These words, spoken by federal District Court (and former NY Family Court) Judge Richard M. Berman, ushered in the 11 year sentence he levied on impostor Judith Leekin for adoption fraud. You might remember Leekin from last year's news as the woman who lied to adopt 11 disabled children while raking in more than $1 million in government adoption subsidies.
Berman castigated Leekin for engaging in "a heartless, dangerous money-driven scheme" when she used fake names and lies about the children to defraud social service agencies in New York City and New York state. Berman added, "One cannot be allowed to perpetrate fraud to subvert our adoption system for financial gain." He exceeded by nearly three years the maximum term that Leekin's lawyer and prosecutors proposed when she pleaded guilty on May 20.
Prosecutors say Leekin (one of her many aliases) lived lavishly while forcing the adopted children to sleep on the floor of a storage room next to a garage and banning them from entering the house except to use the bathroom or kitchen.
Attorney Howard M. Talenfeld, speaking on behalf of 10 of the children, told the judge that none of the children could testify because they were too damaged by the abuse.
"It seems to me that adoption is a privilege, not a right," Judge Berman said, "and there should be conditions of accountability and safety and honest intention attached to that privilege, and it would also be useful, in my opinion, if there were active monitoring by responsible agencies."
Berman also noted that Leekin had been abused as a child. "Neglect leads to neglect," he said. "Adoption is a privilege, not a right."
Finally someone who did the right thing. Unlike most of the Cowards in Adoption, Judge Berman deserves a shiny gold star for giving Leekin what she, and so many more, deserve; a nice long sojourn in a federal prison.
Thursday, July 17, 2008
Monday, July 14, 2008
How to Strip Search a Middle School Student
Once again public school administrators, in their infinite wisdom and finely honed reasoning that only a Ph.D. can provide, have decided to strip search a 13 year old girl in the timeless pursuit of prescription-strength ibuprofen. And once again, a United States court of appeals has determined that this is unconstitutional.
According to the Ninth Circuit Court of Appeals, in Redding v. Safford Unified School Dist. #1, the strip search of honor student Savana Redding "was neither 'justified at its inception,' nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, 'reasonably related in scope to the circumstances' giving rise to its initiation."
In this case the Ninth Circuit, sitting en banc, overruled a three judge panel of the court which had found no constitutional violation. The court held that:
The court cited from cases which limit strip searches of adult prisoners finding that,
as the Supreme Court has noted: "[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage." As adolescents enter puberty, "they become more conscious of their bodies and self-conscious about them. Consequently, the potential for a search to cause embarrassment and humiliation increases as children grow older. . . . [N]o one would seriously dispute that a nude search of a child is traumatic."
Giving credit where credit is due, our friends at the National Association of Social Workers, in their amicus brief, perhaps said it best:
The court concluded that "the overzealousness of school administrators in efforts to protect students has the tragic impact of traumatizing those they claim to serve. And all this to find prescription-strength ibuprofen pills. We reject Safford's effort to lump together these run-of-the-mill anti-inflammatory pills with the evocative term 'prescription
drugs,' in a knowing effort to shield an imprudent strip search of a young girl behind a larger war against drugs."
Finally, the court reminded us that "a school is not a prison; the students are not inmates. We hasten to note, however, that if Savana had been accused of a federal crime, she would have been entitled to more legal protections that she received here."
So how do you strip search a middle school student? Simply said, you don't.
According to the Ninth Circuit Court of Appeals, in Redding v. Safford Unified School Dist. #1, the strip search of honor student Savana Redding "was neither 'justified at its inception,' nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, 'reasonably related in scope to the circumstances' giving rise to its initiation."
In this case the Ninth Circuit, sitting en banc, overruled a three judge panel of the court which had found no constitutional violation. The court held that:
[this] court made it clear that while it did not require school officials to apply a probable cause standard to a purse search, it plainly required them to act "according to the dictates of reason and common sense." . . . the public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person."
