HSLDA and Child Abuse: HSLDA’s Defense of Child Abuse

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HA note: The following series will run each weekday this week. It is reprinted with permission from Libby Anne’s blog Love Joy Feminism. Part four of the series was originally published on Patheos on April 22 2013.

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Also in this series: Part One, Introduction | Part Two, HSLDA’s Fight Against Child Abuse Reporting | Part Three, HSLDA’s Stonewalling of Child Abuse Investigations | Part Four, HSLDA’s Defense of Child Abuse | Part Five, HSLDA and the Deregulation of Homeschooling

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4. HSLDA’s Defense of Child Abuse

This post is part of a series examining the role of the Home School Legal Defense Association (HSLDA) in aiding and abetting child abuse. I have previously looked at HSLDA’s efforts to prevent the reporting of child abuse and their efforts to stonewall child abuse investigations. In this post I will turn to HSLDA’s defense of child abuse.

HSLDA has made a name for itself defending parents’ right to spank their children and spends a good bit of its time and energy monitoring and opposing new child abuse legislation—an odd activity for an organization nominally devoted to protecting the legality of homeschooling. While HSLDA literature continually talks about the importance of defending parents’ use of “reasonable” corporal punishment, the organization has never taken the time to define just what constitutes“reasonable” corporal punishment. Similarly, while HSLDA occasionally makes statements condemning child abuse, I’ve noticed a bit of a pattern—these statements are always followed with the word “however.”

Hiding and Ignoring Child Abuse

In its literature, HSLDA (to my knowledge) never defines “reasonable” corporal punishment, never warns its member families not to abuse their children, and never tells its member families how to handle child abuse they might see in other families in their homeschooling communities. HSLDA’s attorneys are not pioneers in stopping child abuse in homeschooling families; they are pioneers in disabling child abuse protections. Never once does HSLDA touch on how to solve the child abuse problem, perhaps because they don’t see it as a significant problem or perhaps simply because they see it as something “other” people do, not problem some of their own member families might have. While you could argue that HSLDA sees child abuse detection and prevent as important but not as a homeschooling issue, this makes no sense when you consider the amount of time HSLDA spends working to disarm protections for abused children.

Let me give an example of the sort of advice HSLDA gives regarding child abuse and child protective services—In a document titled “The Social Worker at Your Door: 10 Helpful Hints,” HSLDA attorney Christopher Klicka advised parents as follows:

a. Avoid potential situations that could lead to a child welfare investigation.

b. Do not spank children in public.

c. Do not spank someone else’s child unless they are close Christian friends.

In other words, Klicka is aware that HSLDA member families physically discipline their children in ways many people would consider abusive, and even find concerning enough to actually call Child Protective Services. But instead of addressing where the line between “reasonable” corporal punishment and child abuse is located, he merely advises HSLDA member families to avoid the use of corporal punishment in public. This displays a remarkable lack of care about the very real problem of child abuse, as well as an inability to consider that any of its member families might actually discipline their children in ways that are abusive and should be stopped.

Further, Klicka advises HSLDA member families to restrict their use of corporal punishment on children outside their families to the children of “close Christian friends.” This statement seems to imply that without this suggestion, HSLDA member parents might spank children outside of their families without their parents’ permission and be reported to Child Protective Services for doing so—and also that close Christian friends will de facto be okay with them spanking their children without asking first. After all, why not say “Do not spank someone else’s child unless you have their permission“? Or even, why not say “Do not spank someone else’s child” and leave it there?

There is also the problem of omission—for all of the advice HSLDA gives on how its member families can recognize, avoid, or stonewall child abuse investigation, the organization never takes two seconds to inform its member families how to recognize and avoid child abuse or even how to handle or deal with child abuse in their homeschooling families or communities. One wonders if there are any circumstances at all in which HSLDA would ever recommend that its member families involve CPS.

What Is Child Abuse?

HSLDA’s member manual states that “HSLDA believes that child abuse is a terrible crime and that true abusers should be prosecuted to the fullest extent of the law.” Note the use of the word “true.” The more I read, the more convinced I become that HSLDA does not define child abuse in the same way as most Americans. For example, HSLDA is on record defending foster parents’ rights to use corporal punishment on their foster children, something most Americans would find disturbing. Further, it’s worth noting that the sentence above is one of the many times HSLDA briefly condemns child abuse and then starts the next sentence with the word “However” (see page 3, column 2 of the link).

The only time anyone at HSLDA comes close to discussing what actually counts as child abuse is in discussing a 2008 California law that would have added to the penal code a list of actions for jurors to consider when determining if a form of discipline is “unjustifiable.” In a Washington Times op ed, HSLDA president J. Michael Smith explained that HSLDA had no problem with most of the items on the list—stating that these things were indeed child abuse—and that the organization only opposed the law because it took exemption to the listing of hitting children with objects. Here are his words:

This bill amends Penal Code section 273(a), which makes it a crime to cause unjustifiable pain, harm or injury to any minor child. If the bill passes, spanking with an object such as a stick, rod or switch would be lumped in with throwing, kicking, burning, or cutting a child.

Striking a child with a fist. Striking a child under 3 years of age on the face or head. Vigorously shaking of a child under 3 years of age. Interfering with a child’s breathing. Brandishing a deadly weapon upon a child. These are all factors that a jury could use to conclude that a defendant in a criminal case has inflicted unjustifiable physical pain or mental suffering.

What the bill would do is to equate discipline administered via an implement with the above conduct, which obviously is abusive behavior toward a child.

