April 29, 2019 9:28AM

What Happens When the Government Goes Too Far Investigating Child Abuse?

N.B.: This post contains descriptions of medical examinations stemming from allegations of sexual abuse of a small child.

Over at Reason, Robby Soave reports a horrifying story out of Albuquerque. A kindergarten teacher alleged one of her students—pseudonymously “Becca,” age 4— had been sexually abused by both her father, Adam Lowther, and her seven-year-old brother, “Charlie.” With the aid of the police, the New Mexico Children, Youth, and Families Department (CYFD) removed the children from their parents and set off a course of events that traumatized the Lowther family and Becca in particular.

After the better part of a year, the prosecutor declined to prosecute Adam and he was reunited with his children—but after his career was derailed and his reputation in tatters after being accused of one of the most detestable crimes against his own child. Becca had been subjected to examinations and photographs of her genitals and anus without her parents present, and her family reports that she is now terrified of doctors. The Lowthers are suing all the individuals and organizations involved in the separation and investigation.

Certainly, government agencies have the responsibility to investigate claims of sexual and other abuse of children. But such investigations must be handled with the utmost care and prudence lest the investigation itself traumatize (or re-traumatize) the children involved.

According to the Reason report and the lawsuit, the authorities in Albuquerque acted in haste, with zeal, and disregard for the welfare of the Lowther children:

"The forensic interviews and physical examinations were conducted without a warrant or court oversight. CYFD, who was the guardian of the children, acted with indifference to the trauma caused by the forensic interviews and examinations. Indeed, the removal decision was made in furtherance of the criminal investigation—not to keep the children safe from harm. This itself was contrary to the children's interests and violative of their constitutional rights."

In a perverse and bitter irony, careless and overzealous government actors can inflict the sexual trauma they are charged with preventing.

While the Lowther case is particularly jarring, there is reason to suspect that law enforcement and other government officials are inflicting similar harms to children and their families across the country. Just last week, Cato filed an amicus brief asking for the U.S. Supreme Court (SCOTUS) to take a case that involved the warrantless strip search and photographing of a child at preschool.

The brief, and two other briefs we helped coordinate in the case I.B. v. Woodard, are part of the latest effort in our ongoing campaign to get SCOTUS to revisit the doctrine of qualified immunity. Under federal civil rights law, government actors “shall be held liable” for violating individuals’ constitutional rights in performance their duties. In plain English, individuals can be sued for civil damages to be paid to the victims they wronged. Qualified immunity is a court-made exception to that law, and effectively cuts off the only means of accountability for government agents who violate constitutional rights.

Administrative procedures—suspension, termination, and other discipline—are unreliable, at best, and are often shielded from public view by laws protecting government personnel records. Criminal charges are rarely applied to actions while a government official is on duty and, even when they are, convictions for even egregious offenses are very difficult to obtain. Thus, civil liability—which is explicitly provided for in American civil rights law and dates back to the English common law tradition—is supposed to be the primary method to hold government agents accountable.

As a result of the qualified immunity doctrine, government actors have little institutional incentive to respect the rights of individuals with whom they come into contact in performance of their duties. This is not to say that government actors are acting in bad faith. But in the Lowther and Woodard cases, one can assume the best intentions of everyone involved and recognize the zealous pursuit of evidence of abuse caused its own damage. An institution and its agents that are sensitive to the liabilities of their actions will likely have better safeguards and practices for collecting the evidence in such sensitive situations.  

Cato’s campaign against qualified immunity is not only about getting money to individuals whom the government has wronged. The campaign seeks to restore the best mechanism for government accountability that American civil rights law intended. What happened to the children and families in these cases should not happen again, and the courts should hold the government accountable to better ensure these abuses are not repeated.