Should Sex With a Minor Always Be Major?

by Katherine Scardino

Despite the recent controversy over the polygamist sect raid in Eldorado, Texas, pretty much all of us would agree on one thing: fifty-something-year-old men should not be having sex with minors. But what if that male was another teen, who happens to be of "legal" age, say eighteen or nineteen?

In Texas, an individual may be prosecuted for Aggravated Sexual Assault under certain circumstances. One of those reasons is if the victim is under the age of fourteen. There is no "escape" clause; there is no "except for" clause.

For instance, if you are a young man and you have sexual intercourse or other forms of sexual contact with a girl younger than fourteen years, you are strictly liable for that offense.

Try this hypothetical: You are a young man, age nineteen, sleeping in your bed one Saturday morning. Your phone rings. It is a police officer asking you to come to the police station and make a statement. "Why?" you ask. You are then informed that there has been an allegation of aggravated sexual assault against you. Yikes! You say. What in the hell is this all about?

Like most young people today, this 19-year-old has a MySpace page. About a year ago, he received a message from a young girl who, after several back and forth Internet conversations, told him she was sixteen. Even though sixteen years of age is still a minor, our law tells us that it’s OK for a boy to have a relationship with a minor if there is no more than a three-year age difference. Of course, he had no clue about that at that time, but has since learned of this law.

So, after a week or so of chatting on MySpace, a lot of "sex-talk," this 19-year-old makes arrangements with the "16-year-old" to meet at a movie theater in the area where she lives with her parents and sister. They meet and have sex. He goes back to his life. The young girl calls him many times after the meeting to start a "relationship." The boy was not interested. The sexual assault allegation comes next.

Do not misinterpret. Neither I, nor anyone I know, condones young men having sex with young girls. But, we have to be realistic and recognize that, first of all, most 13-year-old girls do not look thirteen years old. They are much more sophisticated than I ever thought about being at the age of thirteen. Most of them wear makeup straight from Neiman Marcus makeup counter (maybe circuitously through their mother’s supply, but nevertheless, adult makeup). And, their attire mimics Britney Spears, Lindsay Lohan and other Hollywood wannabees. While I certainly sympathize with the parents of a 13-year-old girl--even one who appears at first glance to be older than thirteen--I also sympathize with the parents of this young man. He did not do what I always told my sons to do: When in doubt, ask to see her driver’s license.

The above situation is one of the scariest for any young man. He is technically guilty. Period. If this young man went to trial on the charge of Aggravated Sexual Assault and was found guilty, as he assuredly would be, he would be sentenced to a term in prison, either 5 to 99 years, or for Life. Upon release, he then would have to register as a Sex Offender for the rest of his life.

As a registered sex offender, he would most likely forever be denied employment or the ability to live in an apartment. If he was able to get probation for his "offense," he would still have to register as a lifetime sex offender--same problems. (This is precisely the reason a 17-year-old Atlanta boy chose to do a ten-year sentence rather than plead guilty to an offense consisting of consensual oral sex with a 15-year-old. He was released after serving two years.)

As a defense attorney, I am trying to convince the prosecutor that to ruin this young man’s life based on circumstances similar to the above would not be just. The girl is at fault morally and ethically--but not legally. A "child" is unable to give consent to sexual contact of any kind.

But consent is not all of the issue. It is the world we live in today. We have the Internet where our young people live. They are able to be in constant contact not only with their friends, but with anyone who is also as "Internet active" as they are. Anyone, anytime.

In Texas, the State Legislature almost changed this law during their last session, but a revision of this law did not pass. In my opinion, this is one of the failures of our criminal justice system. This law is just not right.