Now of course, this is no actual laying out of a comprehensive definition of child abuse—Smith merely goes down the items listed in the bill. Further, I’m less than willing to trust what HSLDA spokespeople say in public forums given that Farris claimed in an article for popular readership that requiring social workers to have either parental consent or a warrant to enter a home was be no biggie because the vast, vast majority of people voluntarily let social workers in, even as the organization advises its members to never never never let a social worker into their homes without a warrant, ever. Still, it does appear that HSLDA does view some actions—such as violently shaking a small child or striking a child with a fist—to be child abuse. Whether it warns its member families against these actions or ever takes the time to define “reasonable” corporal punishment, however, is another story.

For the record, I am personally against any form of physical punishment of children, and am raising my two young children without laying a hand to them. In contrast, many conservative Christians, including those who founded and run HSLDA, believe strongly that the Bible demands that parents use corporal punishment on their children (they take “spare the rod, spoil the child” stuff literally). Most Americans fall somewhere in between these two positions: they believe that some form of corporal punishment can be employed without crossing the line into child abuse, but also that spanking should consist merely of swatting a child’s buttocks with an open hand and that this form of punishment is usually unnecessary. The question I want to ask here is not whether or not corporal punishment is acceptable but rather where HSLDA draws the line between “reasonable corporal punishment” on the one hand and child abuse on the other. The reason I titled this post as I have is that HSLDA appears to define child abuse differently from the average American.

Given that HSLDA never defines “reasonable corporal punishment” or gives any sort of comprehensive definition of child abuse, I want to take a look at the organization’s positions regarding three different proposed state child abuse statute changes over the past five years. Their positions and advocacy on these bills represent a small fraction of HSLDA’s monitoring of child abuse statute changes across the nation—something the organization watches very closely and doesn’t hesitate to use its e-alert system to mobilize its members in lobbying—but should give us a sample of how HSLDA talks about and defines “reasonable” corporal punishment and what it does or does not include as child abuse.

HSLDA in California: Don’t Restrict Disciplining with Objects!

We’ll start with the HSLDA’s opposition to the proposed 2008 revision of California’s child abuse statute referenced above. At the time, the state’s statutebanned causing children “unjustifiable physical pain or mental suffering.” The new bill kept this same language but added the following:

In a prosecution under this Section in determining whether or not a defendant willfully caused any child to suffer, or inflicted unjustifiable physical pain, or mental suffering, a jury may consider any of the following:

a) The use of an implement, including, but not limited to, a stick, a rod, a switch, an electrical cord, an extension cord, a belt, a broom, or a shoe.

b) Throwing, kicking, burning, or cutting a child.

c) Striking a child with a closed fist.

d) Striking a child under the age of three on the face or head.

e) Vigorous shaking of a child under the age of three.

f) Interference with a child’s breathing.

g) Brandishing a deadly weapon upon a child. However, the above conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, is for the jury to decide.

HSLDA explained its opposition to this change as follows:

The instructions to a jury which are mandated by the current version of A.B. 2943 would state that a jury may consider that physical pain or mental suffering inflicted upon a child is unjustifiable if it is caused by any of the seven kinds of actions…. The first of the seven actions listed is “the use of an implement, including, but not limited to, a stick, a rod, a switch, an electrical cord, an extension cord, a belt, a broom, or a shoe.” This first action includes the act of spanking with an object other than using one’s hand.Because these items would be listed in the Penal Code, the police and district attorney would likely consider all spanking with an implement grounds for bringing charges against the parents. Then a court trial would determine if the parents are guilty of criminal child abuse. Parents would have the difficult task of proving that the spanking was justifiable to the satisfaction of the court in order to avoid being sent to jail for up to one year or receiving other penalties. The case also could be referred to Child Protective Services (CPS) and Juvenile Court, which could result in the possible temporary or permanent loss of custody of their children.

In other words, HSLDA opposed this bill because it listed beating child with a stick, rod, or electrical cord as a factor the jury should take into account when determining whether or not the actions of a parent accused of child abuse were justifiable. Indeed, HSLDA has a pattern of opposing laws that would ban hitting children with objects, even without banning spanking itself. We can safely conclude that HSLDA does not consider hitting children with objects to be child abuse.

But there’s another reason I started with this example, and that’s because of the way HSLDA uses this sort of case in an attempt to induce fear in its member families, distorting the facts and engaging in hyperbole in order to do so. I mean just look at the title of HSLDA president J. Michael Smith’s Washington Times op ed’s title: “California May Ban Spanking.” This bill absolutely would not have banned spanking, and it would not have even banned the use of a paddle—it would instead have merely stated that when determining whether the pain a parent inflicted on a child was unjustifiable, the jury should consider whether an implement should be used. But none of that mattered to HSLDA, which saw a chance to hold the specter of a complete ban on spanking over the head of its member followers.

HSLDA in Mississippi: “Reasonable Discipline” Exemption Not Enough

Next we move to the Deep South. In January of 2012 HSLDA opposed a change to Mississippi’s child abuse statute. Let’s start by looking at the original text of this section of Mississippi’s code:

(2) (a) Any person who shall intentionally (i) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse of a child and, upon conviction, shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years. For any second or subsequent conviction under this subsection, the person shall be sentenced to imprisonment for life.

