Following the Precedent

So, following the news this morning… If Roger Clemens, a resident of Houston, really had an affair with a 15 year-old, why doesn’t the great state of Texas raid his home and take his children away from him? And maybe, while they’re at it, they could take his neighbor’s kids, just to be safe?


  1. Outstanding stuff, Tracy.

  2. Bill Anderson says:

    All of MLB should be investigated.

  3. Brilliant, Tracy. Absolutely brilliant.

  4. And maybe, while they’re at it, they could take his neighbor’s kids, just to be safe?

    ZING! It’s for the children afterall

  5. Let’s remember, it is not necessary to even prove he had sexual contact with an underage young woman. If he belongs to a group of people (professional athletes) who are suspected of doing this (see Kirby Puckett), it is enough for the state to move in, remove his children, and put them in foster care while they sort things out.

  6. Yeah.

  7. Maybe because he’s not forcing some of his own kids into early marriages with old men.

  8. Thomas Parkin says:

    “Maybe because he’s not forcing some of his own kids into early marriages with old men.”

    Not that you know of, kris. Where 15 year old girls are concerned, one cannot be TOO careful.


  9. You’re right Thomas. If Clemens is guilty of sexually manipulating an underage girl, he should go to jail. If his wife is complicit in it, she should go to jail. In my mind, people who don’t protect the innocence of children should should face serious consequences, including the possible loss of custody of their own children.

  10. Josh Smith says:

    Do I detect some hostility toward the TX AG? I’m no sarcasm expert but …

    Look, maybe if Roger admitted to living in a secluded dugout under Fenway. And if he told us that this community regularly had intercourse with 13-17 year-olds. And if this community had been exploiting teenage girls because they believed it necessary to reach the highest echelons of baseball. And it was obvious that they’d been doing this since the Red Sox founding. Then, yes, authorities in Boston would have to raid the underground dugout. And yes, Roger would have to be separated from his children, along with the other children still in the dugout.

    And then if the dugout were raided and 30+ cases of statutory rape were found, we could all breathe a sigh of relief that the abuse has been stopped.

  11. Josh Smith says:

    [Roger should be investigated for this regardless of the Fenway dugout thing]

  12. Are Roger Clemens daughters being taught that if they are very good, when they are fifteen they can have sex with Pedro Martinez?

  13. Classic, As always one of my favorite bloggers.

  14. Steve Evans says:

    Ann — the truth? Yes.

  15. Wow, Steve. Wow. Those poor girls. I can’t believe CPS left them there. I’m appalled.

    A-rod or Jeter I could understand. But Martinez? Nobody even knows how old he IS.

  16. 10: OK, lets do this:

    Look, maybe if Roger admitted to living in a secluded dugout under Fenway.

    Pro athletes live within extremely exclusive circles, and in isolated neighborhoods.

    And if he told us that this community regularly had intercorse with 13-17 year-olds.

    Pro athlete’s actions reflect a moral code vastly different than that of mainstream America. I don’t know what to say here other than: This community does regularly have intercourse with 13-17 year-olds.

    And if this community had been exploiting teenage girls because they believed it necessary to reach the highest echelons of baseball.

    The pro athlete community not only treats girls, but all women, like sex objects that are meant to be exploited. “Being one of the guys” means taking advantage of the young groupies.

    And it was obvious that they’d been doing this since the Red Sox founding.

    Ever hear of the exploits of Wilt Chamberlin? Mickey Mantle?

    And then if the dugout were raided and 30+ cases of statutory rape were found, we could all breathe a sigh of relief that the abuse has been stopped.

    Trust me, if they investigated the sex lives of MLB, NFL, and NBA players, they would find hundreds of cases of statutory rape. They live in a culture of “baby-mamas” and “booty-calls”, a culture where females are brainwashed into thinking that having “goals” in life means “hooking up” with the richest athlete they can find.

    One big difference between the two groups though, is that FLDS actually care when there children are taken away.

  17. [Please excuse the lack of editing on 16. I need to move a little slower]

  18. Peter LLC says:

    I do loves me some “pervasive prevarications” and the best come from Texas.

  19. Josh Smith says:

    Anybody else on board with kwk in #16? Seriously, I’ve never thought of institutionalized child abuse within professional sports just as it is within the FLDS. Maybe kwk has stumbled on something.

