Princeton prof: In FLDS ranch case, no merit to theory of due process violations

[pnwmom]

http://writ.news.findlaw.com/hamilton/20080501.html

SNIP

Lawyers for the FLDS members – who reside not only at YFZ but also at compounds located in Arizona, Utah, South Dakota, and Bountiful, British Columbia, Canada -- have been arguing in the press that the entry and removal of the children constituted a "massive" violation of due process. Others have argued that the authorities' actions represent the unfair targeting of one religion.

Each of these arguments is singularly misguided.

There are now allegations that the calls to the authorities spurring the raid were placed by a woman who was not within the YFZ compound. Even if proven, however, this claim would not affect the validity of the authorities' actions. Absent clear evidence that the state fabricated the call or misled the judge who granted the initial search warrant, neither of which seems remotely plausible, the entry cannot be faulted on constitutional grounds. Once the authorities were inside, the evidence of criminal behavior was so plainly apparent that further investigation was more than warranted.

No self-respecting child protective agency could have departed from that compound without taking all of the children away as well. The authorities revealed this week that 31 out of the 53 underage YFZ girls have been pregnant and/or are pregnant now. Imminent risk of harm, the legal standard that bound the authorities, was apparent, and indeed, a decision to leave the children in that setting would have opened up the state to liability. The key point here is that children were being abused, and were very likely to be abused in the future, and, worse, this was occurring in an atmosphere where the adults seemed incapable of apprehending the depth of the criminal behavior they were committing.

SNIP

Yet, many have argued there was a violation of due process as though the authorities are required to be intentionally ignorant about the communities within their jurisdiction. FLDS lawyers have been floating to the press and public the bizarre notion that authorities were required to enter the compound with a mental blank slate, as though they knew absolutely nothing about the FLDS. It is a position that defies common sense. While authorities need probable cause for a particular raid, they do not have to act stupid once they are inside a criminal organization, whether it is a religious group, the mob, or a drug cartel. Indeed, it is law enforcement's obligation to be informed about likely criminal conduct in their jurisdiction. That includes orchestrated child abuse.

SNIP



Marci Hamilton is Visiting Professor of Public Affairs and the Crane Senior Research Fellow at the Program in Law and Public Affairs at Princeton University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent book is Justice Denied: What America Must Do to Protect Its Children(Cambridge 2008). Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

[kestrel91316]

1. Good find! Excellent article. K&R

[yardwork]

2. Very interesting. Thanks for posting this.

As a mother, it's hard for me to think about babies and young children separated from their mothers. On the other hand, the same thing happens in all cases of suspected abuse. We often read stories about children being killed by their parents from neglect or abuse, and then folks always ask, "Where was social services?! Why weren't these children rescued?!"

Some posters have expressed discomfort with the idea of a state government going into a non-mainstream religious community and separating children from their parents. It's true that we all have to stop and consider carefully whether or not the government is overstepping its bounds. In these days, we can't be too careful.

However, the facts that are emerging do seem to point to evidence of abuse. As a nation of laws designed to protect the health and wellbeing of its citizens, especially those too young to look out for themselves, we can't turn a blind eye to systematic abuse.

[pnwmom]

4. There's another reason this isn't like the usual case.

The children aren't living in distinct families. In many cases, they don't even know who their biological parents are. Some appear to have been sent to live at the ranch without their parents -- at least one girl from Canada.

And in the Coliseum, the women were destroying ID bracelets, switching clothes, nursing each other's babies -- doing a number of things to blur the distinctions between families. So, since it is standard practice to remove all children in a family during an abuse investigation, how could CPS only remove certain children? They still don't know who belongs to who.

[yardwork]

5. I agree. I've seen that from the beginning.

The entire compound is one "family" - probably literally as well as figuratively, if the incest turns out to be true.

[uppityperson]

3. k&r

[Gormy Cuss]

6. This is the best writing that I've seen on the issue.

Nice to have an informed lawyer weigh in.

As for Texas, I hope they know what they're doing because if the actions don't survive legal challenge then I fear that other FDLS-type organizations will spring up.

[pnwmom]

7. I'll have to hand it to Texas for being willing to take this on.

And I don't mind at all seeing a Republican governor taking some heat from the right wing Libertarian set.

[cornermouse]

8. I'm just glad they pulled the children out of the situation.

I think even CBS is finally abandoning the FLDS cause.

[pnwmom]

9. I thought ABC was worse with that story about how low the incidence

of genetically related birth defects was -- without even considering the possibility that children born with obvious defects may be allowed to die (Carolyn Jessop said she was encouraged to let her disabled son die.)

[cornermouse]

10. I'll have to check it out.

If they didn't have a doctor there when the child was born, I would think that it would not be surprising that some of the children died simply because of inadequate medical care. A lot of birth defects are not obvious.

