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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 |
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.

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