Utah, Texas laws are similar; FLDS population isn't

Published: Sunday, May 25 2008 12:00 a.m. MDT

Could the raid on the FLDS ranch in Texas happen here?

Critics of the April action accuse Texas of cowboy-style justice, trampling over constitutional rights by using lax laws that must be more liberal than other states.

That general point of view received a boost this week when a Texas court of appeals ruled that child protective services authorities acted improperly when they removed all 400-plus of the YFZ Ranch children and subsequently placed them in foster care.

However, the basic Texas laws that those authorities were following aren't that dissimilar to, say, Utah's.

Both states have criminal penalties on the books for engaging in sex with a 13-year-old — even if the teenager consents.

Both states have criminal prohibitions against sexual contact with older minors and restrictions on when a teen can lawfully get married.

And at least one child welfare expert says that to examine the difference of "why" and "how" the raid happened in Texas and not in Utah, the answers aren't on the law books.

"If you think the outcome would be different in Utah, the reasons would not be found in the child protection laws," said Scott McCown, director of the nonpartisan, nonprofit research organization called the Center For Public Policy Priorities based in Houston.

"A major difference between Texas and Utah is going to be numbers. ... You have a different response when you have a 10,000-kid problem instead of a 400-kid problem. It is also new to Texas and old to Utah."

Utah Attorney General Mark Shurtleff has said in the past that prosecuting polygamy in Utah would be impractical, flooding Utah jail cells with thousands of adults and putting even more children into the state foster-care system who were born from polygamous unions.

But McCown said Texas doesn't have that same problem.

"It goes back to the public policy of Texas that plural marriages are unacceptable — that they are a social evil. Texas basically had this one community, and it was possible for Texas to move against this community.... It goes back to the difference in the cultures, the magnitude and the numbers" between the two states, McCown said.

Numbers and culture

A pro-polygamy group's most recent census of plural communities puts those who consider themselves fundamentalists subscribing to polygamous beliefs at around 37,000 in Utah and surrounding states. In contrast, when Texas authorities entered the YFZ Ranch on April 3 to investigate a complaint of suspected child abuse, they believed there were between 100 to 150 people living there.

Texas officials saw that number quickly rise. The number of children alone was last reported at 464, including two infants born while in state custody.

The numbers help shape state response, or lack thereof, McCown noted.

"Inside Texas as well, along the border where you have thousands and thousands of children in very severe poverty, a child might be left in a neglectful situation," McCown said. "But in a rich, suburban area in the northern area of the state, it might not be tolerated. What's the difference? You can remove one, you cannot remove thousands."

McCown, who retired as a state judge in 2002 and presided over thousands of child-abuse cases, said because of federal government mandates, state laws on child protection and agency response can't vary too much.

"There's not much difference in the formal expression of the law. There may be some differences in practice, but the big reason practices may vary is the differences in the services that are available."

Texas also recently revamped its marriage laws after FLDS members acquired the ranch and moved there.

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