This article first appeared in the St. Louis Beacon: May 29, 2008 - The Texas Supreme Court was divided and its opinion was not as strong as the state appeals court decision of last week. But, one point all of the justices agreed about removing people from Warren Jeffs' polygamist household: The state should not have taken the boys and pre-pubescent girls from their homes.
The majority opinion pointed out that state officials could take steps to protect the young teen-age girls of childbearing age, such as ordering families not to take their children out of state during its investigation or ordering the removal of alleged "perpetrators" of child sexual abuse. This option remains open for state authorities and the lower court judge presiding over the case. The state has claimed that about 20 girls became pregnant while underage; about five of them still are underage.
Three of the nine justices on the court said in a partial concurrence/partial dissent that the state was authorized by law to take even stronger steps to protect the pubescent girls. These justices said that the state should be able to retain temporary conservatorship over the girls until it could assure they would not be abused.
The justices pointed out that there were "Bishop’s Records" seized from the YFZ Ranch "indicating the presence of several extremely young mothers or pregnant 'wives' on the Ranch: a sixteen-year-old 'wife' with a child, a sixteen-year-old pregnant 'wife,' two pregnant fifteen-year-old 'wives,' and a thirteen-year-old who had conceived a child. The testimony of Dr. William John Walsh, the families’ expert witness, confirmed that the Fundamentalist Church of Jesus Christ of Latter Day Saints accepts the age of “physical development” (that is, first menstruation) as the age of eligibility for 'marriage.'" the justice wrote.
So what do you think? Did the state overstep its authority or were its steps justified to protect young girls from sexual abuse? Here are the thoughts of Eugene Volokh, a legal scholar, who points out that there are many communities where a larger percentage of young teen girls are pregnant. One difference is that the adults in the Mormon sect approve of this behavior. This is from Volokh's blog.
The 3-Justice concurrence and dissent agrees with the majority and the court of appeals that the removal of the boys and the prepubescent girls was unjustified, but reasons otherwise as to the pubescent girls. In particular, it points to five girls ranging in age from 13 to 16 who had children, were pregnant, or had been pregnant (seemingly the same ones noted by the lower court opinion). It then goes on to reason that "[e]vidence presented thus indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the Ranch -- evidence sufficient to satisfy a 'person of ordinary prudence and caution that other such girls were at risk of sexual abuse as well.'"
Here is what strikes me as the heart of the disagreement: The dissenters stress that "In determining whether there is a 'continuing danger to the health or safety' of a child, the Family Code explicitly permits a court to consider 'whether the household to which the child would be returned includes a person who ... has sexually abused another child.'" The court of appeals, which the majority seems to agree with, says to the contrary that: "The notion that the entire ranch community constitutes a 'household' as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households.
While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to< support a theory that the entire ranch community was a 'household' under section 262.201."
And this is important because the factual evidence of underage sex on which the dissenters relied didn't seem to be focused on the particular pubescent girls at issue in this case, or specific threats those girls faced. After all, pubescent girls get pregnant in all sorts of communities; the five pregnancies on which the dissenters relied -- I realize there may be other pregnancies out there, but these are the ones the Justices cited -- aren't even so unusual for a group of 250 or more girls (I believe that's the rough number seized at the FLDS ranch): The pregnancy rate for 14-year-olds and younger this decade seems to be a little under 1%, and for 15-to-17-year-olds seems to be a little over 4%, though I take it that for 15- and 16-year-olds the fraction would be less than the aggregate for 15-, 16-, and 17-year-olds. Texas reports a roughly 4% pregnancy rate for 16-year-olds, a roughly 2% rate for 15-year-olds, and a roughly 0.1% rate for 13-year-olds (no numbers are given for 14-year-olds). The rate of teenage sex is obviously even higher.
A particular girl's mere presence in a community that tolerates this sort of behavior, it seems to me, can't be enough as a legal matter for a finding that the girl is in enough danger to be seized. If the government swept through many a neighborhood in the country, it would probably find lots of underage girls who are pregnant, many through illegal sex -- yet I take it that this wouldn't justify even a temporary removal of one girl from her parents because of the pregnancy of other girls in neighboring houses. And I take it there would be no justification for such temporary removal even if it was clear that most people in the neighborhood had nothing against early marriages (for instance, because they were emigres from a region, such as East Asia or Latin America, where the age of consent for sex and for marriage was low), even if people knew each other's families and socialized often with them, and even if many community members were refusing to cooperate with authorities."[A] pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, [in such a neighborhood]" wouldn't dispense with the need of showing some individualized evidence that each particular girl who was to be seized was subject to a high risk of danger, beyond just the fact that she lived in a neighborhood were those things happened and were condoned.
So this is why it seems to me that the heart of the partial dissenters' argument must be that "the Ranch" is different from a normal neighborhood, presumably because it counts as a single "household" (something the dissenters don't expressly say, but that they seem to point to by reference to behavior "on the Ranch" coupled with the mention of the "household" principle in note 2). And the majority's disagreement, I expect, probably stems partly from the majority's accepting the court of appeals' contrary view.
And this tees up the constitutional question, though the Texas appellate opinions do not deal with it: To what extent is it constitutionally permissible for children to be removed without particularized evidence of risk to the children, beyond the evidence of the community's views and the practices of other people in the community? Is the household/outside-household line constitutionally significant, so that all children can be removed from a household if adults in the household allow one child to engage in an illegal sexual relationship, but not if adults in other households of friends and family members allow the same? Or are there no constitutional constraints here, and all this is properly left to state law (which does seem to draw a household distinction, a distinction that the court of appeals seemed to rely on)?