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More questions than answers

I live about twenty miles from the polygamist ranch near Eldorado, Texas, and my office is about three blocks from the courthouse where the child welfare case(s) are being handled. A few observations, from up close:

The Schleicher County sheriff seems to have been in firm control of the law enforcement activities at the ranch, and there really is no federal presence or role at all. This probably has a lot to do with the lack of any kind of violence or armed stand-off, in contrast to the Branch Davidian, um, incident, where the feds disregarded the local sheriff’s advice and went in heavy.

I am perfectly willing to believe that there were all sorts of sexual abuse of teenage girls – illegal marriages, statutory (and perhaps even forcible) rape, etc. If the current allegations pan out, I think that the men involved in what amounts to a sex slavery ring should be jailed, and I am even willing to grant that the state should have the authority to take custody of children who have been subjected to this kind of abuse. For the moment, let us leave avoid the well-ploughed ground about the appropriate age of consent for sex.

That said, this case increasingly looks to me a like a serious overreach by the state, and one that practically begs us to conclude that the state was motivated to take down this community, even when doing so required it to go beyond what was necessary to ensure the welfare of the children.

(Warning: Actual statutory language and legal analysis follows below the fold) The state has taken custody of all the children at the ranch, alleging abuse. The applicable definition of abuse is found in the Texas Family Code Section 261.001. Relevant provisions include (emphasis added):

“Abuse” includes the following acts or omissions by a person:

(A) mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning;

(B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning;

(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;

(D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;

(E) sexual conduct harmful to a child’s mental, emotional, or physical welfare, [citations omitted]

(F) failure to make a reasonable effort to prevent sexual conduct harmful to a child;

(G) compelling or encouraging the child to engage in sexual conduct [citation omitted];

Note that some of these definitions include allowing another to abuse a child.

The standard for the state to take custody of a child is found at Texas Family Code Section 262.101.

An original suit filed by a governmental entity that requests permission to take possession of a child without prior notice and a hearing must be supported by an affidavit sworn to by a person with personal knowledge and stating facts sufficient to satisfy a person of ordinary prudence and caution that:

(1) there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child’s welfare;

(2) there is no time, consistent with the physical health or safety of the child, for a full adversary hearing under Subchapter C; and

(3) reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child.

(1) First question: Why the boys?

I have heard nothing that indicates that any of the boys at the ranch were physically, emotionally or sexually abused. The state seems to be arguing that, because they were being raised in a polygamist community, they were being raised to be abusers. I am very uncomfortable with the idea that this really meets the definitions of abuse set forth above. Are we really prepared to conclude that raising someone with a certain set of religious/social beliefs amounts to “an observable and material impairment in the child’s growth, development, or psychological functioning” or is a “mental or emotional injury”? Are we really prepared to apply that standard across the board?

(2) Second question: Why the young girls?

Again, I have heard nothing that indicates that any of the young girls at the ranch were physically, emotionally or sexually abused, and have the same questions about whether being raised in a community such as this is per se abuse. Granted, leaving the young girls at the ranch sets up a difficult question about when you do remove them because they have grown into an “immediate danger” of being abused, but I am also less than comfortable with the idea that someone who is not now in immediate danger of abuse can be removed from their home because there is a mere foreseeable risk of abuse.

(3) Third question: Why separate the children from their mothers?

I suppose the easy answer to this is that the mothers were accessories, under the definitions stating that allowing another to abuse a child is also a form of abuse. If so, why were the mothers allowed to remain with their children for some time after the state removed them from the ranch? Further, once the mothers and children were separated from the men, I do not see how any kind of continued abuse would be possible, so what is the justification for the subsequent decision to separate the mothers from the children after they had been removed from the ranch?

(4) Fourth question: Why remove the children?

The standard for taking custody of a child refers to the “physical health or safety” of the child or “neglect or sexual abuse”, none of which seems to apply to the boys or younger girls, even if you grant the argument that being raised in a polygamist community is a species of abuse due to some presumed mental or emotional injury.

