you really haven't bothered to do your homework. These women and children are subject to *reassignment* from one "husband" to another.

And herein lies my real problem. It seems that everyone is basing their perception on what they "know." The law requires something more-that allegations sufficient to remove a child from their parents be based on facts testified to under penalty of perjury.

I did note that many children, according to the affidavit, are "unable or unwilling" to i.d. their parents. DNA tests, then, ASAP.

And I could not find actual documents regarding the subsequent hearings. I would be interested in reading those to see what the state has actually submitted as evidence rather than the biography of someone who left the FLDS.

Going to school? Eating broccoli?

Please don't trivialize removal to this level.

Seb,

Can you explain what you think the state should do in this case given that it lacks the resources to do individualized hearings right now? Should it return all the children? Keep them and wait?

Also, can you explain what the value of individualized hearings is when you have strong reason to believe that statements of parenthood are false?

So the usual "show me your mommy" questioning doesn't work for establishing presumptive parentage

Looks like you're right. DNA test them if they can't i.d. birth mother.

Sebastian:

I see what you're getting at about the need for group hearings. Based on your experience & Mrs Robinson's reporting, do you think TX CPS has enough evidence for individual hearings before the DNA evidence comes back? And that can't be timely, so what would you expect them to do?

It's particularly distressing because it's very likely that some of these kids are emotionally bonded to women who *aren't* their biological mothers, and thus have no legal right to stay with them.

I'd like to offer a really radical notion: that children are not the chattel of their parents, and that parents have no rights whatsoever in regard to their children. They have only obligations to raise those children in accordance with whatever standards society imposes by law.

The basis of my claim is that children are human beings endowed with basic rights to be brought up according to some minimum set of standards.

Also, can you explain what the value of individualized hearings is when you have strong reason to believe that statements of parenthood are false

Not answering for sebastian, but put the unreliable statements of parenthood before the judge and let the judge decide what to do. At least you have provided the purported parents and the child an individualized hearing. There may be cases where there is not any confusion and those should be weeded out from those where you simply cannot tell.

The state has a right to make a determination of who the parents of a particular child are. That does not mean you should not provide an individualized hearing to persons claiming to be the parents of a child.

lacks the resources to do individualized hearings

I don't believe this. Any court admin officer worth his or her salt would be on the horn getting every retired judge available in the state to get down there and help. State CPS should be coordinating. No excuse where children are concerned.

I work in a small county. We had a similar situation of sorts involving a religious group years ago (no child abuse, just various criminal charges). They called for the cavalry and got it done.

I couldn't find any reference to this. Link?

Try here:

“The method he would use with infants was a form of water torture,” Jessop said of her former husband. “He would spank the baby until it was screaming out of control, and then he would hold the baby faceup under a tap of running water so it couldn’t breathe. He would do this repeatedly. Sometimes, it would go on for an hour, until the baby was so exhausted it couldn’t cry anymore. This method he called ‘breaking them.’”

Please don't trivialize removal to this level.

Please reread my comment. I never claimed that removal was as tramautic as eating broccoli. Rather, I asked you to explain how tramautic it is. Since we're talking about a balancing test that involves the tramau of separation versus the ongoing and potential future harm, it seems that being able to qualify both of these is useful. Several people have asserted that the tramau is massive; I don't believe that, but I think it would be useful to discuss how serious the tramau is in this case. Making categorical statements about how the tramau is unbelievably large but cannot be compared with anything is...not helpful.

Not answering for sebastian, but put the unreliable statements of parenthood before the judge and let the judge decide what to do. At least you have provided the purported parents and the child an individualized hearing.

Again, what is the value of holding this hearing RIGHT NOW rather than deferring it until the DNA test results are available?

There may be cases where there is not any confusion and those should be weeded out from those where you simply cannot tell.

Can you describe what one of these cases where there is not any confusion would look like? The problem here isn't that well-meaning people are confused. The problem is that a lot of vital paternal/maternal information has been deliberately obscured and lied about in order to cover up crimes. Let's say that you have a kid and parents who all agree that the kid belongs to those parents: again, why should the court believe them given the lies and forced transfer policies?

The state has a right to make a determination of who the parents of a particular child are. That does not mean you should not provide an individualized hearing to persons claiming to be the parents of a child.

I'm not arguing against individualized hearings. I'm only saying that individualized hearings BEFORE you get DNA testing done is pointless.

I don't believe this. Any court admin officer worth his or her salt would be on the horn getting every retired judge available in the state to get down there and help. State CPS should be coordinating. No excuse where children are concerned.

Um, do retired judges work for free? If not, where does the money to pay them come from? Once you have the judges, where exactly do you hold hearings? Where do you get extra stenographers and attorneys? Do they work for free just like the retired judges? Are retired judges even kept up to date on the latest changes in law? Do they have their continuing education credits?

Your line about no excuses seems like some sort of joke. Of course there are excuses. States have little interest in taking care of children when it costs serious money because voters don't care. If voters did care, we would see a very different CPS in this country.

Try here:

That is beyond horrible. I would remove any children belonging to her former husband. She doesn't seem to indicate that the practice is widespread enough to justify the removal of all the kids, though, horrible as that individual situation was.

but I think it would be useful to discuss how serious the tramau is in this case.

o.k., I seek your point (good point).

Sebastian says it:
It can be EXTREMELY damaging to the kids if you are wrong (and in some sad cases can be extremely damaging even if you are right).

