Access to Justice Denied:
Parental, Family and
Organized Child Abduction in Oregon
By Sean Aaron Cruz
April 12,
2013
Testimony in support
of House Bill 2014, sponsored by
State Representatives Alissa Keny-Guyer, Brent Barton, Chris Garrett, and Wayne
Krieger
“Please tell Sean that I also wish him
the best. I have also followed his career and believe his personal experience
has given him the wisdom and the moral authority necessary to make a real
difference in making Oregon
safer for our children.” –Hon. Judge James L. Fun, Washington County
Circuit Court, January 24,
2007
Access to Justice Denied: Parental,
Family and
Organized Child Abduction in Oregon
I. Oregon’s Custodial Interference I and II
statutes
A. The four statutory barriers to
justice
1. “A person”
exceptions
2.
The definition of “protracted”
3.
“…a substantial risk of illness or
physical injury”
4. A crime in progress
II. Overview of
access to justice in Oregon
III.
Finding legal assistance in the wake of an abduction today
A.
The Oregon State Bar
B. The Oregon Judicial Department
C. The Oregon State
Police Missing Children Clearinghouse
IV. The roots of
Senate Bill 1041 Aaron’s Law (2005)
A. The 1996
abduction of Aaron Cruz and his siblings
B.
Legislative history of Aaron’s Law
1.
Reporting the crime to the Legislative Assembly
2.
Take Root – Adults who were abducted as children speak
3.
The 2004 Task Force on Parental and Family Abductions
a. No numbers
b. A broad lack
of awareness
c. Some parents
use their children as weapons
d.
Long-lasting trauma, injury and damage
e. Damage similar to sex
crimes against the child
4.
“Burning Issues in Access to Justice”
5.
Aaron’s Law in statute: ORS 30.868
V. The principles of
Aaron’s Law
A. Victims
in control, not The System
B. Who you
serve and 142 reasons why
C. Domestic
violence exception
D. Counseling for resolution and
deterrence
E. The
child victim becomes an adult
F. Aaron’s
Law and child trafficking
VI. Case Study:
Aaron’s Law and the Kyron Horman abduction
A. “There is no case like this.”
B. Meeting
the criteria
VII.
Attitudes as Obstacles
“Your
children will find you some day (Don’t worry be happy)”
I. Oregon’s Custodial
Interference I and II statutes
Four significant barriers to access to justice and to
prevention and resolution of child abduction cases lie in the statutes
themselves and in how Oregon law enforcement agencies and the Family and
Criminal Law systems interpret the language.
ORS
163.245: “A person commits the crime of custodial interference
in the second degree if, knowing or having reason to know that the person has
no legal right to do so, the person takes, entices or
keeps another person from the other person’s lawful custodian or in
violation of a valid joint custody order with intent to hold the other person permanently or for a
protracted period.”
ORS
163.257: “A person commits the crime of custodial interference
in the first degree if the person violates ORS 163.245 and:
(a)
Causes the person taken, enticed or kept from
the lawful custodian or in violation of a valid joint custody order to be removed from the state; or
(b)
Exposes that person to a substantial risk of illness or
physical injury.”
A. Four statutory barriers
to justice
1. “A person” exceptions: The statutes make no exceptions for
the other parent, family members or hangers-on, members of a church
congregation enforcing a shunning or any other organized group of persons
acting with criminal intent. In actual practice, however, when a parent is
involved in the abduction, law enforcement and the Family Law and Criminal Law
systems appear to follow a policy of ignoring the other persons who have
violated the statute. This highly selective enforcement of the Custodial
Interference statutes contributes to the incidence of child abductions. Since
it is so unlikely that nonparental persons will be held accountable for their
crimes, the statute has little deterrent value, hence the high incidence of
parental and family abductions.
HB 2014 should result
in an understanding of how and why decisions to make exceptions to the statute
are made at the local level, providing the 2014 Legislative Assembly with the
opportunity to consider establishing a state policy.
2. “Permanently or for a protracted period”: There appears to be no statewide policy or published local law
enforcement directive regarding when the threshold of “protracted” is reached
and the Custodial Interference statute is triggered. The dictionary definition
of “protracted” is “prolonged.” The absence of a clear definition of
“protracted” in statute makes it difficult for law enforcement to act, creating
a systemic barrier to the swift resolution of these cases.
HB 2014 should
result in an understanding of the range of interpretations of this statute
among local law enforcement jurisdictions across Oregon, providing the 2014 Legislative
Assembly with the opportunity to consider enacting a statewide policy regarding
this critical definition.