In other words, if you burn or torture a child, or whip or strike a child so as to cause that child serious bodily harm, you can be prosecuted for child abuse. Brice Wiggins, a Republican state senator, became convinced that the statute did not do enough to penalize child abuse, and introduced a bill to entirely rewrite this section of the code. So let’s look at how his 2012 bill would have amended the code:

(2) (a) (i) A person shall be guilty of felonious abuse of a child if the person intentionally and in a manner causing bodily harm shall:

1. Burn any child;

2. Torture any child;

3. Strangle or choke any child;

4. Disfigure, scar or mutilate any child; or

5. Whip, strike or otherwise abuse any child except as a result of reasonable discipline, in self-defense or in order to prevent bodily harm to a third party.

(ii) A person who is convicted of felonious abuse of a child shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years. For any second or subsequent conviction under this subsection, the person shall be sentenced to imprisonment for life.

(iii) Reasonable discipline shall be a defense to any criminal charge brought under this subsection.

The new statute would prohibit striking or whipping a child so as to cause “bodily harm,” rather than “serious bodily harm” as in the previous statute, but would also insert an exception to this prohibition for “reasonable discipline.” Or to put it another way, while parents before could legally strike or whip their children so as to cause bodily harm whether or not it was done as part of “reasonable discipline” (just so long as they didn’t cause serious bodily harm), under the new revisions parents could only strike or whip their children so as to cause bodily harm as part of “reasonable discipline.”

HSLDA opposed this revision, explaining as follows:

Summary: This bill would make it a felony to “whip, strike or otherwise abuse any child,” thereby causing bodily harm to the child. The maximum penalty would be life in prison. “Reasonable discipline” would be an exception to this offense, but what is reasonable would be left up to judges to decide.

HSLDA’s Position: This bill has the potential to send a parent to prison for life for spanking a child. This bill should be opposed.

First note the fear mongering: “This bill has the potential to send a parent to prison for life for spanking a child.” This makes absolutely no sense—listing a “reasonable discipline” exemption to a law that banned striking a child so as to cause bodily harm clearly indicates that striking your child so as to cause harm can be reasonable discipline. Else why the exemption? In other words, contrary to what HSLDA told its member families, the bill would actually have codified spanking as “reasonable discipline.” HSLDA’s actions here were nothing short of lying and conniving fear mongering—and HSLDA did kick up a good bit of fear as conservative media outletspicked up the story, quoting HSLDA spokespeople and running alarmed headlines like “Miss. Bill Could Mean Life Imprisonment for Parents.” Given that HSLDA makes its money off of selling legal insurance, scare mongering is where it’s at its best. In fact, some have suggested that the organization may intentionally beef up the legal alerts it sends out right around the time it does its membership drive.

HSLDA claimed to oppose the bill because “reasonable discipline” was not defined and would be left up to judges to interpret. What this indicates to me is that HSLDA is aware that its member families define “reasonable discipline” appreciably differently from most Americans—or at least differently from Mississippi judges. What HSLDA wanted was for the law to allow its members to strike or whip their children so as to cause bodily harm without having to prove to judges that their actions constituted “reasonable discipline,” or at the very least an expansive and detailed definition of what constituted “reasonable discipline.” And HSLDA got its way when a new version of the bill was introduced early this year—a bill HSLDA did not oppose. Here is how this bill amended the statute to read:

(2) Any person shall be guilty of felonious child abuse in the following circumstances:

(a) Whether bodily harm results or not, if the person shall intentionally, knowingly or recklessly:

(i) Burn any child;

(ii) Physically torture any child;

(iii) Strangle, choke, smother, or in any way interfere with any child’s breathing;

(iv) Poison a child;

(v) Starve a child of nourishments needed to sustain life or growth;

(vi) Use any type of deadly weapon upon any child;

(b) If some bodily harm to any child actually occurs, and if the person shall intentionally, knowingly, or recklessly:

(i) Throw, kick, bite, or cut any child;

(ii) Strike a child under the age of fourteen (14) about the face or head with a closed fist;

(iii) Strike a child under the age of five (5) in the face or head;

(iv) Kick, bite, cut or strike a child’s genitals; circumcision of a male child is not a violation under this subpagragraph;

(c) If serious bodily harm to any child actually occurs, and if the person shall intentionally, knowingly or recklessly:

(i) Strike any child on the face or head;

(ii) Disfigure or scar any child;

(iii) Whip, strike, or otherwise abuse any child;

The new bill banned striking or whipping a child so as to cause them “serious bodily harm” but made a broad allowance for causing a child bodily harm, excepting only bodily harm caused by throwing, kicking, biting, or cutting, striking a child under 14 in the face or head with a closed fist, striking a child under 5 in the face or head, and kicking, biting, cutting, or striking a child’s genitals. Or to put it another way, under the new bill it would be legal to cause your child bodily harm without having to prove that doing so constituted “reasonable discipline,” so long as that bodily harm was not caused by things like biting, kicking, punching in the face, or trauma to the genitals. With this change, HSLDA no longer saw this law as a threat to its members’ “right” to discipline their children using “reasonable” corporal punishment.

Just how did the law define “bodily harm” and “serious bodily harm”?

(e) For the purposes of this subsection (2), “bodily harm” means any bodily injury to a child that includes, but is not limited to, bruising, bleeding, lacerations, soft tissue swelling, and external or internal swelling of any body organ.

(f) For the purposes of this subsection (2), “serious bodily harm” means any serious bodily injury to a child and includes, but is not limited to, the fracture of a bone, permanent disfigurement, permanent scarring, or any internal bleeding or internal trauma to any organ, any brain damage, any injury to the eye or ear of a child or other vital organ, and impairment of any bodily function.