  20. It may be written somewhat snarky, but there is more than a grain of truth there…

  21. Josh,
    I don’t think kwk is substantively equating the two so much as pointing out that the comparison is not as far fetched as others have suggested.

  22. Josh Smith says:

    In #10 I was trying to say (in a smart a** kind of way) that I think the TX child snatching was justified. It was done poorly; it was done invasively; but it was better to do than not.

    Then I read kwk’s response. Then I read kwk’s response a second time. It genuinely has me thinking … So my question is genuine: maybe child abuse is institutionalized within professional sports as it is with the FLDS? Maybe there is a comparison worth considering?

  23. I think you’re right, Josh. The comparison is definitely worth considering. When the sexualization of women as objects of men’s gratification is institutionalized in circles of the ultra-powerful, the line that separates the exploitation of women from the abuse of female children deteriorates by the second.

  24. I think the posters intention was to show how ridiculous this all is.
    Why does the same line keep coming up ” we all know they are breaking the law, lying and raping in there”????? How do we know anything? A couple of disgruntled girls that “escaped”? puuleesssee.
    Truth is girls 14 years old are having sex all over the world.
    I put in an epidural in the other day. In Texas. In a 17 year old. On her 4th baby. All different fathers.

    I keep thinking if only these FLDS women had a tramp stamp and some nipple rings and dressed like huchy mamas then mabye we would call it clubbing instead of “rape”.

    The original question absolutely points to; in my mind. all kinds of senerios that exist out there that should be treated the same if this is new public policy.

  25. Josh, the raid just scares me. I’m not sure that FLDS abuses are less severe than what goes on in other communities or lifestyles, but I don’t like the idea of my children being taken away from me based on the actions of someone who claims to share my faith, or someone in my government defined “culture of bizarre belief”. I think that there happen to be quite a few communities that uphold dangerous moral ideologies, and the FLDS happened to be low hanging fruit – a behind the times religious group that was clustered enough to be rounded up and “saved” quickly, and that was comfortably different enough from Average Joe to be the target for a disproportionate amount of manufactured rage.

    I am also hesitant to accept our country’s “sleep around when young, then marry-divorce-repeat” marriage model as the evolved, superior, morally correct end-standard.

  26. Question: if parents inside were already reticent about reporting abuse of women and children, will summary removal of ALL children in the community on the strength of one reported abuse — even a credible one — increase or decrease the likelihood of any community member ever reporting abuse of any kind to the authorities? What’s worse, the more egregious the abuse, the less likely someone will report it fearing, with damn good reason, that the worse the alleged offense, the larger the likely overreaction.

    No matter what we think we know is happening in this community (and I personally suspect that some very wrong and abusive things are happening and being reinforced systematically) abuses of due process–even the due process of brainwashed cultists and opportunistic rapists (assuming the worst about the people involved here) benefits no-one in the long run.

    Not even the FLDS children.

  27. What Brad said above… and I agree, there may well have been very wrong things happening in the FLDS community, however violation of due process serves no one in the long run.

    The Constitution and due process were trounced in the FLDS raid- at least as far as my non-JD eyes can see. That was my whole point.

  28. There is a statistic floating around about 14-17 year old girls taken away from the FLDS … they are saying that 31 of 53 of these girls have given birth already or are currently pregnant.

    If that statistic is true, then I don’t have much sympathy for the FLDS.

  29. Utahn in CT says:

    A question for those determined to give the FLDS the benefit of the doubt: what level of sexual activity among FLDS female minors might make you rethink your view? One of you above writes

    “Truth is girls 14 years old are having sex all over the world.”

    This is true of given individuals, but how in many communities are _well over half_ of all girls aged 14-17 are either pregnant or already mothers? Among such a group, most would likely already have had sexual relations. Texas CPS report that 31 of the 53 girls (aged 14-17) they seized are pregnant or mothers. The FLDS dispute the age of some of these, but again, I ask: what incidence of sexual activity among minors would it take for you to rethink your support for the FLDS?

  30. The Constitution and due process were trounced in the FLDS raid- at least as far as my non-JD eyes can see. That was my whole point.

    Tracy M. Your eyes do not deceive.

    If that statistic is true, then I don’t have much sympathy for the FLDS.

    danithew, It’s not about sympathy for the FLDS–it’s about sympathy for for the rule of law.

  31. Thomas Parkin says:

    I’m with Guy.

