Guilt by Group?
Claudia’s recent interview with an ex-member of the FLDS group in Texas renews my longstanding concern about what can happen when religious freedom is subordinated to societal prejudices about what is “normal”. Certainly, the sexual abuse of children is a legitimate matter for law enforcement and the FLDS group provides more than sufficient cause for an investigation. But our standard for that investigation should remain focused on the acts of individuals rather than an attempt to punish all members of an entire religious group based on assumptions of group guilt, as demanded by the state of Texas and Mr. Zettig. And we should certainly be careful about doing anything so sweeping based in any part on the testimony of those who claim to be former members of that group, as such information is often unreliable.
After over a decade of involvement with religious freedom issues, I state confidently that unfortunately, ex-members are often the least reliable reporters and interpreters about the beliefs and practices of a religion. This is a problem for two reasons.
First, ex-members often have an axe to grind against their former religion. Often, this is the reason they left in the first place. Other times, bias is a result of after-the-fact desires to justify and explain their decision to leave. Either way, they will tend to exaggerate negative recollections and refuse to accurately report more positive aspects.
Second, ex-members are prone to recruitment by those who hate the religion in question for other reasons. Because they have lost a community by leaving one religion (particularly an insular one like the FLDS), they are vulnerable to promises of community by another group for whom their prior membership is strategically useful. For example, those who leave the mainstream Mormon church often find themselves targeted for recruitment by the many anti-Mormon groups that rely on a supply of “ex-Mormons” to give the veneer of credibility to their longstanding distortions about Mormon beliefs.
Does this mean that Les Zettig is lying? Of course not. It merely means that the testimony of ex-members like Zettig should never be taken as the final and authoritative description of a religious group like the FLDS, especially when they are accompanied by the kind of overt emotionalism and sweeping assertions that are included in the above interview. Of additional concern is the fact that even if Zettig is reporting truthfully and accurately, his information is almost 40 years old, yet is being used to justify and support state targeting of an entire religious group (taking away ALL of their children) right now. At a minimum, we should reject instances of calls like Zettig’s to assume that first-hand statements of actual members of a religion should be subordinated in favor of the claims of those who hate that religion.
To accept anti-FLDS reports as accurate without any need for further investigation (as demanded by the state of Texas in their unprecedented actions and court pleadings) would lead inevitably down the road of the loss of all meaningful religious freedom, as minority religious practices are particularly vulnerable to exaggerations, distortions, selective reporting, and even pure stereotypes based on decades-old information. Any religion that departs from the norm would be vulnerable to exaggerations and distortions of ex-members and the application of sweeping communal guilt (i.e. making all members of the group guilty for the crimes of some of them).
Do any of you think that your religious group could stand up to such a standard? Are all Catholics guilty of the sexual abuse of children? Should Catholic children be seized by the state to prevent them from attending communion because some Catholic priests have abused children? Let’s get a grip on ourselves before suspicion congeals into bigotry and strips away normal standards of caution that inhibit us from taking children away from their parents without INDIVIDUAL evidence of abuse.
Consider that what we are talking about here is taking away the parental rights of 400+ parents based solely on the uncorroborated allegation of a telephone caller who cannot be found in person and an assumption of group guilt based on rumors and innuendos.
Even if it is found that there were some incidents of child abuse, should that result in the loss of the children for ALL members of the ENTIRE FLDS community? Should we also have the state seize the children of all Muslims because some Muslims have forced their daughters into sick “marriages”?
The entire conversation of the FLDS group in our media and blogosphere lacks a sense of perspective and a sufficient concern for the dangers of acting based solely on partial evidence and bald stereotypes. I’m embarrassed that Poligazette has so carelessly and credulously endorsed Mr. Zettig’s proclamations while being heedless of their broader implications for personal liberties.
Bottom line: Individuals who are found to have been guilty of the sexual abuse of children should be punished severely. Children who are found individually to have been abused or who are threatened with imminent abuse should be removed. But all members of whole religious groups should not be stripped of their rights simply based on the application of group guilt. That would be incompatible with the standards that we would demand in any other context. If we are a society that wants to truly claim to value religious freedom, simply being a member of a spooky religious group should not be illegal.
Jason, will you at least concede that these kinds of religious groups present a special challenge, because the secretive and ‘cloistered’ aspect can so easily lead to people being exploited by the group’s leaders?I mean, in answer to your question about Muslims I absolutely agree that we shouldn’t seize children from Muslim parents- but if there were a compound of Muslims who appeared to be practicing an extreme form of fundamentalist Islam, complete with Sharia law and honor killings, and some people who left the group were reporting these things, then I absolutely do think it should be investigated to the full extent of the law and that might include the removal of children for their safety until the investigation showed whether or not they were endangered.