With these definitions, then, the new bill left it legal for parents to beat their children so as to cause “bruising, bleeding, lacerations, soft tissue swelling, and external or internal swelling of any body organ” without even having to pass any sort of “reasonable discipline” standard. The reason HSLDA had opposed the 2012 version of the bill—but not this one—was that the former version only allowed parents to strike or whip their children so as to cause bodily harm if it was done as part of “reasonable discipline,” a standard they did not want their member families burdened to meet. HSLDA was successful in opposing the original bill and this travesty of a child abuse statute is the result.

HSLDA in Florida: Significant Bruising and Welts are A-Okay

Finally we turn to Florida. In 2010, HSLDA sent out a legislative alert about Florida’s Senate Bill 1360, urging its members to oppose the measure. Here is the text:

Summary: Includes inappropriate or excessively harsh corporal discipline in the definition of “criminal conduct” for purposes of protective investigations. Prohibits parents, legal custodians, or caregivers from inflicting such corporal discipline. Provides penalties and applicability. Includes offenses involving inappropriate or excessively harsh corporal discipline within the offense severity ranking chart of the Criminal Punishment Code, etc.

HSLDA’s Position: Oppose.

This one had me scratching my head. Why would HSLDA oppose a bill outlawing “excessively harsh corporal discipline”? Isn’t their typical line that they defend “reasonable” corporal punishment (which they never define)? Doesn’t that make them de facto against excessively harsh corporal punishment? Just what “inappropriate or excessively harsh” corporal punishment did SB 130 add to the criminal code? Let’s have a look at the text of the actual bill. The bill begins as follows:

Section 1. Paragraph (b) of subsection (2) of section 39.301, Florida Statutes, is amended to read:

(2) (b) As used in this subsection, the term “criminal conduct” means:

1. A child is known or suspected to be the victim of child abuse, as defined in s. 827.03; or of neglect of a child, as defined in s. 827.03; or of inappropriate or excessively harsh corporal discipline, as defined in s. 827.032.

In other words, the statute originally listed “child abuse” and “neglect” as “criminal conduct” and this bill would have amended it to also include “excessively harsh corporal discipline” alongside “child abuse” and “neglect.” How does the bill define “excessively harsh corporal discipline”?

Section 2. Section 827.032, Florida Statutes, is created to read:

827.032 Inappropriate or excessively harsh corporal discipline; penalties.—

(1) As used in this section, the term “inappropriate or excessively harsh corporal discipline” means an act of discipline that results or could reasonably be expected to result in any of the following or other similar injuries:

(a) Sprains, dislocations, or cartilage damage.

(b) Bone or skull fractures.

(c) Brain or spinal cord damage.

(d) Intracranial hemorrhage or injury to other internal organs.

(e) Asphyxiation, suffocation, or drowning.

(f) Injury resulting from the use of a deadly weapon.

(g) Burns or scalding.

(h) Cuts, lacerations, punctures, or bites.

(i) Disfigurement.

(j) Loss or impairment of a body part or function.

(k) Significant bruises or welts.

(l) Mental injury, as defined in s. 39.01.

The bill defines excessively harsh corporal discipline, then, as that which results in bone fractures, suffocation, burns, cuts, disfigurements significant bruises and welts, etc. HSLDA did not explain its opposition to this bill. The only thing that makes any sense to me is that HSLDA opposed it because it listed “significant bruises or welts” as “excessive corporal discipline.” HSLDA’s concern must have been that banning discipline that resulted in significant bruises and welts infringed on parents’ rights to use “reasonable corporal punishment” on their children. It seems, then, that disciplinary actions that leave “significant bruises or welts” fit within HSLDA’s definition of “reasonable corporal punishment.”

Concluding Thoughts

Given the lack of any word from HSLDA on what constitutes “reasonable” corporal punishment, we have to piece together HSLDA’s definition of that term by examining its positions on bills revising state child abuse statutes, which HSLDA monitors closely. What we find when we do this is that HSLDA opposes laws that would ban hitting children with physical objects, striking or whipping children so as to cause bodily harm in a manner that judges would not consider “reasonable discipline,” and disciplining children in a manner that leaves significant bruises or welts. It would seem that all of these things fit within HSLDA’s definition of “reasonable corporal punishment.” And, beyond that, it appears that HSLDA is aware that its members use corporal punishment that many if not most Americans would consider child abuse.

If HSLDA’s view of child abuse reporting and child abuse investigations as bad things that need to be cut down on or obstructed was disturbing, HSLDA’s actions and views regarding child abuse itself are more so.

HSLDA seems to see child abuse as something that happens “out there” and to “other people,” not something that happens within its own member families and needs to be treated seriously. Further, HSLDA appears to view child abuse as something that always exists in extremes, in children with broken bones and starved bodies—and if its member families aren’t engaging in those sorts of activities, then they can’t be abusers, right? But what the organization refuses to admit is that it is a continuum, and that much of what it considers “reasonable” corporal punishment is considered by most Americans to be child abuse. And through all of this, HSLDA makes no attempt to draw a line between reasonable corporal punishment and child abuse or advise its member families on anything other than how to hide abuse—and by not speaking, they are complicit.

Finally, HSLDA seems oblivious to the fact that its opposition to bills criminalizing child abuse might actually aid and abet abusers to continue their abuse. After all, thanks to HSLDA it is now perfectly legal in Mississippi for a parent to whip a child bloody, or beat a child with a rod until he is covered with welts, all without even having to justify this activity as “reasonable discipline.” This sort of thing affects real people, real children, real lives.

