SUPREME COURT AND CHILD-ABUSE

There is a case now to be considered by the US Supreme Court that bears on investigating issues of child sexual abuse; in this case, the accused is within the immediate family, which makes the issue especially pivotal.

Further, the case raises points and issues relevant to the larger SO Mania, and I always like to take a look at any such material I come across.

The case is Camreta v. Greene. The various filings can be looked at here . The case started in a Federal District Court, went up to the 9th Circuit, and is currently on the US Supreme Court docket. The most recent Opinion is that of the 9th Circuit, and at this link you will be able to click on that text. There are also 29 Amicus Briefs in the case (8 in support of the State, 2 in favor of nobody, and the rest in favor of the family subjected to the whole investigation process); I haven’t had the time to read all of those Briefs, but if you’ve a mind to, you can always find interesting bits out by looking them over.

Interestingly, among the Briefs in support of the target-family, there is a wide spectrum encompassing both Left and Right, Liberal and Conservative, organizations. (I use the terms loosely here, just to give an idea of how broad the spectrum is.)

There is an article from AP that actually does a decent job describing the gravamen of the case, here.

Eight years ago a social worker and a uniformed police officer went to an Oregon school and interviewed a 9 year-old girl, technically “seizing” her and bringing her out of class and into a another room in the school. They were investigating whether her father had abused her and this was their first contact with her.

They did so without a warrant, without the mother’s (or non-offending parent, as it were) permission or presence, and in the absence of any clear emergency created by, say, the potential for immediate and clear sexual abuse.

The 9th Circuit found for the parents against the social worker and police officer in the most crucial elements of the matter.

The State of Oregon had argued that it couldn’t get a warrant in cases like this because a parent was the possible suspect, and hence the criminal-justice system couldn’t do its job if it had to get permission from a suspect in order to carry out an investigation by interviewing a potential complainant/victim over whom the said suspect/parent otherwise had complete control. Also, that if there isn’t enough evidence to justify a warrant, then the State has to still find some way to determine if the crime of abuse has taken place. And anyway, said the State, it’s a “proven method of investigating child abuse”.

You can see at a glance, perhaps, what the core problem is here: the criminal justice system in a Constitutionally limited government is not set up, was never set up, and is quite possibly unable to ever set up to be operating within the family-home venue in matters where parents are simultaneously ‘parents’ and ‘suspects’, and where their children are simultaneously ‘their children’ and ‘victim-complainants’, in matters – on top of everything else – of such nuanced, vague, and complex intricacy as ‘abuse’.

For the government to try to somehow surgically ‘solve’ these almost intractable complexities (i.e. respecting parental and 4th Amendment rights while simultaneously investigating – and in a Correctly ‘victim-friendly’ way – whether their children have been victims of possible crimes that have not risen to the point where palpable evidence has been created) is the equivalent of Shylock trying to extract his proverbial pound of flesh without taking any other physical material (blood, for one thing) or creating any other deleterious consequences for the complex living system under his knife.

It can’t be done. The targeted system is too densely interwoven and dynamically intra-dependent for any external agency to make so gross an intervention without impacting everything else in the system. You cannot develop ‘options’ that are going to avoid slashing one or another of the many dynamic elements under your knife. (Nicely, Obama has been saying for a while that he wants ‘options’ in the Afghan War mess; the assumption being the loosey-goosey and optimistic one that for Americans there are always ‘options’ beyond the rock-solid hard choices of Win or Lose. That’s the trouble with ‘wars’ that aren’t actually wars: you can’t be George Washington, Grant, Marshall or Eisenhower or Churchill (a popular historical figure for this sort of thing) when you aren’t actually in an all-out-war situation.)

This has always been true of the Sex-Offense Mania Regime: you can’t respect the rights of alleged (or even proven) perpetrators as Citizens while simultaneously trying to prosecute – or even prevent – what you have declared to be extraordinarily evil crimes through the judicial and police authority of the State in order to ‘protect’ other Citizens, while all the while preserving not only the Constitutional integrity of your vision of the rights of every Citizen (especially in criminal trials) but also preserving the classic jurisprudential safeguards evolved in the West over many centuries precisely to protect against the intrusive and abusive power of the State and its sovereign police and judicial power.

