by Marci Hamilton
Recent reports indicate that the state of Texas spent many millions handling the events involving the FLDS compound in Eldorado, Texas. The money went to pay for attorneys’ fees for the state’s lawyers and the private lawyers appointed to represent the children, for DNA testing, and for the costs of overseeing foster placement for the over 400 children from the compound while they were being protected by the state.
The implicit message of the headlines about these costs is that this is a large and perhaps unacceptable amount to spend in this context. But how much money would be too much to spend to protect hundreds of children from pervasive statutory rape, sexual abuse, underage polygamous marriage, and a system of grooming boys to participate in abuse?
Or let me put the question more bluntly – for those implying that the rescue of these children was not worth the cost: Do you mean to say that Texas should have saved its money by ignoring what everyone knew was happening to these children? There is little question that the Yearning for Zion Ranch was a hornet’s nest, once jostled never to be made the same again, but that does not mean it should have been left to its crimes against children. The choice of insularity does not confer legal immunity.
Texas’s Money Was Well-Spent to Protect Over Four Hundred Children From Abuse and Enforce the State’s Criminal Laws
Despite the relentless coverage, the state never changed its explanation for the need to protect these children, and only the most jaded or naïve can reject their arguments given the stark facts: There were at least 20 known statutory rapes and numerous underage polygamous marriages (and in Texas, polygamy with a minor is a first-degree felony), all within one isolated, close-knit community. This was never about religious persecution and always about obvious sexual molestation and abuse.
Judge Barbara Walther, the trial judge in this case and thus the only judge to have personal knowledge of the facts and the ability to make credibility assessments, is a hero for children. The appellate judges who reversed her rulings did not rule that there was no harm arising from this group. Rather, as I discuss in a prior column, they held that there was not enough evidence from their perch to justify the state’s taking all of the children out of the compound. With the benefit of a closer perspective, however, Judge Walther knew better. She should feel at least partially vindicated by the fact that a grand jury has been convened to investigate criminal charges against members of the sect.
Recently, I debated Utah Attorney General Mark Shurtleff on NPR about his office’s failure to vigorously prosecute polygamists in his state, where it is well-known that underage girls are being subjected to polygamous marriage and underage sex. While Attorney General Shurtleff had to agree to the facts of the harm, his defense was that it is too expensive to pursue polygamists on child abuse charges. The headlines blaring the facts of the financial accounting in Texas -- as if it were shocking that protecting children and defending litigation would cost money -- provide an echo of such reasoning.
So the questions on the table are these: Should we be aggressive in pursuing child predators, even though it can be expensive, and who should pay for the costs of abuse?
We Face a Pernicious National Problem: We Have Failed to Focus on the Costs of the Failure to Deter Predators and Reduce the Incidence of Abuse
More generally, as a nation, how much are we spending to protect children from sexual abuse? Obviously, not nearly enough. With at least 20% of boys and 25% of girls, on average, sexually abused, the status quo is not acceptable. With all of our attempts to reduce pedophile access to children, we still have an enormous problem. Moreover, children don’t vote, and adults in power don’t yet understand that the costs of prevention and deterrence are made up in less abuse and, consequently, less expense to the entire society.
In Assessing the Costs of Protecting Children, One Must Keep In Mind the Massive Costs of Sexual Abuse and Violence, Too
The status quo is not just a moral outrage, but also an irrational economic situation. The costs to society of sexual abuse are enormous: Victims suffer from drug addiction; alcoholism; mental illness, often rising to the level of disability; suicide, and broken marriages, and as workers may be less productive than they could have been. The harm does not just extend to the victims, but also to their families, their future families, and eventually the entire economy.
In 2007, Minnesota estimated the state’s costs of sexual violence in 2005 at almost $8 billion, or $1,540/resident. According to the report, moreover, these are a “fraction of the true costs.” Child sexual abuse was a significant component of the study; the costs of child sex abuse were deemed to average $184,000/victim, exceeding the cost of adult rape, which averaged $139,000/victim. And those are just the immediate costs arising out of a self-contained event of abuse, not the long-term and astronomical costs generated by continuing effects. Suffice it to say that, when we fail to deter or stop sexual abuse, we pay. A lot.
Familial abuse (which includes abuse by family members and close family friends) is the largest category of childhood sexual abuse. Even self-contained groups, like the FLDS, impose costs on the rest of us. Girls are forced to start having babies as soon as they physically can. They are taken out of the minimal education provided, which means all of their resources are turned primarily toward one end – the production of numerous babies – and away from any other gifts or talents they might have. There is another cost arising from their large, polygamous families as well. Often, all but a man’s first wife find it necessary to apply for welfare to support their many children. (They apply as “single mothers.”) Whatever potential skills they might have contributed to society are snuffed out by their obligation to bear babies for the glory of their men in heaven, and like actual single mothers, they face substantial barriers to breaking free from the welfare cycle. There is also the cost imposed by the FLDS on the rest of us when they abandon boys on city streetcorners to keep the odds in favor of the men. Meanwhile, the group rests on the assumption that the government will pay for this lifestyle.
The truth is that reducing abuse in any situation is financially advantageous to all of us. Sometimes the monetary gains are not obvious at first glance. The investment in Texas may well have had an indirect financial benefit, as a number of the mothers have not returned their children to the sect’s ranch, even after the courts cleared the path for them to do so. That may well account for significant future reductions in abuse and its attendant costs. Even more optimistically, perhaps it will embolden those from within the group who know the truth to summon the courage to press charges against the felons, which would be the best means to reduce the number of victims and the cost to society.