The standard also includes a requirement that “reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child”. I can think of all kinds of steps that the state could have taken to protect the children without removing them from the ranch, including maintaining a law enforcement presence at the ranch to ensure protect the teenage girls. The state has maintained such a presence at the ranch since day one. Is the state saying that Texas Department of Public Safety, Rangers, and Sheriff’s Deputies on-site cannot protect the children?

(5) Fifth question: Why are the men still walking around free?

I do not think there is any question that the primary perpetrators were the men at the ranch, not a single one of whom has been arrested. Nonetheless, the children and their mothers have borne the brunt of state action here, while the wrongdoers are walking around free. Are we really saying that we had probable cause and sufficient evidence to take custody of every single one of these children, but not probable cause and sufficient evidence to arrest anyone? I suppose there is a gap between “We believe this child has been abused” and “We know believe this man (out of the dozens at the ranch) committed the abuse,” but still…

(6) Sixth question: This is due process?

Leaving aside the question of whether a single mass hearing for hundreds of children could ever be due process for anyone involved, some of the attorneys reportedly could not hear or follow the hearing from their video feed at a remote location, and the court did not have copies of evidence for each attorney. The hearings pretty much ground to a halt over entirely predictable logistical problems, but the court went ahead and ordered the children placed into foster homes.

The case is, as they say, developing. I will keep you posted.

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7 comments to More questions than answers

  • nick g.

    Whilst the state should stay out of people’s private lives, what should we do about sexual abuse? Should libertarians form vigilante squads, and ‘rectify’ unfair conditions and activities? Or do we just think, ‘They could always leave if they wanted to, so I’ll do nothing.’

  • DavidNcl

    If the assaulted* child wishes to engage the services of a Private Defence Agency I can see no reason why they should not come to his or her aid on some sort of “protect now, pay later” or perhaps even pro bono basis.

    And as you (sorta) suggest, you or I could help either directly or by commissioning our defence or protection agencies.

    * Note that as far as I’m concerned young children cannot consent so it’s always a serious assault. The age of consent thing is a bit of a shambles but we could work something sensible out, if we could keep the state out of the picture.

    It also seems to me that allegations of child sexual abuse are the modern charge of witchcraft and result in the suspension of both belief and civil liberties. I’m thinking, for instance, of the Cleveland, Middlesborough case in the uk when scores of families had children snatched on the basis of some loony doctor’s “anal dilation test”.

  • darkbhudda

    Is this the incident that turned out to be a serial false rape reporter ringing the police and claiming to be an abused child, a 16 year old called “Sarah”, at the ranch?

    Or was that a similar recent one?

  • Sunfish

    Robert Clayton Dean:

    (1) First question: Why the boys?

    I can think of a few reasons:

    1) What’s the age of criminal responsibility in Texas? And what’s the age range of the boys removed? In at least a few cases, I can imagine that there were boys who were removed who might turn out to have been offenders.

    2) They could also be witnesses. That would mean that they were removed to prevent them from being ‘contaminated’ or fed stories by the suspects. Are the parents being denied contact with the boys? That would at least hint at the answer here.

    (2) Second question: Why the young girls?

    1) See above about witness contamination.

    2) This could also be a precaution like you mention in the part that I snipped for space. And then, there could be information about actual abuse that haven’t made it into the press yet.

    (3) Third question: Why separate the children from their mothers?

    You answered yourself: Mom was an accessory to the abuse. By leaving them in contact with the victim, you leave them to be the means for witness tampering. Women do some damn strange things to their own kids in order to accomodate husbands/boyfriends. That includes cooking up stories to tell investigators, or pressuring child victims to do likewise.

    The mothers also went back inside. That suggests to me that they were unlikely to make any real effort to protect the children involved. As to when a woman in this situation stops being a victim and starts being an accessory…I don’t know. Abuse changes how peoples’ minds work. I’ve seen it on the retail scale, but I don’t know if I can follow it when it happens wholesale like this.

    (4) Fourth question: Why remove the children?