Of course, in the sad and shocking history of European revolutionary praxis the solution to such complexities has been to use the bayonet and the pistol to eliminate ‘complexities’ and go with what the Party has decided is best. And if THAT causes even more complexities, then you simply apply more ‘elimination’. And the beat goes on.

As early as the early 1950s, over here, such thinkers as John Kenneth Galbraith were writing books suggesting that America needed to become a “vanguard democracy”. This was a well-intentioned gambit that tried to take the dynamism of Soviet and Nazi ‘vanguard elites’ – those dedicated cadres who really did ‘get it’ – and apply it in a now hugely complexified American reality: the colossus that had come out on top in World War 2 in every respect and now had both to manage its own vastly complex business, military, and economic affairs and at the same time pretty much function as Sheriff for the rest of the sheep-like residents of the planet (and, of course, organize them to resist the Enemy on the other side of the Iron Curtain).

I’m not saying Galbraith was a Communist. He was no doubt impressed as a technician with the ‘efficiency’ of Nazi and Soviet performance during the war and all technicians love Efficiency, a god that knows no country and is a virtue-unto-itself. And he could legitimately draw on half-a-century of the American Progressive thought that most people really can’t be trusted to think very much, let alone come to the necessary conclusions. Hence, Progressives concluded, while it was all very well and good to call America a ‘democracy’, most of its folks really couldn’t be trusted to think a lot or decide well. Better for those ‘elites’ who were gifted enough, dedicated enough, and maturely disinterested enough in personal gain, to form the pool of dedicated public servants who, much like the British Civil Service, would actually keep the country going as this and that elected politician came and went through the cycle of ages.

Having convinced themselves that such a (mythical) species of secular-saint actually roamed the American scene in good-sized herds (like benevolent and competent unicorns), Galbraith and his ilk were able to confidently proceed with getting ‘vanguard democracy’ accepted in Washington City (now The Beltway) as a perfectly effective, completely American, and urgently necessary New Way to define governance in the America that had now hugely outgrown its quiet beginnings as a republic 150 years before.

‘Vanguard democracy’ now became a thoroughly ‘liberal’ approach, with the conservatives (mostly but not all Republicans) left behind as isolationist, traditionalist, musty old fuddy-duddies who were stuck in the horse-and-buggy era and the days of sailing ships.*

But I digress.

The elite-revolutionary approach to the awful complexities of trying to implement a Sex-Offender Mania Regime through the power of a Constitutionally limited government was – as it pretty much had to be – to smash through a whole lot of carrying-walls while assuring everybody it was just some long-needed rehab and remodeling.

And an emergency.

But now matters have expanded (as these things always do) to the point where the parents themselves – the adult citizens on whose behalf, initially, all the damage was done in order to ‘inform’ them so they could do whatever it took to protect their children – are the ‘predators’ (to use the Standard Script, and you can immediately see how inadequate the old Mania Script is for this scenario).

Good-guy/gal government rushes in with bugles and flags to rescue decent-Citizen parents from screaming hordes of predator savages besieging homesteads and towns … that’s the type of script and scenario you can make good box-office (or voting-booth) with.

Intrusive, martial-law army breaks into homes to drag out protesting citizen-parent suspects in order to rescue children from their savage and evil clutches … this script not so much. And as parents in Germany found out some decades ago, you can watch ‘them’ come for the couple down the street today, and realize it could be you next week: kids were notorious for mentioning within earshot or suggesting to a fox-eared teacher that their parents ‘listened with their ear up against the radio late at night’. Nor did the boys in the black sedans need ‘probable cause’ in such vital matters, once they had been put on the scent.

The government – urged on by the well-intentioned and by the enterprising as well – having had great success in charging with sabers at the hordes of savage predators besieging the town, now finds itself trying to adapt its tactics to the problem of charging into the Family circle, the hearth, and the vital, profoundly basic and intimate precincts that were precisely the sites of civic and personal freedom that the Framers sought to protect from just such an invasion.