The court cited from cases which limit strip searches of adult prisoners finding that,
as the Supreme Court has noted: "[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage." As adolescents enter puberty, "they become more conscious of their bodies and self-conscious about them. Consequently, the potential for a search to cause embarrassment and humiliation increases as children grow older. . . . [N]o one would seriously dispute that a nude search of a child is traumatic."
Giving credit where credit is due, our friends at the National Association of Social Workers, in their amicus brief, perhaps said it best:
"Clinical evaluations of the [young] victims of strip searches indicate that they can result in serious emotional damage, including the development of, or increase in, oppositional behavior." . . . "Psychological experts have also testified that victims often suffered post-search symptoms including sleep disturbance, recurrent and intrusive recollections of the event, inability to concentrate, anxiety, depression and development of phobic reactions, and that some victims have been moved to attempt suicide." . . . Moreover, that the student is "viewed rather than touched, do[es] not diminish the trauma experienced by the child."
The court concluded that "the overzealousness of school administrators in efforts to protect students has the tragic impact of traumatizing those they claim to serve. And all this to find prescription-strength ibuprofen pills. We reject Safford's effort to lump together these run-of-the-mill anti-inflammatory pills with the evocative term 'prescription
drugs,' in a knowing effort to shield an imprudent strip search of a young girl behind a larger war against drugs."
Finally, the court reminded us that "a school is not a prison; the students are not inmates. We hasten to note, however, that if Savana had been accused of a federal crime, she would have been entitled to more legal protections that she received here."
So how do you strip search a middle school student? Simply said, you don't.
Friday, July 11, 2008
Virtual Child Porn and Child Exploitation
Last month, in a widely criticized decision, the United States Supreme Court upheld criminal penalties for promoting virtual child pornography. The 7-2 decision in United States v. Williams, however, rightfully empowers law enforcement in the battle against the worldwide criminal networks where child pornography is freely produced, solicited and offered.
What most people do not realize is that child pornography is per se illegal. Although some child pornography might fall under the legal definition of obscenity, it does not have to be analyzed under traditional First Amendment guidelines.
The critical underpinning of contemporary child pornography jurisprudence is that child pornography is illegal due to the adverse effects on the children used in the creation of the child pornography. It is not the mere viewing of the images that causes harm, but the production, distribution and possession of the images and videos.
The Court wisely realized that the very nature of the child pornography criminal enterprise -- where demand for ever new and more graphic images directly drives the sexual abuse of children -- is the real crime.
The crime of child pornography has nothing to do with speech, protected or otherwise. The crime is the relentless clamor for images in which children's bodies are the currency. Surprisingly, most child porn is not sold commercially but traded for new material. The most hard core pictures are held back with the expectation that you've got to make some of your own to get the good stuff. Some children are sexually abused just to create child pornography.
In fact the very term child "pornography" is a misnomer and in my opinion is an insult to pornography (no matter how you view that term and what it depicts). Again, the crime here is not the mere viewing of the images or even thinking about unspeakable acts with children. Juries view child pornography all the time. So do experts for criminal defendants and prosecutors. None of them have committed a crime.
The crime of child pornography gets committed when demand for images (resulting in possession) leads directly or indirectly to the criminal sexual abuse of children who are often abused solely to produce child pornography (production). "Child pornography" then is not merely about a visual image, but is a unbroken chain of acts (distribution) which originate in or lead to the sexual abuse of children.
This is why virtual child pornography is legal and, in my opinion, should remain legal. The focus must remain on the very real, if largely unidentified, victims of this horrible criminal enterprise.
Why then was the Court correct in banning the promotion of virtual child pornography while allowing the production, distribution and possession of virtual child porn to remain legal? The simple answer is that the pandering and solicitation of ANY child pornography, when seen as an essential aspect of the entire criminal enterprise which leads to the sexual exploitation of children, must remain illegal.
A bank robber is not innocent just because the gun was plastic. Whether the gun is real or not is irrelevant because the crime of bank robbery is not the mere brandishing of what appears to be a gun, but it is demanding and receiving money under threat.
