Protection Racket

May 23, 2008 • Commentary
This article appeared in the National Review (Online) on May 23, 2008.

Court proceedings are underway in Texas to sort out the controversial seizure of 465 children from the religious sect near Eldorado. A Texas appeals court ruled Thursday that Texas’s Child Protective Services (CPS) failed to justify the seizure of the very young children and teenage boys. The Court said there was simply “no evidence” of immediate danger to them. More legal challenges are expected to follow.

To understand the stakes involved, it will be useful to revisit some of the key events and claims.

Culture shock is not a crime. Today marriage and child bearing are commonly delayed into one’s 30s, so there was some culture shock when the news broke about a raid on a religious sect where teen pregnancy was reportedly the norm. Texas law‐​enforcement officials may recoil from such behavior but it cannot send agents out on a whim to enforce a new set of rules. The Mormon splinter group, known as the Fundamentalist Church of Jesus Christ of Latter‐​Day Saints (FLDS), moved to Texas precisely because the state’s marriage laws were amenable to their religious beliefs. In 2004, the year FLDS members moved to Eldorado, Texas law allowed girls as young as 14 to marry with the permission of their parents. In 2005, Texas lawmakers heeded the advice of Utah Attorney General Mark Shurtleff to raise the minimum age that minors with parents’ permission can marry from 14 to 16. Shurtleff had experience dealing with FLDS communities in Utah. Texas also upgraded the penalties for bigamy from a misdemeanor to felony. There is nothing untoward about that — so long as those new laws are applied prospectively.

A Presumption of Guilt. Six weeks have now passed since the April 3 raid on the FLDS ranch and there have been no arrests for child abuse or child rape. The raid was prompted by an anonymous phone call by a lady named “Sarah.” “Sarah” claimed that she was 16, that she lived at the FLDS ranch in Eldorado, that she was forced into a marriage with a much older man by the name of Dale Barlow, that she had one eight‐​month‐​old child and that she was pregnant again. Texas CPS executed a search warrant at the ranch but could not find “Sarah” or Dale Barlow. Police now believe that the phone call was a hoax by a woman in Colorado who has a history of submitting false reports. Dale Barlow was found in Arizona. He has been interviewed by investigators, but Texas has chosen not to have Barlow arrested even though they had an arrest warrant for him when the initial raid took place. Texas CPS officials now stress that the seizure of the children is a “civil” matter unrelated to the raid and that the constitutional safeguards that pertain to criminal investigations do not apply. FLDS parents and their appointed lawyers were initially bewildered by the Kafkaesque manner of Texas’s “child removal” proceedings. The presumption of innocence was turned on its head, which means the parents were expected to prove a negative — that they committed no crime. Until yesterday’s ruling, CPS had been able to whimsically thwart any challenge to its authority. Some parents, for example, have tried to present government documentation, such as birth certificates and drivers licenses, to show they have violated no marriage law so that they could retrieve their children. Unacceptable, said CPS. When some mothers sought to meet with their attorneys before police interviews, CPS informed the mothers that if they left the shelter for such an appointment, they would not be able to rejoin their children, which are in CPS custody.

Every Child Supposedly in Danger. Most Americans are under the mistaken impression that Texas authorities have seized 465 children because of obvious criminality. Not so. Since the children are healthy, CPS has not accused any FLDS parent with neglect. And since boys and baby girls have been taken into custody, CPS could not possibly argue that those children are in danger of rape or a forced marriage. Instead, CPS claims the belief system of the FLDS religion with respect to women and child bearing constitutes a “pervasive pattern and practice” of abuse that poses a risk of emotional abuse to all children, including, apparently, infants. Had CPS simply taken 20 teenage girls into state custody as its investigation continued, there would have been no uproar. However, the seizure of every single child has now prompted the Texas appellate courts to step in and slam the brakes on what is now the largest custody battle in American history.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice