Monday, May 12, 2008
By, Wendy Kaminer Last month, I criticized the Texas ACLU for its timidity in defense of liberty when Texas authorities raided the polygamous “Search for Zion,” compound, forcibly removed some 460 children from their parents, on the basis of one anonymous phone call (since determined to be a hoax,) and then ordered mandatory DNA testing for everyone. ("Defending the Mormon Polygamists") So it's a bit of a relief to hear the ACLU finally speaking up with a little conviction about the consequent violations of individual rights. Actually the ACLU didn’t go so far as to accuse the state of constitutional violations; it expressed “serious concerns that the state’s actions so far have not adequately protected the fundamental rights at stake,” stressing that hundreds of children were taken from their parents absent individualized determinations of abuse and objecting to mandatory DNA testing. The ACLU doesn’t appear to be taking any action in the case, but it does promise to continue “to monitor unfolding events .. . making our views known to the Texas courts at appropriate points in the judicial proceedings.” In other words, at some future point the ACLU is likely to submit an amicus brief in a case brought by one of the parties. It’s the least the ACLU can do (and perhaps the most it will do.)
Meanwhile, hundreds of hapless children raised in a Mormon fundamentalist compound have been consigned to the notorious Texas foster care system, where according to a 2006 study cited in the New York Times, “more than half of all foster children ages 13 to 17 were being given psychotropic drugs to control behavior.” According to a 2004 report, “children with violent criminal records were being mixed in the general foster care population and …medically fragile children were underserved.” It seems likely that some children who escaped abuse in the Search for Zion compound will encounter it in the Texas child welfare system.
Thursday, April 24, 2008
By Wendy Kaminer
Finally. Robert and Barbara Curley have dropped their 8 year old wrongful death action against 18 alleged members of the North American Man Boy Love Association (NAMBLA.) The crime that provoked this lawsuit was horrendous: the murder of the Curley's 10 year old son, Jeffrey. But there was never the slightest bit of evidence, or even a reason to suspect, that the defendants in this case had anything to do with it. Jeffrey’s killers, who acted alone, are serving life sentences for murder.
What was the basis for the case against NAMBLA? One of his killers, Charles Jaynes, had been a member of it; he possessed some NAMBLA literature and had allegedly viewed a NAMBLA website before the murder. But the Curleys could point to no particular NAMBLA publication or statement that allegedly incited Jeffrey’s murder, not surprisingly. NAMBLA’s literature, some of which I’ve seen, included non-violent, soft core porn, and its website, (which I viewed shortly before it was taken down as a result of this case,) consisted largely of traditional political advocacy opposing “arbitrary” age of consent laws, while condemning sexual abuse and coercion. All this speech was constitutionally protected and did not qualify as illegal incitement to violence. (As I've noted previously, all in all, the NAMBLA website seemed less incendiary than many pasages in the Bible.)
So, the Curley’s relied on the most tenuous and speculative of claims: they asserted, quite implausibly, that Jaynes had been a heterosexual before joining NAMBLA (which, even if coincidentally true, would have been irrelevant,) and they cited “the totality of the child-sex environment.” You might as well sue an anti-abortion group, or the Catholic Church, for promoting the view that abortion is murder and creating an “environment” that encourages violence against abortion providers.
Of course, it’s easy to understand why Jeffrey's grieving parents would hold NAMBLA indirectly responsible for his death. But reason and respect for the law, not grief, are supposed to prevail in court. Any lawyer of above average intelligence who stayed awake during a first year constitutional law class would know that there was absolutely no merit to the Curley’s wrongful death action. They seem to have been badly advised by their lawyer, Larry Frisoli, badly used by the Thomas More Law Center, a conservative advocacy group that assisted in the case, and badly misled by Judge George O’Toole who allowed the wrongful death action to continue for 8 years (allowing the names of NAMBLA’s members to be disclosed,) despite the obvious and utter lack of legal merit to the case.
This was a case based on emotion, not law, and it tested our commitment to civil liberty. Thanks to the American’s Civil Liberties Union of Massachusetts (on the board of which I serve) for ably and bravely representing the speech and associational rights of NAMBLA defendants; in doing so, it represented your rights too.
CORRECTION: I originally and mistakenly wrote
that the case against NAMBLA had been dismissed; it was dropped by the
plaintiffs; and I mistakenly referred to the rape and murder of Jeffrey
Curley, when there was no clear evidence of rape in the case. Thanks
to Carol Rose, Executive Director of the ACLU of Massachusetts for
correcting me.