It's not a field trip with your friends and siblings. It's a lot closer to being shot than to eating broccoli. But each kid is different. A lot of teenagers might thank CPS even if there was no abuse going on. :)

Sebastian wrote: This comment and what follows has very little to do with the case at hand.

By an odd coincidence, so does the comment "I have also seen over-agressive CPS workers get involved and put parents and children both through an unnecessary nightmare."

why should the court believe them given the lies and forced transfer policies?

Again, I didn't see that the forced transfer policies were before the court. Assuming that they were, and given your facts, I would see if temporary custody with the purported mother (who is, as you say, the person the kid looks to as his or her mother) if the situation could be made secure. Or I would place with extended family. Not a difficult call at all. If those options are not possible, make a record and wait for the DNA tests. But no knee jerk foster care placement.

Um, do retired judges work for free?

Flip the argument on its head. Lack of funding is found nowhere in California's statutes as an excuse to detain children. I doubt Texas has such a provision. So what do you do? You HAVE to have the hearing. If someone steps forward as a purported parent and wants a hearing, they are entitled to the hearing. End of story.

aimai, I really didn't mean my statement to be contentious. I was pointing out that there were other "books" available than Publius' take on what was considered "forced sex". Whether or not the FBI's take on the matter has more validity, I'll leave up to the readers. (I don't entirely agree with their definition either; I would also think that forcible carnal knowledge of a male should be counted as "forcible rape".) I am also not arguing against or minimizing the affect of statutory rape, which you also recognize may not be forced, and hence would not seem to totally agree with Publius' definition.

The broccoli comment was a bit much.

"Several people have asserted that the tramau is massive; I don't believe that, but I think it would be useful to discuss how serious the tramau is in this case."

On what basis do you believe that removing a child from his parents and placing him in foster care is anything less than massive? I have literally never heard anyone working in the system suggest that it was anything less than very very traumatic. Do you have a cite to anyone who says that? Are you relying on some very finely graded scale?

To put it in perspective, many children, many years after they have been removed will still say that they would have rather stayed with their parents even if they had been subjected to beatings (and I'm not talking spankings) on a regular basis. Being removed from your parents is very traumatic.

Which is not to say that it shouldn't be done in many cases. It should, so obviously your "cannot be compared with anything" is a strawman.

And the fact that you were willing to raise forcing them to eat broccoli suggests to me that you aren't taking the concept seriously at all.

You are literally the very first person I have ever heard of who thinks it isn't an enormous deal. So the ball is in your court on this one. I don't feel the need to assume the burden of proof on that. Your typical "you haven't shown me enough" isn't going to cut it. We don't have to convince YOU that it is incredibly traumatic. The 99% of the rest of the country will do just fine.

Turb: I don't think this would have worked well at all. This cult is closely associated with other organizations in the southwest and in Canada. In the past, they've moved people between the different sites as needed to avoid legal questions. Also, they have a long history of "transferring" wives and children to new husbands when needed. Under your solution, there is good reason to believe that either (1) surplus men from those other communities would be brought in to take on their patriarchal duties or (2) women or children would be sent off to those communities. Option (2) would have been particularly likely for those women and children who were most unhappy and thus most likely to complain (or testify against the community). The possibilities for witness tampering and obstruction of justice are simply staggering.

Not being familiar with the law in general or Texas law on the matter in particular, I don’t know what the answer is. I just feel that there must have been a better solution. Retraining orders for the men I suppose. For the women, I assume that there are ways to compel witnesses and/or suspected accessories to stick around. Some kind of temporary blanket order that no children could be moved beyond state lines. If a lawyer familiar with TX law on this and CPS wants to tell me that this was the only possible solution then I’ll have to accept that.

You seem to think the problem here lies in the behavior of the men; I would argue that the problem has been insitutionalized to the point where those mothers will carry it with them wherever they go.

I think that the men involved are primarily responsible. I think that the women involved are partly responsible and partly victims (brainwashed, intimidated, etc.) - which leads me to believe that the women involved deserve a little more consideration then the men.

They have made the decision that because this community acts as a single unit and deliberately hides parentage, it should be treated like a single household. Do you disagree with that assessment?

Yes. Deciding it should be treated like a single household seems to be mostly for the convenience of the law (CPS, investigators, courts). Not a good enough reason IMO.

Again, that decision is based on the fact that these people are unable/unwilling to tell a consistent story about who parented who

For the short term, while this mess was being straightened out - whichever woman a child was comfortable calling “mom” would have been good enough IMO.

Maybe this is just "and a pony" thinking on my part. If we truly don’t have a better way than this we damned sure should work one out before next time it comes up.

Turbulence -- apologies for the nitpick, but FYI it is "trauma" and "traumatic."

You HAVE to have the hearing. If someone steps forward as a purported parent and wants a hearing, they are entitled to the hearing. End of story.

The community has lawyers. Which suggests to me that either they have no interest in avoiding foster care or that the courts do not agree with your assessment. Now, it could be that the courts disagree because they are corrupt or stupid, or it could be that they disagree because they know TX law better than you do. So why do you think the courts haven't reversed this obvious travesty of justice? I'm actually curious to hear your thoughts on this matter. Is this just one of those cases where the legal system takes a long time to reach a reasonable result?


On what basis do you believe that removing a child from his parents and placing him in foster care is anything less than massive?

I think it depends on the specifics. Removing a child from a parent's care for 20 minutes is clearly not massive. Removing them permanantly is clearly more of a problem than removing them for a week. Removing them and placing them into foster care apart from everyone they ever knew is clearly more massive than removing them but keeping them together with their siblings and other relatives, especially when they're kept with many women that they consider to be mothers.