    I have virtually no sympathy for the FLDS way of doing things. (I do have sympathy for the suffering of individual parents and children.) If the FLDS are guilty of systematically violating the rights and protections the law grants thier children, then I have no prolem with thier society being systematically and carefully and legally dismantled. None of that makes the 4th amendment any less important.


  32. Comparing Roger Clemens’ reprehensible affair with a 15 year old girl to the actions of the FLDS men is ridicules That is like saying sending your daughter to another city to have an out of wedlock baby is the same as killing her for sexual indiscretion and shaming the family like they do in some African and Middle Eastern countries.

    Yes fourteen year old girls are having sex all over the world but I would doubt that it is all the girls that age. Go to any high school in this country and you will find girls 14 to 17 who are pregnant or already mothers but it is unlikely that it will be over fifty percent of that age group. Also the fathers will mostly be teenage boys not adult men. There is just no comparison to the teenage girls from the YFZ Ranch with stats of 31 out of 53 pregnant or already mothers. I would rather that the State of Texas error on the side of the children’s safety than leave them in the clutches of power hunger spiritual blackmailers. If you believe that the FLDS men’s sexual escapades are for purely celestial reasons I’m sure they have some Kool-Aid in the basement you need to try.

  33. Ogan,
    No-one here is defending FLDS men or arguing that they do what they do for celestial reasons. But violating the due process of an entire community including the mothers and children is not the most efficient way of erring on the side of their safety. You could make the erring-on-the-side-of-safety argument for any form of law enforcement overreach or due process violation involving children. But removing every child from an entire community on the basis of a spurious phoned-in tip that they are all in danger of being forcibly impregnated does nothing to improve the safety or well-being of children in this country.

  34. MikeInWeHo says:

    re: 32

    Actually, many of these comments sound VERY sympathetic toward the FLDS. It’s shocking to read some of the statements that have appeared in the Bloggernacle about the Texas situation. The Texas authorities may have overreached, but good grief….for decades this group has been systematically coercing girls as young as 14 to “marry” and have sex with 50 year old men. This is hardly a secret.

    This is not about religious freedom. It’s about sex, pure and simple; specifically, a small cadre of older men who have found a way to have sex with many barely-teenage girls. They use religion to obtain their victims and justify their deeds, claim religious freedom to shield themselves from the law, and on top of it all call themselves Latter-day Saints! What about this isn’t appalling?

    To me the very tone of this post implies sympathy for the FLDS’ practices: “Why persecute those poor families in the Texas compound when pro-athletics is full of sexual abuse and nobody bothers them? That’s just not right!”

    Is that what you’re saying, Tracy? Maybe I’ve completely misread you.

  35. Brad,
    Due to your recent love of hypotheticals– I thought I’d return the favor:
    You suddenly find yourself endowed with Walker Texas Ranger-like skill and moral compass. You receive word that these girls are being abused, whether by FLDS or MLB bad guys. What do you do? WHAT DO YOU DO?
    PS–If “due process” is supposed to apply equally to powerful/popular people and to bad-haired/unlikeable people, then what is the point of being powerful or popular?

  36. Josh Smith says:

    I don’t see a lot of Fourth Amendment trouncing here. First, the FLDS didn’t come to TX without a history. There are plenty of confirmed instances of FLDS sexually exploiting teenage girls in Colorado City–and before. There is nearly 200 years of history of polygamy being practiced with the marriage of young girls. So FLDS have some baggage.

    Then you have the group’s isolation. There are a bunch of children inside a compound. Its not like 13-17 year-old girls are coming to public schools, or showing up in any public place. Really not a lot of contact to find out what’s going on.

    Then you get a phone call. If I’m the AG, I’m waiting for a phone call. The phone call doesn’t have to be spotless, beautiful evidence. I think that AG just needs one specific allegation that can be a bit dubious but more likely true than not.

    You get a phone call, and under these circumstances–group with history with a bunch of kids in isolated community–it doesn’t take much to satisfy my Fourth Amendment. Get in there and find out what’s going on with these kids. And find out what’s going on with all the kids.

    Now if this were tax fraud, or a gambling ring, I’d probably be waving the Constitution. But these are young girls in an almost completely vulnerable position. Here, Fourth Amendment requires a phone call, but it doesn’t require much more than that. That’s just me.