To be continued.

HSLDA and Child Abuse: HSLDA’s Stonewalling of Child Abuse Investigations

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HA note: The following series will run each weekday this week. It is reprinted with permission from Libby Anne’s blog Love Joy Feminism. Part three of the series was originally published on Patheos on April 20 2013.

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Also in this series: Part One, Introduction | Part Two, HSLDA’s Fight Against Child Abuse Reporting | Part Three, HSLDA’s Stonewalling of Child Abuse Investigations | Part Four, HSLDA’s Defense of Child Abuse | Part Five, HSLDA and the Deregulation of Homeschooling

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3. HSLDA’s Stonewalling of Child Abuse Investigations

This is the third post in a series on the role the Home School Legal Defense Association (HSLDA) plays in aiding and abetting child abuse. In the last post I wrote about HSLDA’s efforts to decrease the reporting of child abuse; in this post I will write about the role HSLDA has played in encouraging the obstructing of child abuse investigations. In a nutshell, HSLDA encourages its member families to do whatever they have to to prevent social workers from talking to their children alone, has pioneered legal strategies aimed at enabling parents to stonewall child abuse investigations, encourages children and parents alike to regard social workers with fear and suspicion, and portrays child abuse investigations themselves as abusive.

Standard Bearers of the Fourth Amendment

The fourth amendment protects citizens against unreasonable search and seizure; it is because of this amendment that law enforcement must have a warrant to enter your house. HSLDA is adamant in its insistence that the fourth amendment gives parents the right to deny Child Protective Services workers access to their homes and children without a warrant. In fact, HSLDA has been so dogged in pursuing litigation to extend parents’ fourth amendment rights that a legal comment published in UMKC Law Review in 2004 was titled “Standard Bearers of the Fourth Amendment: The Curious Involvement of Home School Advocates in Constitutional Challenges to Child Abuse Investigations.”

Just what is HSLDA’s line on the fourth amendment? Well, in his 2001 testimony urging that the Child Abuse Prevention and Treatment Act (CAPTA) be amended, HSLDA’s Christopher Klicka made the following suggestion:

Specific Declaration of the 4th Amendment Probable Cause Standard: Social workers must be held accountable to the same 4th Amendment standards as the police and other law enforcement authorities. As a condition of receiving federal funds, states should be mandated to declare in their state code that a warrant, supported by probable cause, must be obtained before a social worker can enter the home without consent of the parents.

HSLDA was actually partially successful in its attempt to amend CAPTA: As a result of their efforts, a provision requiring that social workers be trained regarding the requirements of the fourth amendment was added to the bill. Now while HSLDA’s laser focus on the fourth amendment as a way to protect homeschooling families against child abuse investigations may seem fishy, it is true that the fourth amendment does protect families against intrusions of law enforcement without a warrant, so applying this same standard to CPS workers, who serve as government agents, is not really that out there (whether or not I agree with it, of course, is another matter). Where it gets strange is what comes next.

Don’t Let the Social Worker In!

HSLDA insists that requiring social workers to get either the parents’ consent or a warrant before entering a home and interviewing children won’t actually get in the way of child abuse investigations, explaining as follows:

Obviously, nothing in the Constitution prevents a social worker from going to a home and simply asking to come in. If the parent or guardian says “yes”, there is no constitutional violation whatsoever provided that there was no coercion.

This covers the vast majority of investigations. The overwhelming response of people being investigated is to allow the social worker to enter the home and conduct whatever investigation is reasonably necessary.

This is very odd given what HSLDA advises its members:

Never let the social worker in your house without a warrant or court order. All the cases that you have heard about where children are snatched from the home usually involve families waiving their Fourth Amendment right to be free from such searches and seizures by agreeing to allow the social worker to come inside the home. A warrant requires “probable cause” which does not include an anonymous tip or a mere suspicion

In the Stumbo case, when a social worker came to the door to investigate suspected child abuse after a tipster made a report about an unattended naked two year old in the family’s driveway, HSLDA advised the family not to let the social worker in. The Stumbos followed HSLDA’s advice, denying social workers access to their children, and as a result what might have been a simple investigation revealing no suggestions of child abuse and leading to the tip being unsubstantiated and the case dismissed instead turned into a drawn-out court battle that lasted for years.

Growing up in an HSLDA member family, I remember what I was taught was the number one most important thing to remember in case of a social worker coming to the door: Never, never, never let a social worker into the home, and never let the social worker talk to any of the children alone. The reason for this, I was told, was that social workers would fake evidence and plant false memories in children, meaning that if even the most innocent homeschooling family let a social worker into the house they would end up losing custody of their children. I never thought about the reality that, in practice, urging parents against allowing CPS workers into their homes or access to their children might both make the families appear extremely suspicious and serve to impede the investigation and discovery of real and devastating child abuse.

Just What Is Probable Cause?

If HSLDA member families follow HSLDA’s advice, social workers will always have to get warrants to investigate child abuse complaints against homeschooling families. To get a warrant the social worker will have to establish probable cause, and HSLDA is adamant in wanting the strictest standards used in determining just what constitutes probable cause—and that means anonymous tips or “mere suspicion” of child abuse, however earnest or dire, are out.

In the Stumbo case the social worker responded to the parents’ refusal to allow access to their home or children by going to a judge and getting a warrant. HSLDA responded by taking legal action to challenge this warrant—and ultimately won.