Same goes, of course, if there was a compound of priests who were reported to be abusing children. In fact the same kind of arms length dealing with these things exacerbated the effects of the Catholic priest pedophilia scandals- law enforcement was too willing to allow the Church to handle the problems internally, and the priests were too often handled as individuals rather than a systemic problem.
There’s a balance there that has to be acheived, no doubt, but if Claudi and Les erred in one direction, I’d say you are reacting in the other direction.
Yes, I am. I have personally experienced some of the consequences of what happens when individuals are treated as members of groups rather than as individuals. I fear what could happen if such prejudices become the basis for wide-sweeping state actions.
All I ask is that the investigations apply the normal standards of individual guilt rather than the presumption of guilt for all members of an entire religious group, even those that live in communal settings. To do otherwise would destroy any meaningful type of religious freedom for millions of people. I’m not suggesting that we allow it to be an “internal matter”, so I don’t know where you came up with that.
Also, what about Amish villages? Do they count as a "compound" subject to the new, group-based standard of having the state decide whether individuals get individualized legal treatment or not? Let’s explore this new legal doctrine a little, Christine, before we embrace it just because we find the FLDS spooky as hell.
Jason, I agree with your caveats, but I also agree with Christine’s point that these sorts of group lifestyles present particular, very difficult challenges. It is indeed a fact that some people wind up staying in such circumstances because of, let’s call it, social compulsion. Others stay in the group and do not report crimes to law enforcement officials for fear of both physical retaliation and for fear of ostracism and shunning. As a matter of practical reality, this deprives at least some of the weaker people in such communities of the ability to exercise and protect their rights… and it is precisely the group nature of the community that creates these problems. We cannot ignore those realities without the risk of creating enclaves within our own country where citizens are not entitled to the same rights as the rest of us.
That is of course not to say that all funny-seeming groups, all communes or "cults" or "compounds" are like that or should be banned or subject to intense scrutiny in the absence of probable cause. But it is to say that we cannot ignore the unique problems they present.
To add a bit…. Certainly no individual person should be convicted of a crime simply because they live in a tight-knit community where others, even many others, have committed crimes. At the same time, the religious nature of the community does not insulate its inhabitants from normal criminal laws, including laws regarding criminal conspiracies. If a member of such a community assists in the commission of a crime by helping discourage victims from reporting crimes, by helping to destroy evidence, by helping create an environment of fear in order to deter victims from seeking help, then those individuals can and should be held responsible for such criminal violations, even if they did not themselves, for example, rape a child.
But I do agree with you that we must be very wary of assuming the worst in such cases. The McMartin preschool cases and similar horror stories show that we have in the past been prone to jump to conclusions where allegations of sex crimes against children are concerned.
If we at ANY point empower the state to act on its own determination of groups where "weaker members" face "social compulsion" preventing them from leaving, then we will not be able to find any identifiable embankment on the slippery slope to de facto banning of such groups.
To the extent that there are "unique problems" from certain types of social or religious groups, we have to deal with them socially rather than legally or, at least, restrict legal dealings to INDIVIDUAL determinations of problems found in INDIVIDUAL cases. Once we start acting against entire groups, the foundation of any meaningful individual rights is completely lost, never to be recovered.
To put it another way — how about you provide a list of groups that will be subjected to special standards of state intervention because of their alleged "social compulsion"? AT the point we begin with such a list, I am confident I will be able to find analogous situations where the state would, under the exact same standards of identifying "social compulsion" wind up being empowered to target a group that you wouldn’t want to target. At that point, my concern about the "slippery slope" would be proven justified, as I think you would both concede that the state always shows a tendency to expand its power to analogous situations whenever such an opportunity is available.
I draw the line here at the FLDS not because I endorse their teachings or practices (many of which I find repugnant and creepy at best), but rather because the seizure of ALL their children represents a type of state power that is staggeringly dangerous in its broader implications. It is genuinely not much an exaggeration to start talking about “dictatorship” if we continue down such a path. (And you should know from my prior posts and comments that I am NOT one to talk of “dictatorship” loosely or merely rhetorically.)
As Pat says, it’s not a matter of having suspicion just because a group is isolationist in nature or seems weird. I’m only suggesting that when there is probable cause to investigate, I think the communal nature poses special problems, and I think you go a bit too far in insisting that the potential crimes are only individual if there is basically a cover up involved. Once it is determined whether or not the girls were abused, then I think that the nature of this group also leads to suspicion that some other adults in the group may be accessories if they failed to protect against the abuse.
