Texas Supreme Court Challenges Incest Taboo

Saturday, 31 May 2008, 3:41 pm
Column: Michael Collins

The Texas Supreme Court just struck a blow at the foundation of civilized society - the incest taboo. On April 28, 2008, the Court overturned a Texas Department of Family and Protective Services finding that removed 130 children from a religious cult compound set up by a convicted sexual abuser. The court found that child protective authorities had not shown a sufficient danger to prohibit the children residing with their parents at the “Yearn for Zion” facility founded by Warren Jeffs, “prophet” and leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS). The Court argued that there were a number of options (counseling, etc.) available to protective services before separation could be justified.

Please note that the FLDS cult is not associated with the Church of Jesus Christ of the Latter Day Saints (commonly known as the Mormon Church). FLDS members would be subject to automatic excommunication from the Mormon Church due to their participation in polygamy.
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Based on a request for help from the FLDS facility, Texas protective services workers found that forced marriage of adolescent girls 17 and under to adult males’ decades older was an accepted practice. There was strong concern about incestuous combinations in these polygamous "spiritual" marriages. As a result, a lower court ordered DNA tests for all involved at the cult's Texas compound. There were other findings of grave concern according to the head of family and protective services Carey Cockerell. These included possible sexual abuse of young boys.

The 130 children ordered returned to their parents are part of a larger group of 467 children removed by child protective authorities. The 130 will return to the Texas FLDS compound. The ruling is a significant step in hastening their removal from foster care arranged by child protective authorities and a reunion with parents living in the cult compound (see below).

"Yearning for Zion" Compound, Eldorado, Texas.
Randy Mankin, "Eldorado Success" Permission to reproduce

The cult compound, known as "Yearning for Zion", is located in the Southwest Texas town of Eldorado, located in Schleicher County, population 3,000. Child protective authorities received a call from a 16 year old girl living in the compound claiming that she'd been forced to have intercourse with a 51 year old man against her will. Authorities, visited the compound, investigated, and were shocked to find that teenage girls were married to and intimate with men decades older, all a part of Prophet Jeffs' divine plan.

Fundamentalist LDS sect leader Warren Jeffs' behavior has been the subject of law enforcement attention for years. He made the FBI's most wanted list for "sexual assault on a minor." Apprehended by Utah authorities in 2006, Jeffs was convicted of two counts of "rape as an accomplice.” This entailed Jeffs' role in the marriage of cousins, a 13 year old female and 19 year old male. He is now serving ten to life for those crimes.

Other cases proceed against Mr. Jeffs. In Arizona, he is on trial charged with arranging the marriage of two teenage girls to male relatives; Jeffs is currently seeking dismissal on a technicality. He argued that Arizona law only covers incest between adults -18 years or older. Thus, the 17 and under teen marriages he arranged to male relatives didn't qualify.

Founder and proclaimed prophet of the Fundamentalist Church of
Jesus Christ of Latter Day Saints. From the FBI's "Most Wanted" list

Utah's Attorney General Mark Shurtleff is an active opponent of polygamy. Up for reelection this year, he’s chosen to run again despite numerous death threats made against him due to his strong position defending children’s and women’s rights. He was disappointed but "not surprised" by the Texas Court ruling. Based on Texas law, his prediction on the return of the children is understandable.

The law used to remove the children from the compound is clear. Child abuse is outlined in Texas statutes 261.001 [0] DEFINITIONS. Note the emphasis on protection from “mental and emotional injury” as a child’s right:

"Abuse" includes the following acts or omissions by a person: A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning;” etc.

The definitions and criteria for findings of abuse make the child's safety paramount by calling for anything from mandated counseling to emergency removal and placement of the child or children in foster care.

However, when the statutes also outline parental rights for a prompt reunion with their children, the rules change (regardless of the findings of "mental and emotional" harm). The law sets a different standard. Only a "continuing danger to the physical health and safety of the child" can prevent the reunion. Involuntary termination of a child - parent relationship requires danger to “physical health or safety:”

262.201[0] (c) If the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that there is a continuing danger to the physical health or safety of the child and for the child to remain in the home is contrary to the welfare of the child, the court shall issue an appropriate temporary order under Chapter 105."

The statute on parental rights of reunion was the basis for the Court's ruling that upheld the return of the children to their parents. Among the other evidence, the Court failed to find numerous pictures of Jeffs kissing under aged children persuasive enough to defer the reunions.

The “Per curium” (for the court) ruling noted that the: “Thirty-eight mothers petitioned the court of appeals for review by mandamus, seeking return of their 126 children. The record reflects that at least 117 of the children are under 13 and that two boys are 13 and 17.” Given the propensities established by their former leader’s conviction in Utah and the photographs of Jeffs’ with children, the risks seem more than apparent.

Absent the findings of DNA testing which would establish with certainty any incestuous marriages, the question of incest as an accepted practice in the compound cannot be ruled out. Yet the court chose to return all of these children to an environment that violates the most fundamental laws of society – intimacy with minors and incest. It did this by focusing on the reunion requirements of Texas statutes, “physical” safety, rather than the risk for “mental and emotional injury," the emergency discovered by protective service workers.”

Higher Authorities Not Consulted

While Texas statues present contradictory values concerning the safety of children and the extreme dangers of incestuous sexual unions, two disparate authorities on incest are precise about the paramount importance of maintaining the incest taboo.

One of Sigmund Freud's most influential works was the Totem and Taboo. He commented on the comprehensive ban on incest even in primitive societies:

"We should certainly not expect that the sexual life of these poor naked cannibals would be moral in our sense or that their sexual instincts would be subjected to any great degree of restriction. Yet we find that they set before themselves with the most scrupulous care and the most painful severity the aims of avoiding incestuous sexual relations. Indeed, their whole social organization seems to serve that purpose or to have been brought into relation with its attainment."

Those who look to another type of authority are aware of the biblical position on this matter. Leviticus, Chapter 18, verses 5 through 19. It outlines the severe admonitions against incest stated as a matter of life and death:

"5) Keep, then, my statutes and decrees, for the man who carries them out will find life through them. I am the LORD. 6) None of you shall approach a close relative to have sexual intercourse with her. I am the LORD. 7) You shall not disgrace your father by having intercourse with your mother. Besides, since she is your own mother, you shall not have intercourse with her. 8) You shall not have intercourse with your father's wife, for that would be a disgrace to your father. 9) You shall not have intercourse with your sister, your father's daughter or your mother's daughter, whether she was born in your own household or born elsewhere."

The ruling by the Texas Supreme Court is an assault on widely prevailing standards of conduct and common sense. Every person "of ordinary prudence and caution” would say: Get the children out of there immediately; keep them away until an investigation is completed and their safety is assured!

As a result, the ruling creates the potential for a huge public backlash. This Texas Supreme Court is, after all, is supposed to be a law and order court, one noted for its conservative doctrine. Where in conservative doctrine can you find any support for this type of decision? Where in any doctrine, but the most offensive and bizarre, is there a justification?

What safety does the law offer to any of us if this type of decision can be rendered and upheld?

How can the concurring justices remain seated on the Court after making a decision that results in the return of children to an environment that may well represent a center for deviance beyond the ability of most to comprehend?

Where’s the competence?

Where’s the justice?

Where are the children?

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