[pnwmom]

15. This site has quotes from a number of articles on child deaths.

http://www.childbrides.org/abuses.html

Johnson reacts to 'tremendous' kid death rate
e-Press
Tri-State News Network
Originally published August 15, 2005

COLORADO CITY, Ariz. - Mohave County Supervisor Buster Johnson has weighed in on the high number of children that seem to consistently make up the majority of the death rate in Colorado City. Proportion seems to be a big question. "The head stones have been video taped, and there's a list of them," said Johnson. "I have a list, and I've looked at them too. It's just tremendous, you know, usually, you go to a cemetery and its World War II vets. I mean you'll have some younger people that have died, but you never have the proportion that's up in there." TSN's review of the cause of death among Colorado City's children indicates a particularly high rate of reportedly accidental deaths involving children being run over by automobiles, most of whom were two-years-old.



Kid deaths stats comparison
e-Press
Tri-State News Network
Originally published August 17, 2005

COLORADO CITY, Ariz. - Records seem to indicate that the children of Colorado City are more likely to die in preventable accidents than children in other cities. TSN's review of death records shows that in 2000, there were a total of seven recorded deaths in Colorado City. Four of those were children in accidents, which made 57 percent of the recorded deaths. Meanwhile 585 total deaths were recorded for Lake Havasu City in 2000, which has a population more than ten times the size of Colorado City, but only seven of those deaths were children. If Havasu had a 57 percent child death rate that year, over 333 children would have died. Between the years of 1996 and 2001, the percentage children made up of the death rate reached as high as 100 percent of all recorded deaths in the community, and never dipped below 50 percent.


Byers talks kid deaths in Colorado City
e-Press
Tri-State News Network
Originally published August 18, 2005

http://www.childbrides.org/abuses.html

KINGMAN, Ariz. - Mohave County Supervisor Pete Byers, R-Dist. 1, expressed doubts that the disproportionate numbers of child deaths in Colorado City mean anything other than children make up an equally large portion of the town's population. "I don't really want anybody up there hurting the children, and I've done everything I possibly can up there to stop that," said Byers. Byers admitted he's sure there is some domestic violence in the town, and acknowledged it does go unreported, but indicated a disinterest in any further investigation of the large number of reportedly accidental child deaths in the community.


Probe of Colo. City deaths urged
By Caleb Soptelean
Today's News-Herald
Originally published August 21, 2005

A high-ranking state official agreed Sunday there needs to be more light put on the deaths of Colorado City children. Attorney General Terry Goddard and Flora Jessop made their remarks before a gathering of Mohave County Democratic Party faithful at Hualapai Mountain County Park on Sunday afternoon. Jessop - who escaped from the polygamous community in Mohave County near the border with Utah 20 years ago - called for an investigation into the children's deaths. Colorado City and the adjoining community of Hilldale, Utah, are largely under the control of the Fundamentalist Church of Jesus Christ of Latter Day Saints, whose members still engage in polygamy. "The number of children dying from being run over is alarming." She said children were "drinking pure hydrogen peroxide." Goddard said the situation should be "looked into," but noted that Sunday was the first time he heard of two-year-old children being run over with automobiles. Jessop said there are a number of children who are stillborn or born with birth defects because of inbreeding. "Children are being born without all their organs" or have organs on the outside of their bodies. Read more

[Canuckistanian]

11. OK, come on out, you "skeptics" and refute THIS

"evidence of criminal behavior was so plainly apparent that further investigation was more than warranted"

"No self-respecting child protective agency could have departed from that compound without taking all of the children away as well."

"a decision to leave the children in that setting would have opened up the state to liability"

"we have reports this week alleging an FLDS baby graveyard with 200 graves between the Arizona and Utah compounds. Advocates are telling us that these graves are the result of brutal abuse of young children to obtain their obedience, and likely medical neglect and the genetic deformities that result from generations of inbreeding."

"I would hope that the mainstream religious organizations that have been pushing "church autonomy" are having second thoughts as they watch this particular group embrace their vision to justify systemic and systematic child sexual abuse."

[roguevalley]

13. agreed, canuckistanian. the amount of support these dorks got on

this board was shocking.

[eppur_se_muova]

12. Thank YOU !! nt

[hokies4ever]

14. What about forcing teenagers to take DNA tests?

All of the children started out trying to deceive the police and officials. All of a sudden they had a change-of-heart and 400+ of them submitted to DNA exams? Did they have to restrain any of the children who were squirming away while trying to swab their cheeks? I didn't know that the government could force a teenager to submit to a DNA sample if they themselves weren't charged with a crime.

[pnwmom]

16. They can if they're trying to PROTECT the teenager.

This is not a criminal action -- particularly against the teenagers -- it's an abuse case in which the parents are refusing to acknowledge which children are theirs.

And swabbing the cheek is not a painful procedure.

[hokies4ever]

17. So if I'm a 16 year-old teenage boy

the government can force me to take a DNA test even without bringing charges against me? What about my right to privacy? Must I submit to a blood sample too if they haven't accused me of doing anything wrong? What if I peacefully resist? Will they restrain me? If they can take a DNA sample from me, can they also force a semen sample from me without any charges brought against me?