Similarly, the crime of child pornography is not merely offering images of sexually abused children, but it is the entire trade in such images which itself is firmly rooted in the wholesale exploitation of children. The Court correctly realized that this trade thrives in a milieu in which the offer or demand for images, virtual or not, is an essential and direct contributor to the "real" crime which is child pornography.
The Court clearly held that:
The Court struck a careful balance which fully appreciates the nature and scope of the crime which is child pornography.
Coming up next, an analysis of Attorney General Andrew Cuomo's recent child porn initiatives and why they are largely irrelevant in the fight against child pornography and child sexual exploitation.
MORE ON THIS TOPIC from NPR's On The Media on 12-26-2008: Porn's Fine Lines "If no children were harmed in the making, is it still kiddie porn? Cartoon defender Charles Brownstein says it's a danger to artistic freedom to criminalize lines on paper, but child-safety advocate Mary Leary says allowing explicit drawings of children presents a threat to the safety of real-life kids."
What most people do not realize is that child pornography is per se illegal. Although some child pornography might fall under the legal definition of obscenity, it does not have to be analyzed under traditional First Amendment guidelines.
The critical underpinning of contemporary child pornography jurisprudence is that child pornography is illegal due to the adverse effects on the children used in the creation of the child pornography. It is not the mere viewing of the images that causes harm, but the production, distribution and possession of the images and videos.
The Court wisely realized that the very nature of the child pornography criminal enterprise -- where demand for ever new and more graphic images directly drives the sexual abuse of children -- is the real crime.
The crime of child pornography has nothing to do with speech, protected or otherwise. The crime is the relentless clamor for images in which children's bodies are the currency. Surprisingly, most child porn is not sold commercially but traded for new material. The most hard core pictures are held back with the expectation that you've got to make some of your own to get the good stuff. Some children are sexually abused just to create child pornography.
In fact the very term child "pornography" is a misnomer and in my opinion is an insult to pornography (no matter how you view that term and what it depicts). Again, the crime here is not the mere viewing of the images or even thinking about unspeakable acts with children. Juries view child pornography all the time. So do experts for criminal defendants and prosecutors. None of them have committed a crime.
The crime of child pornography gets committed when demand for images (resulting in possession) leads directly or indirectly to the criminal sexual abuse of children who are often abused solely to produce child pornography (production). "Child pornography" then is not merely about a visual image, but is a unbroken chain of acts (distribution) which originate in or lead to the sexual abuse of children.
This is why virtual child pornography is legal and, in my opinion, should remain legal. The focus must remain on the very real, if largely unidentified, victims of this horrible criminal enterprise.
Why then was the Court correct in banning the promotion of virtual child pornography while allowing the production, distribution and possession of virtual child porn to remain legal? The simple answer is that the pandering and solicitation of ANY child pornography, when seen as an essential aspect of the entire criminal enterprise which leads to the sexual exploitation of children, must remain illegal.
A bank robber is not innocent just because the gun was plastic. Whether the gun is real or not is irrelevant because the crime of bank robbery is not the mere brandishing of what appears to be a gun, but it is demanding and receiving money under threat.
Similarly, the crime of child pornography is not merely offering images of sexually abused children, but it is the entire trade in such images which itself is firmly rooted in the wholesale exploitation of children. The Court correctly realized that this trade thrives in a milieu in which the offer or demand for images, virtual or not, is an essential and direct contributor to the "real" crime which is child pornography.
The Court clearly held that:
"an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means 'a protected category of expression [will] inevitably be suppressed.' Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography."
The Court struck a careful balance which fully appreciates the nature and scope of the crime which is child pornography.
Coming up next, an analysis of Attorney General Andrew Cuomo's recent child porn initiatives and why they are largely irrelevant in the fight against child pornography and child sexual exploitation.
MORE ON THIS TOPIC from NPR's On The Media on 12-26-2008: Porn's Fine Lines "If no children were harmed in the making, is it still kiddie porn? Cartoon defender Charles Brownstein says it's a danger to artistic freedom to criminalize lines on paper, but child-safety advocate Mary Leary says allowing explicit drawings of children presents a threat to the safety of real-life kids."