3. “Exposes that person to a
substantial risk of illness or physical injury.” The real injuries a child victim
suffers in an abduction is not recognized in current statute. Although the
Legislative Assembly has adopted a policy of mental health parity in health
insurance coverage, it is not clear that parity applies to the “substantial
risk of illness” component of the custodial interference statutes, and the term
“physical injury” explicitly fails to recognize the mental and emotional trauma
victims suffer.
The 2004 Senate
President’s Interim Task Force on Parental and Family Abductions reported: “…the
injury a child receives, when the child has been abducted by one of the child’s
parents, does not necessarily include physical injury. The injury is more in the nature of mental trauma or mental injury. Nonetheless,
the injury is real and may be even more long lasting and damaging than physical
injury.”
Failing to recognize the serious nature of these nonvisible
injuries contributes to inaction by law enforcement and the court systems.
HB 2014 should be
expected to reveal a deficiency in how abductions are prioritized by law
enforcement and both the Family Law and Criminal Law systems. The report will
provide the 2014 Legislative Assembly with an opportunity to establish a clear
policy regarding the definition of “illness” and “injury” in respect to mental
health parity.
4. “A crime in progress”: The Custodial Interference statute does not
take into account the fact that abductions are “continuing” crimes. The trauma
and loss that victims suffer increases over time, yet law enforcement and both
the Family Law and Criminal Law systems routinely fail to treat these case as
crimes in progress, which is exactly what they are.
HB 2014, coupled with the Final Report of the Parental and Family Abduction
Task Force, should provide the 2014 Legislative Assembly with a better
understanding of the Custodial Interference statutes and offer ideas to better
protect the interests of Oregon
children and their families.
II. Overview of access to
justice in Oregon
For more than sixteen years, the Oregon Legislative Assembly
has considered the serious problem of public access to competent legal services
in the Family Law system:
“In a final report given to
the December, 1997 Legislative Assembly, the Oregon Task Force on Family Law
articulated the continued unmet and acute demand for assistance dealing with pro se
litigants in the court systems. At the request of the Task Force, the
Legislature created the Oregon Family Law Legal Services Commission. The charge
to this group was to evaluate and report on “how courthouse facilitation and
unbundled legal services might enhance the delivery of family law legal
services to low and middle-income Oregonians.” During the next four years the
Commission gathered both qualitative and quantitative information. They held
public monthly meetings, solicited written input from lawyers, litigants,
experts in the field, court clerks and all interested parties before drafting
the proposal and completing its final work with the recommendations found
here.” --Oregon
Family Law Legal Services Commission
The majority of Oregonians represent themselves in Family
Court. “Oregon data indicates that both sides
are self-represented in approximately 49% of family law filings.”
“Oregonians now represent
themselves in Family Court in 67%-86% of the cases filed. Given the huge
demand for legal help in family law matters that nonprofit law firms
and the private bar cannot meet, access to justice efforts the last 10 years have
concentrated on the statewide availability of model family law forms
and procedural
assistance from courthouse facilitators. Now, budget cutbacks have led to reductions in existing court services
and stalled planning efforts focused on self-representation.” – Executive
Summary. Task Force on Family Law
Self-representation in Family Court is a permanent aspect,
and the legal system’s response “must be actively planned.”
“While the ultimate goal in
access to justice efforts is representation by attorneys, self- representation
is a permanent aspect of the family court. As such, the legal system’s response
to litigants without lawyers must be actively planned.” – Executive Summary.
Task Force on Family Law
Budget pressures and other priorities contribute to reduced
access.
“Since 2007, however,
significant budget reductions precipitated by the poor economy have stalled
energy and funding for both interactive forms and broader self-representation
planning. Moreover, some local courts have eliminated or reduced their
facilitation programs to preserve resources. Simultaneously, the court’s
partners in the access to justice community have continued to struggle with the
high unmet demand for family law legal
services. The poor economy has placed additional stress on this challenge.
In addition, given the enormous public
need for family law help, concern has arisen that market-minded
entrepreneurs may soon preempt access-oriented, quality-focused legal planners
by selling web-based interactive Oregon
family law court forms for profit.” –Executive Summary, Task Force on Family
Law
Most victims of parental, family and organized child
abductions do not have a lawyer at the time of the kidnapping. No Oregon attorney
advertises a practice in child abduction crimes.
There are no “model family law forms” for an abduction. Family law forms require service on the
other party. In abductions, however, the other parties’ and the victim
children’s location is unknown, is likely to be transient, and they may be
living under assumed names.
Abductions are always sneak attacks, with planning and
execution carried out in secret, and nearly always involving multiple
jurisdictions, long distances, more than one perpetrator, and two or more state
legal systems.
Persons participating in a parental, family or organized
kidnapping will likely have intimate knowledge of the victims’ financial
resources, ability to access competent legal assistance and other weaknesses
prior to executing the crime.