In one article, HSLDA offers an example of probable cause: A grandmother calls CPS, providing her name and personal information, and reports that her grandson has been locked in his room for days without food and that she has seen him and he looks pale and weak. HSLDA states that in this case, if the CPS worker can verify the identity and relationship of the caller, he would then have probable cause and could get a warrant. Later, the article states that “It is not enough to have information that the children are in some form of serious danger. The evidence must also pass a test of reliability that our justice system calls probable cause. … Anonymous tips are never probable cause.”

Let’s take a look at how things would work if HSLDA has its way: When a tipster calls CPS to expresses concerns about a homeschooling family, a social worker will be dispatched to the family’s home in an attempt to ascertain whether there is any justification for these concerns. On HSLDA’s advice, the family will turn the social worker away without allowing her access to their home or children in order to investigate the allegations. The social worker can then go to a judge, and must present some form of information that will pass the “test of reliability” and serve as “probable cause”—and this information must all be obtained and presented without any access to the family’s home or children. If the tip is anonymous or the repost rests on “mere suspicions” or the allegations are not deemed to pass the “test of reliability,” regardless of the severity of the accusations, the judge will deny the warrant and the case will be dismissed, all without the social worker ever having any contact with the family’s children. Seen in this way, it’s not hard to see that HSLDA is intent on throwing up any possible roadblock in the path of child abuse investigation.

Don’t Let Them Talk to the Kids!

Perhaps this is the most disturbing part: HSLDA does whatever it has to to keep CPS workers from contact with homeschooling children, rejoicing every time they successfully keep children from private interviews with the social workers sent to investigate child abuse tips a family. In one article in its Home School Court Report, an article that is extremely representative of the stories recorded there, HSLDA exults over a successful case against child abuse investigations as follows:

A Home School Legal Defense Association member family in Jackson County recently contacted us for assistance in a Department of Social Services investigation alleging physical abuse.

The investigation was prompted by a report to DSS alleging inappropriate discipline of their child approximately two years ago. Although the report just covered one child, the social worker insisted that she be allowed to interview all of the children in the home.

HSLDA contacted the social worker, explaining that our members were eager to address the allegations made against them and were prepared to meet with the social worker to respond to questions about the report. However, we clarified that the parents would not discuss any matters beyond the specific allegations, and that they would strenuously oppose subjecting their children to the trauma of any interrogation by social workers.

The family recently received a letter stating that the investigation was terminated as “unfounded.”

In case after case after case after case after case after case, HSLDA makes it clear that allowing social workers to speak with children alone is the absolute worst thing a parent can do, and is something to be avoided at all costs. This is the thing a parent must never do. HSLDA seems completely unaware that sometimes a private interview with a social worker is the only chance an abused child has to speak out about her abuse, and that having a parent or other relative present often impedes abused children’s ability to speak openly of their abuse. But then, HSLDA also seems unaware that any of its member families could possibly abuse their children.

In fact, here is a statement by HSLDA directly addressing the importance of opposing private interviews between children and social workers:

Private interviews with a social worker can be extremely traumatic for a child. Social workers sometimes ask inappropriate, personal, and offensive questions which can destroy a child’s innocence or security. HSLDA works hard to avoid such traumatic interviews wherever possible.

HSLDA isn’t shy, then, about its opposition to letting social workers speak privately with children. In case after case listed in their Court Report and on their website, they crow over how they cowed social workers out of being able to meet one-on-one with homeschooling children. HSLDA may insist that social workers plant stories of abuse and traumatize children during these private interviews, but the simple reality is that HSLDA is working its hardest to cut off any chance abused children might have of actually speaking to social workers about their abuse.

For more on how HSLDA teaches parents to deal with CPS workers—and more on the fear and suspicion with which HSLDA encourages parents to view CPS workers—take a minute to read this play in two acts involving “Mr. Innocent,” “Mr. Wise,” “Little Eager,” and “Orwell,” the social worker. This play is an excellent peek into exactly how I was taught growing up to view social workers and deal with CPS investigations. And you may have guessed it already—the goal is to avoid allowing CPS to speak privately with the children.

Child Abuse Investigations as Abusive to Children

HSLDA also has a track record of arguing that children must be protected from child abuse investigations. For example, in explaining opposition to mandatory reporting laws HSLDA has said the following:

HSLDA has seen firsthand how malicious or ignorant child abuse and neglect allegations have destroyed innocent families. A family has few protections against the power of CPS agencies. And even if a CPS investigation is closed as unfounded, the trauma to a young child, to an innocent family as a stranger (albeit maybe a well-intentioned stranger) enters the home and threatens to remove the children, is lasting and profound.

And, after winning one case, HSLDA reported as follows:

Elated by this sudden victory after months of worry, the Willittses returned to normal life. Their refusal to back down – even in the face of relentless intimidation – had protected their children from a traumatic interview and their family from any further invasion of privacy. We thank God for the positive resolution of this case.

HSLDA often describes CPS investigations as abusive toward families, thus co-opting the rhetoric of abuse. I’m unsure of whether HSLDA is aware of how insensitive this makes them look—or if they’re aware that even HSLDA member families can be abusive. Either way, the idea that child abuse investigations are this horribly abusive thing that families and children must be protected against at all costs serves in practice to aid abusive parents seeking to hide the evidence of their abuse and minimizes the abuse that many children suffer every day at the hands of their parents.