  37. From comment 33: “Also the fathers will mostly be teenage boys not adult men.”

    Maybe not – from Wikipedia:

    However, “teenage father” may be a misnomer in many cases. Studies by the Population Reference Bureau and the National Center for Health Statistics found that about two-thirds of births to teenage girls in the United States are fathered by adult men age 20 or older.[80][81] The Guttmacher Institute reports that over 40 percent of mothers aged 15-17 had sexual partners three to five years older and almost one in five had partners six or more years older.[82] A 1990 study of births to California teens reported that the younger the mother, the greater the age gap with her male partner.[83] In the UK 72% of jointly registered births to women under the age of 20, the father is over the age of 20, with almost 1 in 4 being over 25.[84]

  38. Josh Smith says:

    I heard the 30+ instances of statutory rape rumor from that crazy blonde lady on CNN. So my source is horrible. Even so, it sounds about right. I really believe the FLDS convince 13-17 year-old girls to mother the children of 50 year-old-men.

    There were a couple comments that young teenage girls are regularly having babies in our culture. You’re right. That is all I’ll say about that. You’re right.

  39. Mike, I agree with everything you wrote in #33, but I just abhor the double standard.

    Please understand the point of the example I am about to give:

    I believe homosexuality should not be outlawed legally for more than one reason, but one of the most basic is that heterosexual activity outside of marriage is not outlawed legally in this country. Prosecuting one and not the other is hypocrisy and a double standard. Since those who oppose it almost always do so from within a religious framework, until the law treats all “fornication” and “adultery” equally (by either allowing or punishing BOTH), I won’t even broach my other reasons.

    That is my problem with the FLDS raid, at the most fundamental level – and it is why the Clemens situation is relevant. The claim is that Clemens is guilty of statutory rape – or, as I understand from a commenter on Guy’s blog, sexual assault of a minor. It is well known that his particular “group” is every bit as unlawful in this regard as the FLDS. If one is prosecuted, the other should be, as well. If there is a double standard, especially when it is a known, blatant, egregious double standard, I will oppose it.

    Go after individuals, in accordance with constitutional principles, and my response would be, “Castrate the perpetrators without use of anesthesia – but only after letting them experience life among the most hardened criminals in prison for long enough to experience what they are doing to the girls.” Otherwise, do this only if you are willing to do it do those with a powerful political voice, as well.

    There is a direct connection between this thread and the one about Liberation Theology, and it is a frightening connection for any who are marginalized or scorned – guilty or innocent.

  40. Josh,
    They are right. However, just because all the other kids are jumping off a cliff, does that make it okay for me to compel yet a third group to hurl themselves off said cliff by raising them to believe that God wants them to?
    The answer? No, but I still get to hear Miranda.

  41. Thomas Parkin says:

    Probably worth quoting the Fourth Amendment here:

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ”

    I do understnd that there is also a history of application that has to be considered – much of which I’m sure I don’t understand or am unaware of. But, on the face of it, it doesn’t seem to me that the “oaths” – presumably the phone call and the assitance of former FLDS – don’t meet the requirements of the two final clauses. I’d agree that the FLDS history, in conjunction with the testimony of former FLDS and the phone call, were sufficient in establishing probable cause. Especially seeing that among the things seized were _all the children on the compund._

    Isn’t this place crawling with lawyers? I’m sure I’m in over my head.


  42. Thomas Parkin says:

    Sorry, sentence beginning with “Especially” should follow “clauses.”

    I’ve got to learn to take my time with these things. :/


  43. MikeInWeHo says:

    re: 38
    We probably agree, Ray. I didn’t mean to imply that I support the Texas authorities. Yikes, the day I defend Texas is the day my Liberal Recommend should be rescinded. The Canadians seem to have come up with a more thoughtful, nuanced response to alleged FLDS child abuse (Quel surprise!).

    The world is full of double-standards. Shall we do nothing about anything until that is no longer the case?

    That said, I don’t think a polygamous sect is analogous to a debauched subculture like pro-athletics. It’s just not the same.

  44. I agree, Mike. The debauched sub-culture of pro-athletics is much worse. :)

  45. MikeInWeHo says:

    True enough, Ray. But at least the athletes are clever enough not to incorporate as a church and move to Texas en masse.

  46. If the 31/53 statistic is accurate, it means the FLDS should be confronted forcefully (as has happened) by government authorities. It indicates that the FLDS organization is pushing a systemic policy of sexual abuse.