Of course I realize you’ll probably respond that you didn’t mean that the crimes should only be treated as individual crimes if there really is evidence of that kind of complicity- and I think this is what you mean, but I didn’t feel your meaning was entirely clear.
Just as, I suppose, my meaning wasn’t clear about ‘internal manner’. What I mean by that is that with the Catholic Church scandal, for example, when there was any involvement of law enforcement, there was always a tendency to treat the cases as individual crimes and to not press the Church to address it systemically. I happen to think they erred too far in allowing the Church to police itself in that there was no requirement to ensure that offenders were handled in a way that they wouldn’t pose a further danger to children. Of course I blame the Church authorities as well, but I think giving too much free reign in the name of religious freedom meant that a layer of protection against that systemic problem was absent.
Certainly. Such relationships can also be investigated individually without simply assuming that the entire group is automatically guilty. Determinations of whether individuals knew of crimes and failed to act must be made individually, not simply assumed by virtue of group membership. Even though such investigations may be tedious and difficult, such difficulties are necessary and the avoidance of the temptation of sweeping group-based guilt assignment is necessary in order to avoid embracing a fundamentally repressive standard.
Jason, just to clarify, do you basically agree with Pat’s first paragraph in comment #5? Would that type of criminal conspiracy (if investigated and prosecuted according to normal laws) be an example that would meet your standard of an "individual" case? IOW, your choice of the word "individual" seems to indicate that you wouldn’t agree to broaden investigations to see if there is a conspiracy in these cases, when I think that what you really mean is just to apply the standard to "specific" cases, meaning not necessarily one individual if others are complicit.
Of course. As long as normal legal standards are applied as to whether individuals implicated (1) knew of criminal acts and (2) failed to act in accordance with normal legal duties to protect others, they should be held accountable as individuals. Also, normal standards of accessory after the fact should be applied, such as knowingly assisting in the suppression of evidence or the intimidation of witnesses. “Knowingly” is key here, as it requires the state demonstrate that an INDIVIDUAL knew of the criminal acts and failed to act or acted to assist in a coverup.
But that is not what the state of Texas is asking the court to do. They are asking for a sweeping, no-exceptions determination by the state stripping ALL parents in the FLDS of their parental rights. The state is not even presenting evidence of individual wrongdoing OR conspiracy in each of the 400+ cases. Instead, they are asking the court to simply INFER such guilt based SOLELY on membership in the FLDS and WITHOUT demonstration of ANY evidence about what individual parents did or did not know or do. That is such an unbelievable and unprecedented broadening of state power over religious groups that I can’t even comprehend why my objections are controversial here. It can only be that the specter of sexual abuse of children is causing a suspension of normal standards of evaluation, just like it did in the McMartin travesty in the 80s.
Furthermore, the state is acting without demonstrable probable cause, as it is unable to produce the reporting witness. Instead, it simply wants the court (and the populace — us) to ASSUME the truth of the allegations because of the rumors and innuendos spread by the likes of Mr. Zettig. I can’t believe our legal standards have degraded to the point that we take as unquestionable legal truth the truth of embittered ex-members and start taking people’s children away without benefit of appeal or redress.
My comment 9 crossed with your 8, Jason, so you’ve already pretty much clarified- but note that I was pointing out that your use of the word "individual" was a bit confusing (maybe my fault, but still…) because it sounded like a limitation on broadening the scope beyond the individual directly responsible for the crime.
No. To be as clear as possible, I will reiterate. All I want is the maintenance of normal legal standards, including little trivialities like presumption of innocence and requirement that the state demonstrate individual culpability and intent before being allowed to take ANY punitive action (and I think taking people’s children away from them IS punitive, though I am aware of the dodges that the state is attempting in this detail). All I object to in this case is the state of Texas’ and Zettig’s (de facto) demand that those normal standards be abandoned just because the group in question is creepy and weird.
That is such an unbelievable and unprecedented broadening of state power over religious groups that I can’t even comprehend why my objections are controversial here. It can only be that the specter of sexual abuse of children is causing a suspension of normal standards of evaluation, just like it did in the McMartin travesty in the 80s.
Well, that plus I have to admit to not knowing some of the details about how the state of Texas is handling the case. From what you are saying, I can see your point more clearly, and I don’t know all the legal details about how I even think the state should proceed.
Jason, I’ve read reports of the state bending over backwards to ensure legal representation for all the children, all the mothers, everybody involved. I have not seen, so far, any reports that the state are asking for the sweeping "no exceptions" usurpation of parental rights that you describe. Could you point me to a link?