Teaching Children (and Parents) to Fear Social Workers

I would suggest that whatever “trauma” is in fact suffered by homeschooled children interviewed by CPS workers is the result of HSLDA literature urging children to be afraid of social workers. When I was a child, I was terrified of CPS workers, viewing them as an evil boogeyman out to take me away from my parents at the drop of a hat. Where did I get this fear? From HSLDA. In spades. HSLDA sows fear among homeschooling parents and children because that fear is what keeps its coffers full—after all, if homeschooling parents are not afraid, they will not buy HSLDA’s legal insurance.

In fact, HSLDA founder Michael Farris even wrote a horror novel called Anonymous Tip, which detailed the story of a woman whose daughter was removed from her custody by a conniving social worker who faked evidence after a child abuse tip called in by the woman’s deadbeat ex. I’m sure I’m not the only homeschooler who read Farris’s novel and took it very, very seriously—and the play I referenced earlier was likely taken similarly seriously.

Through its books, email alerts, and magazine, HSLDA plants a fear of social workers and CPS investigations deep in the heart of both parents and children—even leading them to believe that CPS workers commonly remove children from their parents without justification, and that this could happen to them too—and then crows to the rooftops about the trauma that results from child abuse investigations. If HSLDA wasn’t sowing this fear in the first place, parents and children wouldn’t be frightened to death when social workers show up at the door to investigate a complaint and make sure everything is alright.

But there’s more to this, too. When HSLDA teaches children to be afraid of social workers, it is teaching them to see their helpline as the enemy. CPS workers ought to be seen as friends and supporters of children, there to listen to kids and help protect them from abuse. Sure, there may be the random bad social worker, but by and large social workers are dedicated individuals who believe deeply in helping children. Social work isn’t something you go into for the money. And yet, HSLDA is busy teaching children to view social workers as objects of terror, which of course means that homeschooled children won’t see social workers as people they can trust and go to when they need help.

This Isn’t Hypothetical

I think it’s important to realize that this isn’t some abstract hypothetical we’re talking about. In early 2012 a fifteen year old homeschooled Wisconsin girl was found starving, walking alone along the side of the road, having escaped the prison cell her basement room had become.

The girl, now 15, was found by a passerby earlier this month as she walked in her pajamas and barefoot along a McFarland road. Authorities said the girl weighed 70 pounds.

The complaint states the girl’s face appeared sunken with her collarbones sticking out, and that she was”gorging” on food after authorities got her to care. The complaint states the girl gained 17 pounds in a matter of days.

According to the complaint, the girl told authorities Drabek-Chritton often denied her food, while Chritton claimed food would trigger diabetic reactions and render the girl prone to violence. Court documents state Drabek, two small children in the household, and Chritton and Drabek-Chritton would eat normally, while the girl would scavenge for food from garbage and go days at a time without eating. Her stepmother, Drabek-Chritton, was listed in court records as 370 pounds. Authorities said there was no evidence to support family claims of the girl’s alleged medical conditions, including eating disorders.

It seems there had been child abuse tips lodged against this family in the past:

“It also appears that the family in the past was not cooperative with the department of human services or the city of Madison police department,” Moeser said. Court documents state Chritton and Drabek-Chritton refused social workers access to their home during at least one investigation, and refused staff access to Drabek and the girl at times when both were minors. State and county officials were unavailable to comment on whether court actions were considered or attempted to overcome parental objections during investigations, with officials citing confidentiality rules.

I don’t know whether this homeschooling family was an HSLDA member family, but I do know that they step by step followed the course of action HSLDA recommends families follow in dealing with child abuse investigations, and that following HSLDA’s advice enabled them to hide their abuse of their daughter, abuse that only came to light when the girl physically escaped the hell her home had become. HSLDA’s policies for the handling of child abuse investigations aren’t just hypothetical—they have real world implications and affect real children’s lives in profoundly negative ways.

Conclusion

HSLDA may not see itself as doing everything in its power to obstruct child abuse investigations, but that is in practice what it is indeed doing. HSLDA urges its members against allowing social workers to investigate allegations of child abuse without a warrant and at the same time is working to increase the standards of what counts as “probable cause,” thus making it harder for social workers to get warrants to investigate abuse. At the same time, HSLDA does everything in its power to avoid letting social workers personally interview children, thus cutting off any possibility children who are being abused by their parents have of speaking out about that abuse. Meanwhile, HSLDA keeps homeschooled children so scared silly of social workers that it is more than likely that many abused homeschooled children wouldn’t report their own abuse if they had the chance. Meanwhile, HSLDA paintsthe child abuse investigations themselves as the problem, and as a dire threat to children.

Instead of doing its utmost to obstruct child abuse investigations, why doesn’t HSLDA instead urge its members to comply with investigations in order to dispel allegations of abuse? Why not focus on ensuring that CPS follows their own best practices and rules, thus minimizing false positives in child abuse investigations, rather than viewing CPS as the enemy to be opposed and obstructed? Or for that matter, why deal with child abuse allegations in the first place? Why not stick with the accusations that deal directly with homeschooling, such as ensuring that local officials know state law and that member families comply with those laws?

There are many possible responses to these questions, of course. Perhaps protecting parental rights against any limitations whatsoever is HSLDA’s primary goal, with homeschooling merely a tool to this end, and perhaps this has led to HSLDA defending parents against investigations of child abuse. Perhaps HSLDA’s definition of child abuse does not elide with the CPS’s definition of child abuse. Perhaps many HSLDA member families do have something to hide, and HSLDA knows it. Perhaps HSLDA’s focus on the primacy of parental rights means that the organization is not actually interested in doing things to protect children against abuse at the hands of their parents.