There are many variations of legal status. The parents of
the victim children may be married or unmarried, legally separated or not,
divorced or not, with or without custody orders. It may be a grandparent or
some other person who is the primary caregiver for the victim children and
reporting the crime.
A parent whose children have been abducted is likely to be
experiencing severe grief, shock, panic and depression.
HB 2014 will
provide the 2014 Legislative Assembly with critical insights into how to
improve access to justice “when a child is reported to law enforcement
officials as missing by the parent, grandparent or legal custodian of the child”
or is brought to Oregon
under similar circumstances.
III. Finding
legal assistance in the wake of an abduction
Once the victim children have vanished, the victim parent, grandparent
or legal custodian reports the commission of a crime to local law enforcement
and then looks for competent legal advice.
Prior to the passage of Senate Bill 1041 (Aaron’s Law) in
2005, the only avenues of recourse a victim parent (or grandparent) had were
either through the Family Law system or the Criminal Law system. Neither system
recognizes the urgency of the situation, the emotional harm the victims are
suffering, or the fact that the longer the crime continues, the more extensive
and long-lasting the harm.
Neither system provides any point of control for the
victims, who become victims of both the crime and of the system itself.
The Family Law and Criminal Law systems are often
adversarial and have long built-into-the-process timelines, when the issue is
urgent.
Although Senate Bill
1041 (2005) “Aaron’s Law” made Oregon the first state in the nation where
child abduction creates a civil cause of action, no information about the law
or the Parental and Family Abduction Task Force is presently available through
the Oregon State Bar or Oregon State Police web sites.
There is the Yellow Pages and online referral systems, but
neither resource is likely to lead to an attorney specializing in child
abductions.
A. The Oregon State Bar website contains
no information about parental and family abductions. There are no references to
the 2004 Parental and Family Abduction Task Force or Senate Bill 1041 (2005),
Aaron’s Law.
The “search” feature on the OSB website turns up no
information related to Oregon
legislation on the subject.
The OSB Legal Information Topics page contains no
information related to abductions in the Criminal Law or Family Law categories.
There is no link to the Oregon
State Police Missing Children Clearinghouse.
Searches under “personal injury”, “civil suit” and “child
abuse” provide no useful links for abduction victims.
B. The Oregon
Judicial Department website contains no information about parental and
family abductions. There are no references to the 2004 Parental and Family
Abduction Task Force or Senate Bill 1041 (2005), Aaron’s Law.
Among the legal forms available on the website, none are
related to the issue, in which the whereabouts of the abducted children and the
abductors are unknown.
The terms “abduction”, “custodial interference” and
“kidnapping” do not appear in the site’s listing of legal terms and
definitions.
Under the heading “Family Law Topics”, there is no reference
to the crime, and none of the topics link to information about abduction.
There is no link to the Oregon State Police Missing Children Clearinghouse.
C. The Oregon State Police Missing Children
Clearinghouse contains no
references to the 2004 Parental and Family Abduction Task Force or Senate Bill
1041 (2005), Aaron’s Law.
“The mission of the Missing
Children Clearinghouse is to receive and distribute information on missing
children to local law enforcement agencies, school districts, state and federal
agencies, and the public. In 1989, the Oregon
legislature mandated that OSP establish and maintain a missing children
clearinghouse.
“The goal of the Missing
Children Clearinghouse is to streamline the system, serving child victims and
their families by providing assistance to law enforcement agencies and the
public.” – Oregon State Police website
It is rare that a missing or abducted child appears on the
OSP clearinghouse website if a parent is involved in the abduction. The
National Center for Missing and Exploited Children (NCMEC) frequently posts
photographs and other information about parentally abducted on its website that
are not matched on the Oregon State Police website.
As of this writing, NCMEC lists seven Oregon children as parental/family
abductions since 2007, plus Kyron Horman. The OSP site identifies only four of
these children, plus Kyron Horman.
There has been discrepancies of as many as 17 children
abducted from Oregon
who were listed on the NCMEC site but not on the OSP site.
In 2012, the Beaverton Police Department issued a statement
identifying more than a dozen police and governmental agencies who assisted in
the recovery of a child who had been abducted and taken to New Zealand by
his father. The Oregon State Police was not among them, and the child was never
listed as abducted on the Missing Children Clearinghouse website.
IV. The roots of Senate Bill 1041
Aaron’s Law (2005)
A. The 1996 abduction
of Aaron Cruz and his siblings
Aaron Cruz and his three siblings disappeared from Oregon on Feb 12, 1996 despite an
order for joint custody that had been in affect for five years. The number of
adult persons who took, kept and enticed the Cruz children in violation of the
order for joint custody and the Custodial Interference I and II statutes was
greater than ten and included the children’s mother, other family members, and
members of their church congregation that were unrelated to the victims. Their
motivation was to enforce a shunning against the children’s father. The intent
of the shunning was to prevent any contact of any kind between the children and
their father or members of their father’s family, permanently. The shunning
remains in effect today.
