No one likes child abusers. Before the Supreme Court decided to codify in our Constitution the European notion that child molesters should suffer repeated rape in prison rather than be put to death, Louisiana made child molestation a death penalty offense.
However, as any conservative knows, "for the children" is a codeword for "this is going to hurt." Anyone who watched daycare workers and parents put through Hell because overzealous prosecutors, usually without children, wanted some plum prosecutions and found a convenient target, knows the story. (I'm looking at you, Janet Reno. But only reflected in a well-buffed shield.) The cases follow a familiar pattern: A child is locked in a room with intimidating authority figures -- police, teachers, or some combination -- and told to simply tell them where daddy/mommy/the teacher/the daycare provider touched them. If the child denies it, well, she must be scared of punishment, right? Just keep asking. Lean in a little closer. When she asks to leave, well, she must still be scared she'll get in trouble. Make clear she can't leave just yet, but as soon as she tells you where she was touched/where the animal sacrifice was held (that's not a joke), someone will get her something to drink and everything will be ok. The police/teachers are just here to help. Just talk. Then you can go.
Once she talks -- even if she recants -- the target is basically looking at a certain conviction, because child abuse is so terrible, juries rush to verdict, and defense attorneys know this. A parent's child becomes a gateway to ripping away his civil rights and the presumption of innocence. Every attorney charged with defending an accused child molester knows he'd have a better chance defending a charge of genocide. I've been there, and God knows I'm not the only one.
Fortunately, we have nine robed masters who look all primed to set a muddy balancing test for prosecutors to follow in the future. The Washington Post tells us that the Supreme Court is going to pretend to care about an accused child molester's rights. Here are sketches of the facts -- facts that are extremely common in these cases.
In Oregon, a 9-year-old girl was escorted from class to a school conference room, where a child-welfare caseworker and a police officer questioned her about whether her father had touched her inappropriately. After two hours of questioning, she finally said he had, a statement she later recanted.
In North Carolina, a 13-year-old was pulled out of class for a closed-door meeting with police officers and the principal, where he was urged to do the right thing and eventually implicated himself in a recent burglary. He was not given his Miranda rights because the interview at the school was not considered official police custody.
The gall of this is remarkable. If the police did this to an adult -- put him in a room with police and authority figures, refusing to let him leave or obtain counsel, until he talked -- you would hear the screaming from the rooftops, and rightfully so. But a child -- that is, someone who has less of a will to overcome -- is basically tortured by social workers into implicating himself or her parents in some crime, and, well, that's ok. As anyone who has ever dealt with child protective services knows, you're invariably dealing with childless, 2.0-GPA-sociology majors who believe that all two-year olds have mastered walking and running, and that no child ever gets hurt except that a parent strikes her.
And courts almost invariably agree with these mouth-breathers. Any attorney who does domestic litigation -- divorce, child custody, that sort of thing -- has pounded his head against his desk at least once on being told by a client that "there's no way a court would let this happen," or "the government can't get away with this -- the judge will stop them." Folks, courts are the government. Judges -- disproportionately men and women decades from having young children, who see too many bad things happen too often -- tend to presume that the case workers who failed Flower Arrangement 102 (Intro to Tulips) must be right, and that the parent who let the toddler run out the front door after having slipped a diaper must be a sexual sadist.
It is judges who order parental rights terminated.
Until you've had child protective services threaten to take away your children, or your client's children -- and then begin a torturous ordeal in which the semicompetents make you prove the negative that you didn't abuse your children -- for refusing to speak to them, it's hard to fathom that this is actually an everyday part of our system of laws. And how can this be, you ask? I'll spare you talk of the doctrines of in loco parentis and parens patriae and the distinction between them; I'll let Oregon's Attorney General sum it up.
Oregon Attorney General John R. Kroger told the court in his brief that providing a judge with probable cause for a warrant in child-abuse cases is often impossible without interviewing the victim. It should be obvious, he said, why parental permission is not always an option.
"Protecting children from abuse is one of society's fundamental goals," he wrote. "The government has a compelling interest in conducting child-abuse investigations in a manner that is least likely to be traumatic for the child and is least likely to taint disclosures of abuse."
For those of you who don't speak legalese, the nice attorney is saying that the State should be able to torture your children into testifying against you, because the State's duty to prevent child abuse trumps your due process rights and your relationship with your child. It's worth noting that the Obama administration and 40 states (and the heavily-unionized National Association of Social Workers) agree.
We have allowed a system of unelected bureaucrats, empowered by legislators removed from the consequences of their actions, joined to judges who simply move cases through the system, all shielded by the terrible nature of the subject, to spring up and routinely deprive us of our most basic rights -- to a healthy family life, and to due process of law. We are now set to let the Supreme Court Justice Kennedy begin the decade-long process of Supreme Court Anthony Kennedy decisions that will guide the system in defining our fundamental liberties for us.
The sad part is that this is not one of those things we need to punt to the Supreme Court. The laws at issue are not mandated by the Constitution; every single one is the result of a flawed democratic process, and can be altered the same way.