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WCI Q & A: A Survivor of Polygamy Speaks Out

by Kathryn Casey

In an earlier post, I blogged about a custody battle I covered in the early nineties for a national magazine. In it, Janet Johanson (photo left), an Oregon educator, tried to gain custody of her six nieces and nephews. Her sister had died of breast cancer, and the children were living with the Vaughn Fischer family in the polygamous town of Hildale, Utah. Johanson’s sister, Brenda, had entered into a spiritual marriage and become Fischer’s third wife just before her death, and Fischer and his first and only legal wife were attempting to adopt the children as well. The case was a clash of lifestyles and beliefs, and more than that, for Johanson, a last-ditch effort to save her sister’s children from what she viewed as a life of misery and pain. In the end, she lost. The Utah Supreme Court gave the children to the Fischers.

When the raid in Eldorado took place, I contacted Johanson again, this time asking her to share her views with WCI’s readers. The following is our Q&A.

KC: Tell us about yourself, where you work, what you do today.

JJ: I am currently raising two internationally adopted deaf children, and have/continue to work as an administrator of several deaf agencies/programs (educational, non-profit agencies, government, and private corporation).

KC: Please give us a brief overview of your personal knowledge of polygamous communities. How do you know what it’s like inside this culture?

JJ: I first became aware of the practices of this group when my half-sister was taken by her mother to Utah and then married to her stepfather. She disappeared. During the following years we always sought her out when we visited Salt Lake City, mostly unsuccessfully. When I was a junior at Brigham Young University, she finally made contact with our family in an attempt to recruit my younger sister. I was the one who converted instead. I was given to a man thirty-seven years older than myself, and also disappeared. I stayed in that relationship for seven years, suffering physical, emotional, and spiritual abuse. I lived in Salt Lake City within this group from 1978 - 1986. I was very close to my sister and her children and we started family traditions together (holidays, birthdays, picnics, campouts). When I was ordered to sever ties with my sister by my husband, I defied him, resorting to climbing out of my bedroom window so I could be with my sister and her family.

KC: Why did you leave?

JJ: After my sister Brenda sought and obtained a release from her husband, who was abusing her and her children, she became sick with breast cancer at the age of 35. FLDS members were quick to claim that her affliction was the result of her disobedience. I was shocked out of my “be obedient and keep quiet” mindset and realized that this was not a religion; it was a cult. I left in 1986, and began making preparations for my sister and her family to join me in Oregon.

KC: After your sister’s death, we met when you were fighting to keep your nieces and nephews from being adopted by a polygamous couple. Why did you want to prevent the Fischers from adopting your sister’s children?

JJ: The main reason I wanted to prevent the Fischers from adopting my sister’s children is became I loved them. They were the family I’d been unable to have with the old man I was married to. I was present at Janelle’s birth (she is named for me), and also knew Deanna from the day she was born (they stayed in my home for a while to recuperate). Having already lost my sister, I could not bear to lose more of my family, especially to people who had no interest in them other than to gain status in the community. I had just completed my master's degree in educational administration; rehabilitation counseling; and multi-handicapped education. I was working as a college administrator, and had resources available to help her children achieve her/their dreams.

KC: Have Texas authorities been trying to do the right things for the children of Eldorado? If not, what more should they be doing?

JJ: Yes. They have a difficult job, and they have taken on what will be a thankless position. They do need to ensure they don't victimize the children further. None of the experiences of these social workers, guardian ad litems, court-appointed special advocates, lawyers, public defenders, and foster care providers has prepared them for the mindset and culture of this community. They need to find people like me to help them, who have come out and who have been able to find balance in their daily lives. I'd like to see more psychologists and anthropologists involved in doing research based studies and recommendations on how to rehabilitate the victims (children, mothers who have been brainwashed and also the boys/young men who have been thrown out and shunned).

KC: Is it right to take these children away from their mothers? Their fathers? The only community they know?

JJ: Yes, because they do not have the ability at this time to realize the degree of abuse they have all been subjected to. I would like to see, in the near future, attempts made to unite children with their mothers, just one mother, and given intensive family counseling and support so they can start to build normal family units. Who made the choice to put these children in danger? The men, then the women. The children are now dealing with the consequence of the men's decisions to further their position within the group by blindly following Warren Jeffs and his minions.

