Why The Costs of Sexual Abuse and the Costs of Non-Enforcement of ...

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Or let me put the question more bluntly – for those implyingthat the rescue of these children was not worth the cost: Do youmean to say that Texas should have saved its money by ignoring whateveryone knew was happening to these children? There is littlequestion that the Yearning for Zion Ranch was a hornet’snest, once jostled never to be made the same again, but that doesnot mean it should have been left to its crimes against children.The choice of insularity does not confer legal immunity.
Texas’s Money Was Well-Spent to Protect Over Four HundredChildren From Abuse and Enforce the State’s Criminal Laws
Despite the relentless coverage, the state never changed itsexplanation for the need to protect these children, and only themost jaded or naïve can reject their arguments given the starkfacts: There were at least 20 known statutory rapes and numerousunderage polygamous marriages (and in Texas, polygamy with a minoris a first-degree felony), all within one isolated, close-knitcommunity. This was never about religious persecution and alwaysabout obvious sexual molestation and abuse.
Judge Barbara Walther, the trial judge in this case and thus theonly judge to have personal knowledge of the facts and the abilityto make credibility assessments, is a hero for children. Theappellate judges who reversed her rulings did not rule that therewas no harm arising from this group. Rather, as I discuss in a prior column , they held that there was not enough evidence from their perch tojustify the state’s taking all of the children out of thecompound. With the benefit of a closer perspective, however, JudgeWalther knew better. She should feel at least partially vindicatedby the fact that a grand jury has been convened to investigatecriminal charges against members of the sect.
Recently, I debated Utah Attorney General Mark Shurtleff on NPRabout his office’s failure to vigorously prosecutepolygamists in his state, where it is well-known that underagegirls are being subjected to polygamous marriage and underage sex.While Attorney General Shurtleff had to agree to the facts of theharm, his defense was that it is too expensive to pursuepolygamists on child abuse charges. The headlines blaring the factsof the financial accounting in Texas -- as if it were shocking thatprotecting children and defending litigation would cost money --provide an echo of such reasoning.
So the questions on the table are these: Should we be aggressive inpursuing child predators, even though it can be expensive, and whoshould pay for the costs of abuse?
We Face a Pernicious National Problem: We Have Failed to Focus onthe Costs of the Failure to Deter Predators and Reduce theIncidence of Abuse
More generally, as a nation, how much are we spending to protectchildren from sexual abuse? Obviously, not nearly enough. With atleast 20% of boys and 25% of girls, on average, sexually abused,the status quo is not acceptable. With all of our attempts toreduce pedophile access to children, we still have an enormousproblem. Moreover, children don’t vote, and adults in powerdon’t yet understand that the costs of prevention anddeterrence are made up in less abuse and, consequently, lessexpense to the entire society.
In Assessing the Costs of Protecting Children, One Must Keep InMind the Massive Costs of Sexual Abuse and Violence, Too
The status quo is not just a moral outrage, but also an irrationaleconomic situation. The costs to society of sexual abuse areenormous: Victims suffer from drug addiction; alcoholism; mentalillness, often rising to the level of disability; suicide, andbroken marriages, and as workers may be less productive than theycould have been. The harm does not just extend to the victims, butalso to their families, their future families, and eventually theentire economy.
In 2007, Minnesota estimated the state’s costs of sexualviolence in 2005 at almost $8 billion, or $1,540/resident.According to the report, moreover, these are a “fraction ofthe true costs.” Child sexual abuse was a significantcomponent of the study; the costs of child sex abuse were deemed toaverage $184,000/victim, exceeding the cost of adult rape, whichaveraged $139,000/victim. And those are just the immediate costsarising out of a self-contained event of abuse, not the long-termand astronomical costs generated by continuing effects. Suffice itto say that, when we fail to deter or stop sexual abuse, we pay. Alot.
Familial abuse (which includes abuse by family members and closefamily friends) is the largest category of childhood sexual abuse.Even self-contained groups, like the FLDS, impose costs on the restof us. Girls are forced to start having babies as soon as theyphysically can. They are taken out of the minimal educationprovided, which means all of their resources are turned primarilytoward one end – the production of numerous babies –and away from any other gifts or talents they might have. There isanother cost arising from their large, polygamous families as well.Often, all but a man’s first wife find it necessary to applyfor welfare to support their many children. (They apply as“single mothers.”) Whatever potential skills they mighthave contributed to society are snuffed out by their obligation tobear babies for the glory of their men in heaven, and like actualsingle mothers, they face substantial barriers to breaking freefrom the welfare cycle. There is also the cost imposed by the FLDSon the rest of us when they abandon boys on city streetcorners tokeep the odds in favor of the men. Meanwhile, the group rests onthe assumption that the government will pay for this lifestyle.
The truth is that reducing abuse in any situation is financiallyadvantageous to all of us. Sometimes the monetary gains are notobvious at first glance. The investment in Texas may well have hadan indirect financial benefit, as a number of the mothers have notreturned their children to the sect’s ranch, even after thecourts cleared the path for them to do so. That may well accountfor significant future reductions in abuse and its attendant costs.Even more optimistically, perhaps it will embolden those fromwithin the group who know the truth to summon the courage to presscharges against the felons, which would be the best means to reducethe number of victims and the cost to society.