One thinks of von Paulus’s Sixth Army, having romped and thumped across the steppes of Russia, suddenly running into house-to-house, room-to-room fighting in the streets and alleys of Stalingrad. Where, as is well known, no suitable ‘options’ were ever developed.

This is what happens when individually dangerous streams are crossed and blended (recall Egon’s advice to Dr. Vinckman in the original ‘Ghostbusters’). And indeed, the nation’s legal system has come to resemble one of those grand hotel ballrooms, set up for a banquet, that the Ghostbusters pretty much reduced to smashed and smoking kindling in their eager pursuit of assorted monsters; that’s the trouble with Mania – it is not a monster-buster but actually a monster itself, and once you give it a badge and a pile of blank warrants and a hearty public send-off and turn it loose, it will make a hash of everything because (paging Buffy Summers!) that’s what demons and monsters do.

Among those streams (and they are not all ‘bad’ or even ill-intentioned) are radical feminism in its assault on both men and the Family, Victimism especially in its crime-heavy American variant, and this mutation of Identity Politics and ‘demographic-base’ politics and the reduction of all politics to eliminate ‘deliberation’ and simply go for the most workable ‘deal’ that keeps all parties at the Beltway table happy. And, of course, the age-old deep pools of vengeance and scape-goating that Western justice evolved precisely to prevent. And the eternal tendency of sovereign governments to want to expand their writ, which was precisely what the Constitution was devised to avoid and, indeed, prevent.

The DA in the original phase of the case puts it candidly: "Should we have a system that errs in favor of preservation of the family, or that errs in preservation of the child's safety? … To me that's an easy decision. ... The most important thing is best interest of children.”

Which used to be a decision left up to the parents. Now, the DA presumes, it’s up to the government. And I’m going to imagine that this DA learned this in law school, and is not some ‘rogue’ or ‘bad-apple’ DA who got carried away.

And the track record of the government’s use of its sovereign and elite competence in such things as the economy and the successful prosecution of necessary wars has been far from impressive.

But the whole Mania Regime is government-heavy as well as crime-heavy.

Thus the great battleship of sovereign police power is going to be brought right into the island cove so that it can fire its massive guns in order to rescue children trapped in this or that evil cottage. That the discharge of the big guns so close to the thatched roofs and walls of the village is probably going to level most of the village in the process … well, that’s just the way the cookie (and the village) crumbles. In best American fashion, there is a plan to relocate the children – perhaps now deprived of flattened parents – to a State-run orphanage or alternative life-arrangement. If the tykes haven’t themselves been flattened.

As the attorney for the parents, herself an experienced litigator in this type of case, puts it: "Whether people are on the left or right politically, battered women or fathers' rights groups, they all recognize that the family relationship is important, and children don't exist in a vacuum," she said. "They are not creatures of the state, and armed police officers can't just remove them and question them without any constraints."

I can’t disagree. I’m not saying abuse has to be accepted as the necessary cost of doing business as a Constitutional democracy and republic; I’m saying that there has to be a way that doesn’t destroy the village in order to save it – which is a lesson some might think the government should have learned some decades ago.

And if it is to be asserted that it’s no longer the village that counts but only ‘the children’ … well I think that’s nonsensical on its face. The government surely isn’t capable – elitely advised though it may be – of providing the sustained care and relationship essential to the raising of children.

This attorney continues: "What the police and child welfare people are asking is a very broad ruling giving them the green light to interrogate kids whenever they think it's reasonable, without any court telling them, 'No, you can't' ... (and) without the threshold of it being an emergency." Governments, especially in their police authority, always like to see the road ahead of them nothing but a succession of green lights. Who doesn’t?

The government’s encroaching on parental rights is of concern across the spectrum, Left to Right, as the long list of Amicus Briefs demonstrates clearly.

But the Family has been under attack for quite some time now, and the ‘victim’ – especially the ‘child’ – has proven quite a handy bit of leverage and – not to put too fine a point on it – a useful pretext to mask the consequences of police-power expansion.

The 9thCircuit’s Opinion contains some nice points, and I’m only going to touch upon some of them here.

