Good article about some of the legal issues:
Posted on Sun, May. 04, 2008
The FLDS argument will not hold upBy MARCI HAMILTONSpecial to the Star-Telegram
When Texas authorities entered the Yearning for Zion (YFZ) Ranch, one of the Fundamentalist Latter Day Saints (FLDS) compounds, on April 3, they did so using a warrant based on calls from a person who alleged that she was an underage girl being subjected to physical and sexual abuse, including rape, at the ranch.
Once the authorities entered, they discovered pregnant underage girls, girls with more than one child, papers indicating that rampant polygamy was occurring at YFZ, and even a document involving cyanide poisoning. The authorities then intelligently decided to remove all of the children from a situation that posed obvious and serious danger to them.
Lawyers for the FLDS members 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.
The due-process argument
Whether or not the caller was legitimate, the important point is the lack of any government misconduct and the serious evidence of crimes to children.
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. The authorities revealed last week that 31 out of the 53 underage YFZ girls have been pregnant and/or are pregnant. Imminent risk of harm -- the legal standard that bound the authorities -- was apparent; 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 in which the adults seemed incapable of apprehending the depth of the criminal behavior in question.
It is just as though the state had entered a drug den on the basis of reports about one child's abuse and discovered a bevy of children in a position likely to lead to neglect and mistreatment. In such a hypothetical, surely no one would contest the appropriateness of removing the children. The religious cloak does not forestall the proper operation of the child protective authorities.
Despite the large number of children who were taken, what happened in Eldorado is no different from any other situation in which the state investigates alleged abuse, substantiates a risk of harm and takes action to protect all those children who might be subject to such harm. Arguments that children should not be separated from their mothers simply have no purchase when it is apparent that the mothers are incapable of protecting their children from sexual or other abuse, or unwilling to do so.
Before criticizing the Texas authorities who have witnessed the operation of the FLDS firsthand, one must stop to think about what was going on in this compound. This is a conspiracy of adults to commit systematic child sex abuse, where the men and the women force their girls to be "married" to much older men in order to have many children, and where they groom their boys to be the next generation of abusers, and then abandon some of their own boys in order to keep the numbers favorable for the abusing men.
What is most striking is that not a single adult from the ranch or the sect has been willing to admit to the obvious cycle of severe child sexual abuse. One of the most chilling statements I have ever heard -- and I have focused upon organizational child abuse, including within the Roman Catholic Church -- was that of the mother who would not answer a reporter's question about whether girls were married off to much older men, but rather asserted that whatever happened there happened out of "love."
Widespread knowledge exists about the practices of the FLDS Church, which has been practicing polygamy and child sex abuse for more than a century. This organization traces its roots to the founder of Mormonism, Joseph Smith, who mandated polygamy in the mid-19th century. (The mainstream Church of Jesus Christ of Latter-day Saints, or Mormon Church, publicly renounced the practice at the end of the 19th century.)
FLDS members reside not only at YFZ but also at compounds in Arizona, Utah, South Dakota and British Columbia. The recent Utah trial of FLDS prophet Warren Jeffs documented the practice of elders arranging and encouraging the sexual abuse of underage girls. (Jeffs was ultimately apprehended for his brazen Mann Act violations, consisting of transporting girls across state and international boundaries to be delivered to FLDS men, after the FBI finally placed him on its 10-most-wanted list.) So did the earlier trial of Tom Green in Utah.
Moreover, numerous well-documented publications have detailed terrifying and illegal behaviors, including Carolyn Jessops' Escape, her account of escaping the sect; Andrea Emmitt Moore's account of 10 fundamentalist polygamist sects, God's Brothel; and Jon Krakauer's Under the Banner of Heaven. I wrote about the FLDS in my book God vs. the Gavel: Religion and the Rule of Law and have been writing columns on the FLDS for years.
If the already-disseminated knowledge about the FLDS is not enough, there were reports last 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 probably medical neglect and the genetic deformities that result from generations of inbreeding.
Yet many have asserted a violation of due process, as though the authorities are required to be intentionally ignorant about communities within their jurisdiction.
FLDS lawyers have been floating to the media 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.