Economic Arguments Against Enforcing Anti-Abuse Laws Do Not HoldWater If the Public Cost of Non-Enforcement Is Taken Into Account
Those who still think enforcing the law against child sex abuse istoo costly should bear in mind the case of Mansa Musa Muhummed, whowas just convicted in Murrieta, California of abusing and torturinghis numerous wives and children. His defense was his Muslim faith.The authorities only were able to save the women and children afterone of the wives slipped a handwritten note to a postal carrier. Inthis case, the state had to pay for the cost of prosecutingMuhummed for torturing at least seven children, as well as abusingthem and falsely imprisoning his wives. And the state’sfinancial burdens are far from over, as it is hard to calculatejust how expensive it will be to rehabilitate and assist thevictims of this one-man crime wave. Even so, is there anyone whowould say this was a waste of state funds? To be sure, the costs inTexas with respect to the FLDS are much higher, but that may havemore to do with numbers than an honest assessment of publiccost-benefit.
Financial arguments against legal reforms for sex abuse victimsalso have come from mainstream religions. The hierarchy of theRoman Catholic Church has used economic arguments to blockchildhood sexual abuse legislative reform. It has steadfastlyopposed eliminating the statutes of limitations for childhoodsexual abuse, on the ground that it will cost the Church too muchmoney if cases are reopened. The irony of such a position, ofcourse, is that the alleged cost is obviously based on knowledge ofthe number of victims. The Church hierarchy vigorously point towardtheir alleged financial concerns as a means of distractinglegislators from the reality that eliminating the statutes oflimitations for child sex abuse reduces the costs of sexual abuseby publicly identifying predators, thereby reducing the number ofvictims, and by shifting costs away from the state to those privateentities responsible for the abuse.
Of course, private parties are not the only entities responsiblefor imposing the costs of abuse on society. Sometimes it is thepublic schools or other public entities that are responsible and,therefore, costs still fall on taxpayers’ shoulders. The onlyway to reduce those costs is to prevent abuse by identifying anddeterring predators in public as well as private organizations. Inaddition, there need to be strong means of ensuring that publicentities do not increase abuse and its costs by covering it up.That requires a legal system calibrated to that end.
Criminal Prosecution of Perpetrators and Civil Litigation of SexualAbuse Claims Result in Savings for Taxpayers
California opened the door to previously barred civil claims in2003, and here is the financial equation: On the hierarchy’sside of the equation, insurance paid half of the settlements, whilethe rest was funded by the sale of non-religious property, and noservices were cut. On the public savings side: The lawsuitsfingered 300 perpetrators who had never before been identified,dramatically increasing the barriers to their further abuse of morechildren. Fewer victims, of course, mean fewer costs. Moreover,private parties bore the cost of investigating the facts of thosecases, not the state, and private parties had to pay for thedamages they plainly caused.
This is a crucial financial point: civil litigation for childhoodsexual abuse is the one way to force those responsible for theabuse to cover the costs of their actions. Otherwise, the victimand/or taxpayers must pay for the therapy, drug treatment, and thehost of other costs directly attributable to childhood sexualabuse.
The elimination of the criminal statutes of limitations alsoresults in cost-savings. The conviction of a predator leads toincarceration and/or public identification on a sex offenderregistry. Both work toward reducing the incidence of future abuse.It is nonsensical to keep the current system in most states wherethe statute of limitations usually runs before a victim can comeforward or is able to press charges. The math is simple. With nocriminal statute of limitations, there are more predatorsconvicted, fewer predators in the community, and betterinformation, all of which adds up to fewer victims. Once again,fewer victims, less cost.
If costs matter, statute of limitations reform legislation is ano-brainer.
How does this relate to the FLDS situation in Texas? There, thestate has had to bear the high cost of trying to aid childrenlocked into an entrenched system of abuse. Think about this: IfArizona and Utah had enforced their laws against child abuse andpolygamy decades ago, there might have been no FLDS child sex abusefor the Texas authorities to investigate. Texas is absorbing thecost passed on by years of failed law enforcement in those twostates.
Texas, though, has now opened a door for the victims, who haveglimpsed a larger world where abuse is not a given. That means weare likely to have FLDS child victims coming forward, needing anddeserving justice. They are the ones who can shift the cost of theabuse from the state to the truly responsible parties. If theypress charges as well, they are also the ones who can ensure thatthe child predators they know can no longer gain access to futurechildren, reducing costs again. Only if Texas liberated thechildren, with all the attendant costs, was there any possibilitythat such a shift in cost could occur.
Unfortunately, Texas is like so many other states in that it givesthe predators a substantial benefit through its short statutes oflimitations. The result of these short statutes of limitations isthat its actions to date may not lead to the appropriate shiftingof costs onto those who are responsible. In Texas, the criminalstatutes of limitation for child sex abuse are very short (noneextends past the victim’s 28th birthday) compared to the timeit takes most victims to come forward. The civil statutes oflimitations are worse, with the latest being the victim’s23rd birthday. By making it nearly impossible for victims to get tocourt on time, the Texas statutes of limitations perpetuate thecycle of abuse that generates more victims and more costs, as childpredators operate under a legal cloak of anonymity. If Texas (andmost every other state) is serious about protecting children -- inthe most cost-effective manner -- statute of limitations reform isthe next important step.
To return to my earlier questions: The financial equation calls foraggressive means of deterring child predators, and those who causedthe abuse should be the ones paying for the high cost of the abuse.
Marci Hamilton is the Paul R. Verkuil Chair in Public Law atBenjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008.