There is a “delicate balance of competing interests here”. On the one hand the government has a legitimate interest in “protecting its most vulnerable members” and the number of allegations of child abuse are “staggering”: in 2007 there were “3.2 million reports of child abuse or neglect”.

On the other hand, of the 3.6 million investigations conducted in 2006, only a quarter were deemed valid. (And I note here that while this case has to do with alleged sexual abuse, the statistics quoted include all cases of any type of “abuse” and also include “neglect”.)

And in light of this “discrepancy”, the Court says: “This discrepancy creates the risk that ‘in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help.’” The Court quotes here a book nicely entitled “Storming the Castle to Save the Children”.

So now in this case the social worker and the police officer have gone to the school and taken the child out of class; the social worker takes an hour (the child says two) to interview and, it is said, wouldn’t take No for an answer. The police officer just sits there, in uniform, badge and gun and all. Realizing she is going to miss her bus home, the child finally said yes in order to end this little ordeal and get home on the bus. You can wear any adult down – and much more so children – by demonstrating that if they do not produce the desired answer, but rather stick to their original (and undesired) answer, then the interview will go on and on and on. A sense of helplessness is induced in the interviewee, who may well at some point just figure they’d like to get out of this unpleasant situation and go home. They will say what they were desired to say all along and hope that things don’t get too far out of hand come the morrow.

The Court notes that the interview with the child was not recorded when the social worker and the police officer conducted it at the school.

In regard to interview techniques, I think it always has to be remembered that the police objective – understandably – is to get the information or statement or confession that you need to make the case. There are many techniques and stratagems for accomplishing this, and anybody who thinks that such an interrogation is simply one seeker of truth conducting a rational discussion with a rational and truthful person in order to arrive at the truth doesn’t quite grasp what is going on at all. And it is this type of approach that has surely been employed in the SO Mania, surfing as well on the huge and hugely helpful waves of public outrage and jurisprudential and evidentiary ‘reform’ that help intimidate witnesses and suspects alike that they are in a ‘victim-friendly’ legal system and have a snowball’s chance of doing anything except going along.

The social worker and officer eventually decided it was time to visit the home, where – you can’t make this stuff up – they told the parents upon departing that the parents were not to speak to the child about the case. Think about that for a moment. What would dinner-table conversation be about that evening, d’ye think? But this is where you wind up when you try to impose the criminal-investigation template upon the Family and the parent-child relationship.

The father-suspect was indicted but released; he was ordered not to have any contact with the child – which, naturally, meant moving out of the house. The mother claims she told the social worker she would come up with the money both to house the father elsewhere and also retain counsel. The social worker filed a sworn statement to the Court stating that since the wife claimed she had no money for alternative housing he presumed the father would remain in the home and that therefore the children should be removed under a Protective Order.

At a Hearing at Juvenile Court (for which, the Opinion notes, there appears to be no transcript or record) it was Ordered that the child be tested for sexual abuse and that the father not have unsupervised contact the child.

The mother accompanied the daughter to the abuse-testing agency, but was told that she could not accompany the child into the tests (which was not a prohibition included in the Order).

In the event, the test-facility could not establish abuse but was still “concerned”.

The father stood trial and the jury could not come to a verdict. Threatened with a re-trial, the father accepted an Alford Plea (meaning that he acknowledged that there were sufficient facts to establish his guilt were a trial to be held). This is the type of ‘persuasion’ that can be deployed at the trial level, beyond the police-investigation level: you are be threatened with yet more trials, even if you have prevailed in this instant trial, unless you ‘accept’ this offer by the DA and admit your guilt in the Plea and thus avoid actually being put through a second trial. It saves face for the DA and it grants the defendant an exit from the ongoing tribulation of another trial.

The mother filed her suit in Federal District Court, claiming violation of Constitutional rights (the 4th Amendment guarantee against unreasonable search and seizure (to wit: her child); under the 14th Amendment in that false information was presented to the Court by the social worker and also by the mother’s being refused permission to accompany her daughter in the test-facility.

That court found for the social worker, the police officer (a deputy sheriff actually), and others.

