Thursday, May 01, 2008

Consequences of disputed age: A Legal Question

The facts of the FLDS case raise an interesting legal question. Suppose child protective services seize someone, claiming he is a seventeen year old minor at risk of being abused. He claims to be 18 or over and offers documentary evidence, a birth certificate, which they reject, arguing that it might be bogus—that it might, for instance, be the birth certificate of someone older with the same name. Their evidence for age is their judgment of his physical appearance. As I understand it—readers who know more are invited to correct me—the normal result is a hearing before some sort of judge, who decides whether CPS gets to keep control over him.

Finally, suppose the supposed minor is in fact telling the truth and eventually is able to prove it. Is CPS liable for illegally restraining him—in effect imprisoning him without cause? My guess is not, although I don't actually know.

My hypothetical raises problems in two directions. If CPS has no legal liability, that means that all it takes to imprison anyone, at least anyone young enough so that claiming he is under eighteen isn't obviously absurd, is the assent of one judge. It's easy to imagine ways in which that power could be used, in a biased or moderately corrupt legal system, to deliberately violate rights. On the other hand, given the existence of people whose age isn't easily proved and a legal system that lets the state take control over minors when their parents are judged unsuited for the task, it is hard to see how even an honest CPS can avoid ever making such mistakes.

Opinions? Anyone know the legal status of such disputes?


At 11:53 AM, May 01, 2008, Blogger Steamboat Lion said...

Well I know that it's anethma to US culture to see things as anything as black and white, but it just goes to show that there ought to be some shades of grey here. The closer someone is to 18 - or at least appears to 18 - the higher the bar ought to be set.

There's a much more compelling case to remove someone who appears to be between 12 and say 14 and potentially at risk than someone who is believed to be between say 16 and 18.

"But they're still children" is the reply. Remember this country is full of prosecutors quite happy to hold 16 year olds criminally responsible as adults for their actions. So when a 16 year old says "I'm not being abused and I want to stay with my family" that ought to carry a lot of weight.

Of course the other path is for the government to treat us all like children. Hold on, they're already doing that...

At 12:06 PM, May 01, 2008, Blogger Seth said...

What was that bit about states having to honor documentation and actions of other states? Oh, right; that's only the Constitution, nobody pays attention to that any more.

At 2:51 PM, May 01, 2008, Blogger jimbino said...

Just another reason why all references to age (not to mention sex, race, etc) should be removed from all laws.

Age is a terrible proxy for academic ability, competence in entering into contracts and flying or driving.

At 7:22 PM, May 01, 2008, Blogger pops said...

I'm pretty sure that liability in wrongful imprisonment is restricted to criminal cases. From what I know of most states' statutes regarding this issue, an individual has to prove his innocence (obviously), but also show that police or prosecutors intentionally violated their rights, i.e. withholding evidence or manipulating witnesses.

I don't know if a CPS action would be eligible, since there is no "conviction." But even if it was, we can all imagine the difficulty of demonstrating intent.


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