  47. Mike (33),
    I’ve actually read very little sympathy toward the FLDS here, except vis-a-vis the Texas authorities.

    The problem is, most of what I “know” about the FLDS (and most of what Texas “knows”) comes from either biased sources (ex-members with a grudge) or poor poor analytical processes (bed in the temple = sex with underage girls in the temple).

    That’s not to say what I “know” isn’t true; it’s just to say that I don’t know how much of it is true. Texas could have responded more directly, opened an investigation, and reacted to the problems, and even could have done it relatively quickly. But instead they used the metaphorical sledgehammer to bludgeon what they haven’t demonstrated is more than a fly (how’s that for convoluted), and they continue to not convince me that they were targeting the FLDS for any reason other than the fact that they’re different.

    And that, I think, is Tracy’s point: not that Texas should let abuse go, but if they’re going to attack it this bluntly and poorly against an unpopular group, they should have been doing the same all along. Otherwise, it looks like prejudice, and not justice, is the motivating factor.

    But none of that excuses the wrongs perpetrated by members of the FLDS community.

  48. Mike- My position is pretty much what Ray and Sam B. have said; I abhor the idea of sexual abuse. Thomas Parkin’s comment #30 accurately sums up my feelings:

    I have virtually no sympathy for the FLDS way of doing things. (I do have sympathy for the suffering of individual parents and children.) If the FLDS are guilty of systematically violating the rights and protections the law grants thier children, then I have no prolem with thier society being systematically and carefully and legally dismantled. None of that makes the 4th amendment any less important.

    When I posted this yesterday, I was really just being snarky, and didn’t expect it to take off into the culture of professional athletics.

  49. MikeInWeHo says:

    I dunno, Sam B. The fact that it “looks like prejudice” to many here probably reflects a certain Mormon-observer-bias. If many LDS have witnessed slanderous misunderstanding from Texas-style Baptists, it makes sense they might view any action they take with suspicion. I’m not exactly a fan of rural Texas culture as you might imagine, but from my perspective it looks like they’re trying to sort out a big mess rather thoughtfully.

    Arguably it was reverse-prejudice on the part of Utah and Arizona authorities that was really operating here. Why was this group allowed to arrange thousands of coerced under-age “marriages” in Colorado City for so many decades? The practices of the FLDS are common knowledge and not really in dispute, are they?

  50. MikeInWeHo says:

    You’re the best, Tracy. Keep up the snark!!! (But don’t be surprised if you trigger debates that veer off in directions you never intended…)

  51. Mike,
    You may be right–I can’t refute that–but I don’t think it is. I felt roughly the same way back in Waco days, but was a high school student back then, and didn’t have the legal background or experience to understand or express why it felt wrong.

    My educational and professional experience has convinced me that, while the government can’t always be right, it can always be fair–because I can’t have Truth guaranteed, I want process to be guaranteed. And I feel like Texas has stomped on process.

    (Frankly, between Waco, the FLDS, and Bush, maybe I just have an Observing-Texas-Bias.)

  52. As for whether the practices of the FLDS are common knowledge, I sincerely don’t know. I know what I’ve heard, and I don’t doubt that it’s at least partially true, but I’ve never met a polygamist (okay, maybe an African polygamist, for all I know, but not a splinter-Mormon-group one). If the under-age marriage allegations are true, they should be prosecuted. And they probably are true; I just don’t know if that’s the norm or the exception, and I hear different things from different people, all of whom have reasons both to tell the truth and to lie/exaggerate.

  53. Mike in # 42. I’m not sure that the British Columbian government’s position can really be called more nuanced, unless nuanced means doing nothing.

    In the past, British Columbian attorney generals have been unwilling to prosecute polygamists as provincial government reports have determined that it would not stand up to a religious freedoms challenge under the Charter of Rights and Freedoms. However, there are growing numbers of people, including child advocates, who doubt that that the Supreme Court of Canada would find polygamy to be a constitutionally-protected right because of a strong precedent that exists in the United States and Canada that “one’s actions are measured by their effects and the law, not by their motivation.”

    A good overview can be heard here (part 1)

    If anyone’s interested check out:

    Preventing sexual abuse in a polygamous community

    Child Brides in Canada

  54. #44 – Check and mate.

