Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

May 26, 2008

FLDS: EXPLORING THE SUBJECT OF ABUSE

Houston Criminal Defense Attorney Discusses FLDS Fiasco and the Disproportionate Resources Spent by the State to Persecute this Misunderstood Religious Group

The law enforcement raid last month in Eldorado, Texas on the Yearning for Zion ranch operated by the Fundamentalist Church of Jesus Christ for Latter Day Saints has morphed into the largest child custody case in state history. Charges of polygamy, sexual and physical abuse of children, and forced “spiritual” marriages between older FLDS men and underage girls have become part of the national political and social debate, particularly with respect to sexual and physical abuse of the church’s children.

This column has previously focused on the myriad of legal issues associated with the YFZ ranch raid and its aftermath. But the “FLDS case” has raised a number of social issues that beg scrutiny, especially in the area of abuse. There have been a number of vague and very broad allegations made by the Texas’ Child Protective Services of forced “spiritual” marriages between underage girls and older men, teen pregnancies, and sexual and physical abuse of girls as well as boys.

Various numbers have emanated from CPS with respect to how many children were removed from the FLDS compound and placed in state custody. The number ranges from 437 to 467. For the sake of balanced math, we will put the number at 450. CPS acknowledged that at least 300 of these children were 4 years of age or younger. That leaves 150 between the ages of 5 thru 16 who would be protected by state sexual abuse statutes. As a hypothetical, let’s say that one-third – 50 – were teenagers thirteen through sixteen. CPS said that 60 percent of these teenagers were either pregnant or had given birth to children. That’s approximately 30 teenagers who gave birth or are waiting to give birth.

Since the State of Texas recognizes the right of a minor 16 or 17 years of age to marry with parental consent, it cannot be considered per se “abuse” for any 16 or 17 year old girl to be impregnated. Male and female teenagers 16 thru 18 years of age can lawfully live together in a sexual relationship that produces pregnancy. A “child” protected from sexual abuse under Texas law is someone under the age of seventeen. See: Tex. Penal Code § 22.011(c)(1). See also: Mateo v. State, 935 S.W.2d 512 (Tex.App-Austin 1996). Thus, older FLDS members could be charged with inappropriate sexual conduct with any of the impregnated teenagers thirteen through sixteen years of age. See: Texas Penal Code §§§ 22.011(c)(1) [sexual assault, 14 thru 16 years of age], 22.021(a)(1)(B)(iii) [aggravated sexual assault, under 14 years of age], Tex. Penal Code Ann. § 21.11(a)(1) [indecency with a child, 16 years of age or younger].

How many of the 30 impregnated teenagers are “children” protected from sexual abuse under Texas law and, therefore, the victim of a crime is unclear. What is clear is that CPS and the media have dramatized, and even sensationalized, the accounts of purported sexual abuse at the FLDS compound.

An underage teenage girl should not under any circumstances be forced into a sexual relationship with anyone, especially an older man. No woman should be raped or physically abused. The State of Texas has a duty to not only protect such victims of abuse but prosecute anyone who forced them into unlawful sexual relationships.

But the public debate surrounding the alleged FLDS instances of abuse is far out of proportion to the reality of “abuse” in this country. For example, the Center for Disease Control reported last month that 91,000 babies were mistreated during the first year of life in the United States in 2006. This CDC figure was based on “substantiated cases” compiled by state and local children’s protective services. More disturbing is the fact that another 499 children died as a result of abuse in 2006.

“It’s a picture that you don’t even want to imagine,” CDC spokesperson Ileana Arias was quoted by the Washington Post (04-03-08) as saying. “That this number of infants are being maltreated. We find it incredibly distressing and unacceptable that children nowadays are being subjected to these kinds of behaviors.”

This horrific story of child abuse did not garner the national media attention as that lavished on the FLDS case. A total of 905,000 children younger than 18 years of age were reported abused in this country in 2006, according to the National Child Abuse and Neglect Data System. The Texas Adult Protective Services reports that only one in 3 instances of such abuse is reported in the state. One Internet blogger reported that some 18,000 child sex abuses case went unreported in Texas alone in the year 2000. Where were the CNN, MSNBC and Fox political pundits when it came to these staggering, mind-boggling instances of child abuse?

Abuse of the disadvantaged, underprivileged, and disabled is systemic in the state of Texas. For example, on February 5, 2008 the group CHILDREN AT RISK released its “2007 Growing up in Houston Interim Report” and it found that “child abuse and neglect is a serious problem in Harris County. The report made the following findings for 2006:

The Houston Region of Child Protective Services completed investigations in 31,147 cases of child abuse and neglect, but confirmed only 6,873 of the allegations (21.9%).

There were 44 deaths in Harris County attributed to child abuse and neglect with 13 children dying in foster care.

The number of alleged victims of child abuse and neglect was 51,191 in Harris County and a total of 275,539 in the entire state.