The four Cruz children were kept incommunicado and taken to
a series of secret locations in Utah,
where they were pressured to choose between parents, one to love with all their
hearts, and one to despise with equal fervor. Mail sent to my children at their
mother’s last known address in Hillsboro
was forwarded to the address of a conspiring church member in Hillsboro instead of on to the children.
Abducted children are forced to adhere to whatever cover
story their abductors require, are not permitted to grieve their losses, and
are likely to lose access to health care during their time on the run.
Abductors, acting in their own interest, will work hard to sever all emotional
ties the abducted children have to the victim parent.
My children were taken on a journey through three divorces
and three stepdads in three states. My fight to locate and recover my children
would take me through four jurisdictions in three states, usually pro se, but never with the assistance of
an attorney competent in the issue of criminal child abductions.
With a single exception, every court officer, judge,
attorney, juror, witness and police officer I encountered through these four
jurisdictions was white, as were all of the persons participating in the
abduction, and several among them shared membership in the same church
congregation enforcing the shunning.
Although the order for joint custody stated that all
decisions regarding the children’s education and non-emergency medical care
would be made “By Both Parents Together”, I was only able to access two
after-the-fact medical reports
for Aaron from Utah,
and none for my other three children after they disappeared from Oregon in 1996.
Prior to his abduction from Oregon, Aaron had no history of any serious
illness or injury. The first medical report for Aaron was an intake report
dated a year after his abduction began. He had been hospitalized for expressing
suicidal ideation. The report described him as severely depressed, underweight,
and noted many long scars from self-inflicted knife wounds across both of his
upper arms. The report quoted him as saying he cut himself to relieve his
emotional pain.
The second medical report I received from Utah about Aaron was his death certificate,
which stated that he had died from “undetermined causes.” He may have been a
suicide—there was a note—but it is also likely that he had run out of his
anti-seizure meds, suffered a seizure, fell into a coma and died.
When my three living children and I gathered around Aaron in
the Intensive Care Unit in Payson,
Utah, in April 2005, where he lay
comatose, it was the first time the five of us were together since the
abduction/shunning began in 1996.
Over the course of several days, from arriving at the
hospital to Aaron’s funeral service, my three surviving children and I spent
many hours together, and it appeared that we would re-establish our
relationships going forward.
My son Tyler, a member of the Utah Army National Guard,
invited me to see him off on his second tour to Iraq several weeks after Aaron’s
death, and we spent five days together at Camp
Shelby, Mississippi.
Tyler called me from Kuwait and sent me a single email from Ramadi, and we
appeared to be well connected, but over the next few weeks all of my children’s
email addresses and phone numbers went dead, just like every other time I found
them since the abduction began.
The shunning remains in effect today. Neither the Family Law
or Criminal Law systems in any of four jurisdictions in three states looked at
the persons engaged in the abduction, other than my former wife. After filing
the initial police report, I was never interviewed by a police detective.
B. Legislative
history of Aaron’s Law
1. Reporting the
crime to the Legislative Assembly: During the 2001 legislative session, I met with Senator Avel Gordly in her
office in the Capitol and described the abduction of my children and the
failures of both the Family Law and Criminal Law systems to protect my family.
She promised to work on the issue.
In the fall of 2002,
Senator Gordly offered me the opportunity to serve as her legislative staff in
the upcoming 2003 session.
In the 2003
session, I testified before the Senate Judiciary Committee and the Joint Ways and
Means Public Safety Subcommittee. Senate President Peter Courtney appointed the
Senate President’s Interim Task Force on Parental and Family Abductions,
co-chaired by Senator Gordly and Senator Frank Morse.
The 2004 Task
Force on Parental and Family Abductions was intended to build on the prior work
of the Family Law Task Force, which had been co-chaired by William Howe III and the Honorable Judge Maureen McKnight, and
Judge McKnight was among those appointed to the abduction panel. I testified
before the Task Force in 2004.
The Family Law Task Force had worked on strategies to reduce
the incidence of divorce in Oregon,
including the requirement that both parties enter into counseling before a
divorce is granted, in the event that some parties might reconsider for the
sake of the children. This idea would be incorporated into Senate Bill 1041 in
2005.
During the 2005
legislative session, I testified on the crime and in support of Senate Bill
1041 before the Senate Judiciary Committee, the Senate Rules Committee, and the
House State and Federal Affairs Committee.
Senate Bill 1041 passed the House on a unanimous vote and
was signed into law by Governor Ted Kulongoski in 2005.