Monday, April 21, 2008
By Wendy Kaminer,
Now that Judge Barbara Walther has refused to release from state custody the 416 children taken from their parents in the raid of a polygamous compound in Texas, ordering all parents and children to undergo DNA testing, the Texas ACLU has issued a tepid, tentative statement of “concern” about their civil liberties.
"While we acknowledge that Judge Walther's task may be unprecedented in Texas judicial history, we question whether the current proceedings adequately protect the fundamental rights of the mothers and children," said Terri Burke, executive director of the ACLU of Texas.
"As this situation continues to unfold, we are concerned that the constitutional rights that all Americans rely upon and cherish -- that we are secure in our homes, that we may worship as we please and hold our places of worship sacred, and that we may be with our children absent evidence of imminent danger -- have been threatened," Burke said.
This general acknowledgment that the summary removal of 416 children absent actual evidence of their abuse threatens fundamental rights is preferable to the silence that preceded it, barely. The ACLU’s statement is more like an exercise in public relations than a defense of civil liberty; taking no stand for or against the state’s unprecedented actions in this case, which threaten to consign over 400 children to foster care, the statement seems designed to offend no one, while providing cover for the ACLU, should it be accused of ducking a hard civil liberties case. ACLU spokespeople sound more like bureaucrats than fearless advocates of individual rights: they carefully pay deference to state power to protect children, ignoring the dearth of evidence in this case, and stress that the ACLU “deplores crimes against children” and “stand(s) opposed to child abuse,” in case anyone thought the ACLU stood in favor of it.
Obviously anxious about appearing “soft” on child abuse (at a time when rational approaches to protecting children have been perverted by hysteria about abuse,) the ACLU prefers being soft on violations of civil liberty, when the liberties of wildly unpopular or politically incorrect groups are at stake, when standing up for civil liberty might adversely affect fundraising. The polygamous practices of Mormon fundamentalists are generally repugnant to ACLU supporters (they’re repugnant to me) even if they don’t involve the abuse of minors. Perhaps that explains why the ACLU statement is silent about mandatory DNA testing of the parents and children taken from the Yearning for Zion ranch. Elsewhere, the ACLU trumpets its concern about DNA data bases and opposes mandatory DNA testing of everyone arrested, stressing that “in America, people are presumed innocent until proven guilty” -- unless they’re members of a Mormon fundamentalist sect, I guess.
Friday, April 18, 2008
By, Wendy Kaminer
When federal immigration authorities summarily rounded up immigrant workers in a surprise raid at a New Bedford factory in March 2007, civil liberties and civil rights activists immediately entered the fray, defending the rights of workers and the estimated 210 children affected by the round-up of their parents. The ACLU, which considers immigrant’s rights a priority, helped orchestrate a swift and strong response to the raid and joined a lawsuit challenging federal abuses of power. When state authorities in Eldorado, Texas raided a polygamist compound two weeks ago, removing 416 children from their parent’s custody, the ACLU kept quiet, or, at least, it hasn’t spoken up loudly enough to be heard. (Key word searches of the ACLU website turn up no results, and I’ve found no mention even of ACLU commentary on the case in the press.)
But, from a civil liberties perspective, the New Bedford case was fairly simple: workers who posed no immediate risk to anyone were denied basic due process rights against summary detentions; their children were stranded. It was a legal and humanitarian fiasco. The Texas raid was based on concerns about the sexual abuse of children, which justifies immediate action, and it involved no summary, mass detentions –- unless you count the removal of children from their homes a form of detention, which the children well might.
The trouble is, evidence of sexual abuse at the compound is circumstantial, and the raid, removal of children, and ongoing legal proceedings against the sect raise serious civil liberties issues. The raid was reportedly based on a call for help from someone who identified herself as a 16 year old girl, but she has not come forward. A Texas ranger has submitted an affidavit supporting allegations of abuse, but they have not been tested in court. A child welfare official has testified that at least 5 underage girls from the ranch are pregnant, or already have children, but as long as the fathers are unknown, no one can be prosecuted for molesting the girls. And, even proof that some minors on the ranch have been abused is not proof that all minors there are at serious risk of abuse.
Can an entire community be held responsible for the abuse of minors in its midst? Morally, perhaps, but not legally. Can the prevalence of abuse be inferred from a religious commitment to polygamy and tradition of “marrying” young girls to old men? Not legally, however rational the inference seems. The state can’t remove one child, let alone 400, based on a presumption of abuse; it needs proof.
