Friday, May 23, 2008

A Civil Liberties Disaster

The FLDS polygamy-child abuse case in Texas is a civil liberties disaster. Kudos to the Court of Appeals for the Third District of Texas for overturning -- at least for the time being -- this horror. See Martha Neil, "State Wrongly Removed 400 FLDS Kids, Texas Appeals Court Says," ABA Journal Law News Now (May 22, 2005) and In re Sara Steed, et al.

Judging by some news reports and the opinion of the (courageous) Texas Court of Appeals, Third District, Austin, it seems possible that the evidence of child sexual abuse consisted solely of (i) the "belief system" of the FLDS and (ii) five women or girls who became pregnant while they were between 15 and 17 years old. There was apparently no evidence about how these teenagers became pregnant. Are we all aware of communities in the U.S. in which teenage pregnancies are rather more frequent than they apparently were at the FLDS ranch in Texas? Was the risk of child sexual abuse at the FLDS ranch greater than it is at a randomly selected household with children somewhere in the U.S.?

The FLDS raid and the separation of more than 400 children from their parents are reminiscent of Janet Reno's disastrous decision in 1993 to let the FBI and other law enforcement personnel invade the Branch Davidian compound in Waco when she received reports that children in the compound might be at risk of sexual abuse. Janet Reno seemingly applied a radical form of the precautionary principle--the principle, in her case, that no harm is too great if inflicting it is necessary to eliminate even the slightest chance of the sexual abuse of a minor. The Texas Child Protective Services seems to have operated under this sort of Renoesque principle, which is a recipe for disaster.

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