Thorny issues in prosecuting polygamist sect

One question is whether Texas will retain custody of 416 children. Experts say criminal charges are likely, too.

Keith Johnson/Deseret News/AP
Adherent and the prophets: A man whose children are in Texas custody sat in his living room April 12 at the Yearning for Zion ranch.

By removing more than 400 children from a religious compound in Texas earlier this month, state authorities carried out one of the largest mass removals of minors from their parents in the country. They also set in motion a future face-off between the state and a religious movement that seeks to live in a closed society, making oversight difficult if not impossible.

Those 416 children are now in state protective custody near Eldorado, Texas, where the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) owns the secluded, 1,691-acre Yearning for Zion ranch. One-hundred-thirty-nine women, who willingly left the compound, are with the children.

For the children, the next step comes this Thursday, when state Judge Barbara Walthers has scheduled a hearing to determine if they all should remain in the custody of the Texas Department of Family and Protective Services (DFPS) for a longer period of time, perhaps permanently.

What comes after that depends on whether the state's investigation results in criminal charges against any of the adults at the FLDS compound. Court documents, in which Texas sought judicial approval to search the Yearning for Zion ranch and to take temporary custody of the children, state that many of the men had multiple wives and that several girls younger than 16 were either pregnant or already mothers as a consequence of a "spiritual marriage" to an older man. Texas law prohibits polygamy and marriages before 16 years of age.

The case is a potentially thorny one in which Texas will have to take care not to violate the First Amendment rights of the church and, thus, jeopardize any future prosecution. The same holds true for any federal case that may be brought: FBI agents have taken part in the search of the ranch, possibly to determine whether underage girls were transported across state lines, between FLDS compounds in Arizona and Texas, for illegal purposes.

Experts say the issues are as complicated as any they've seen, but most agree that religious freedoms do not trump the rights of children to a safe and secure environment.

"The state was absolutely within its rights to take these children," says Marci Hamilton, an expert on church-state issues at the Cardozo School of Law in New York. "There is no religious defense to child abuse and no problem with the separation of church and state when the state stays focused on the abuse."

In addition to the civil action of taking custody of the minors, the state is likely to press criminal charges in this case, says Ellen Marrus, codirector of the Center for Children at the University of Houston's Law Center. "When there are so many children, so many [alleged] atrocities involved, the state is likely to bring criminal charges against the individuals causing harm," she says.

The mass removal was triggered by phone calls on March 29 and 30 from a 16-year-old girl named Sarah to a local shelter, according to court papers. She said she was seeking help for her and her 8-month-old child to escape the Texas ranch. According to court documents, Sarah said that her parents brought her to the ranch three years ago and that about two years later she was "spiritually married to an adult male member of the church," becoming his seventh wife. Sarah went on to say that her husband had physically and sexually abused her.

The DFPS subsequently obtained a court order to investigate, and on April 3 through 7 carried out a broad search and removed the children.

Court documents show that while investigators searched the ranch for Sarah, they found girls under 16 who were either pregnant or already mothers, including a 16-year-old who had four children. The documents allege a widespread practice of church elders arranging so-called spiritual marriages of girls once they reached puberty. Spiritual marriages are not legal unions in Texas.

Attorneys for the FLDS have so far filed a motion to keep some documents seized at the compound private, asserting that divulging their contents would "violate the clergy-penitent and attorney-client privileges and infringe upon the first amendment rights of the church and its members." But the judge declined to grant the request.

Calls to Gerald Goldstein and Cynthia Orr, FLDS attorneys, were not returned.

"The primary struggle is not so much a struggle with the church but with the church members whose children have been removed," says Paul Bennett, director of the child advocacy clinic at the University of Arizona's College of Law in Tucson.

An arrest warrant has already been issued for the husband of 16-year-old Sarah. He is reportedly in Arizona, where more members of the FLDS reside on the border with Utah.

Arizona officials revealed last week that they'd received a call from a 16-year-old in Colorado City, Ariz., within a week of Sarah's call to Texas authorities. Arizona officials say they went to a Colorado City home but were unable to verify any details of the phone call.

The states of Arizona and Utah have prosecuted several FLDS members in recent years, most prominently Warren Jeffs, the sect's leader. He is serving two consecutive sentences of five years to life in Utah for serving as accomplice to the rape of a 14-year-old and he now awaits trial in Arizona on similar charges

[Editor's note: The original version's subhead misstated the number of children in custody.]

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