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Child abusers win one in the 9th Circuit

Post by Patrick O'Callahan on Dec. 29, 2009 at 7:58 pm with 8 Comments »
December 29, 2009 5:30 pm

This editorial will appear in tomorrow’s print edition.

A new federal court decision is creating ripples in the world of child-abuse protection. They aren’t good ripples.

Ruling earlier this month in an Oregon case, a three-judge panel of the 9th U.S. Circuit Court of Appeals imposed tight new restrictions on investigations of suspected child abuse – restrictions that tip the balance of power in favor of the suspected abusers.

The judges held that Oregon’s equivalent of Child Protective Services violated the Fourth Amendment when one of its caseworkers and a deputy sheriff took a girl aside at school and asked whether her father had been fondling her. The ruling’s implication is that they should have obtained a warrant – or the permission of her parents – before doing so.

Washington’s Children’s Administration is scrambling to comply with this brand-new and rather astonishing requirement. Pierce County Prosecutor Mark Lindquist says it will “seriously handicap” investigations. He also points out that it will make it tougher not only to quickly identify child abuse, but also to rule it out. A boy who shows up to school with suspicious bruises may have gotten them from his mother’s live-in boyfriend – or a fall from a tree. It’s important to find out, fast, what’s going on.

Probable cause – which must be established to get a warrant – often can’t be determined before talking to a child. Teachers, for example, frequently develop an acute sixth sense about the possibility of abuse, based on subtle changes in a student’s behavior, eye contact, mood and classroom performance. But try persuading a judge that Billy’s sudden quietness and tendency to look at his shoes is evidence that a crime has been committed.

The alternative is asking the possible abuser – or the partner who may be covering for the abuser – for permission to question the child. Great idea.

One absurdity at the heart of the 9th Circuit’s opinion is the notion that investigators are somehow violating the child’s constitutional rights when they talk to him or her at school without such permission.

That turns the Fourth Amendment on its head. The guarantee against “unreasonable searches and seizures” is designed to protect suspects and criminal defendants. It’s not designed to prevent abuse victims from talking about their abuse.

In any case, the Fourth Amendment forbids arbitrary searches of the home and other spheres of privacy, such as the interiors of automobiles. Just as abuse victims are not suspects, schools are not spheres of privacy. The U.S. Supreme Court has ruled that a teacher can snatch a purse away from a girl suspected of smoking in a lavatory – an inconceivable decision if a school were the equivalent of a house. The difference, says the 9th Circuit, is that the state has a “special need” to prevent smoking that was “not present” in the Oregon abuse case.

There we have it: The government doesn’t need a warrant to seize the personal effects of a girl suspected of wrongdoing at school; it does need a warrant to ask a girl whether she’s getting molested at home. Great jurisprudence, that. This foolish decision must be reversed, and fast.

Leave a comment Comments → 8
  1. sunflower53 says:

    No, I disagree with overturning the decision. Schools are not doing their jobs. They are the number one reporter of child abuse but fail miserably when it comes to supporting the community and children they are responsible to teach. Try to get a return phone call as a parent, set up a meeting, or be informed if their child is not turning in homework. Teachers don’t want parental involvement but are all too anxious to become part of the prosecutorial process. On one hand, they want illegal drug use to stop while on the other hand demanding that children be on heavy prescription medications that they are not suited for when they are not qualified to even make these recommendations. The schools are not doing their jobs to begin with and should not have the power that they have. The public schools are a war zone and the parents are suffering with the aftermath. No way should they be allowed priviledges not contained within the Constitution. Teachers do your jobs and support the families. If they would call the parents when there seems to be a problem then maybe more problems would get solved instead of trying to sneakily set people up with illegal search and seizures.

  2. First, the vast majority of CPS cases are found to be “unfounded” or “unsubstantiated” (not enough evidence one way or another). NWColist’s post below recalls the case of a three year old who when his father kicked him so hard in the stomach the young boy died. CPS was unable to protect that child just like they are unable today to protect such children. No amount of CPS workers will change that. Will some abused children continue to be abused or even die because of this court ruling? Absolutely, some will. Could those same children continue to be abused or even die because of the inability of CPS to protect them prior to the ruling? Absolutely, and some were and did.
    However, I have seen countless situations of children being taken from parents, children under duress being given to foster or adoptive parents, and families being destroyed by CPS and the Family Court system for the most insane reasons and in the absence of any – not one scintilla – of evidence, sometimes on the unconfirmed statement of one hostile person. How often does that happen? I don’t really know except to say frequently. But a mere accusation can be tantamount to using a shotgun to kill a fly and blow away the future of an entire extended family.
    In today’s politically correct and highly charged victim society we have been stripped of many constitutional protections in deference to “she said”. Here, the court rightly gave some of our rights back. With or without CPS children will be abused and even murdered. In one study in Los Angeles children were four times more likely to be abused in foster care than if left with their supposed abusive parents. What else do you need to know to know this court decision was correct?
    Interestingly, this court decision can be viewed as thoroughly feminized and politically correct since it primarily impacts mothers; hence, fewer children will be taken from abusive mothers. Why? Well, mothers, not fathers, commit vast majority of child abuse, neglect, and almost all child murders. Around 90% of family court primary or sole child physical (not “legal”) custody awards are to mothers too. It’s plausible this case may have turned on an unstated, even unconscious, PC belief to protect women at any cost, even at the expense of their own children. The constitutional issues may simply be the legal construct through which the ideology was delivered. So, in that sense child abusers did win one in the 9th Circuit.

  3. sunflower53 says:

    Perhaps if a child’s behavior has changed, we should line up all the teachers and find out which one is molesting them. These days there are so many possibilities to choose from.

  4. sunflower53 says:

    Dead beat dad syndrome is also abuse. It is true that over half of all children born in the United States are now born illegitimately and raised by women. Maybe more men should marry and take care of the children instead of abandoning them mentally, emotionally and financially or else start using prophelatics if they don’t want the responsibility.

  5. Harry is correct. Sunflower is not.

    Do wimmin’ have no obligation as to be selective as to who they open their legs? And, should they not have an equal obligation to demonstrate like men do that they support their children? If men can’t pay, they are deadbeats, if moms can’t pay we give them welfare instead of locking them up.

    And, Sunflower, you know you pay, through your taxes, for half of the births in this state, through Medicaid?

    Now, what is child abuse? Not paying an artificial debt, or having a baby, without the money to pay for it, and make others pay for your exclusive choice.

    Not to mention that most child abuse occurs in single mother homes, with the largest percentage perpetrated by the mom.

    Yup, ol’ Harry is right.

  6. How about those children who in Ten. are on their death bed because CPS kidnapped them.

    Thursday, December 17, 2009, 8:07 AM
    Saturday they tried to start a fire in the cookstove to cook supper and they poured gas from a 5 gallon can that had more fumes than gas in it.
    It exploded.
    Sabrina has spots of 1st, 2nd, and 3rd degree burns and will most likely be released from Vanderbilt today. Apparently Lisa Hankins (the adoptive mother) was at home yesterday preparing for her to go there.
    These children would not be at deaths door if it wasn’t for CPS’s kidnapping.

  7. it’s a shame we have to restrict anything that will help a child get out of an abusive situation

  8. by the way sunflower53, there are mothers that also abandon children

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