The mother appealed to the 9th Circuit.

The Court notes that the State asserts its right to conduct such investigations of children under the “special needs” doctrine where a situation “beyond the normal need for law enforcement”. This legal doctrine holds that warrantless entry for a building inspection (lest errant owners prevent the official discovery of dangerous conditions) is not unreasonable; it has since been expanded to cover drug-testing of transit employees after an accident and other types of drug-testing of students and certain public employees. The State wants to include child-abuse investigations as just such a “special need” category; the government has a “special need” to protect children from sexual abuse. This reflects the doctrine that sexual-abuse is so utterly beyond the pale that conventional jurisprudential and law enforcement restrictions cannot be allowed to interfere.

No dice, says the Court. In the special-needs doctrine, any information gathered by such warrantless entry and search is not allowable as evidence in any subsequent criminal trial.

Further, since a uniformed police officer was present at the initial interview with the child (although he said nothing and did not actively participate), then either he was there with an eye to gathering information for police and criminal-prosecution action, or else he was there to, by his mere presence in uniform, intimidate the child or somehow induce her to trust in the social worker’s authority and questions.

Nor, the Court nicely says, have we forgotten “the general rule that the constitutionality of a search or seizure cannot turn on the subjective intent of the government officials”. This throws a bit of a monkey wrench in the overall Mania element that insists upon the unquestioned ‘good intentions’ of police officers in their campaign against suspected sex-offenders. Overall, the social work and the police aspects of the State’s involvement are ‘entangled’. It’s one thing to conduct civil investigations to stop abuse, and another thing entirely to conduct a police investigation for the purpose of securing or assisting criminal indictment and prosecution.

And of course, good intentions, even when genuinely held, don’t justify evil means that might be used to fulfill them. Nor, come to think of it, do good intentions guarantee success – as might be obvious to a modestly acute observer of Middle Eastern affairs.

The Court notes that the parents have “a right to be free from judicial deception”; that means, in this case especially, that they have a right not to have incorrect information about them or their actions submitted to a court under government authority; which is precisely what the social worker did: “a warrant obtained by judicial deception” (swearing officially to the court and falsely) violates the 4th Amendment.

The Court found for the parents in the most important matters brought before it in this case.

This Saturday, the same day the court case came to my attention, I came across a book review** that discusses John Ford’s 1962 Western “The Man Who Shot Liberty Valance”. The plot, in essence, is that in the early days of the frontier an unreconstructed Western tough guy (John Wayne) killed from the night shadows an unreconstructed bandido (Lee Marvin) who had been challenged to a classic shootout by the tenderfoot young legal eagle (James Stewart) who had come West to bring law and justice to the frontier, who takes credit for winning the gunfight. Now, in the time of the film’s later setting, the former tenderfoot legal eagle, now a U.S. Senator and former Ambassador to the Court of St. James’s, has come back to attend the funeral of Wayne’s character (who, uncharacteristically for the time and place, had died peacefully of old age).

The book’s author notes that “What this suggests is that the conditions necessary for law and political order are doubly morally problematic. First, there can be no law unless the lawless are eliminated and controlled, but given what the lawless are willing to do, this violent elimination cannot itself be just or fair, cannot play by the rules … Second, it seems that a civilized order must view itself as founded by heroic and unproblematic violence, so this truth about the founding must be hidden by a lie.”

“It is”, the reviewer notes, “a lie that establishes and sustains” Stewart’s Senator in his reputation as the fearless lawgiver of the West.

If he were making any comment about current affairs in this commentary, the author would no doubt be making it about America’s foreign entanglements in the postwar era.

But it struck me strongly that the same dynamic applies to the founding and sustaining dynamics of the Mania Regime. It is a double lie: first, that there are incurable and uncontrollable (and male) monster sex-offenders who haunt hearths and highways seeking to impose violent sex upon the entire spectrum of living things; and second, that they are opposed by utterly virtuous and heroic forces through utterly virtuous and constitutionally legitimate means.