Thursday, July 3, 2008
Who's Your Mama? MTV's TRUELIFE Adoption Drama
I could not let this Fourth of July holiday weekend slip by without a mention of MTV's new TRUELIFE drama entitled "I'm Placing my Baby for Adoption!" Thanks to the NCFA announcement supporting the show, I'm happy to bring this tidbit to a much wider audience.
According to the NCFA email I received last month (there is no mention of the show on the NCFA website):
First we had Fox's "Who's Your Daddy", then there was Juno, and now this.
According to MTV's casting call flyer (there's no mention of a casting couch or, for that matter, birth fathers):
Not to worry folks, according to MTV, "True Life is not a reality show. Our producers follow strict ethical guidelines and carefully avoid influencing our subjects' stories. It is also not a news show - there is no host, reporter, or narrator. We allow our subjects to tell their own stories in their own voices."
Now I'd like YOU to give me YOUR reaction in your own voice. Who's Your Mama?
According to the NCFA email I received last month (there is no mention of the show on the NCFA website):
The National Council For Adoption is lending a helping hand to the producers of an adoption documentary for the successful and popular MTV's True Life series.
The adoption documentary will follow three or four young unwed birthmothers on video as they go through difficult and emotional decisions in developing adoption plans for their babies.
According to the show's producers, the goals of the True Life adoption documentary are "to help de-stigmatize the adoption process and to show that adoption is a choice that loving, responsible mothers make when they believe it's best for their child. We also hope to express the range of emotions birthmothers feel as they go through this process."
These goals coincide with the mission of NCFA's new iChooseAdoption public awareness campaign to "create a more pro-adoption culture in which everyone, including women facing unplanned pregnancies, can consider adoption freely without fear, bias, or misunderstanding" and to "promote a culture that respects and appreciates birthmothers, honors their decision-making process, and supports their choice of adoption."
First we had Fox's "Who's Your Daddy", then there was Juno, and now this.
According to MTV's casting call flyer (there's no mention of a casting couch or, for that matter, birth fathers):
Our goal -- as with all episodes of "True Life" -- is to help MTV's young
audience understand why so many young women make the choice to
place their babies for adoption, and to help de-stigmatize this choice. We
will treat the young women who participate in this documentary with
respect, dignity and empathy.
Not to worry folks, according to MTV, "True Life is not a reality show. Our producers follow strict ethical guidelines and carefully avoid influencing our subjects' stories. It is also not a news show - there is no host, reporter, or narrator. We allow our subjects to tell their own stories in their own voices."
Now I'd like YOU to give me YOUR reaction in your own voice. Who's Your Mama?
Wednesday, July 2, 2008
The International Best Interests of the Child and US Child Welfare Industry Hypocrisy
The phrase "best interests of the child" is a cornerstone of American legal jurisprudence concerning children and children's rights. Surprisingly, or perhaps not surprisingly, this fundamental concept is not limited to the United States or other common law countries.
A recent lecture by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, entitled The Best Interests of the Child - what it means and what it demands from adults, discusses this idea from a European and international human rights perspective as established in the United Nations Convention on the Rights of the Child.
Here are some excerpts:
The United States is the only country in the world (except Somalia which has no functioning government) which has not ratified the United Nations Convention on the Rights of the Child. This alone should be an enduring mark of shame for every child advocate, social worker, children's lawyer, CASA, juvenile court judge, local/state/federal child welfare bureaucrat, the NACC, ABA Center on Children and the Law, and even your humble blogger. With the coming election and new president, regardless of party, let's re-dedicate ourselves to passing this UNIVERSAL document dedicated to the rights of the child.
A recent lecture by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, entitled The Best Interests of the Child - what it means and what it demands from adults, discusses this idea from a European and international human rights perspective as established in the United Nations Convention on the Rights of the Child.