2. Take Root – Adults
who were abducted as children speak: Take Root is an advocacy group whose
membership is entirely composed of adults who were abducted by their parents
when they were children. Liss Hart-Haviv, the Executive Director and founder of
Take Root, was a key member of the Parental and Family Abduction Task Force.
Statement by Take Root:
“Children who are hidden
from the justice and child protective systems by a fugitive parent are no less ‘missing’
than children taken by non-family members, and may find themselves in just as
much danger.
“50% of Take Root members
who were abducted by parents were also physically or sexually abused by those
parents.
“Almost all suffered
profound psychological trauma from being cut off from their loved ones and kept
‘off the grid’ to evade discovery, sometimes deprived even of medical care or,
more commonly, schooling.
“However, when society
hears about the crime of family abduction it is typically from the perspective
of a left-behind parent expressing his or her anguish over having a missing
child, or a taking parent justifying his or her actions.
“Seldom do we have the
opportunity to hear, firsthand, from the child about the experience of being abducted. Take
Root was established as a platform for the abducted to tell their side of the
story.
“It is our hope that
raising awareness of the true danger and devastation faced by children who are
abducted by individuals to whom they are related will put an end to such cases
being dismissed as “custody battles” between parents.
“Take Root’s uniquely child-centered
training workshops and resources have proven effective at changing perceptions
of family abduction; educating law enforcement, policy makers, child advocates,
and missing child case managers from coast to coast about the realities of this
devastating crime against children.”
“Nothing can replace the personal and professional experience that Take
Root’s workshops present, the focus on the child as victim – which can
sometimes get lost in the legal and technical aspects of the case or day-to-day
dealings with parents. Liss Haviv’s presentation was truly an incredible
experience and scored a perfect “5” on the evaluations – a first since we began
the class.”- Ellen Conway, Director, Office of Children’s Issues, US
Department of State
3. The Task Force on
Parental and Family Abductions (2004)
The Task Force held a series of meetings, took expert
testimony, and produced a Final Report to the Senate President prior to the
2005 legislative session.
Among the Task Force’s
key findings were:
a. No numbers:
that no person or entity knew the number of Oregon children suffering parental and
family abductions in any given period of time. No one tracks the cases on a
statewide basis. A parent’s report of the abduction of their child likely went
no further than the City or the County taking the police report. This is
probably still the case.
b. A broad lack of
awareness: That there was a general lack of awareness among law
enforcement, the courts, the bar and social service professionals, which
partially explains the low priority all give to non-stranger abduction cases.
This lack of awareness factors into the system’s willingness to allow the
abducting parent and the parent’s associates to keep the children indefinitely,
and the failure of law enforcement, the bar and court officers to understand
that abductions are crimes in progress and respond accordingly.
c. Some parents use
their children as weapons: That “often” parents “often” take out their
anger with each other through their children, and that some “even abduct their
own child.” The Task Force found “that this is extremely detrimental to the
emotional and mental well being of the children, and at time may even put the
life of the child in danger.” Non-parental accomplices of these crimes are even
more likely to disregard the safety and wellbeing of the abducted child.
d. Long-lasting
trauma, injury and damage: The real injuries an abducted child suffers is
not recognized in current statute. “…the injury a child receives, when the
child has been abducted by one of the child’s parents, does not necessarily
include physical injury. The injury is
more in the nature of mental trauma or mental injury. Nonetheless, the injury
is real and may be even more long lasting and damaging than physical injury.”—Abduction
Task Force
e. Damage similar to
sex crimes against the child: The Task Force recommended that the 2005
Legislative Assembly increase the statute of limitations for Custodial Interference
I and II offenses:
“This would mean that the statute of limitations for
custodial interference would be the same as it is currently for sex offenses.
Your Task Force believes that the rationale for doing this is the same for the
statute of limitations on sex crimes. A child who is removed from the lawful
custody of one parent by another is a victim. That child is similarly situated
to many underage victims of sex crimes. The perpetrator of the crime is the
child’s parent. Too often, at the time of the offense, the victim is unaware
that they have been abused or that they have a right to seek redress. LC 847
would give a person, who as a child was a victim of a
parental abduction, the ability to seek prosecution when the
person is an adult and better able to understand the ramifications of the
abduction.” –from the Final Report
While the 2005 Legislative Assembly did not follow the Task
Force’s recommendation on extending the statute of limitations, Senate Bill
1041 did address the issue, providing child victims with a window to hold the
child’s abductors accountable that extends to six years after the child has
attained the age of 18.
4. “Burning Issues in Access to Justice”
The 4th Family Law Conference, titled “Out of the Frying Pan: Burning Issues in
Access to Justice”, sponsored by the Oregon Judicial Department and the
State Family Law Advisory Committee, was held in Bend, Oregon, April 7-8, 2006.