On May 4, 2008 the Associated Press reported that since 2005 more than 70 employees at Texas’ ten state operated mental hospitals were fired and dozens more disciplined for brutally beating and physically abusing mental patients. The Dallas Morning News obtained disciplinary records that showed “the violence against [mental] patients included chokeholds, headlocks, and threats,” the AP reported.

Texas has 18,000 mental patients supervised by 7,400 employees in its psychiatric hospital system. The AP reported that “Texas juvenile prisons, group homes for the disabled and state schools for people with mental disabilities all came under fire last year for reports of widespread physical and sexual abuse. The state psychiatric hospitals, like other systems for vulnerable Texans, are chronically starved for cash, advocates of more state funding say, and services at the local level can’t keep up.”

“You get what you pay for,” AP quoted Rep. Garnet Coleman, D-Houston as saying. “When you financially dumb something down, you make services cheap, something’s got to give. Unfortunately, it usually ends up being a mentally ill or disabled Texan.”

The Texas Department of State Health Services, the agency responsible for psychiatric hospitals, says it could substantiate only 5 percent of the more than 2,000 allegations of abuse each year. Over the past two years it confirmed only 15 “Class I” cases – the most serious cases of abuse. The state’s psychiatric hospitals, which maintain approximately 2500 patients on a daily basis, confirmed only 137 abuse cases in 2007.

Despite bureaucratic efforts to conceal the level of abuse, it seems that Texas state employees pose a greater threat of abuse to people than does the FLDS. This was made clear by another report from the state’s Department of Aging and Disability. This agency informed Associated Press last month that some 239 employees were fired in 2007 in the state’s 13 large facilities for the mentally and developmentally disabled. The AP reported that since 2004 more than 800 employees have been either suspended or fired for abusing patients in these facilities. The abuse has been so horrific that the U.S. Department of Justice is currently investigating allegations of abuse and neglect at the Denton State School, the state’s largest facility.

Texas has approximately 5,000 full-time mentally ill or retarded residents in its 13 institutions. The state’s Department of Family and Protective Services investigated 3,500 allegations of abuse of residents at these institutions in 2007, confirming 450 cases. 51 percent of those confirmed cases involved sexual abuse, 31 percent involved physical abuse, and 16 percent involved verbal or emotional abuse. Gov. Rick Perry said these figures demonstrate that the Department of Aging and Disability Services “is doing its job” in preventing abuse.

The Justice Department is not so convinced. The federal agency informed the governor that its investigation of the Denton school “will focus on protection of residents from harm; medical and nursing care; rehabilitation and treatment; and the failure to place residents in the most integrated setting as required by the Americans with Disabilities Act …”

Jeff Garrison-Tate, president of the San Antonio-based Community Now advocacy group, told Associated Press: “It indicates to me that there is clearly a culture of abuse or neglect in these [Texas] facilities.” Garrison-Tate said he suspects that only the “most egregious cases” result in firings and suspensions. “The bottom line is people are really getting injured, and they are not safe,” he added.

Human abuse has indeed become endemic in Texas. The Federal Bureau of Justice Statistics reported that between 2001 and 2005, some 1,933 inmates died in Texas prisons – more than any other state in the nation – many from physical abuse and medical neglect. California had 1,672 inmate deaths during the same period and it operates a larger prison system than Texas.

The Texas Department of Adult Protective Services reports that through 2005 the state had more than 2.2 million residents age 65 or older. Nearly half of them had a disability. The APS in 2005 completed 67,023 investigations of abuse, neglect, or exploitation involving older adults living at home. The agency confirmed abuse in 45,392 of those cases. Many of the abusers were family members. APS conducted another 8,169 investigations of abuse in state hospitals, schools and centers but did not disclose the number of confirmed cases in these state facilities.

It does not stretch the bounds of reason to assume that some members of the FLDS left the church’s headquarters in Hildate, Utah – a twin city with Colorado City, Arizona – and relocated in Eldorado in late 2003 because Texas law allowed minors as young as 14 to marry with parental consent. That law changed in 2005 increasing the minor marriage age to 16. But since the FLDS leadership knew some parents would readily grant permission for their young teenage daughters to wed older men, Texas may have seemed like a spiritual utopia. How widespread FLDS “spiritual” marriages were at the YFZ ranch remains unclear and may never be truly known. It is also likely that much of the hype stirred up by local CPS and law enforcement will turn out to be unsupported allegations propped up by a delusional “confidential informant.”

But what is known is that the State of Texas will expend a disproportionate amount of human resources and funds to stop the alleged FLDS abuse than it has to prevent statewide sexual abuse of underprivileged children, the physical abuse and neglect of the mentally ill, the physical abuse and neglect of the elderly, the physical and sexual abuse of the institutionalized mentally retarded, and the brutality and maltreatment of its penal inmates.

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