KC: What about yesterday's decision, that the raid was illegal? It appears many if not all of the children may be returned to their parents.

JJ: I'm stunned, but then, not again so surprised. The "religion card" was played, and once again, the children are paying the price for society's reluctance to stand up for those who are unprotected. The Germans/Dutch/Austrians/Polish people did not stand up for the Jews. . . . Is Texas not going to stand up for the children? In retrospect, will the descendents of this community become the next generation of "Lost Boys" and "Child Brides" who are so emotionally damaged they cannot ever function in our society?

KC: Does religious freedom enter in here at all?

JJ: No. It’s not a religion. It may have started from religious roots, but it's been perverted by its leaders jockeying for power, money, and sex.

KC: What about the rights of parents to not have their children removed by the state?

JJ: They have the same right to due process that any parent who has endangered their child has.

KC: How widespread is polygamy in the U.S.? Is there much more than we imagine?

JJ: Yes. and it keeps growing as different families and groups are splintered off. There are many, like the families in the HBO series “Big Love,” who "assimilate" in normal society, while living secret lives behind closed doors and tall fences. The children in those communities are at as much risk. Despite what these people promote as the advantages (many mothers to attend to children), most of these children are neglected when mothers and fathers play favorites with their own biological children, and a lesser wife's children are disenfranchised.

KC: Are the Eldorado children being singled out? If so, what should be done about the thousands of children in Colorado City/Hildale, the polygamous enclaves on the Arizona/Utah border?

JJ: I certainly hope that the authorities in those areas where other enclaves are located are realizing their failure to protect the children in their jurisdictions. The home study done of the Vaughn Fischer family in 1988, during our adoption case, for instance, is a revolting travesty. Brenda's children were forced to respond in the way that they did because of threats.

KC: Is polygamy always a bad situation for the children?

JJ: Yes. The normal checks and balances provided by schools, social service agencies, public health services, police, churches, neighbors, and family are not there to protect the children.

KC: You mentioned “Big Love” on HBO. It depicts an odd and dysfunctional but loving suburban family. Are there polygamous households that are healthy for children?

JJ: No. In "Big Love," we see the children struggling with the “code of secrecy” and trying to rationalize the behavior of the adults in the household to their peers. You also see favoritism to specific children from the three mothers. The type of love that develops in these family structures is not the deep "agape" love that comes from healthy, nurturing, caring relationships, but rather, a custodial type of love.

KC: If you could sit down with the mothers from Eldorado, what would you tell them?

JJ: Learn to question. No man is the authority that they should bow to. You have the right to be loved by someone who loves just you, and who wants to be a partner through life with you and your children. Someone who wants to see you grow, and who will nurture that growth.

KC: What about the children?

JJ: You have the right to have fun, to learn exciting new things, to choose your friends, to have a mother and a father who love you more than life itself and are there daily for you. You have the right to have shoes to wear when its snowing outside, and to explore the world and make mistakes without fear of spiritual retribution being dictated by someone who does not have your best interests at heart.

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Free Will: Too Much of A Good Thing?

by Lucy Puryear, M.D.

As a teenager I struggled with authority. Yeah, me and every other adolescent who's walked this earth. I balked against anyone telling me what to do, when to do it, or what I ought to think about it. It's my body, my hair, my education . . . so leave me the hell alone. I swore when I had my own children I would never repeat the "sins" of my parents.

And then of course I had my own kids and I knew they needed guidance and gentle influence, and sometimes even some not so popular rules. "No, you can't stay up until two on a school night, no you can't go to a party where there are no parents, no you may not speak to me that way. . . ." And their response to me is the same one I gave my parents: "I can't wait until I'm eighteen and you can't tell me what to do anymore."