Workshop #6: Encountering Family Abductions in the Legal Setting.
This workshop will offer information about family abductions, including
international abductions and the Hague convention, prosecution of custodial
interference, and
statutory approaches to preventing and dealing with abduction cases including
the new Aaron’s Law (SB 1041, Ch 841, Oregon Laws 2005). Dr. Edward
Vien, Psychologist, Portland;
Hon. Terry Leggert, Circuit Court Judge, Marion County; Liss Hart-Haviv,
Executive Director, “Take Root”; Kathy Root, Attorney at Law, Portland;
Marshall Spector, Attorney at Law, Portland.
5. Aaron's Law in statute:
ORS 30.868
30.868
Civil damages for custodial interference; attorney fees. (1) Any of the following
persons may bring a civil action to secure damages against any and all persons
whose actions are unlawful under ORS 163.257 (1)(a):
(a)
A person who is 18 years of age or older and who has been taken, enticed or
kept in violation of ORS 163.257 (1)(a); or
(b)
A person whose custodial rights have been interfered with if, by reason of the
interference:
(A)
The person has reasonably and in good faith reported a person missing to any
city, county or state police agency; or
(B)
A defendant in the action has been charged with a violation of ORS 163.257
(1)(a).
(2)
An entry of judgment or a certified copy of a judgment against the defendant
for a violation of ORS 163.257 (1)(a) is prima facie evidence of liability if
the plaintiff was injured by the defendant’s unlawful action under the
conviction.
(3)(a)
For purposes of this section, a public or private entity that provides
counseling and shelter services to victims of domestic violence is not
considered to have violated ORS 163.257 (1)(a) if the entity provides
counseling or shelter services to a person who violates ORS 163.257 (1)(a).
(b)
As used in this subsection, “victim of domestic violence” means an individual
against whom domestic violence, as defined in ORS 135.230, 181.610 or 411.117,
has been committed.
(4)
Bringing an action under this section does not prevent the prosecution of any
criminal action under ORS 163.257.
(5)
A person bringing an action under this section must establish by a
preponderance of the evidence that a violation of ORS 163.257 (1)(a) has
occurred.
(6)
It is an affirmative defense to civil liability for an action under this
section that the defendant reasonably and in good faith believed that the
defendant’s violation of ORS 163.257 (1)(a) was necessary to preserve the
physical safety of:
(a)
The defendant;
(b)
The person who was taken, enticed or kept in violation of ORS 163.257 (1)(a);
or
(c)
The parent or guardian of the person who was taken, enticed or kept in
violation of ORS 163.257 (1)(a).
(7)(a)
If the person taken, enticed or kept in violation of ORS 163.257 (1)(a) is
under 18 years of age at the time an action is brought under this section, the
court may:
(A)
Appoint an attorney who is licensed to practice law in Oregon to act as guardian ad litem for the
person; and
(B)
Appoint one of the following persons to provide counseling services to the
person:
(i)
A psychiatrist.
(ii)
A psychologist licensed under ORS 675.010 to 675.150.
(iii)
A clinical social worker licensed under ORS 675.530.
(iv)
A professional counselor or marriage and family therapist licensed under ORS
675.715.
(b)
The court may assess against the parties all costs of the attorney or person
providing counseling services appointed under this subsection.
(8)
If an action is brought under this section by a person described under
subsection (1)(b) of this section and a party shows good cause that it is
appropriate to do so, the court may order the parties to obtain counseling
directed toward educating the parties on the impact that the parties’ conflict
has on the person taken, enticed or kept in violation of ORS 163.257 (1)(a).
The court may assess against the parties all costs of obtaining counseling
ordered under this subsection.
(9)
Upon prevailing in an action under this section, the plaintiff may recover:
(a)
Special and general damages, including damages for emotional distress; and
(b)
Punitive damages.
(10)
The court may award reasonable attorney fees to the prevailing party in an
action under this section.
(11)(a)
Notwithstanding ORS 12.110, 12.115, 12.117 or 12.160, an action under this
section must be commenced within six years after the violation of ORS 163.257
(1)(a). An action under this section accruing while the person who is entitled
to bring the action is under 18 years of age must be commenced not more than
six years after that person attains 18 years of age.
(b)
The period of limitation does not run during any time when the person taken,
enticed or kept in violation of ORS 163.257 (1)(a) is removed from this state
as a result of the defendant’s actions in violation of ORS 163.257 (1)(a).
