Monday, April 27, 2020

In re S.R. (Cal. Ct. App. - April 23, 2020)

Sometimes it's good that an opinion be published, right or wrong.

Like this one.

The lesson from Justice Bendix's opinion is a stark one, and it is this:

You can have fought for your country in combat in Iraq.  You can have virtually no criminal history at all.  There can be zero -- literally, zero -- evidence that you've ever touched anyone improperly; your spouse, your daughter, another child, anyone.  All this can be true

But if there is child pornography on your computer, the dependency court can take your daughter away from you, forever.

There's reason to publish that opinion if you agree with it.  That way, the potential consequences of possessing child pornography are clear, and it may deter people from engaging in such conduct.  And if other courts in the future confront child pornography cases (and they surely will), those courts can be comfortable knowing that it's okay to take children away from their parents purely on the basis of that offense, even if there's no evidence (as here) of child abuse, even if the mother and daughter insist that there's nothing wrong with the family, etc.  Possession of child pornography alone creates enough danger that the parent might one day molest the child to justify taking her away from him.

There's similarly a reason to publish that opinion if you don't agree with it.  That way, the world will know what the law is.  And if that law (or precedent) is unjust, it can be changed.  Consequences like this that are (allegedly) unjust should not be hidden in the dark.

So I approve of Justice Bendix's decision to (belatedly) publish the opinion.

From a doctrinal perspective, I also wonder how far the holding of the opinion reaches.

The Court of Appeal says that possession of child pornography alone creates a sufficient risk of child abuse to justify taking a kid away.  The statistics and studies with respect to this issue are recounted in the opinion, the contents of which don't appear to be much in dispute.  Everyone agrees that there aren't great studies on the point; that there are lots of limitations of methodological flaws.  But at the same time, everyone seems to agree with the common sense point that some people that reach out to possess child pornography also molest children.  And it's not a crazy assumption at all to believe that someone who's interested in viewing child pornography might be dispositionally more interested than your average person in actually molesting an actual child.

But how much so?  The studies on this point shed extraordinarily little light on the subject.  Take the current case, for example.  A pretty sophisticated expert on the issues evaluates all sorts of data points (prior criminal history, whether substance abuse exists, etc.) and, based on this information, says that the parent here has an "expected recidivism rate" of five percent.  (Whether that means he's a five percent chance of viewing child pornography or a five percent chance of touching a kid is unclear.)  And there's a study that says that many people who are convicted of child pornography admit to at some point improperly touching a kid -- which, although there are huge potential problems with this study, doesn't necessarily conflict with common sense.  Sometimes, if you're interested in watching child pornography, you're also interested in touching (actually do touch) children.  Sometimes.  Definitely.

So the present case is really the poster child for the question:  When the only incriminating evidence you have about the risk of someone actually touching a kid is that he possesses child pornography, is that sufficient to take away his child?  No other reason (at all) to believe that he'll touch that kid (or any other), alongside the child and mother definitively denying any present touching.  Does the fact that the father has watched child pornography alone demonstrate that it's too risky to let him have a child, so we take her away from him?

The Court of Appeal says:  Yes.  Yes it is.

Like I said, I wonder how far this goes.  Let's stipulate (if only for purposes of argument, and with some backing from common sense) that there's some correlation between viewing child pornography and touching kids.  People who do the former are statistically more likely to do the latter.  We're not saying there's necessarily causation.  Just that if you know that someone likes viewing child porn (at least sometimes), statistically, that means there's a somewhat higher risk that they might also desire to actually touch children.  Not everyone.  And won't always act on it even in those in which the desire exists.  But there's nonetheless a statistically greater chance.  Which, the Court of Appeal says, is by itself enough to take away a kid.

Does that same reasoning extend to other things as well?