  55. So there’s the 31/53 statistic, which looks pretty significant. More than 50% of that age group have been raped/abused/married/whatever. But what of the 31/416 statistic? (I’m not sure about my denominator, but you get the picture.) What happened to 7% affected the other 93% of the group. I understand that not all 416 can become pregnant (some are boys) and that more than the 31 can in the future (many girls are under the ages of 14-17), but my point is maybe those 31 or 53 should have been taken and the rest not. Because clearly not all 416 children in the community are currently (recently) being abused. I’m not suggesting that they could have known all that in advance, but it would sure temper the accusations of “overreacting.”

  56. Peter – I’m not buying the 31/416 or 53/416 extension.

    If the majority of 14-17 year old girls in this society were victims of sexual abuse, do you really think the rest of the children could be safe living with the perpetrators and enablers of that widespread a behavior?

  57. Adam Greenwood says:

    Duh, Tracy M. None of the accusations against Clemens have been anonymous.

  58. Duh? Duh? Is this fake-Adam Greenwood?

  59. Good work, Tracy. Any light shown on the abuses of the Texas authorities is welcome. Texas will inevitably be forced to pay millions in a future 42 USSC 1983 lawsuit, but it’s awful that innocent women and children suffer in the meantime.

  60. Mike and others who are disgusted with the FLDS beliefs and practices:

    I think the issue for most of those in the Bloggernacle who are objecting to what Texas has done here is due process, sufficiency of evidence, and the management of the process after the seizure of the children, which again has violated due process, e.g. in the mass hearing that was held.

    From my perspective, the Mormons around the Bloggernacle who are raising these due process concerns have no sympathy for the FLDS lifestyle and system of underaged marriage and have every interest in seeing perpetrators of sexual abuse or underaged marriage — or the emotional/spiritual abuse/manipulation of women — brought to justice and punished by society in retribution for their actions.

    This is similar to someone arguing in defense of the due process of law where a (non-FLDS) rapist is concerned for the sake of upholding the constitutional principles upon which our pluralistic democracy is able to function despite personal abhorrence at the crimes of the defendant.

    Interestingly, I have witnessed/been party to discussions in which castration of rapists has been suggested as a viable punishment for convicted rapists and people (who in this case have seemed less concerned about the process that has occurred with regard to the FLDS) have argued in opposition to the idea citing the intersection of due process concerns and the Eighth Amendment’s prohibition on cruel and unusual punishment.

  61. Nora Ray says:

    My oldest daughter broke her collarbone 3 times and her wrist once between the ages of 3 and 4. She was a gung ho kid (still is as an adult) and two of the breaks occured when she was with other people, one at daycare and one at a friend’s house. By the 4th time the emergency room people were looking at me a little funny but I can’t say as I blame them!

    Texas is now saying that many of the FLDS children show evidence of physical abuse such healed fractures. They are also investigating allegations that the boys were sexually abused. Could this be an effort to justify taking all of them from their homes or does anyone think these allegations could be true?

  62. “Could this be an effort to justify taking all of them from their homes or does anyone think these allegations could be true?”

    Yes, and yes. Unfortunately, due to the way that this has been handled (no parent and/or legal representative as the kids are being questioned), there probably is no way of knowing which it is. It’s a constitutional mess.

  63. Josh Smith says:

    john f.,

    This post is getting a bit old, so I’m not sure if my comments will be read. But, forward march.

    Your point is understood. You strongly disagree with the FLDS, but you don’t let your distaste for the FLDS interfere with your understanding of the Constitution–people who do bad things deserve the same procedural treatment as everyone else.

    You would probably also argue that the media and TX have been biased and completely misrepresented the FLDS to further their own interests–money, politics, etc.

    I completely agree with these positions. The Constitution applies to bad people just as it does good people, and TX and the media don’t have as nuanced a view of the FLDS as say, someone familiar with Mormon history. So we agree on those things.

    However, I don’t see grave constitutional violations. [Disclaimer: my law school grades were horrible and it probably had something to do with an inability to spot grave constitutional violations]. Concerns about the search and seizure are satisfied by (1) the group’s extensive, open history of sexually exploiting young girls, (2) the victims’ isolation in a compound, and (3) a phone call tip.