So yes, foster care and removal in general are very tramautic, but this case differs from the norm very much, no? In this particular case, it seems that the tramau imparted may not be as high as foster care cases typically are. Of course, each child is different and will react differently.

Also, Seb, you still haven't addressed the questions I posed here. I suppose the fact that you've decided I'm unserious ensures I won't ever see an answer. Note however that other people, who presumably are not unserious, have raised the same questions.

Turbulence, "Again, what is the value of holding this hearing RIGHT NOW rather than deferring it until the DNA test results are available?"

Same value in holding a hearing RIGHT NOW when deciding to hold a person in prison while the police build their case. If the main bit of serious evidence against a person is their DNA test, you don't get to hold them in prison without a hearing for weeks while you wait for it. At the very least you have to go before a judge and specifically outline your case without the DNA test and prove why you should be able to hold the person until the test comes back. You don't get to say "he is a member of the Crips, therefore I get to put all members of the Crips in jail for weeks until the DNA test comes back".

I fully expect that in a fair hearing in this case the kids will get pulled from the parents temporarily at first and permanently later. I also fully expect that most people who go to trial will get convicted. That is no reason to skip a criminal trial and it is no reason to skip the hearing.

I can't believe I have to explain the value of this type of procedure on a blog inhabited mostly by liberals.

When Patterico talked about torture a couple of months ago, he kept saying "terrorists" and we kept reminding him "alleged terrorists". The same thing is happening here.

"Um, do retired judges work for free? If not, where does the money to pay them come from? Once you have the judges, where exactly do you hold hearings? Where do you get extra stenographers and attorneys? Do they work for free just like the retired judges? Are retired judges even kept up to date on the latest changes in law? Do they have their continuing education credits?"

Put it in the crim-law context and see if you think your objections would justify holding someone in prison for weeks? And please answer the question before raising further objections. Would your objection be valid in a crim-law context?

Do you have some SPECIFIC reason to believe that Texas can't afford it or are you just speaking hypothetically? Is this something you have already read, or are you going to have to research it now?

This group is an utterly standard millinerian cult which expects and exploits fear of external interference as a part of its internal patriarchal power struggles.

Now doesn't that sound familiar.

This is really ticky-tack but: Turbulence, the word is "trauma".

"Also, Seb, you still haven't addressed the questions I posed here. I suppose the fact that you've decided I'm unserious ensures I won't ever see an answer."

Actually I had just done so, thanks for being snarky.

But yes I *also* think you are unserious and at this point I think I'm just not going to respond to you any more on any topic. If people who are serious want to repeat your questions I will probably answer them. Most of your concerns are 'cite please'. In the past I have tried to answer while suspecting you weren't serious. The 'cite please' on the topic of the seriousness of taking kids from their parents suggests to me that my initial suspicion was correct and it is up to you to convince me otherwise. You may not choose to do so. That is also fine.

I'm afraid the realities of the situation -- and what the Texas courts are being faced with -- is simply not sinking in to some people.

In essence, what the FLDS did was organize an entire community around statatory rape and child abuse, with every member of that community completely committed to doing whatever necessary to conceal that crime and, including structuring the community in such a way as to obfuscate lines of responsibility.

In short, you have a conspiracy here, in which a large number of adults have planned for a very long time ways in which to hide not only the crime, but if the crime comes to light, who is responsible. The children are unwitting accomplices in this because they believe only what they are told, and what they are told is often not the truth.

In short, what you have here is basically the sex-crimes version of the mob. Unfortunately, Texas law insists -- and I think it's pretty obvious why -- that authorities step in to stop child abuse [i]immediately[/i], and not spend ten or twelve months meticulously building a case first.

I don't think anyone here is claiming that the authorities didn't have a VERY valid reason to think the law was being broken. Multiple pregnant under-age girls is pretty solid evidence, especially when young boys are booted out early.

Having stepped in to act on what's about as crystal clear a case of child abuse as you can get without the parents sending in videos of the child being raped, the courts are now struggling to sort out who is who.

Yes, it certainly sucks that the ONLY way to clear up this mess is to isolate everyone involved and DNA test them to sort out who did what.

However, there really IS no better way. The authorities had to intervene as soon as they had solid evidence of sexual abuse (which, again, no one seems to be disputing they had, what with all those pregnant underage girls married to much older men).

Until DNA testing sorts out which pairs led to which infants, there's really nothing the courts can do.

They had an immediate requirement to act to protect children. Now they have to sort through years of deliberate lies and cultural conditioning.

243,
The point is that Publius's "I think" has nothing to do, and need have nothing to do, with the FBI's definitions of a particular kind of crime. Its not a response to Publius, or to the rest of us, that (some) of these instances may or may not fall under a fairly limited definition. I suspect that the definition you cite is to be used *for the collection and handling of data* and is not actually meant to be exhaustive of *that which makes a thing a crime or not a crime.* But I'm not sure because I'm not bothering to click on the cite.

