FindLaw Legal News - April 16, 2009
by Marci Hamilton
This month marks the one-year anniversary of the valiant attempts by Texas Child Protective Services (CPS) to save the child sexual-abuse victims in the Fundamentalist Latter-Day Saints (FLDS) group situated at the Yearning for Zion (YFZ) Ranch outside Eldorado, Texas. In this column, I'll take stock of related events since then, and explain the lessons they teach.
The authorities' concerns were triggered by a call to a hotline, and confirmed when they entered the compound to discover a significant number of underage mothers – who were, plainly, victims of statutory rape -- and clear evidence of bigamy involving underage persons, a first-degree felony in Texas. Not only did CPS have clear visual evidence of these crimes, but it also had written records showing that girls had been married off to much older men, even after those men had taken other spouses, and some disturbing pictures, including one particularly disgusting one of their prophet, Warren Jeffs (who is now in jail on other charges), passionately kissing a 12-year-old girl who was sitting on his lap.
The promise of the YFZ raid to free oppressed children, though, was never fully realized. All of the children but one has been returned. As I discussed in a prior column, the Texas appellate courts bear much of the responsibility. They refused to back up CPS's actions, because they discounted the claims that girls had been victims of statutory rape, if those girls were over the legal age of consent at the time of the raid. The courts' reasoning was offensive to victims of statutory rape, and made a mockery of Texas criminal law. It was also just another moment when the interests of child sex- abuse victims were trivialized for no good reason.
One Aspect of the Raid that Was Not Widely Covered: CPS Was Simply Following Its Usual Procedures
Most Americans were fascinated by the FLDS/CPS story as it unfolded, but many did not know that CPS's actions were actually not out of the ordinary, though the context was extraordinary. As with any ordinary child-abuse investigation, once the authorities had clear evidence of abuse (in this case, of statutory rape and child bigamy), they took into custody all of the children who were sharing the same living conditions as the alleged victims, and who, therefore, were also at risk. CPS really had no choice but to bring out all of the children, because many of the adults and children lied about their ages and relationships, and because the FLDS compound was much like a commune wherein family lines and relationships were blurred. It was obvious that the child brides were part of a lifestyle that was being imposed on all of the children, and that not only were the girls at risk of rape, but the boys were also at risk, for they were being groomed to perpetuate the situation – groomed, that is, to be law-breakers.
By some measures, the State's actions were the most promising step forward yet for the numerous victims within the FLDS. (To get a sense of the depth of the organization's problems regarding children, read Flora Jessop's recently-published book Church of Lies.) Twelve of the men from the compound have been indicted for perpetrating child sex abuse, aiding such abuse, or failing to report it. Before those indictments were issued, the most any prosecutor had achieved was to indict a single man from a compound at a given time, and such indictments rarely happened. Essentially, the FBI and the state Attorneys General had simply looked the other way in the states where compounds existed. The FLDS group made it difficult to investigate its crimes of abuse and abandonment of children by living in insular communes, and the authorities found it easier to co-exist with the illegal behavior than to try to stop it.
Thanks to CPS, however, we now have official documents that record the behavior of the FLDS that put children at serious risk. CPS pursued its investigation professionally, and released what should have been a shocking report detailing the problems discovered within this group, including approximately 25% of the pubescent girls being subjected to statutory rape and child bigamy. Unfortunately, the report barely made the national newspapers.
These are extraordinary developments for victims and justice, and CPS and the Texas system (despite the appellate courts there) deserve credit for taking us this far.
The Appallingly Wrong Decisions by the Texas Courts – and the All-Too-Familiar Public Relations Strategy by the FLDS Group
The Texas appellate courts were as wrong as CPS was right. Essentially, the appellate courts told the girls to just get over it. Sadly, the court decisions were part of our general culture's deep instinct to wish away the suffering of the children living among us. As a factual matter, the evidence conclusively proves that children who have been sexually violated by adults do not simply "grow out of it." To the contrary, their victimization radically alters their horizons forever. And not only did the Texas decisions dismiss children's suffering – suffering that may well last a lifetime – but it also laid the groundwork for the return of the children to the compound, even if CPS lawyers believed that there were strong legal grounds to terminate parental rights.