[2005 c.841 §1; 2009 c.11 §5; 2009 c.442 §26]
V. The principles of Aaron’s Law
Child abduction,
causing a child to disappear for any length of time, is child abuse. The
consequences can be devastating to the child and the child’s family, with
damages accruing minute by minute over months and years. The harm can extend
into the next generation. Much of the damage can never be remedied. Deterrence
and prevention is vital. Custodial interference statutes are ineffective. The
Criminal Law and Family Law systems do not provide an appropriate response to
the problem. Victims ought to be able to hold their children’s abductors
accountable in civil court. Child victims ought to be able to hold their
abductors accountable in civil court once the child has become an adult. No
person is exempt from the law.
A. Victims in
control, not the system: The Civil Suit
You are the parent of a child abducted by the other parent.
You did not see this coming. You do not know where they are, where they are
going, if they are using assumed names or many other important details. Your
child may have medical issues. You are certain that your ex intends to keep
your child from you permanently.
Now you have to convince someone—many persons in a gulag of
systems and strangers—that you are not exaggerating, that your child is
suffering, that this is an emergency. You must find legal help in at least two
state systems.
Having reported the crime to law enforcement and facing the
systemic access to justice and lack of awareness issues outlined above, the
victim parent, grandparent or legal custodian either enters the Family Law
system pro se, or finds an attorney
willing to take the case. Family Law attorneys will tell you that they do not
practice criminal law. They will work the case as a custody issue.
The Family Law system is a labyrinth of overburdened courts,
bewildering forms and procedures, long timelines, requirements that make swift
action impossible, and staffed by persons who lack awareness of the difference
between a custody fight and a cold-blooded kidnapping.
Law enforcement response to the abduction is subject to
statutory issues identified elsewhere in this report, and the fact that no
charges will be filed before
prosecutors believe that they have sufficient evidence to
convince a jury to reach a unanimous verdict “beyond a reasonable doubt.” The
Kyron Horman abduction, now entering its third year, illustrates this point
very clearly.
The Criminal Law system is also very rigid in certain
respects, and the victim parent may not want to see the abducting parent go to
jail, as was the case in the Cruz abduction. . In many
cases, incarcerating a parent adds to the ongoing trauma suffered by the child
victims.
Neither system offers good, appropriate choices for the
victim family.
Filing a civil suit for damages against persons who you can locate,
however, who you can prove “by a preponderance of the evidence” instead of
“beyond a reasonable doubt” did in fact “take, keep or entice” your child in
the course of the abduction, provides abduction victims with a range of options
unavailable in either the criminal or family law systems.
Civil suits can be brought forward more quickly also,
potentially shortening the time that your child is abducted, and time is of the
essence in kidnappings.
With the passage of
Senate Bill 1041 in 2005, Oregon became the first state in the nation where
abducting a child creates a civil cause of action, the right to sue for damages
to your child and your family, and the right of the abducted child to seek
redress when the child becomes an adult.
B. Who you serve and 142
reasons why:
You probably do not know where your ex is concealing your
child and thus cannot serve legal process papers, but you become aware that
your ex has assistance in carrying out the crime, whether providing logistical,
financial or planning support in taking, keeping or enticing the child.
This person or these persons can likely provide information
leading to where your child is being concealed. You file suit under ORS 30.868, Aaron’s Law.
Aaron’s Law is intended to serve as a powerful deterrent to
persons considering aiding in a parental, family or organized child abduction.
The prospect of defending oneself against liability for “(a) Special and general damages,
including damages for emotional distress; and (b) Punitive damages”, as
well as attorney’s fees, would discourage many from joining in facilitating a
kidnapping.
The
Kyron Horman abduction illustrates the concept very plainly.
The disappearance
of 8-year old Kyron Horman nearly three years ago triggered the largest search
effort in Oregon
history. No criminal charges have been filed in the case, and police have
released an age-progressed image of what they think Kyron might look like
today.
Last seen in the
company of his step mom, Terri Horman, the multiple searches turned up no trace
of the child. Law enforcement has named no suspects or persons of interest, officially, although those terms most
certainly describe Kyron’s step mom Terri Horman and her close friend DeDe
Spicher, unofficially.
Both women have
stubbornly refused to account for their whereabouts during the crucial two
hours on the morning of June
4, 2010, when Kyron vanished from the face of the earth, as did
these two women, albeit temporarily in their cases.
With both the
criminal and family law courts at a stand still, unable to move forward,
Kyron’s mother Desiree Young filed a civil suit against Terri Horman, alleging
that the step mom knows where Kyron is and whether he is dead or alive.
DeDe Spicher invoked the 5th
Amendment 142 times during her deposition.
C. Domestic violence
exception:
No “public or private entity that provides counseling and shelter services to victims of
domestic violence” can be sued under Aaron’s Law, nor can parents fleeing
domestic violence situations.
