Problems for Texas' Prosecutions?

The State of Texas faces numerous potential hurdles in their presumed upcoming prosecutions. They will likely file statutory rape charges against any men in the FLDS they suspect of having had sex with girls younger than the age of consent and I would expect a variety of ancillary charges of sexual abuse, molestation, kidnapping, etc. Defendants will likely claim that they were married to the girl and therefore the sexual relationship was not illegal. If the marriage was celestial and no state marriage license had been issued then the defendant will likely claim that they could not obtain the license because of Texas laws against polygamy, that these laws are unconstitutional, and that they could not even apply for a license due to fears of religious persecution.

NOTE: Sexual abuse is a horrendous crime and anyone guilty of it should be prosecuted to the fullest extent of the law. The question in this case though is if it is sexual abuse when two people are married and everyone including the bride, groom, and parents are supportive of the arrangement. We must also remember that the marital lifestyle of the FLDS is actually more in line with historical practice and Biblical practice than even our wished for monogamy. EG, leaving aside our love of divorce, serial monogamy, casual sex, uncommitted polygamy, single-parent households, etc.

This case may also have implications far beyond Texas. It involves issues that could be very significant for every person in the US with regard to privacy. When may law enforcement or other government authorities enter a private home? What constitutes reasonable suspicion upon which to base a search warrant? Will this give law enforcement the ability to obtain a search warrant for any home in the US with a pregnant woman in it simply by saying that they believe the pregnant woman to be underage? To what extent can law enforcement rely on anonymous calls to intrude on citizens privacy without verifying the identity of the caller and the veracity of their story? What rights do state authorities have to remove children from parents and what level of abuse must be provable? What danger are any of us in from authorities acting on anonymous calls or other dubious tips in taking actions such as entering homes, conducting searches, or removing children?

Let’s look at some of the potential problems of this case.

Validity of First Search Warrant – This warrant was issued to search for an anonymous 16-year-old. There are questions about it’s overall validity and of the admissibility of evidence. Did authorities have any suspicion that the call was a hoax? How long did law enforcement wait from when they first learned of the caller and when they obtained a search warrant and entered the ranch to search for her? If they believed this girl were in imminent danger should they not have obtained a warrant and gone to YFZ immediately? What efforts were made to determine where in YFZ ranch she was located, which house was she in? During the time they waited did authorities make any effort to verify the identity of the caller such as tracing where phone calls originated or to verify her story in any way?

Validity of Second Search Warrant and Evidence – This warrant for an in-depth search for evidence of widespread sexual abuse is based on suspicions from the first warrant including; female hairs on an unmade bed in the temple, a 15yo who said that a 16yo was pregnant, an 18yo who had a 10mo baby with her 33yo husband, an 18yo who had a 1yo child with her 36yo husband, a 19yo who has a 1yo and 2yo, a 16yo with no children who is married to a 40yo, a 16yo who is currently pregnant, testimony of an 8yo who said a 16yo has 4 children, a confidential informant who said that beds in the temple are used for sex with underage girls, and a document seized during the first search indicating numerous marriages but no divorces thus leading to suspicion of polygyny.

The Reality Element: While 5 teen pregnancies in a population of over 700 people might seem high to those few privileged folks in the nicer suburbs of America, it’s actually a normal number for many neighborhoods and rather low for the average inner-city neighborhood.

With the exception of the supposed 16yo with 4 children all of these would likely be legal within a marriage. So, if the girls under 18 were not married then their husbands may be guilty of statutory rape, if they are married and to multiple women then they are guilty of bigamy.

The Absurdity Element: If only the FLDS had followed our socially acceptable practice of serial divorce and each man had divorced each wife before marrying the next they’d all be OK. No bigamy, no statutory rape. But stick around as a husband and help raise the kids and we’ll take your kids.

With this warrant signed Texas authorities entered the ranch at 2am, began an in-depth search, and removed every child under 18 as well as a number who claimed to be adults but who authorities suspected of being under 18.

Some potential problems:

- If any part of the first warrant is proven invalid then much or all of this second warrant may be in jeopardy.

- At least 26 of the 31 girls Texas authorities said were underage mothers or pregnant turned out to be adults. One of these was at least 27. There are serious questions about the status of at least 4 of the remaining 5. Is it reasonable that every time someone sees a pregnant girl whom they believe to be underage that an investigation ensue? Given that Texas authorities were wrong at least 84% of the time with underage identification does that leave sufficient reasonable suspicion to uphold the second warrant? How believable must reasonable suspicion be before a search warrant is issued? To what extent can law enforcement fabricate a ‘reasonable belief’ just to obtain a warrant for a witch hunt?

- Were searches of individual homes legal without individual search warrants for each? Can authorities obtain a blanket search warrant for an entire 200 unit apartment complex and every individual apartment within it based on a belief that 5 underage girls may be pregnant? Any evidence seized from individual homes may not be admissible.

- Is there any proof of premeditation on the part of the authorities to obtain this warrant prior to the first warrant being issued? Was the initial warrant simply an excuse to get on the YFZ ranch for a witch hunt?

- There is a significant credibility gap with Texas authorities having proven wrong on numerous occasions and FLDS members not being proven wrong on any occasions. Attorneys are sure to raise this with any court testimony.

- Will ‘victims’ testify? Any girl who is willingly married to her husband will likely be reluctant to testify against him with regard to any charges and without victim testimony a conviction of any sort may be difficult.

Constitutionality of Texas Change in Marriage Age – Prior to the FLDS establishing YFZ the State of Texas issued over 800 legal marriage licenses per year for girls under the age of 16 to marry and often to men twice their age. State Rep Harvey Hilderbran, who sponsored legislation in 2005 to raise the age of marriage from 14 to 16 appears to be on the record as stating that he did so specifically because of the FLDS presence. This could raise serious concerns over religious persecution as well as challenge the constitutionality of the change in age.

This could have far reaching impact. The first search warrant was based on an adult having sex with a 15-year-old girl whom he was supposedly married to and on the warrant states that it is illegal for a 15-year-old to marry. This law being declared unconstitutional could throw water on the first search warrant. This will, I believe, directly invalidate any cases based on girls marrying between the ages of 13 and 16. Finally, this could be one major element in establishing a pattern of religious persecution that can not only be used as a partial defense of not having applied for marriage licenses but also in future lawsuits against the State of Texas.

Constitutionality of Polygamy Laws – Is a prohibition on bigamy, polygamy or polygyny constitutional? The US Supreme Court has already ruled against Texas with regard to Sodomy laws in Lawrence v Texas and in his dissent of that opinion Justice Scalia raised the very issue that this opens up the potential that a prohibition of bigamy, like sodomy, is not a legitimate state interest and thus a prohibition of bigamy is unconstitutional.

Given the vast problems in our ‘monogamous’ society of serial monogamy, serial divorce, teen sex, teen pregnancies, HIV/AIDS/STD outbreaks, single-parent welfare homes, and crimes committed by children raised in single-parent homes, the State of Texas may have an extremely difficult time arguing that there is a legitimate state interest in prohibiting a polygynous arrangement where none of these problems appears to exist.

The upshot of it all. Could the FLDS be more cunning than we ever imagined? Within months of SCOTUS’ decision in Lawrence v Texas the FLDS were setting up shop in Texas. My guess is that we may find that the FLDS were careful within the State of Texas not to violate any laws except polygyny and that they’ve been conducting themselves in a way to force the State of Texas to defend their prohibition on bigamy as a legitimate state interest in order to prosecute the FLDS for anything.

Stay tuned, this will get interesting.