Defense attorneys celebrated the destruction of CPS's cases, and added their voices to the FLDS public relations machine, which issued a steady drumbeat of criticism of the state. The public relations strategy was to portray the adults as the "real" victims; to deflect attention from the rape, bigamy, and abuse by loudly demanding vindication of the adults' alleged rights to religious liberty (rights that were no license to break the law); and to flood the media with images of defenseless FLDS women in pastel dresses pining for their beloved children. The media followed suit; for example, the Today Show repeatedly hosted gaggles of FLDS "couples" to talk about their suffering. There were no hard-hitting questions; there was just clucking on the part of Meredith Viera.
The FLDS's public relations attack was actually standard operating procedure for any religious group that finds itself on the other side of the law: Such groups -- as we have learned from the Catholic Church's and other religious groups' child-sexual-abuse scandals -- almost always use religion to seek to transform the adults into the "real" victims, so that the viewer's attention is no longer on the children. They count on what I call "adult preferentialism," that is, the tendency of adults to exaggerate their importance and to treat children as far less valuable. It is also common practice for them to shout "persecution," regardless of the fact that they are being charged with serious crimes, and to present an angelic face to the press. In this culture -- saturated with trust for religion -- this can be a pretty good strategy, unless you are the child. Then, it is disastrous.
The Texas appellate decisions at least left open the door for CPS to do investigations that would produce evidence to justify holding onto individual children, and CPS investigators did just that. But the vast majority of the children were quickly "non-suited" and returned to the compound. It is obvious that there was pressure either from the press, or from Austin, or both to shut down the case quickly.
A year later, we are learning that there were serious differences of opinion within CPS over the return of the children. Some are heartbroken over having to let the children return to the FLDS and others are so demoralized by the failure of CPS to protect the children, they have quit. One attorney, Jeff Schmidt, quit last week and was quoted as saying, "We had some serious differences of opinion based on applicable law and what was in the best interests of the children. We completely failed to protect those children. That's my opinion." Another attorney quit as well. These attorneys were both willing to go forward on parental-termination claims for a significant number of the children, because they thought that the evidence supported the termination, but the Department rejected their recommendations.
There are also reports of CPS workers who cannot get the sight out of their minds of FLDS children resisting being returned to the FLDS adults, often only posing as parents. Some had to be pushed toward the adults; many of them had already been separated from their birth parents long before. YFZ was for the upper class of FLDS members and for children identified for their abject obedience to authority, their Aryan genetic traits,and as future wives for the leadership. Many of the children were sent to Texas,then "given" into new families,according to Flora Jessop, who recently met with Texas authorities about the case. No matter how often the FLDS winds up its PRmachine to declaim that the separation was horrific for the children, the fact is that seeing the outside world, riding bikes, and eating pizza, may have been the best thing that ever happened to these children.
So how does the system permit children to be returned to living within an entrenched culture, for which there is documentation that 25% of pubescent girls are forced into child bigamy and childbearing? The answer is: Through the distortion of both message and meaning. We want to believe these insular religious groups are loci of goodness and piety. We want to believe that religious liberty is always good. And we want to have these beliefs even if the facts dictate very much otherwise.
So when the FLDS's public-relations hired guns put those images before us and demand religious liberty, we, including the media, close our eyes and shake off the grotesque images of girls being sexually assaulted in order to bear the twentieth child of a man who already has four wives.
The real legacy of the Texas raid on the YFZ compound is that it has made it harder to close our eyes to the children in these settings. Are they now safe? Absolutely not. But they are safer than they were a year ago, when Texas started down the courageous path.
Marci Hamilton, a FindLaw columnist, 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. [To order both books from Amazon click on the book icons in the right hand column of this page]
This article was found at:
http://writ.news.findlaw.com/hamilton/20090416.html
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