What you realize as an adult is that it's not so simple. There are not automatically unrestricted freedoms that come with adulthood. There are still rules, and expectations, and societal norms, and even laws that must be followed. And as I tell my children, "No, you don't have to do what I say, but there are consequences to not doing so." If you break my household rules you may get grounded or lose your allowance. If you break societal laws you may do jail time or worse.

The dilemma comes in our society where the government was founded on individual rights of free speech, freedom of religion, the right to bear arms (rights currently being hotly debated), versus the needs of the larger group to be protected from someone's individual rights. Is it okay for you to threaten me with bodily harm as an expression of your right to free speech? Is it okay not to wear a helmet when you ride your motorcycle, if after you squash your brain on the highway, my tax dollars are used to take care of you?

Nowhere is the tension between freedom of religion--an individual's right to choose--and societal laws and norms greater than in the case of the polygamists in Eldorado, Texas. (Women and children after being removed from the compound pictured below.)

So what's so wrong with polygamy? If a woman chooses to be one of five wives, shouldn't she have that right? Not my choice to do so but then no one is asking me to. I assume the FLDS church is just fine with my decision to stay away from them. They're not knocking on my door trying to recruit me as wife number six. So why don't we just leave them alone to practice their religion in peace?

I can think of a lot of religious practices that seem very strange to me. How about taking communion on a Sunday and believing that it is truly the body and blood of Christ? (I actually do believe in that as a practicing Episcopalian, but I'm also willing to admit others might think that practice quite odd and non-sensical.) How about the Jewish practice of circumcision, which is a religious ritual but practiced now by Jews and non-Jews alike? You don't think cutting the foreskin off of a baby's penis a little barbaric?

Where do we draw the line between free will and the safety and well-being of others? The FLDS group from Eldorado believes that they are upholding God's prophetic vision for them to live their lives in plural relationships. The United States has laws that make polygamy illegal. However these groups have been practicing polygamy for decades and mostly have been left alone to practice their religion. But this case hinges on the well-being and protection of minor children. And that's where the issue of free will becomes very important.

We do not believe that children under the age of eighteen (a somewhat arbitrary cut off) have the right to free will. I think mostly because we think they're not mature enough or wise enough to exercise their rights using good judgement. And that's often true. Ask any child whether they thought going to school was a good idea and you'd get many who'd opt for the "only if I feel like it and there weren't any tests" track. So as a society we have chosen to subsume the rights of the child under the rights of the parents. And in the Eldorado case the parents have chosen to allow their underage young girls to be married to much older men and to participate in sexual activity, often against their will. Most of society calls this child abuse, and this is why the children were removed from the compound. Child abuse trumped the right to practice your religion without obstruction from the government.

It will be interesting to see how this case turns out. I think many will be surprised to see that most of the women and children will be allowed to return to the compound. It could be a worse fate for some of these children to be taken away from their mothers and sent to foster care. That can't be the answer for what's in the best interest of these children. And it may be astonishing to many that if given the choice, most of the women would choose to take their children and return to what they consider a safe and nurturing home.

There will be much argument over whether or not these women from Eldorado are acting freely. They have been raised in this environment and some would say "brainwashed" to believe that they are subservient to men and that it is their duty to practice plural marriage. Most of all of us have been "brainwashed" by the way we are raised. I'm an Episcopalian, my next door neighbor is a republican, my best friend was raised to believe in astrology and the power of crystals. But I would say we have free will because we have the freedom to choose whether or not we want to continue the practices of our parents. They may be disappointed or even angry if we choose to vote for a democrat, but we won't be banned from contact with the family.

Adults should be allowed to practice whatever religion, or be in whatever relationship configuration they choose, as long as minor children are not abused, coerced, or denied the right to choose another lifestyle in adulthood. When someone who does not have the right to exercise their own free will is hurt, the law needs to intervene. This is true for children, the elderly, and those with serious and persistent mental illnesses. Thirteen-year-old little girls should not be having intimate relationships with men. That is not religious freedom. That is child abuse.

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