As one last example of how HSLDA views child abuse accusations and investigations, let me quote from an HSLDA article on Japanese homeschoolers:

Recent revisions to the Juvenile Law have strengthened child abuse reporting laws. There is now the possibility for neighbors of homeschool families to give notice to the Child Consultation Center (Zidoh-Sohdan-shyo in Japanese) that homeschooled children are abused by their parents. Regrettably, the Child Consultation Centers in each district are now required to investigate each and every abuse notice. Unsubstantiated abuse claims are expected to increase and to affect homeschool families adversely.

“Regrettably.”

In case it is not already clear, HSLDA considers Child Protective Services investigations simply annoyances homeschoolers should not have to deal with rather than seeing them as important means of locating and helping abused children. Once again, it’s like HSLDA is completely unaware that some homeschooling families might actually physically abuse their children, or that some homeschooled children might be in need of help. HSLDA would probably deny these allegations, of course, and would point to statements deploring child abuse, calling for “true” child abusers to be prosecuted, and arguing that the corporal punishment parents employ should be “reasonable.” In the next segment of this series we will examine HSLDA’s ideas about just what actually constitutes child abuse.

To be continued.

HSLDA and Child Abuse: A Series

HA note: The following series will run each weekday this week. It is reprinted with permission from Libby Anne’s blog Love Joy Feminism. Part one of the series was originally published on Patheos on April 17, 2013.

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Also in this series: Part One, Introduction | Part Two, HSLDA’s Fight Against Child Abuse Reporting | Part Three, HSLDA’s Stonewalling of Child Abuse Investigations | Part Four, HSLDA’s Defense of Child Abuse | Part Five, HSLDA and the Deregulation of Homeschooling

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1. Introduction

As a homeschooled child, Michael Farris, the founder of the Home School Legal Defense Association (HSLDA), was my hero. It was HSLDA, I believed, that had given my parents the right to homeschool, and that continued to protect our rights against government encroachment. This made what I have learned about the organization upon adulthood that much harder to absorb and fully comprehend. Put simply, HSLDA is doing everything it can to keep people from reporting child abuse and to inhibit child abuse investigations, has opposed laws against child abuse, and is working to undo compulsory education laws altogether, effectively decriminalizing educational neglect.

HSLDA was in 1983, ostensibly to protect families’ right to homeschool. In practice, however many of its cases today deal not with homeschooling but with child abuse allegations. If you read through HSLDA’s Court Report, you will find story after story of HSLDA defending homeschooling parents against child abuse allegations. Homeschooling is today legal in every U.S. state, and HSLDA has gone far, far beyond its original mandate. In fact, it appears that HSLDA is today more preoccupied with sheltering child abuse than it is with protecting the legality of homeschooling.

Let me offer the Stumbo case as an example. In September of 1999, a neighbor saw the Stumbo’s two-year-old naked and unattended in the family’s driveway and registered an anonymous tip with Child Protective Services. After receiving the tip, a CPS worker appeared on the Stumbo’s porch and asked to interview the children to ensure that there was no abuse taking place. On HSLDA’s advice, the Stumbos refused to grant the CPS worker any access whatsoever to their children. The CPS worker then went to a judge and got a court order to interview the children. In spite of the fact that the case had nothing to do with homeschooling, HSLDA appealed the order and eventually won; the court found that there was too little evidence of abuse to justify a court order. HSLDA had hoped the court would find that interviewing a family’s children would count as seizure under the fourth amendment, but was disappointed as the case was decided more narrowly.

I remember reading about the Stumbo case in Home School Court Report when I was kid. It was played up as this grand scary thing, as though the kids were about to be removed from their parents for no reason whatsoever. At the time I wasn’t aware of the legal background surrounding the case—including the reality that there was never an attempt to remove the children from their parents and that the case primarily involved not homeschooling but rather the proper procedures for child abuse investigations. Whether or not the CPS took the proper actions in the Stumbo case isn’t the issue. The issue is that HSLDA has moved beyond defending the legality of homeschooling and into the world of litigating against child abuse investigations—sometimes with rather disastrous implications for abused children.

And HSLDA isn’t shy about this shift, either. For example, this statement was included in a paper from the 2000s on how to deal with CPS investigations:

HSLDA is beginning to work with states to reform the child welfare laws to guarantee more freedom for parents and better protection for their parental rights. HSLDA will be sending out Alerts to its members in various states where such legislation is drafted and submitted as a bill.

“Child welfare laws” means laws dealing with child abuse and Child Protective Services investigations. “Better protection for … parental rights” means protection against accusations of child abuse and CPS investigations. This has nothing to do with homeschooling and everything to do with protecting parents’ absolute control over their children, and absolute freedom from state interference, no matter what that means for the well-being of the children themselves.

From what I have learned in the time since my teenage years spent pouring over each month’s Home School Court Report, it appears that there are four primary ways that HSLDA is complicit in aiding and abetting child abuse and educational neglect: (1) They work to minimize the reporting of child abuse; (2) They seek to stall the investigation of child abuse; (3) They defend the legality of excessive corporal punishment; and (4) They oppose any homeschooling regulation whatsoever, even when it is merely intended to ensure that learning is actually taking place. This post introduces a series addressing these issues and revealing HSLDA’s troubling relationship with child abuse and educational neglect.

To be continued.