    Now maybe you’re upset that so many children were separated from their mothers. Yes, this probably could have been avoided. But it doesn’t amount to a constitutional problem. It is a logistics problem. There are no marriage records, no birth certificates, no records. You have statutory rape allegations and no way to tell familial relations. Siblings of abused children are regularly taken from parents (the abusive parent and the enabling parent) even though there is no evidence that the sibling has been abused. So separate all the children from all the mothers. Sloppy, insensitive, invasive, … but not something that raises constitutional concerns for me.

    So enlighten me. What exactly are the serious procedural deficiencies that prevent you from stopping the sexual exploitation of young girls in an isolated compound in rural TX?

    [Unless of course the person reading this is one of my old law school professors. In that case, consider your efforts to enlighten me a developing seed still in the germination stages.]

  64. Peter LLC says:

    Disclaimer: my law school grades were horrible and it probably had something to do with an inability to spot grave constitutional violations

    Best disclaimer ever.

  65. Josh Smith says:

    Thanks, … I think.

  66. Josh, I think that the best approach would have been to enter the ranch on the strength of the probable cause provided by the phone call seeking help. Due process would allow the caller and perhaps her siblings/sister wives and their children to be removed to protect them from the possibility of abuse from the alleged perpetrator while CPS investigates the case and the courts decide about custody in the interim.

    At the most, post-pubescent teenaged girls could have been removed en masse citing concerns of the group’s alleged history of underaged marriages provided by former members coupled with the isolation in which the group lives. It appears that means that at the most 53 teenaged girls or girls who could be shown to have been married/given birth before the age of 18, and of course also the children of those underaged mothers (who would then stay with their mothers while in state custody during the investigation against those girls’ “spiritual” husbands).

    There doesn’t seem to be a justification for removing the boys (absent specific evidence that they were in imminent danger of physical harm) or any pre-pubescent girls, especially not infants through 10 year olds.

    Both Voss, the CPS worker who made the decision to remove all of the children, and the psychologist the state called as their expert witness conceded under cross-examination that the young children were not in imminent danger of physical harm and that there were no signs of neglect for the children. Instead, the concern that justified removal for Voss and apparently the continued separation for the court was that the FLDS belief system creates an environment in which boys are raised to be perpetrators at some time in the future and girls are raised to be victims of underaged marriages at some time in the future. This doesn’t hold up under the standards required by the Texas statutes at issue (cited at Guy’s blog) or under the due process requirements of the US Constitution.

  67. Atticus Finch says:

    Mr. Smith,

    It’s a wonder you graduated from law school at all.

    But it doesn’t amount to a constitutional problem. It is a logistics problem. — Josh Smith

    As jonh f. has ably put it, separating that many children from their parents, based on one phone call, should raise all kinds of constitutional issues for you. There is no evidence of abuse of young boys or pre-pubescent girls. The alleged abuse occurred against one girl. There was only one phone call, only one perp. Limiting the investigation to the evidence at hand is not merely a logistics problem. It goes to the fundamental rights of the children and mothers who have been separated with absolutely no evidence of wrong doing.

  68. #55: I’m not a lawyer, or a psychologist, or an expert on abuse by any means, so I’m sure I could be overlooking something. The focus of the abuse allegations has been the girls between 14 and 17, but all the rest of the children were removed as a precaution. It seems to me that the boys were not in immediate danger, nor were the very young girls. Maybe they will be in danger at some point in the future, but until then can’t their mothers raise them instead of strangers in foster homes? Now, maybe the fact that some individuals have abused young girls means than they will start going after younger girls or boys once the 14-17-year-olds are gone, but I haven’t seen evidence for that yet.

    Comment #66 stated pretty well what I was trying to articulate. It seems to me to be at odds with “protecting the children” to take them away from their homes and parents and maybe even siblings, and introduce them into a society which views them as either “backwards” or “victims” and makes it clear that they are being given special treatment.

  69. Josh Smith says:

    john f.,

    I’m nearly persuaded. Fundamental constitutional right to raise one’s children. No evidence that the small children were neglected, abused, abandoned, etc. Absent evidence, state can’t intrude on that parent child relationship.

    Do you give any weight to the sibling-of-the-abused argument? That is, by living in a “household” where teenage girls are sexually abused, the small children are exposed to the abuse. Maybe the exposure is a harm that warrants removal from the parents? Of course, these usually play out in monogamous situations. Here, the water is muddied because it is unclear what the “household” is, or even who the parents are. Do you think there is anything to say for the argument that the FLDS practices create a dangerous environment per se?