In a remarkably acute secondary theme, the local newspaper editor, apprised in the end of how things actually happened that dark night long before, delivers his editorial philosophy: “This is the West. When the legend becomes the fact, print the legend.” This line delivered as he consigns to the flames the sheaf of papers that give proof of how things actually happened.

Nailing it down with another blow, the author quotes Ahab’s first mate, the well-intentioned but morally weak Starbuck, as he caves in to the vigorous, robust, manic self-confidence of his (lunatic) captain: “Let faith oust fact; let fancy oust memory. I look deep down and do believe.” Consultation of your old high-school literature notes will remind you of what happened to the ship, the crew, and Starbuck himself as Ahab’s supremely confident mania drove them to find and arouse the Great White Whale.

When you think of the manipulation and deliberate stampeding of the public and public opinion, and of the acquiescence of so many among the official ‘crew’, and of the willing collaboration of far too many of them, you can, I think, grasp with a stunned clarity, just how valuable truly great films and literature can be in reminding any who care to notice how vital and yet fragile moral principles and public integrity really are. And, for that matter, how easily a form of public insanity can masquerade as robust vigor and decisiveness.

But, one last point, my education last Saturday had not yet stopped. In the evening, trolling the satellite channels, I came across a film that I had never seen before (and I’ve seen more than a few): Fred Zinneman’s 1948 “The Search”. The plot, set in Berlin in the immediate postwar period, revolves around a young single American soldier – Montgomery Clift in his first film (to be followed quickly by “Red River” with John Wayne) – is entangled in that deeply subtle ballet in which a homeless war orphan singles him out as somehow a source of help, and the decent but lonely soldier takes him in. (No, there isn’t a scintilla of sexual tension in the entire film.) Eventually, through the good offices of an amazingly competent and sturdy Army matron responsible for trying to re-unite displaced children and their searching parents, the boy is re-united with his mother and Clift gently lets him go. The End.

It brought home to me what I had sensed some time back when looking over now-classic newsphotos of postwar Europe: homeless and orphaned children, perhaps – as the child in the film – even former camp inmates with tattooed numbers on their arms, captured by the camera in the depth of their loss and abandonment, or exhilarated by the discovery of a bit of bread or the gift of a pair of shoes. I could never master that much tragedy; there is an awful yet also awe-full mystery to it, that warns every hope of resolving it while demanding every effort to address it.

I bring that sense of things to the reality of child-abuse.

But I also bring the sense of how those children wound up in that situation to begin with: when dedicated and aroused persons, organized to a shared purpose, thought they very much knew what they were doing and were just absolutely sure that they had a solution to the ‘emergency’ and therefore insisted that no law or principle of law could stand in the way of their enthusiastic enlightenments.

We must always retain the ability to be called to a great need. But we must also always retain the ability to respond in a way that doesn’t create even more harm than it seeks to remedy.

If that’s the first principle that doctors – they say – are taught, then it must also be the first principle of each individual and each Citizen: first, do no harm.

And if a ‘realist’ says that governments, like bulls in china shops, can’t move in any direction without harming somebody and it’s really only a matter of figuring out who gets harmed when the new helping machine is switched on, then policy must most certainly be set in a genuinely democratic mode, and not in smoke-filled (or not) rooms populated by elites, lobbyists, and politicians who see themselves as nothing more than used-car dealers trying to make the close before 5PM.

And the Family, I would say, is at the very least an institution that qualifies for Churchill’s judgment of democracy: the worst system that can be devised … with the exception of all the rest.

NOTES

*You could take a look at some of Galbraith’s books. “American Capitalism” (1952), “The Great Crash” (1954), “The Affluent Society” (1958), and “The New Industrial State” (1967). Christopher Lasch (“The True and Only Heaven”, published in 1991) is also a great guide for looking at how reliance on elites overrode trust in the reliability of the citizenry during the 20th century; he’s a meaty and readable walking-guide through some very vital American history and ideas.

**”Guns and Roses”, by Clive Sinclair; in ‘The Times Literary Supplement’, issue of February 18, 2011, p. 5; reviewing the book “Hollywood Westerns and American Myth”, by Robert B. Pippin; Yale University Press, 2011. ISBN 978-0-300-145779.