Tuesday, February 1, 2011

Supreme Court to hear arguments on whether "children's rights" include freedom from unreasonable search and seizure

For a printable .pdf version of this press release, please click here.
            “Children’s Rights” must include the right to be free from unreasonable search and seizure, according to a broad coalition of child advocacy groups supporting a family seeking to have those rights upheld by the United States Supreme Court.

            The advocates are supporting a child known as “S.G.,” her sister, and their mother Sarah Greene.  The Supreme Court will hear arguments on March 1 in their case, known as Camreta v. Greene.  It is the first major case concerning child protective services systems to reach the high court in more than 21 years.

            The child was only nine years old when she was called out of her classroom and forced to endure a two-hour interrogation by a male caseworker for the Oregon Department of Human Services because DHS had received a false allegation of sexual abuse.  Sitting silently in the room during the entire interrogation was another man - an armed deputy sheriff. 

            The child repeatedly denied any abuse, only to be browbeaten by the caseworker, who kept insisting she was giving the wrong answers while questioning the little girl about the most intimate details of her life.

            In recent decades, there have been many cases, such as the notorious McMartin preschool case, in which hundreds of families were torn apart as a result of false allegations coerced from young children by zealous case workers and law enforcement officers.

            In S.G.’s case, the experience so traumatized the child that she became physically ill.

            S.G. sued and the Ninth U.S. Circuit Court of Appeals agreed that her Fourth Amendment right to be free from unreasonable search and seizure had been violated.

            “Our legal system is wise enough that it can protect children without violating the Bill of Rights,” said Carolyn Kubitschek, of Lansner Kubitschek Schaffer who is representing the family pro bono before the Supreme Court.

            (The 9th Circuit also said that the caseworker and sheriff’s deputy were immune from damages because, before the ruling, the law was unclear.  Yet officially – and oddly – it is they who are officially appealing the decision, though they have nothing to gain personally from the appeal.)

            Eighteen “Friend of the Court” briefs have been filed by 70 child and family advocacy organizations and national experts in support of S.G. and her family.  They run the gamut from the Southern Poverty Law Center to the Family Research Council.

            Several of the groups, including the Legal Aid Society Juvenile Rights Practice,  Lawyers for Children, and the Children’s Law Clinic at Penn State University specialize in representing children in cases involving alleged child maltreatment.

           “This case raises a fundamental question of liberty for children and families,” said Diane Redleaf, executive director of the Chicago-based Family Defense Center, which coordinated the national amicus briefing effort and wrote a brief pointing to flaws in investigations that cause more damage than good for children and families. 

           “While the State argues it should be allowed to question children at any length it deems necessary in order to ‘protect’ them from possible abuse, this sort of intervention harms children  more than it helps them.  Children need to be questioned with care and only removed from their families if the state has evidence showing abuse or neglect did occur.” 

            In the case of S.G., the interrogation set off a cascade of other errors, including the needless removal of S.G. and her sister from her home for three weeks, during which time she was consigned to Oregon’s chaotic system of foster care, and a stripsearch and traumatic medical examination as doctors she had never seen before examined her for signs of sexual abuse.

            In an extra measure of cruelty, the same male caseworker who interrogated S.G. refused even to allow her mother to be present to comfort her during the exam.

            “Those who favor unlimited state power in these cases say the issue is 'children’s rights' – and on that we agree,” said Richard Wexler, executive director of the National Coalition for Child Protection Reform. (Kubitscheck is NCCPR’s volunteer Vice President.)  “Children have a right to be safe from needless two-hour interrogations about the most intimate details of their lives overseen by armed police officers.  Children have a right to be safe from needlessly being torn from their mothers and consigned for several weeks to the chaos of foster care.  And children have a right to be safe from stripsearches and medical exams which, in any other context, would in themselves be a form of sexual abuse.

            “One way to increase the chances of these children’s rights being protected is to ensure that children receive the full measure of protection under the Fourth Amendment,” Wexler said.

            Had S.G. herself been suspected of committing a crime, the caseworker and the deputy sheriff could not have conducted this interrogation without a warrant,” Wexler said.  “Surely it is not too much to ask that, under the Constitution of the United States an innocent child receive the same measure of protection as a suspected criminal.”

            Although those opposing Fourth Amendment protection for children have concocted a variety of scare scenarios, none of them holds up to scrutiny.

            The 9th Circuit decision does not ban caseworkers or sheriff’s deputies from schools.  Nor does it bar them from questioning children without parental consent.  It requires only that they obtain a court order before doing so, something that can be done in a matter of hours.  And in cases where that really would pose a risk to the child, they don’t even have to do that.

            “What those supporting untrammeled state power really are asking for is the right to traumatize children and trample on their rights not for child protection but for agency convenience,” Wexler said. “They actually admit in their own brief that they want to continue to traumatize children this way based on no more than – in their own words – 'speculation and hearsay.'

            “But the Constitution is meant to protect citizens from harm, not to spare bureaucracies a little inconvenience.”