BishopAccountability.org
	Professor Marci Hamilton's Testimony in U.S. Senate on Polygamy Crimes By Marci A. Hamilton Voice from the Desert July 23, 2008 http://reform-network.net/?p=1846 Received via email from Marci Hamilton, 7.23.2008. Note that the following is an advance copy of Professor Hamilton's testimony to the Senate Judiciary Committee tomorrow, 7.24.2008. It is published here with Professor Hamilton's permission. * * * Testimony Before the United States Senate Committee on the Judiciary Hearing on Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response Thursday, July 24, 2008 10:00 a.m. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (215) 353-8984 (215) 493-1094 (fax) hamilton02@aol.com Mr. Chairman and Members of the Committee: Thank you for permitting me to submit written testimony regarding the serious problems created by the criminal activity of polygamous groups. I hold the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. My primary area of expertise involves the constitutional doctrines involving religious groups and individuals who violate the law and, in particular, child abuse and neglect within religious organizations. I have served as the constitutional law litigator for numerous victims of clergy abuse within numerous organizations. My recent publications include God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005, 2007) (harm caused by polygamy discussed pp. 21-24, 39, 48-49, 54-56, 65-77) and Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). Before joining the faculty at Cardozo Law School in 1990, I clerked for Supreme Court Associate Justice Sandra Day O'Connor. My testimony will focus on the child abuse and neglect crimes that arise out of polygamous communities and suggest legislative solutions to these serious problems. As is well known, religious polygamous communities have exhibited a disregard for the laws of marriage, child sex abuse, statutory rape, and criminal child neglect. The problems for children in these groups arise directly from the desired proportion of men to women in the groups. At the base line, girls and boys are usually born in about equal proportions. In order to have as many women to choose from as possible, girls are married to men as soon as they are of childbearing age and forced to have as many children as possible. To keep the number of men low vis-à-vis the women, select boys are discarded. No civilized society can permit such practices – once known – to continue. I applaud Senator Reid for introducing a bill to institute a federal task force to study abuse, extortion, embezzlement, and other illegal activities associated with polygamous groups. I strongly recommend that the Committee charge the Task Force with consideration of the following proposals. There is a need for punishment, deterrence, and public accountability. I will make three proposals necessary to ensure that these three public goals are served: (1) amend the RICO laws to encompass organizations that foster and further child abuse and neglect; (2) create incentives for the states to eliminate statutes of limitations so that victims can identify their predators and those who aided them through court actions when the victims are ready; and (3) deter child abuse and neglect through financial means: (a) upon conviction of a nonprofit organization for fostering abuse and neglect in a criminal or civil action, require remove the organization's tax exempt status and (b) prohibit all federal agencies from doing business with organizations that foster and further child sex abuse. I. Amend the RICO laws Organizations that encourage and foster child sex abuse need to be made accountable. Federal authorities have not had the legal tools to pursue organizations that foster and further child sex abuse and neglect. The criminal and civil RICO laws, taken together, are best suited to this end, because they combine punishment with deterrence with financial accountability for organizations. Criminal RICO should be amended to ensure that it encompasses organizations fostering and furthering child sex abuse and neglect. First, amend 18 U.S.C. § 1962(c) to include the bolded language: It shall be unlawful for any person, or enterprise engaging in, promoting, or facilitating childhood sexual abuse or neglect, employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. Second, amend 18 U.S.C. 1961(1)(a), the definition of "Racketeering Activity," to include the bolded language: (1)"racketeering activity" means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, engaging in, promoting or facilitating childhood sexual abuse or neglect, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; Civil RICO should be amended to deter organizations from harboring or encouraging child abuse or neglect, hiding child abuse or neglect, or recklessly disregarding child abuse or neglect. I suggest the following amendments (new language in bold): The first sentence of Section 1964(c) of the Racketeer-Influenced and Corrupt Organizations Act, 18 U.S.C. § § 1961- 1965 should be amended to include the bolded language: 'Any person injured in his business, property, or in his person if a victim of childhood sexual abuse or neglect by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee, except that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a violation of section 1962.' II. Encourage the States to Eliminate the Statutes of Limitations for Child Sex Abuse So that More Organizations and Perpetrators Are Publicly Identified and Made to Pay for the Harm that They Have Caused Child abuse and neglect have cost the United States billions – from physical and mental health care costs to opportunity costs from underperformance and the inability of victims to fulfill their full potential. It is inevitable that some of these costs will have to be absorbed by public social services, but that does not mean that organizations should not be held liable for their part. When organizations foster child abuse and neglect, they should be made to pay for the harm that they have imposed on the victims and the costs they have imposed on all taxpayers. The most efficient means of pursuing this goal is to create greater opportunities for victims to go to court. Right now, the vast majority of states have statutes of limitations on child abuse that are so short that victims are not able to come forward before the courthouse doors have been locked shut. As I argue at more length in my book Justice Denied; What America Must Do to Protect Its Children, the federal government should create incentives for the states to eliminate the statutes of limitations to create such opportunities. Only then will more of the organizations and perpetrators responsible for the abuse be publicly named and only then will they be forced to pay for the harm they have caused, both through penal fines and through civil lawsuits. III. Revoke Nonprofit Tax Exempt Status for Organizations that Foster or Further Child Abuse or Neglect and Prohibit Federal Agencies from Doing Business with Organizations Furthering or Fostering Child Abuse or Neglect The tax law governing tax exempt status needs to be clarified to plainly deter child abuse and neglect. The following is suggested legislative language regarding the tax exempt status of nonprofits that foster or further child abuse or neglect: Revocation of tax-exempt status for organizations furthering child abuse or neglect. Tax exempt status for a charitable organization under the Internal Revenue Code shall be revoked by the Internal Revenue Service from any organization if it is found by a court of law in a civil or criminal case that the organization: (a) Fostered the abuse of children, OR (b) Took steps to conceal the abuse of children, OR (c) Failed to report knowledge of child abuse or neglect to the relevant law enforcement authorities. Finally, federal agencies should not be permitted to do business with any organization that furthers or fosters child sex abuse or neglect. I would be pleased to answer any questions regarding these or other proposals regarding the protection of children from crimes within polygamous communities. Submitted: Marci A. Hamilton July 23, 2008
Any original material on these pages is copyright © BishopAccountability.org 2004. Reproduce freely with attribution.