Rape, like other related terms and concepts like sodomy, sexual contact, gross sexual contact, bodily harm, assault, consent, etc...has multiple cultural uses and many different legal definitions. I dont think it matters one way or another how the FBI uses the term "forcible rape" in data collection, or that it chooses to separate out the category "statutory rape" from "forcible rape of female victims." A statutory rape can also be forcible, a consensual act can also be statutory rape. As we've recently seen in a prominent rape case there can be cases where consent itself is a suspect category as in the case of a woman who had sex with someone she *thought* was her husband but who turned out to be someone else. The sexual act wasn't forced, but since the identity of the person involved as incorrect the act was fradulent. i can't remember the disposition of the case and I bring it up merely to say that definitions of an act have a legal meaning in particular fact sets, in particular local jurisdictions. What the FBI defines or doesn't define as "forcible rape", in other words, is simply totally irrelevant to a discussion of whether some underage girls were, in fact, raped.

aimai

Everyone should read Sara Robinson's analysis over at Orcinius (http://dneiwert.blogspot.com/ This is a rape factory and normal rules do not apply. There is not a bunch of separate families living on a ranch, but a large commune run by the men. Women who object are punished and shipped away from their kids. The only thing Texas has done wrong is wait so long to act. The only good thing about this is that it has reawakend conservatives respect for the rule of law and fear of state power (at least when applied to white people).


Put it in the crim-law context and see if you think your objections would justify holding someone in prison for weeks? And please answer the question before raising further objections. Would your objection be valid in a crim-law context?

I don't think that it would be correct to put suspected criminals in prison for weeks while waiting for evidentiary confirmation without going before a judge. For the record, I also don't think we should put suspected immigration law violators in prison for weeks while processing their cases.

However, I also don't think that has much to do with this case for two reasons:

1. These kids are not going to prison: they're not being punished for criminality, alleged or otherwise. There is a difference in mind between sanctions intended to be punitive and taking action to ensure a child's safety that is traumatic. The balancing test matters.

2. They did go before a judge. The issue isn't whether they've had access to the courts but whether the mass hearings were legitimate.

For both those reasons, I don't think your analogy makes much sense. A better analogy might involve material witness orders or protective custody. In such cases, the state restricts the liberty of someone even though they themselves have done nothing wrong. You might postulate some case where lots of people witnessed the same crime committed by the mob and for some reason, the prosecutors required all of those people to testify (i.e., just getting one wasn't sufficient) and in order to avoid a serious flight/retaliation risk, the judge held a mass hearing for all the witnesses at once.

I think I would be OK with such a scenario, but I'm really not sure. In all honesty, I've never thought about a case like that before because it is very strange and because I don't know much about material witnesses and protective custody or the law and practical issues surrounding them. I don't have a good intuition for reasoning about such cases in general.


Do you have some SPECIFIC reason to believe that Texas can't afford it or are you just speaking hypothetically? Is this something you have already read, or are you going to have to research it now?

Besides the fact that I know that this part of TX is impoverished and that in every place I've lived, CPS has been underfunded and understaffed for dealing with normal CPS work, let alone an influx of this magnitude?

Actually I had just done so, thanks for being snarky.

Sorry about that; our comments crossed. You've been more than civil enough to deserve more patience on my part and for that I apologize.

But yes I *also* think you are unserious and at this point I think I'm just not going to respond to you any more on any topic. If people who are serious want to repeat your questions I will probably answer them. Most of your concerns are 'cite please'. In the past I have tried to answer while suspecting you weren't serious. The 'cite please' on the topic of the seriousness of taking kids from their parents suggests to me that my initial suspicion was correct and it is up to you to convince me otherwise. You may not choose to do so. That is also fine.

I don't think I've asked for a cite in this thread, have I? I've been trying to get at bc's thinking regarding how traumatic he thinks separation would be in this case, not in the abstract. (Yes, I know that separation can be akin to watching one's parents die in some cases). It seems that (and please correct me if I'm wrong) part of the disagreement here stems from a differing assessment of how serious trauma will be in this particular case. As both you and bc have pointed out, this case is rather unusual.

I think these children will be and already have been traumatized by this separation. However, I don't think that trauma will be comparable to that experienced by the boys who will later be abandoned or the girls who will be raped. I also think that abandonment and rape is sufficiently prevalent in this community so as to justify traumatizing even the children who won't suffer those harms. I also think that unique features of this situation reduce but certainly don't eliminate) the trauma these children are likely to suffer. It is an all around bad situation where none of the choices are particularly good.

To put it in perspective, many children, many years after they have been removed will still say that they would have rather stayed with their parents even if they had been subjected to beatings (and I'm not talking spankings) on a regular basis. Being removed from your parents is very traumatic.

This is a typical reponse from victims of abuse of all kinds. It's a response to the trauma of the abuse, not to the trauma of being removed from the abusive situation.

In short, you have a conspiracy here, in which a large number of adults have planned for a very long time ways in which to hide not only the crime, but if the crime comes to light, who is responsible. The children are unwitting accomplices in this because they believe only what they are told, and what they are told is often not the truth.

In short, what you have here is basically the sex-crimes version of the mob. Unfortunately, Texas law insists -- and I think it's pretty obvious why -- that authorities step in to stop child abuse [i]immediately[/i], and not spend ten or twelve months meticulously building a case first.

I completely get it, and I hope that a bunch of people end up in jail at the end over it.

I'm not asking for a trial, I'm asking for the routine preliminary hearing before a judge. They don't need to spend 10-12 months building a case. They need to spend 15-30 minutes before a judge who hears each mother's case. The burden is not very high, which is part of the reason it is so annoying that Texas doesn't seem to feel the need to bother with it.

You seem to be engaged in thinking akin to "9-11 made everything different". It isn't that different. Judges can work a little overtime to make sure that the process goes through.