    Is the state saying that Texas Department of Public Safety, Rangers, and Sheriff’s Deputies on-site cannot protect the children?

    That may be exactly what they’re saying. If you take all 99 Texas Rangers, every state trooper you can find, and the entire sheriff’s office, you may not have enough to prevent the aforementioned witness tampering and the aforementioned abuse. Not to mention, an awful lot of cops may not know 100% what they’re looking at: If TX DPS is anything like CO State Patrol, then if it isn’t traffic or interdiction they don’t know it.

    Patrol are generalists. I have some grasp of child-welfare law and how to do an initial investigation. That is, I can probably recognize signs of abuse when I have the child in front of me and am actually looking for it. And I can recognize it when I’m taking a statement and the victim or witness is actually telling me. The rest is reading tea leaves. Some people can do that: they call them ‘specialists’ and there ain’t many of them[1].

    This situation doesn’t call for cops to police an ordinary town of a thousand or so people. Four competent patrol officers and a good mutual-aid pact can handle a normal town that size, usually. This is a badly abnormal situation where you would need to leave alleged pattern abuse victims living with, or at least in contact with, the alleged abusers. That takes people who can read tea leaves and pick up on signs of continuing abuse or intimidation before the victim actually says anything.

    I consider myself tolerably competent (for a non-specialist) and I’d be lost.

    (5) Fifth question: Why are the men still walking around free?

    You have dozens or hundreds of suspected rapists. You have abour 400 suspected victims. It looks like an absolute nightmare tying any one specific suspect to any one specific victim or specific criminal act in a case like this. However, I don’t see a successful criminal prosecution without that sort of specificity. I don’t know if you’ve ever been a prosecutor or not: they hate hate HATE it when arrests are made before the case is ready for trial. Large chunks of the investigation simply cannot be done effectively once custodial arrests are made. Miranda becomes an issue: the suspect is still in ‘custody’ for Miranda purposes even on bond, IIRC. Other witnesses will clam up or change their stories if they haven’t been interviewed yet.

    Never mind: Where are they going to house dozens or hundreds of suspected sex offenders, such that they can keep them from cooking their stories AND keep them out of GenPop where sex offenders tend to have a rough time of it? A mass arrest at this point would be a logistical nightmare. I know I use that word a lot in this post, and there’s a reason for it.

    (6) Sixth question: This is due process?

    This is ‘freezing’ the situation. I suspect the intent was to keep things from degenerating further while it gets sorted out. It may be an overreaction: I don’t know. I don’t have the file in front of me, so I don’t know what the case agent was or was not thinking and what information he did or did not have.

    Criminal trials for major cases are well-organized, controlled (dare I say stage-managed?) events. Well, as long as the player isn’t a former NFL running back, anyway. This is not one of those. This is still the initial investigation in a major event: we plan and God laughs. Everything is chaotic, and normally the investigator has a handle on things before the press shows up. The difference is the scale: they ran out of investigators before they ran out of anything else.

    [1] That might be partly because of the burnout factor. Concerns about that are probably very relevant to this case, but I’ve made this post long enough already.

  • So are they saying every man there is guilty of abuse?

    Because if not, it’s effectively saying that they are taking children away from their families because some of the people in their community abused some teenage girls.

    What next? Take away the kids from a whole street or neighbourhood because an instance of possible abuse has been found in it? I know it might be argued that this is absurd but is it really that different?

    More to the point what other religions do the social services not approve of?

    Mormons had some problems in the past.

    How about Islam? It’s polygamous, girls can marry quite young, 14 in I believe Texas and Pakistan? Surely quite similar to the group in Eldorado in a number of respects…

  • Laird

    And now it is coming out that the source of the complaint may have been a serial liar known for making bogus child abuse allegations. So perhaps there really was no child abuse at all, and this is yet another witch hunt. We just don’t know, but I’m starting to have doubts about this whole case.

  • Sunfish, thanks for the enlightening analysis. It really does clarify a few things for me, logistics aside.

    Sometimes, knowing the context does change what one thinks is the main issue.