Economic Arguments Against Enforcing Anti-Abuse Laws Do Not Hold Water If the Public Cost of Non-Enforcement Is Taken Into Account
Those who still think enforcing the law against child sex abuse is too costly should bear in mind the case of Mansa Musa Muhummed, who was just convicted in Murrieta, California of abusing and torturing his numerous wives and children. His defense was his Muslim faith. The authorities only were able to save the women and children after one of the wives slipped a handwritten note to a postal carrier. In this case, the state had to pay for the cost of prosecuting Muhummed for torturing at least seven children, as well as abusing them and falsely imprisoning his wives. And the state’s financial burdens are far from over, as it is hard to calculate just how expensive it will be to rehabilitate and assist the victims of this one-man crime wave. Even so, is there anyone who would say this was a waste of state funds? To be sure, the costs in Texas with respect to the FLDS are much higher, but that may have more to do with numbers than an honest assessment of public cost-benefit.
Financial arguments against legal reforms for sex abuse victims also have come from mainstream religions. The hierarchy of the Roman Catholic Church has used economic arguments to block childhood sexual abuse legislative reform. It has steadfastly opposed eliminating the statutes of limitations for childhood sexual abuse, on the ground that it will cost the Church too much money if cases are reopened. The irony of such a position, of course, is that the alleged cost is obviously based on knowledge of the number of victims. The Church hierarchy vigorously point toward their alleged financial concerns as a means of distracting legislators from the reality that eliminating the statutes of limitations for child sex abuse reduces the costs of sexual abuse by publicly identifying predators, thereby reducing the number of victims, and by shifting costs away from the state to those private entities responsible for the abuse.
Of course, private parties are not the only entities responsible for imposing the costs of abuse on society. Sometimes it is the public schools or other public entities that are responsible and, therefore, costs still fall on taxpayers’ shoulders. The only way to reduce those costs is to prevent abuse by identifying and deterring predators in public as well as private organizations. In addition, there need to be strong means of ensuring that public entities do not increase abuse and its costs by covering it up. That requires a legal system calibrated to that end.
Criminal Prosecution of Perpetrators and Civil Litigation of Sexual Abuse Claims Result in Savings for Taxpayers
California opened the door to previously barred civil claims in 2003, and here is the financial equation: On the hierarchy’s side of the equation, insurance paid half of the settlements, while the rest was funded by the sale of non-religious property, and no services were cut. On the public savings side: The lawsuits fingered 300 perpetrators who had never before been identified, dramatically increasing the barriers to their further abuse of more children. Fewer victims, of course, mean fewer costs. Moreover, private parties bore the cost of investigating the facts of those cases, not the state, and private parties had to pay for the damages they plainly caused.
This is a crucial financial point: civil litigation for childhood sexual abuse is the one way to force those responsible for the abuse to cover the costs of their actions. Otherwise, the victim and/or taxpayers must pay for the therapy, drug treatment, and the host of other costs directly attributable to childhood sexual abuse.
The elimination of the criminal statutes of limitations also results in cost-savings. The conviction of a predator leads to incarceration and/or public identification on a sex offender registry. Both work toward reducing the incidence of future abuse. It is nonsensical to keep the current system in most states where the statute of limitations usually runs before a victim can come forward or is able to press charges. The math is simple. With no criminal statute of limitations, there are more predators convicted, fewer predators in the community, and better information, all of which adds up to fewer victims. Once again, fewer victims, less cost.
If costs matter, statute of limitations reform legislation is a no-brainer.
How does this relate to the FLDS situation in Texas? There, the state has had to bear the high cost of trying to aid children locked into an entrenched system of abuse. Think about this: If Arizona and Utah had enforced their laws against child abuse and polygamy decades ago, there might have been no FLDS child sex abuse for the Texas authorities to investigate. Texas is absorbing the cost passed on by years of failed law enforcement in those two states.
Texas, though, has now opened a door for the victims, who have glimpsed a larger world where abuse is not a given. That means we are likely to have FLDS child victims coming forward, needing and deserving justice. They are the ones who can shift the cost of the abuse from the state to the truly responsible parties. If they press charges as well, they are also the ones who can ensure that the child predators they know can no longer gain access to future children, reducing costs again. Only if Texas liberated the children, with all the attendant costs, was there any possibility that such a shift in cost could occur.
Unfortunately, Texas is like so many other states in that it gives the predators a substantial benefit through its short statutes of limitations. The result of these short statutes of limitations is that its actions to date may not lead to the appropriate shifting of costs onto those who are responsible. In Texas, the criminal statutes of limitation for child sex abuse are very short (none extends past the victim’s 28th birthday) compared to the time it takes most victims to come forward. The civil statutes of limitations are worse, with the latest being the victim’s 23rd birthday. By making it nearly impossible for victims to get to court on time, the Texas statutes of limitations perpetuate the cycle of abuse that generates more victims and more costs, as child predators operate under a legal cloak of anonymity. If Texas (and most every other state) is serious about protecting children -- in the most cost-effective manner -- statute of limitations reform is the next important step.
To return to my earlier questions: The financial equation calls for aggressive means of deterring child predators, and those who caused the abuse should be the ones paying for the high cost of the abuse.
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 FindLaw on June 25, 2008.
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