Gregory: "By an odd coincidence, so does the comment 'I have also seen over-agressive CPS workers get involved and put parents and children both through an unnecessary nightmare.'"

No, inappropraitely-agressive CPS workers are part of why we have serious procedures when it comes to taking parents away from their kids. Since a large part of the topic involves the procdeures by which Texas is taking kids away from their parents (and the apparent desire of at least 3 people in this thread to ignore the procedures), it is right on topic.

By all appearances, these kids should be taken from their parents. And by all appearances most people who go to trial are guilty. But the procedures have a good point anyway. The fact that these kids should be taken from their parents or that man is guilty of a crime is no argument for dispensing with trials and preliminary hearings.

No, inappropraitely-agressive CPS workers are part of why we have serious procedures when it comes to taking parents away from their kids.

Sure, Sebastian, but again, that's relevant to the facts of this case exactly how? Since there's abundant evidence of the unusually heinous nature of this criminal gang and little if any evidents that Texas' CPS workers have been "inappropriately aggressive," your paranoia is, again, hardly relevant to this case. This is not a case of intervening in a nuclear family; the state is trying to protect the children and other victims of a powerful patriarchal cult.

The fact that these kids should be taken from their parents or that man is guilty of a crime is no argument for dispensing with trials and preliminary hearings.

Straw man. I don't see anyone claiming that the fact that these kids should be removed from their abusive environment as an argument that Texas should dispense with hearings. The argument as I see it is that 1) the unusual nature of the patriarchal cult, including redistributing children at whim, 2) the unreliable if not uncooperative nature of the cult members, 3) the fact this cult has elsewhere taken advantage of its geographical diffusion and overly-friendly relationships with what should be neutral civil authorities to deny protection and justice to its vulnerable members, and 4) the massive size of the case made 5) DNA tests to establish actual parentage the state's best shot at due process.

If you can establish that the CPS workers in this case are acting overzealously or inappropriately, your comment becomes relevant, but not before.

Sebastian,
I don't think that anyone is arguing that no ordinary procedures should be followed--in fact ordinary procedures are being followed. But your insistence that some super fast, perfect, system of judicial oversight must be in place before this crisis can be resolved is, to me, akin to the Saudi religious police who drove the girls back to their fiery deaths because they weren't wearing their burkas when they tried to flee a burning building. There are situations, and I and a lot of other people would argue that this is one, where a situation has reached a crisis proportion. the timing and the size of this particular situation makes it utterly different in scope and complexity than an ordinary "state steps in and takes child" situation.

the biggest difference in the attitudes of the people commenting here seems to lie not along some hypothetical libertarian vs nanny state liberal axis but lies between people who have read enough about this particular sect to have a grasp on its history and structure and those who mistake what they are seeing for some kind of ordinary family situation in little house on the prarie clothes.

as others have observed the children and the women in this household are more like contraband than they are like full members of an actual society. Their rights are being violated left and right, but not just by the state. On the contrary, the state is being forced to step in precisely because the adults in the community recognize no ordinary limits to their power. It is, indeed, more like a criminal enterprise and a mafia sex slavery ring than anything else. The children and the wives are both evidence of this, and witnesses, and victims. The state has to move very carefully so as not to further traumatize them--but it has to move. It has an affirmative duty to do so.

aimai

Sebastian:

I realize that the preliminary hearing was a disaster of epic proportions, primarily because of the intentionally misleading behavior of the purported parents and their previous decision to teach their children not to trust others and the sheer size number of affected children, but the individual hearings are not being dispensed with, are they? Aren't they just being deferred for a short period of time pending further, necessary evidence?

Sebastian, I think one point is that, the state cannot even know for sure who the mother is. So how would "each mother" be able to plead her case, and how could the state be sure that the actual mother was not being hidden in order to avoid lying about abuse? Doesn't the state have some interest in verifying who the mother is before it allows someone to plead on behalf of an individual child? Now, from a social perspective, I have no real objection to a communal existence where multiple adults are viewed as parents, and do not think that that alone should be the proper basis for intervention. But where there is more than enough probable cause to believe that a large proportion of group members are engaging in or actively covering up criminal behavior, then it does not seem unreasonable for the state to put the group members to the burden of proving their familial relationship. The point being: in NEARLY ANY case where the state intervenes there is NO QUESTION about the identity of the child's mother. Given the extraordinary nature of this case, it's urealistic to think that the state would be able to -- or would have to -- rely on ordinary procedures. So if the group suggested another way of doing things, I think that should be considered -- but insisting that things be done the same way as they are for everyone else is denying the rather significant differences that exist in this matter.

"I don't see anyone claiming that the fact that these kids should be removed from their abusive environment as an argument that Texas should dispense with hearings."

Maybe you don't realize it, but they already dispensed with the normal hearings. They had group hearings, not differentiated by any particular common factor (like all the very young children at one, or all the mothers who had been in the cult less than a certain amount of time). These hearings appear to have been departures for the convenience of the court. Turbulence and aimai aren't strawmen.

"If you can establish that the CPS workers in this case are acting overzealously or inappropriately, your comment becomes relevant, but not before."

Wrong. You don't get to throw out the procedure just because you think that they aren't necessary in the case at hand. Shall we dispense with trials unless you can establish that in this particular case a prosecutor is acting overzealously or inappropriately?

@bc:
Or I would place with extended family.

Based on my understanding of this particular case, that's wholly untenable in this situation, as the extended family, even if known with certainty, would be limited to members of this self-same community, and hence understandably suspected of abuse or complicity. Any extended family not in Eldorado would be in another FLDS compound in another state or Canada, in a similar communal-and-suspectedly-abusive social context. Shipping them off to these relatives would presumably not remove them from an at-risk home environment.