Let's not let our disdain for the pedophiles in that organization cloud our minds to the fact that teenagers are individuals too.

[uppityperson]

19. Babies are individuals too. What's your point?

That you, not being part of this large group being investigated for child abuse might for some reason need to get a DNA test done to determine how you are related to a group you are not even a part of?

Or is your point that you are a 16 yr old teenage boy?

[hokies4ever]

20. Right to privacy

Which specific law gives the government the right to forcibly submit a teenager to a DNA test if they refuse and no crime is alleged against them? Please point me to the specific legislation and the Supreme Court cases that support this viewpoint. Sorry, but Dubya's 8-year tenure has opened my eyes to the government overreaching in its power and infringing on our civil liberties.

[Occulus]

21. Your apologies for the FLDS cult are not accepted.

Please try your call again later.

[hokies4ever]

22. Nice try

but I'm happy that they caught them too. That still doesn't address my right to privacy question. This is akin to forcing a rape victim to testify against his/her will. We've been brainwashed by 8 years of Dubya and his Patriot Act that we don't even think about questioning government authority on our civil liberties anymore. I still hate the rapist, but I believe the power of decision rests with the rape victim, not the state. Of course, you want the rape victim to testify in public against the accused, but I don't believe it's morally ethical to FORCE them to testify against the accused.

[pnwmom]

24. There are numerous Supreme Court cases that have determined that children

don't have all the same constitutional rights as adults. To cite the most extreme example, the Supreme Court still allows corporal punishment in schools.

In this case, where the purpose of the DNA swab is to help protect the child, and the swab itself involves no pain, there is every reason to believe the S.C. would affirm the actions of the CPS.

There is a very good possibility that a number of children who were living at the ranch didn't even have biological parents there. Former sect members say that Warren Jeffs simply assigned children to new families. At least one of the girls is actually a Canadian citizen, there without her parents.

But let's suppose that teenagers were allowed to refuse the DNA tests. The consequence would be that they wouldn't be returned to their parents until they were deemed to be over 18. Given the child-swapping going in the cult, CPS would be facing a huge liability if it just sent children back to the ranch without making sure they had parents there.

[KitSileya]

26. Children aren't allowed to refuse medical treatment either.

Adults can do that, but children can only do that with their parents' permission - and now CPS is in loco parentis for these kids. So children have less rights than adults, because the exercise of those rights would demand more maturity than we can expect them to have. They aren't allowed to get married when they're 12, for example, or vote when they're 10 - or refuse to be protected from abusive parents and other community members at 14.

[pnwmom]

27. All good points, KitSileya. Thanks. n/t

[pnwmom]

23. If they needed to investigate your family for child abuse, and there

was no other way to establish who your parents actually were, I'm sure they could.

Teenagers are minors who deserve the full protection of laws against child abuse, even if they happen to be living in cults.

[fed_up_mother]

32. Do you really think that 16 yo knows what a DNA test is?

They are incredibly ignorant or innocent - or somewhere between the two. I'm trying to be nice here. :)

[Richard Steele]

18. Kicked and recommended.

[Cleita]

25. There is a precedent for this with the Manson family.

Although this wasn't a religion, it had the cult similarities and teenage girls having babies, many of them fathered by Manson. The state removed those children from the mothers and put them into foster care because the situation was potentially abusive with the drugged out people caring for them. The records on the Manson children were sealed for some time and nothing was allowed to be leaked to the press in follow up so we don't know what happened to them.

[pnwmom]

28. I've been wondering. Can you think of any precedent of a cult like this,

religious or not, that has been led by a woman?

I've been wracking my brains, but I can't remember one. Manson, Jim Jones, Waco, the Love family, etc. -- why is a cult leader always a man? Or am I forgetting a counter-example?

[Cleita]

29. There have been some cult leaders that are women, the

most famous that stands out in my mind is Elizabeth Prophet. I don't have anything at my fingertips about her. I'll see what I can find. I don't think there was any child abuse in her cult though. Mainly she was into influencing people with money for her own purposes.

On edit: Here's a wikipedia article about her:

http://en.wikipedia.org/wiki/Elizabeth_Clare_Prophet

[pnwmom]

30. Interesting. I don't remember ever hearing about her. Thanks! n/t

[LanternWaste]

31. I would imagine that the lack of female cult leaders rests

I would imagine that the lack of female cult leaders rests in my assumption that most cults seem to base a lot of their hierarchical structures on the mainstream religions.

And since most mainstream religions are still under the titular control of males, both those who are looking to assume control and then abuse a command position and those who are simply looking to the particular cult for a home have probably already subconsciously accepted the de-facto chain of command.

Just an off-the-cuff guess...

[Beaverhausen]

33. kick

[uppityperson]

34. Looks like this info should be kept up on pages.

For those who missed it before.