Although 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. It is law enforcement's obligation to be informed about likely criminal conduct in their jurisdiction. That includes orchestrated child abuse.
One must give the Texas authorities credit for putting the interests of the children first. Utah and the FBI have focused on one man at a time, an approach that appears to have done next to nothing to stop the entrenched cycle of abuse within the system. Authorities in Arizona, Utah and South Dakota, where other FLDS compounds are situated, have made it very clear that they would never follow the Texas authorities' lead of taking all of the children away from obvious danger.
Indeed, the Utah attorney general was peeved that Texas would make such a bold move, because it could undermine his increasingly friendly relations with the FLDS in Utah. Arizona's attorney general sent out a news release essentially telling Arizonans not to expect any dramatic rescue of children obviously at high risk of abuse, because Arizona law just does not permit it.
The latter has yet to explain precisely why he believes that children at imminent risk of harm cannot be brought to safety in that state. (And if he believes that is the law, surely he should call for a change in it!) In South Dakota, the authorities say they are awaiting some triggering event that will permit them to check on the girls and women.
It really is remarkable: American law enforcement routinely infiltrates criminal organizations in which the issues are drugs and money, but when the issue is widespread child abuse, they "have to" sit on their hands until somehow, some way one of those on the inside of a cult invites them inside.
If any court finds that the rescue of the FLDS children -- in light of the evidence gathered on the basis of a good-faith warrant during the raid and the evidence now piling up -- is a due process violation, it will be a giant step backward for the civil rights of children everywhere. Let's hope that erroneous ruling will never be made.
Predictably, the American Civil Liberties Union has chosen to take the side in opposition to the children, publicly wringing its hands over the process as it applies to the adults. It is one of the most underexamined phenomena in the American civil rights movement that the organization that has considered itself such a champion of individual rights has had such a consistently insensitive attitude toward the bodily suffering of children.
We are in the midst of a civil rights movement for children, yet the ACLU is woefully lagging behind.
The free exercise argument
The even weaker argument circulating, once again encouraged by the FLDS lawyers, is that the rescue somehow violated the FLDS' freedom of religion. There are two underlying theories, neither of which has much traction -- for good reason, because both should be quickly dismissed as totally unconvincing.
First, the FLDS argue that they have been "targeted" in violation of the First Amendment. The argument takes a First Amendment concept and grossly misapplies it.
The government cannot choose a particular religion to be treated differently from other religious (or similarly situated secular) organizations, but the government is not prohibited from stopping criminal conduct even if the only ones engaging in the behavior are religious or if the conduct is restricted to a religious organization's property. In short, a government may not discriminate against a group, but the Constitution does not force authorities to willfully close their eyes to criminal conduct.
This raid was about child abuse. It is no different from authorities entering a drug den or a private home where there are credible accounts of abuse. The child protective services universe is sufficiently stable by now that whoever is sexually abusing a child can be made to stop.
The best interest of the child determines government action. That is obviously what is happening in this case, and the attempts to misleadingly shift the focus to the perpetrators' religious identity is not justified by law or basic decency. There is simply no religious defense to criminal behavior. That this behavior was so heinous makes using the cover of religion all the more appalling.
Second, the FLDS argues that the government simply cannot interfere with a religious enclave and that it should have autonomy from the government's interference.
This latter theory has been touted by more mainstream religious organizations in recent years, especially those battling clergy abuse, but courts have not had much patience with the notion that autonomy includes a right to abuse children. 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.
Finally, some would argue that the age of sex and marriage is merely "cultural," and therefore the government has no business interfering with this sort of religious group. That argument is hopelessly behind the times, as it treats children as property rather than persons. It was not long ago that they were, in essence, nothing but property.
The Texas authorities give one hope that children are moving surely and steadily into the category of persons -- persons who have civil rights that protect their bodily integrity against adults who would use their position of power to take what these children cannot freely give.
Marci Hamilton is author of Justice Denied: What America Must Do to Protect Its Children. A version of this essay was originally published at findlaw.com, where you can find an archive of her columns on ch
http://www.star-telegram.com/245/story/620718.html