"I don't think that anyone is arguing that no ordinary procedures should be followed--in fact ordinary procedures are being followed. But your insistence that some super fast, perfect, system of judicial oversight must be in place before this crisis can be resolved is, to me, akin to the Saudi religious police who drove the girls back to their fiery deaths because they weren't wearing their burkas when they tried to flee a burning building. There are situations, and I and a lot of other people would argue that this is one, where a situation has reached a crisis proportion. the timing and the size of this particular situation makes it utterly different in scope and complexity than an ordinary "state steps in and takes child" situation."

I think you are imagining a day long, trial-like hearing. The preliminary hearing in California is rarely more than 15 minutes. Expand that to 30 and yes it would take up the full day's work of 3-4 judges or an overtime half day of 6-7 judges. Which I'm sure is a pain, but you do what you have to do.

I don't understand the 'they wouldn't cooperate' objection. So what? If no mother will claim a kid as hers, you put the kid in foster care and you aren't taking the kid from his mother because no one will claim to be his mother. If a mother claims a kid is hers, you presume that the kid is hers until some later hearing proves otherwise and move from there.

"Doesn't the state have some interest in verifying who the mother is before it allows someone to plead on behalf of an individual child?"

*Some interest*? Sure. Enough to defeat the need for a hearing? No. If that were the case CPS could defeat a hearing every time by saying that they weren't certain the person pleading was really the mother. If you don't believe it, put on your evidence *at the hearing*.

"Given the extraordinary nature of this case, it's urealistic to think that the state would be able to -- or would have to -- rely on ordinary procedures."

9-11 changes everything. Right?

Sebastian, How would the state know how many of the mothers had only been within the compound for a shorter rather than a longer period of time, and what could the court presume from that fact, assuming it had been proven to the court's satisfaction?

Age of children is an easier metric, of course, particularly if they were nursing. It just seems odd to fault the state for proceeding communally in a situation where the FLDS maintains clearly communal prerogatives over group members. Why isn't the state justified in taking into account the group's own declarations regarding the relationships in question -- which is that the mothers don't have permission or control sufficient to protect their children from other abusive adults?

"It just seems odd to fault the state for proceeding communally in a situation where the FLDS maintains clearly communal prerogatives over group members."

No it doesn't. We don't care what they say, we still treat them as individuals. If you take that logic very far you could easily say that the commune thinks it is ok to marry 14 year olds, why don't we judge them on that basis?

We judge them on our basis. As individuals. On the societal expectations of the US (or really in this case Texas).

I'm inclined to side with Seb here. Rule of law is very important, and shouldn't be dispensed with because of inconvenience (and invocations of "magnitude" of the case is to my ear just that). 9-11, indeed.

If we've established a procedure to ensure the proper application of law, we need to follow it, or legislate exceptions to/abolishment of it.

If the law is calling for individual hearings, and especially if the hearings can be relatively brief, the state has an obligation to perform them, even if there exists a risk that their outcome mightn't be precisely what they'd hope to get w/o hearings. Bemoaning that it'd be onerous for the state is not, ya know, all that convincing.

I'm slightly appalled to say I'm hearing shades of the arguments for mass "enemy combatant status tribunals" in some of the dissenting opinions here.

Sebastian, I might have not said what I meant very well. To speak with great exaggeration: If you are part of a group that professes the right to kill small children, and that has killed small children, and have endorsed the group's prerogatives at every turn, as far as I am concerned, the only thing the state needs to show about the likelihood that you would protect your own child is to prove that you individually endorsed the group's activities. Even if you have not endoresed the activities, if it can be shown that you would be powerless to do so, that should also be enough to meet some kind of presumption that your children aren't safe. That still requires individual proof, but it doesn't require the state to show that you individually participated in specific crimes. But I still go back to the problem of how to have individual hearings when you don't even know which individuals are the affected parents. That really seems like a basic evidentiary issue that precedes any kind of individual disposition. It's not ideal, but it's also not ideal to let pre-selected adults "speak" for the group as a whole as the "mothers" in question.

Sebastion:

Calling preliminary individual hearings first requires identifying who is the primary guardian of each child.

You can't allow a mother to plead for guardianship of a child if there's absolutely no way to tell if the child is even HERS.

That's sort of the problem facing the Texas courts right now. They cannot do individual hearings because they do not know who is the legal guardian of who.

In short, until that's determined, all the under-age kids automatically become wards of the state anyways -- SOMEONE has to take responsibility for them until their actual, legal guardians are identified.

I'm at a loss to what you expect Texas to do. You have a large number of women and men wanting "their children back", but thanks to the communal arrangment and deliberate obfuscations by the FDLS, the court has NO idea which parents go with which kids -- and the kids don't know EITHER.

What do you want them to do about it? Draw names out of a hat? Seriously, Sebastion -- what's the solution here? How are they supposed to hold individual custody hearings when they cannot identify parent/child pairs?

Also, I'd like to note that there's a particularly creepy strain of "Old enough to bleed, old enough to breed" running through the comments at Volokh.

That's...bothersome, really. Not just that people are saying it, but that so few are finding it objectionable.

In one of the original threads on the topic, there was in fact a great deal of discussion on the "myth" of teenageares and how children were adults at puberty and should be treated that way.

I found that mindboggling.