So, federal agents are searching the compound’s temple, an action that Gerry Goldstein, the highly regarded Texas attorney representing the Fundamentalist Church of Jesus Christ of Latter Day Saints, has likened to a search of the Vatican, (a search that, come to think of it, might also uncover evidence of crimes against children.) Of course, religious belief is no defense to child abuse, and this fundamentalist polygamous sect has no greater right to abuse children than any secular group; but it also has no fewer rights than more respectable, mainstream faiths.
Should the state forcibly remove children from Christian Science parents who would deny them medical care? It’s not hard to imagine the uproar that would ensue from police raids on Christian Science homes. Parents may be prosecuted for denying their children essential medical care for religious reasons, but the state does not take preemptive action against Christian Scientists, based on a presumption that their children are at risk.
If Christian Science were a less respectable religion, however, its adherents would likely be treated with less respect by the state. Consider a 1999 Massachusetts case (which I covered here) involving the forced removal of children from an outré fundamentalist Christian sect that eschewed modern medical care. While that case, like the case against the polygamist sect in Texas, was provoked by reasonable concern about serious risks to children, it also reflected the unreasonable (and unconstitutional,) diminished legal status of religions on the fringe. I’m not suggesting that the state should hesitate to act against religious groups that pose serious physical harm to children -- only that it should act against all religious groups with equal force and respect for equal rights.
Monday, August 27, 2007
Exhibiting all the scripted smarminess of its genre, “Kid Nation,” the new CBS “reality” show has distinguished itself by prompting an investigation into its compliance with child labor and safety laws. CBS recruited 40 children between the ages of 8 and 15 and planted them in an abandoned New Mexico town for an experiment in civilization building. The You Tube promo for the show promises to show us “40 kids with no parents, no teachers, anywhere” coping with “hot button” issues. Can these “incredible kids” succeed where adults have failed and build a better society, the pitchman asks. Disney meets Deadwood. The “Kid Nation” story, still unfolding, is being widely reported, and now that CBS is under investigation for exploiting children, it’s “trying to have it both ways,” the New York Times observes; the network is “ taking pains to assert that ‘Kid Nation’ was, in fact, crawling with adults: child psychologists, pediatricians and paramedics, all of them closely watching over the children.” Whatever. CBS’s shamelessness is unsurprising. I’m more interested in the alacrity with which people sign away their own autonomy (or that of their children) for a shot at celebrity. Civil libertarians should take note of how little some Americans value what might quaintly be characterized as inalienable rights – the right to speak freely about your own experiences and tell your own life story – or contradict someone else’s version of it. Consider the terms of the contract signed by the parents of “Kid Nation” contestants, described in the New York Times: It “ imposes extensive confidentiality requirements on the parents and the children, including that any interviews they grant must be approved by CBS. Those confidentiality conditions extend for three years beyond the end of the show, not the individual 13-episode cycle in which a child participates but the entire series, however many cycles it includes. The producers of ‘Kid Nation’ have already begun interviewing children to take part in the second installment.”
“Violating the confidentiality agreement carries a $5 million penalty. CBS and the production companies, Good TV Inc. and Magic Molehill Productions, retained the rights to the children’s life stories “in perpetuity and throughout the universe.” And that right includes the right to portray the children either accurately or with fictionalization ‘to achieve a humorous or satirical effect.’” Parents also “ agreed not to hold the producers and CBS responsible if their children died or were injured, if they received inadequate medical care, or if their housing was unsafe and caused injury.” This, in a society obsessed with child abuse: for a lousy $5000 stipend and the possibility of winning an additional $20,000, CBS purchased from parents immunity from liability for killing or injuring their children as well as the right to broadcast outright lies about their kids, forever, in this or any other galaxy: “in perpetuity and throughout the universe.” Objecting publicly to CBS’s portrayal or commercial use of your child will cost you $5 million dollars. (Do the numbers: The cost of violating the contract is 1000 times the reward for complying with it.) Apparently, at least one parent complained to New Mexico authorities about abusive conditions on the set anyway, but, remarkably, like a child, he or she remains under CBS’s control: According to the Times, “ CBS declined to allow a reporter to speak to the parent who complained to New Mexico authorities about the conditions at the production site.” Kid Nation indeed. This is, in part, a story about the infantilization of adults, and its political implications are unsettling. Only a nation of grown-ups can be free.
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