Here are some excerpts:
The idea that society should respect the best interests of the child is seen as fundamental in all cultures. After all, children do symbolize the survival of the family, the group, the nation and even humanity itself.
From the very first draft of the UN Convention on the Rights of the Child . . . it was clear that the principle of the 'best interests' should be included and given a prominent position.
The 1959 Declaration of the Rights of the Child had in fact already evoked the principle, stating that 'the best interests of the child shall be the paramount consideration' in the enactment of laws relating to children, as well as 'the guiding principle of those responsible for (the child's) education and guidance'.
The Convention on the Rights of the Child extends the principle to cover all decisions affecting the child. This is a radical departure. The best interests of the child shall now be a primary consideration in all actions concerning children - not just actions taken by the state authorities, parliamentary assemblies and judicial bodies but also those taken by relevant private institutions.
The drafters of the Convention not only widened the scope of the principle, but they also made it one of the 'umbrella' provisions and thereby important for the overall framework of the Convention. The UN Committee on the Rights of the Child has taken the principle one step further, defining the best interests of the child as a 'general principle' guiding the interpretation of the entire Convention.
Governments - or individual adults - have sometimes misused the 'best interests of the child' to justify actions that in reality have violated the rights of the child. Corporal punishment has been defended with the argument that it teaches children necessary limits and is therefore for their own good in the long run. Adopted children have been prevented from knowing their biological family 'in their own interests'. Children of indigenous peoples have been forcefully removed from their families and placed in boarding schools so that they could be introduced to 'civilization', again in the name of their 'best interests'.
Though necessarily general and incomplete, a reasonable first building block towards the definition of what is in the best interests of the child is the sum total of the norms in the Convention. This means, for example, that it is in the best interests of the child to: receive education (Art. 28); have family relations (Art. 8); know and be cared for by his or her parents (Art. 7); be heard in matters concerning him or her (Art. 12), and to be respected and seen as an individual person (Art. 16). In the same way, the Convention states what is not in the best interests of the child: for instance, to be exposed to any form of violence (Art. 19); to be wrongly separated from his or her parents (Art. 9); to be subjected to any traditional practices prejudicial to the child's health (Art. 24); to perform any work that is hazardous or harmful (Art. 32), or to be otherwise exploited or abused (Arts. 33-36).
There is another important aspect of the Convention that is relevant to this discussion: the emphasis on respecting the evolving capacities of the child. For the best interests of the child to be determined, it is important that the child himself or herself be heard. With increased age and maturity, the child should be able to influence and decide more. This obvious point is often forgotten. Adults tend to discuss what is best for children without seeking their opinions or even listening to them.
Article 12 states that the child who is capable of forming an opinion on matters affecting him or her has the right to express that opinion freely and that the child's opinion should be given due weight in accordance with his or her age and maturity.
This approach does not necessarily mean that the child can take complete responsibility for the decision. The spirit of Article 12 is rather to ensure consultation and growing participation than to relinquish all power to the child.
The Convention as a whole gives pointers as to what is good for the child. It also requires that the child be heard and that his or her opinions be taken seriously.
When considering decisions that are likely to affect a child or children considerably, decision makers should always systematically attempt to assess and evaluate the consequences of the proposed action. . . . it is important that children be heard whenever possible, and that their opinions be sought before the final decision is taken.
Children are not the people of tomorrow, but are people of today. They have a right to be taken seriously, and to be treated with tenderness and respect. They should be allowed to grow into whoever they were meant to be - the unknown person inside each of them is our hope for the future.
The United States is the only country in the world (except Somalia which has no functioning government) which has not ratified the United Nations Convention on the Rights of the Child. This alone should be an enduring mark of shame for every child advocate, social worker, children's lawyer, CASA, juvenile court judge, local/state/federal child welfare bureaucrat, the NACC, ABA Center on Children and the Law, and even your humble blogger. With the coming election and new president, regardless of party, let's re-dedicate ourselves to passing this UNIVERSAL document dedicated to the rights of the child.
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