I think you are imagining a day long, trial-like hearing. The preliminary hearing in California is rarely more than 15 minutes. Expand that to 30 and yes it would take up the full day's work of 3-4 judges or an overtime half day of 6-7 judges. Which I'm sure is a pain, but you do what you have to do.

I'm sure that individualized hearings do take 15 minutes. But in those typical cases, there is usually no question of which child belongs to which parents. That difference leads me to suspect that individualized hearings in this case would not be quick 15 minute affairs.

I imagine that if the state did hold such hearings, the community would provide people to claim to be the parents of every child. The state would dispute that claim, pointing to evidence where the community itself had deceived the state about paternity in the past. The judge would likely decide that the matter could only be settled with DNA, order a DNA test, and leave the kid in state custody until the test had been done. That doesn't sound different from the current state of affairs, except that it would take several weeks, even with many extra judges (I'm assuming that the identity and paternity questions ensure that these are not going to be pro forma 15 minute hearings).

I don't see any room for individuality here. The fact that the children are cared for by the entire community is a global fact; the fact that the community as an institution condones abuse is a global fact, separate from the particulars of any one child. Now, I'm speculating about how I think the judge approached the case so I could certainly be wrong here.

Since there's abundant evidence of the unusually heinous nature of this criminal gang and little if any evidents that Texas' CPS workers have been "inappropriately aggressive,"

Again, everyone points to two books and some newspaper articles about the FLDS, but not to evidence submitted in court. I, for one, wouldn't want my kids removed from me based on such "evidence."

That isn't to say that the information is not out there. And not to say it's not true. I'm frankly inclined to believe most of it on a personal level. But why didn't Texas do something more orderly based on the ex-FLDS's testimony? If they are out there writing books, they can certainly be reached to get an affidavit out of them.

My point is this: It is all the more important with groups like the FLDS to do it by the book. it's not LESS important. Many commenters here seem to want to give Texas a pass because of what they "know." Simply put, that is no way to run a legal system or deal with children.

As for "inappropriately aggressive," the picture of the
APC
sure reminded me of Waco! At least they didn't use the flamethrowers.

And, again, removing all kids between 12 months and say, 6 seems extreme, especially when the charging affidavit did not mention anything about removal by the FLDS to other communities.

Morat, that shows the probable age distribution of the readership. I guarantee you that if they were the parents of teenage girls, like I am, they would be singing a different song.

The funniest people in the world are dads of daughters where the dads grew up in families with all boys. Their attitude is like, "my daughter isn't dating until she's 21 and if you so much as look at her the wrong way I'll kill you." They are horrified when they realize that their daughters are going to meet up with guys who are the same way they used to be.

What Sebastian said. And if the court were in fact holding individual hearings as fast as it could, that would at least be a start.

As for the "how to do it" if nobody claims the child or everyone does, I would notify ALL the adults that you were going to hold a hearing on that child and see who shows up. If nobody steps forward, no problem with me putting the child in foster care. If everyone steps forward, make a finding you can't determine the parents and place in foster care.

I'm slightly appalled to say I'm hearing shades of the arguments for mass "enemy combatant status tribunals" in some of the dissenting opinions here.

Exactly. We "know" what they did, so why not just have a group hearing?

The fact that the children are cared for by the entire community is a global fact;

cite?

This is the problem. We judge these people on what we "know." I think what we "know" is correct, but that doesn't mean I agree to remove kids on the basis of what I think to be true. You have to have evidence. And allegations in a book by a former FLDS member does not suffice, unless they state in under oath.

Maybe you don't realize it, but they already dispensed with the normal hearings.

So? You were waxing wroth about dispensing with hearings altogether. But by your own admissions, they aren't. Of course they aren't going through normal procedures, but as has been pointed out to you repeatedly, this is far from a normal situation, and based on the available evidence, I don't see a case being made that the state's actions are overzealous or unreasonable. Again, your paranoia about overzealous nanny state CPS workers notwithstanding, you sure aren't making that case.

Turbulence and aimai aren't strawmen.

No, but by your evident confusion about not having normal hearings versus not having any hearings at all, you're edging dangerously close to that territory.

You don't get to throw out the procedure just because you think that they aren't necessary in the case at hand.

Again, no one's arguing that hearings and procedure aren't necessary. Hearings and procedure are going on, under judicial supervision, as best as possible for the interests of the victims in this case, under extraordinary circumstances. Which circumstances, by the way, by accident or design, bid fair to thwart the state's interest in protecting these children.

Shall we dispense with trials unless you can establish that in this particular case a prosecutor is acting overzealously or inappropriately?

And once again, Sebastian, no one is suggesting that procedure be dispensed with. It is, perhaps, being modified on the fly due to extraordinary circumstances, such as the need to establish who is actually the parents. After reviewing the available information, I'm convinced that the court's action is appropriate to the situation, that it's flatly impossible to treat this case as a normal family situation, and that to do so would be to put young women and children at risk.

Now, again, would you care to address the actual situation at hand, or would you prefer to joust with straw men?

bc, the difference between this proceeding and others is that, as anyone who has operated within this system knows, it is not final. It's preliminary. In some ways, the state would be even better off than the parents with individual hearings because it would probably be better able to establish that individual adults are lying about parental relationships which would create a serious amount of leverage on the part of the state. But once the state can show a pattern of deception on the part of group members (assuming that it did), very few judges are going to show a lot of patience for subsequent pleas for prior individual hearings. There is a need for individual hearings, I am not disagreeing with that at all, the issue is timing relative to taking the children into custody.

