by Marci Hamilton
The tide is turning in favor of protecting children in polygamous communities – as several new developments evidence. First, the Senate Judiciary Committee is holding hearings on the crimes that occur in polygamous communities today. I have submitted written testimony to the Committee regarding this matter, which is reproduced below. As regular readers of this column know, I have been very concerned about the plight of children in these communities and, most recently, in the issues arising out of the Texas authorities' rescue of children from the FLDS compound in Eldorado, Texas. In prior columns, I covered both the initial Texas decision in that case, and the decision of the Texas Supreme Court.
Third, Sen. Harry Reid will be introducing a bill today that would establish a Task Force to investigate crimes in polygamous communities. While a Task Force is a great idea, there is a risk that the issue will be studied to death, without action ultimately being taken. In my testimony, reproduced below, I therefore ask the Judiciary Committee to charge the Task Force with consideration of three avenues of legal reform that would provide ways to punish and deter child abuse and neglect in polygamous (and other) communities: (1) amend the civil and criminal RICO laws to encompass child abuse and neglect; (2) incentivize the states to eliminate the statutes of limitations on child abuse and neglect; and (3) amend the tax laws to revoke the tax-exempt status of any organization that fosters or furthers child abuse or neglect. (I also suggest prohibiting federal agencies from doing business with organizations that foster or further child abuse or neglect.)
More specifically, the substance of my testimony submitted to the Committee is as follows:
My testimony will focus on the child abuse and neglect crimes that arise out of polygamous communities and suggest legislative solutions to these serious problems. As is well known, religious polygamous communities have exhibited a disregard for the laws of marriage, child sex abuse, statutory rape, and criminal child neglect.
The problems for children in these groups arise directly from the desired proportion of men to women in the groups. At the base line, girls and boys are usually born in about equal proportions. In order to have as many women to choose from as possible, girls are married to men as soon as they are of childbearing age and forced to have as many children as possible. To keep the number of men low vis-à-vis the women, select boys are discarded.
No civilized society can permit such practices – once known – to continue.
I applaud Senator Reid for introducing a bill to institute a federal task force to study abuse, extortion, embezzlement, and other illegal activities associated with polygamous groups. I strongly recommend that the Committee charge the Task Force with consideration of the following proposals.
There is a need for punishment, deterrence, and public accountability. I will make three proposals necessary to ensure that these three public goals are served: (1) amend the RICO laws to encompass organizations that foster and further child abuse and neglect; (2) create incentives for the states to eliminate statutes of limitations so that victims can identify their predators and those who aided them through court actions when the victims are ready; and (3) deter child abuse and neglect through financial means: (a) upon conviction of a nonprofit organization for fostering abuse and neglect in a criminal or civil action, remove the organization’s tax exempt status and (b) prohibit all federal agencies from doing business with organizations that foster and further child sex abuse.
I. Amend the RICO laws
Organizations that encourage and foster child sex abuse need to be made accountable. Federal authorities have not had the legal tools to pursue organizations that foster and further child sex abuse and neglect. The criminal and civil RICO laws, taken together, are best suited to this end, because they combine punishment with deterrence and with financial accountability for organizations.
Criminal RICO should be amended to ensure that it encompasses organizations fostering and furthering child sex abuse and neglect.
First, amend 18 U.S.C. § 1962(c) to include the following bolded language:
It shall be unlawful for any person, or enterprise engaging in, promoting, or facilitating childhood sexual abuse or neglect, employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
Second, amend 18 U.S.C. 1961(1)(a), the definition of “Racketeering Activity,” to include the bolded language:
(1)“racketeering activity” means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, engaging in, promoting or facilitating childhood sexual abuse or neglect, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year;
Civil RICO should be amended to deter organizations from harboring or encouraging child abuse or neglect, hiding child abuse or neglect, or recklessly disregarding child abuse or neglect. I suggest the following amendments (new language in bold):
The first sentence of Section 1964(c) of the Racketeer-Influenced and Corrupt Organizations Act, 18 U.S.C. § § 1961- 1965 should be amended to include the bolded language:
‘Any person injured in his business, property, or in his person if a victim of childhood sexual abuse or neglect by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.’
II. Encourage the States to Eliminate the Statutes of Limitations for Child Sex Abuse So that More Organizations and Perpetrators Are Publicly Identified and Made to Pay for the Harm that They Have Caused
Child abuse and neglect have cost the United States billions – from physical and mental health care costs, to opportunity costs from underperformance and the inability of victims to fulfill their full potential. It is inevitable that some of these costs will have to be absorbed by public social services, but that does not mean that organizations should not be held liable for their part.
When organizations foster child abuse and neglect, they should be made to pay for the harm that they have imposed on the victims and the costs they have imposed on all taxpayers. The most efficient means of pursuing this goal is to create greater opportunities for victims to go to court.
Right now, the vast majority of states have statutes of limitations on child abuse that are so short that victims are not able to come forward before the courthouse doors have been locked shut. As I argue at more length in my book Justice Denied; What America Must Do to Protect Its Children, the federal government should create incentives for the states to eliminate the statutes of limitations to create such opportunities. Only then will more of the organizations and perpetrators responsible for the abuse be publicly named and only then will they be forced to pay for the harm they have caused, both through penal fines and through civil lawsuits.
III. Revoke Nonprofit Tax-Exempt Status for Organizations that Foster or Further Child Abuse or Neglect and Prohibit Federal Agencies from Doing Business with Organizations Furthering or Fostering Child Abuse or Neglect
The tax law governing tax-exempt status needs to be clarified to plainly deter child abuse and neglect. The following is suggested legislative language regarding the tax-exempt status of nonprofits that foster or further child abuse or neglect:
Revocation of tax-exempt status for organizations furthering child abuse or neglect. Tax-exempt status for a charitable organization under the Internal Revenue Code shall be revoked by the Internal Revenue Service from any organization if it is found by a court of law in a civil or criminal case that the organization:
(a) Fostered the abuse of children,
OR
(b) Took steps to conceal the abuse of children,
OR
(c) Failed to report knowledge of child abuse or neglect to the relevant law enforcement authorities.
Finally, federal agencies should not be permitted to do business with any organization that furthers or fosters child sex abuse or neglect.
Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.
This article was found at:
http://writ.news.findlaw.com/hamilton/20080724.html
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