Take, for example, someone who's read (and/or possesses) the novel Lolita, or its film adaptations or the like.  Some of those people possess or watch it without prurient interest at all.  But some of them undoubtedly have some such interest.  Some possessors "move on" from reading the book or viewing the film to molest children.  Some (many) do not.  Do we take away the children of those people as well?  What about possession of other types of literature that have a focus on incest or pedophilia or the like?  What about a guy who has a vast collection of such literature, and who admits to reading it, but who declares (as the father does here) that he has no interest at all in molesting children, and such testimony is backed up (as here) by the testimony of the relevant child that nothing untoward has ever gone on.  Still too much of a risk?  Still take the kid away?

What's somewhat troubling about these examples is that they all involve items that it are entirely legal -- indeed, protected under the Constitution -- to possess and read/view.  Does the fact that we strongly suspect (or can statistically establish) that actual child molesters are X% more likely to have read Lolita than non-molesters, and that an interest in that book/film is correlated with an interest in actual child molestation, enough to take away a child?  Would that even be constitutional to do so?

At the same time, that at least presents a potential basis for distinction.  Those things are legal, whereas child pornography isn't.  So maybe we can't take away your kid for reading "legal" things that reflect an obsessive sexual interest in children, but we can take away your kid for reading illegal things that reflect that same interest.  The relevant line is the line between legality and illegality.

But does that line make sense here?  For one thing, yes, the father here was convicted of possession of child pornography, but the trial court sentenced him to probation, and while it said he couldn't be near other children, it specifically allowed him to continue his relationship with his daughter.  If the criminal court doesn't think it's appropriate to take away the kid, does relying on the criminal nature of the offense hold sufficient weight to justify taking the kid away notwithstanding the judgment and sentence of the criminal court itself?

And even if the dependency court can "rethink" the judgment of the criminal court, does the line at issue really distinguish between the relevant risks?  Take Person A, who devotes six hours a day and thirty years of his life to amassing and viewing a huge amount of unambiguous child-focused erotica but who insists that he's never touched a child.  Now take Person B, who devotes a similar amount of time to service in the military and as a father and who similarly insists that he's never touched a child, but who nonetheless is found in possession of a cache of child pornography on his computer.

The Court of Appeal says that we can take away the children of Person B since there's a statistical risk that he has or will "progress" to actual child molestation given what we know about him.  Doesn't it seem like the similar statistical risk of actual child molestation for Person A is greater -- indeed, perhaps substantially greater -- than for Person B?  If so, then I'm not sure that the legality/illegality line works.

Plus, even if it did, wouldn't it seem weird?  Imagine that you're faced with having to place your daughter in the care of either Person A or B.  Which would you choose?  (And, no, you can't say "neither."  This is a hypothetical, with a point, not the real world.)  That thought experiment forces you to evaluate which one you think has the higher risk of actually being a child molester.  Could I see someone choosing the avid lifelong collector of child erotica as a caretaker?  I guess so.  But I suspect that lots of people would say that even though he at some point has looked at child porn, Lieutenant B is far less likely than Super Creepy A to actually molest a kid.  So if the relevant issue for the dependency court is (as it seems to be) simply the risk of harm, then the criminal/noncriminal distinction doesn't hold weight.  Bringing us back to the central question:  So what's the line?  Can we really take away kids just because there's a statistical correlation between Characteristic X and future child molestation? Even if the other factors we look at, and the individual characteristics at issue, all detract from such a conclusion in the present case?

I can see some people saying:  "I'll figure out that line once I get to it.  For now, I'm taking away the kid of the guy who watches kiddie porn."  Fair enough.  But one of the central point of legal analysis (or philosophical analysis, or even of logical discourse itself) is to make sense of our intuitions.  So if we can't come up with a justification that makes sense for why we treat two situations differently, that fact may be substantial reason to question and perhaps change those intuitions.  Or the results -- legal or otherwise -- that would otherwise flow from those intuitions.

Anyway, the point is that I thought it valuable that this opinion be published.  Maybe it's right.  Maybe it's not.  But it's definitely worth thinking about at some length.