If the police acted solely on that one anonymous phone call, I would agree with you. My understanding was that after they investigated that phone call, they uncovered additional evidence, such as several 16-year-old mothers, which would justify a much broader, more intrusive investigation. When you combine that sort of evidence with what appears to be the publicly-stated beliefs of the group, then I do think that begins to justify what the authorities have done so far, though again, I agree with you that the final decision to remove a child from someone or impose criminal penalties must be an individualized one.
Half right. The state has gone overboard to provide representation for the individual children, but the mothers have had to find attorneys for themselves. That is self-interest on the part of the state, since the attorneys for the children can be expected to support the state’s demand to remove the children, in the "best interests of the child", of course. (It is assumed without question that the best interests of children is to get them away from any weird, non-conformist religious group.) (Also, if you know about how Texas assigns free representation in criminal cases, the potential for corrupt relationships between prosecutors and the appointed attorneys has already been long known. And since they have done it in death penalty cases, I hardly think it is beneath them to do it in a child sex case involving one of dem dere creepy spooky “non-Christian cults”.)
It is also worth noting that the state seized all communications devices from the defendants AND the removed children, ostensibly to prevent witness tampering, but AGAIN without any showing of individualized risk of tampering. The "special conditions" of withholding communications was based on nothing except the PRESUMPTION that group members were guilty of conspiracy and witness intimidation until proven innocent. It is not an exaggeration to compare such tactics to those of the Soviet-era KGB or Stasi.
I need point you to nothing more than the fact that the state removed ALL of the children PRIOR to any detailed investigation of individual circumstances and is now asking the court to make that revocation of parental rights permanent BEFORE actually investigating anything.
If the state were complying with normal legal standards, they would allow the children to return to their normal homes (perhaps with some form of monitoring) until AFTER the outcome of regular legal proceedings. At a minimum, the state should be required to do physical examinations to identify evidence of abuse BEFORE justifying any permanent seizure of the children.
As far as I know, there is ZERO evidentiary basis for the seizure of male children AT ALL. But the little detail that half the children involved are safe even under the worst set of assumptions about this group’s practices hasn’t even given the state the slightest pause about seizing them too.
The uncorroborated phone call was the basis for the original incursion into the compound. They proceeded immediately to seize all the children and take away all means of communication. In the process of those seizures, they noted pregnant teens. Legitimate probable cause for a search and seizure cannot come AFTER the search and seizure begins, it must be presented to the court as the basis for the warrant in the first place.
That said, I’m personally inclined to let that one slide in light of the clear evidence of child abuse. But I would still object to the overly broad application of the seizure, expanded to include ALL children, regardless of age or gender or ANY showing of acts by their INDIVIDUAL parents.
When you combine that sort of evidence with what appears to be the publicly-stated beliefs of the group, then I do think that begins to justify what the authorities have done so far, though again, I agree with you that the final decision to remove a child from someone or impose criminal penalties must be an individualized one.
But what the state has done "so far" has already dramatically exceeded that. They seized ALL the children, not just ones where there is evidence of abuse (pregnancy is prima facie proof of individual abuse of a minor). And the state is seeking to make that seizure permanent in ALL 400+ cases, again PRIOR to any actual investigation or legal finding.
It is an outrage with extraordinarily dangerous legal implications for anyone who is a member of any minority religious OR ideological group. What other teachings might be found "dangerous to children"?
I think you are confusing the removal of custody case with a criminal case. A civil child abuse case has very different legal requirements than a civil case. A child may be removed from parents if he is “at risk” of injury, not just based on an injury. Children in civil sexual child abuse cases are REGULARLY kept from their parents immediately after the abuse comes to light. Not just these FLDS kids. This is happening every day, all over the country. Just not at this scale.
If the child welfare authorities believe and are able to prove a risk to the children in the home who have not been specifically abused, those children are removed. That is what the Texas officials did here. The environment the kids were living in allowed sex and “marriage” between older men and young teens — all of the children, girls and boys, were in an environment where this was the norm. I personally agree that this kind of environment is abusive to all kids — boys and girls. I don’t believe that the FLDS would argue that the teenage girls who are pregnant are aberrations — that they rebelled and got pregnant. These are their societal rules and I think the Texas child welfare officials are questioning a society that allows this and arguing that it is not a safe environment for any kid to live in.
The state seized all of the children because all of them are living under the same coniditions. If I was an attorney for the child welfare authorities here, I would be arguing that these kids are, in effect, all living in the same home, under the same rules.