The funniest people in the world are dads of daughters where the dads grew up in families with all boys.

So true. My sisters were the youngest in the family and so I basically grew up with my three brothers. Now I have four daughters (two teenaged). No dating yet, but when they do, I'll have to use one of the variations of the application to date my daughter


But seriously, I'm singing the same song. Just because I think the state should follow procedure doesn't mean that I support what is going on. To the contrary. Just because I think someone is a murder doesn't mean the state should dispense with the proper procedure.

There is a need for individual hearings, I am not disagreeing with that at all, the issue is timing relative to taking the children into custody.

Agreed. That is the issue. That you take them in is one thing, but give them an individual hearing as soon as possible.

Just because I think the state should follow procedure doesn't mean that I support what is going on. To the contrary. Just because I think someone is a murder doesn't mean the state should dispense with the proper procedure.

Again, though, no one is advocating the state dispense with procedure. There simply is no procedure for a situation like this. The state is applying existing procedure as best it seems to be able to, and under judicial supervision, with the primary focus being -- rightly, IMO -- the welfare of the victims of the abusive patriarchal cult.

No one's saying no one will get any more hearings, or that they shouldn't. The claim as I see is it is that procedures designed for traditional families far from apply in this case -- as I understand it, there aren't even birth certificates kept.

If one has a beef with the specific measures the state is taking, I can only repeat what several others have asked and I haven't seen satisfactorily answered -- what would you suggest that would fit the facts of this case?

This may help clarify our terminology. As I see it, the state is not "dispensing with" -- that is, abandoning or ignoring -- procedure. The state seems to be deviating from standard procedures due to the extraordinary nature of the case. Said extraordinary nature, and the specific deviations, are being documented and will no doubt be reviewed thoroughly.

I work in a regulated industry, and I can tell you that while deviating from standard procedure is not ideal, if you must deviate, it should be thoroughly documented and justified. I see that happening here, but if someone can provide evidence to the contrary I'm open to persuasion.

aimai

The point is that Publius's "I think" has nothing to do, and need have nothing to do, with the FBI's definitions of a particular kind of crime.

It is a response to Volokh's And naturally if any of these pregnancies were the results of forced sex, that would clearly be a very serious crime. Of course what Publius thinks doesn't affect the seriousness of the alleged crimes either, and I suspect doesn't matter any more than how the FBI categorizes forcible sex. My point was that there were other (I thought reasonable) ways of looking at this.

I'll caveat my upthread call for following established procedures with a free acknowledgment that the fact that the FLDS parents are by all accounts obsfucating and generally making it difficult to follow said procedures. As was agreed by Barbara and bc, "That you take them in is one thing, but give them an individual hearing as soon as possible." We seem to mostly be arguing about how soon is possible. Dispensing with individual hearings would be bad (to put it mildly), but if the parents are in fact engaging in systematic obstruction and deception towards CPS and the courts, it's reasonable IMO to delay the hearings until the state is in better possession of the facts of the matter... so long as they are in good faith trying to expedite said hearings to the degree that it's possible.

(OTOH, I've read a couple of articles making it sound like the state is trying to dispense with individual hearings. E.g., here, here. The logistics of 416 individual (and presumably contested) hearings is quite daunting, but I am to say the least wary of arguments put forth by the state to violate established procedure based on inconvenience.)

The state seems to be deviating from standard procedures due to the extraordinary nature of the case. Said extraordinary nature, and the specific deviations, are being documented and will no doubt be reviewed thoroughly.

And what I am saying is that the state CANNOT and must not deviate from the established procedures in cases involving children and parents. Just as it cannot in cases involving crimes. The interests of the accused in a criminal action, and the interests of parents and children against unwarranted interference by the state, mandate that procedures be followed.

Look at it this way: if the state cannot bring a case to trial within the maximum time allowed by law, they have to release. The rule exists to make the state act quickly. There is absolutely no justification for delay. If it is in the defendant's interest, everyone stipulates to a time waiver.

Unless the state gets a time waiver, these cases have to go to a hearing. Under Texas law, the adversary hearing has to occur within 14 days of the first review hearing where the kids are taken without court order. It does not specify whether a group hearing satisfies the statute. The statute says "full adversary hearing." That implies individual hearings (otherwise, how is it truly adversarial if you don't get your own opportunity to make your case?) Look at it this way: what if there were two parents who were looking for a way out of the FLDS (no multiple wives). The state just took their kids and won't let them argue that they are the exception. Or maybe there is a single widow out there with no husband. Maybe Texas already took this into account. The record is not clear. But a group hearing is fraught with problems.

I find it interesting that 350 lawyers from across the state volunteered to assist. I'll bet most if not all were not FLDS. I'll bet if the call went out for judges you would have a response that might be sufficient to have individualized hearings, even if courtrooms from another county had to be used.

I also wonder how they got around to having one case involving all the children. Texas statutes read as if each child has his or her own case.

Look at it this way: what if there were two parents who were looking for a way out of the FLDS (no multiple wives). The state just took their kids and won't let them argue that they are the exception.

I don't understand how this hypothetical gets you anywhere. If these exiles left but their children didn't, then the community wants to keep their children as their own. If they didn't want those children, they would have contacted CPS long ago. So the exiles try to complain in court and the community protests, claiming that those children belong to them. What's the judge going to do? They'll have no choice but to order a DNA test. Which brings us right back to where we started. I honestly don't see how this is an improvement on the current state of affairs.

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