    Again, I agree there is no evidence of physical harm.


    Your points are well taken.

  70. After this disaster I think the government should stay the %$#$% out of peoples personal lives permanently.

    I am starting to doubt that anyone would be stupid enough to kill or abuse their child. Child abuse is like suicide, it is illegal but there is no way to stop someone who is really determined to do it. Hopefully all child abusers will someday be extinct.
    It is all a bunch of hysteria to get people to accept the gestapo storming into homes.
    These poor Mormons with their blissful community probably never knew what was coming. How were they to know that their peaceful life at the farm raising children was illegal and immoral.

    More children are probably killed in car accidents than by their parents and I don’t see anyone wanting to get rid of cars to save the children …
    More children are being hurt than helped In this child warehousing taxpayer funded scam.

    There is NOTHING that can justify giving up Constitutional rights. Those who would trade their freedom for security deserve neither.
    Ben Franklin

  71. “These poor Mormons”

    “with their blissful community”

    We really do have a lot of work to do on both sides of this issue.

  72. Kelton Baker says:

    I wish to point-out some important facts regarding this statistic of 31/54 pregnant teens and other variants of the same.

    First of all, the cases of young teenagers being wed to men 30+ years their senior seems to be an extremely rare case and still far from being proven.

    Second, many of these teens seem to be joined with men who are less than 10 years older than them, (such as the one woman in state custody who recently gave birth at age 18 and her husband, 22). Why is this important? Because that is perfectly legal under Utah law, and the laws of age of consent for Arizona, Colorado, British Columbia apply.

    It is the burden of the Great State of Texas to prove that these women conceived children/ had sex while stationed on Texas soil while of unlawful age, because few, if any women were on the YFZ ranch prior to 2007.

    It is not right that these families are broken-up and destroyed at the hands of government because mainstream America in 2008 finds their religious views icky. If it is to be justified on the grounds that actual law-breaking abuse was being perpetrated, then the applicable laws should be considered, not what CPS wishes its case to be.

    Even so, CPS can never be justified for this blunt, overly-broad and unconsitutional mishandling.

  73. And don’t forget the often over looked fact that Texas recently had a marriage age of 14 which is probably why they moved there to try to be law abiding citizens

    The law was changed for the express purpose for prosecuting Mormons being that nobody else seems to be responsible enough to be married to the teenage girls they impregnate.

    Punishing people for being responsible seems to be a really stupid way to do things. This reminds me of the anti Chinese laws that prohibited men from wearing pigtails. What it the point of it all ? Persecution under colour of law.

  74. sister blah 2 says:

    You’re right, kathy. Not allowing a girl so young she can’t even get a learner’s permit, much less a driver’s license, to get married is exactly like racist pigtail laws. What is the point of it all? What could POSSIBLY be the point of not letting 14 year olds get married?! You’re so right.

    Are you serious? Really? Sorry–I’m not in a mince words mood–your comment sounds completely crazy to me.

    For the record, I agree with you that Texas only changed their laws because the FLDS came to town, and I think that was a good move on their part. It’s not really an issue most people think about in their daily lives (“hmm…I wonder if I can marry Susie yet or not?”) so probably everybody had lost sight of how young their ancient laws had set the limit. FLDS brought the issue to the fore, and they corrected the problem. “Yay for a functioning legislative process!” sez I.

  75. Sam Kitterman says:

    And now for two cents from another lawyer who graduated more than 20 years ago from a private school where the going tuition rate his first year was $85 a credit and his third year, an outrageous $130 a credit (last time I checked it was now up to $25K a year)….

    A phone tip of abuse would be grounds for an investigation as to that family and that individual, not a wholesale invasion of the compound and extending that one phone tip to the entire group. That’s a constitutional issue of such magnitude that if you missed it on a bar exam, you shouldn’t be passed.

    It appears Texas is trying to get the horse back before the cart when it started otherwise. Texas had no evidence before the raid as to widespread abuse of the children and yet, is now trying to backdoor the appropriateness of its actions by dropping tidbits about its findings regarding a) alleged physical evidence of broken bones among the younger children (although they have given nothing more than that statement) and b) a high pregnancy rate among the younger women. Given what has already been noted as to the age of consent for Texas and other states, item b just doesn’t cut it. Item A would be justification but again, not for the wholesale invasion Texas undertook as to this group.