D. Counseling for
resolution and deterrence:
Borrowing from the Abduction Task Force’s predecessor, the
Family Law Task Force, Aaron’s Law authorizes the Court to order “the parties”
to the civil suit into counseling directed at educating “the parties” as to the
harm their conduct is causing the victim children.
This feature is intended to serve as a tool for both
resolution and deterrence.
E. The child victim
becomes an adult:
The Parental and Family Abduction Task Force noted the
similar trauma in child abduction and child sex crime victims, recommending an
increase in the statute of limitations, but no change to the criminal statute has
been made. Under Aaron’s Law, however, a child victim has a six-year window to
hold persons participating in the abduction accountable, beginning when the
child becomes an adult.
This concept is intended to serve in the cause of justice
and as an additional deterrent. It also better places the Custodial
Interference I and II statutes in the context of the crime, which is a continuing crime, and the persons
involved are responsible for everything that happens after the kidnapping is
initiated.
F. Protecting the
interest of the child:
When a civil suit is filed under Aaron’s Law, the Court is
immediately authorized (encouraged) to appoint legal and mental health and
other qualified professionals to see to the interests of the child, and to
assess the costs to “the parties” as the Court sees appropriate.
This concept results in part from the findings of the
Parental and Family Abduction Task Force. The cost assessment feature is
intended to act as a further deterrent.
G. Aaron’s Law and
child trafficking:
While ORS 30.868 Aaron’s Law has yet to be tested in a child
sex trafficking case, it could be a very useful tool in providing resolution
and as a deterrent, were it to be better understood by professionals working in
that field.
VI. Case Study: The Kyron Horman
abduction
“There is no case like this.”
A. “There is no case
like this.”
The Kyron Horman abduction is unique in many respects. The
missing child has triggered the largest search effort in the history of Oregon, now entering its
third year.
It is also the first known instance of a filing under ORS
30.868 Aaron’s Law.
Desiree Young, Kyron’s mother, filed the civil suit on June 1, 2012, as reported in
The Oregonian:
“There is no case
like this – even close to these circumstances,” (Multnomah Judge Henry) Kantor
said….
…."I will forever have a
hole in my heart because he is not here," Young said, shaking as she stood
outside Portland's Justice Center and beside respected civil rights attorney
Elden Rosenthal.
….The lawsuit argues that Terri Horman
"intentionally interfered" with Young's parental rights, and
intentionally inflicted severe emotional distress on her. Young shared joint
legal custody of Kyron after her divorce from Kaine Horman in 2003.
Rosenthal pledged to aggressively use all the
tools afforded to him in a civil case "to peel away the layers of mystery
surrounding Kyron's disappearance," and to add more names to the suit if
others are responsible. He said he will issue subpoenas for witnesses to
testify under oath, and compel the production of documents, such as e-mails and
text messages.
"There
are some cases that require victims of wrongs to use the civil justice
system," Rosenthal said. "This case is one of them."
Kyron Horman’s is the only Oregon abduction case that has lasted longer
in the media than a single news cycle. Most parental and family abduction cases
never make the news. The families suffer in private, and an abduction case is
isolating by its very nature.
Kyron’s disappearance attracted media attention for three
reasons unique to the case:
1. He disappeared from his school, attracting attention from
parents, teachers and school officials across the state and beyond. Most
kidnappers will want to avoid attracting attention.
2. No one else close to Kyron was also missing.
3. Kyron’s stepfather is a police detective. When he was
discovered missing, his family had instant credibility with law enforcement,
and police were on it in a matter of minutes.
B. On meeting “The
Criteria”:
The Kyron Horman abduction is complicated for many reasons.
Obviously, law enforcement has not been able to assemble evidence sufficient to
move a jury to a unanimous verdict “beyond all reasonable doubt”, which is why
no criminal charges have been filed.
This obstacle in the Criminal Law system is holding back
both the Family Law process and the civil suit filed under Aaron’s Law.
But most parental and
family abductions do not face this obstacle, because there is no criminal
proceeding under way and law enforcement is not actively looking for the
abducted child(ren).
During a press conference two years ago, the Multnomah
County Sheriff was asked if there were any other missing children besides Kyron
out there, and the Sheriff responded “none that meet the criteria.”
Whatever “the criteria” is, it is important that both the
public and the professionals whom the public relies on for justice and to
protect their families understand what the criteria is, what the rules are and
how to make them work better.
HB 2014 will
provide the 2014 Legislative Assembly with information vital to making the
Criminal Law, Family Law and Civil Law systems work better for the benefit of
all Oregon
children, and for those children who are brought to Oregon under similar circumstances.
VII.
Attitudes as Obstacles to Access to Justice
“Happy
families are all alike; every unhappy family is
unhappy in its own way.” –Leo Tolstoy, Anna Karenina
My personal experience as the parent of abducted children is
my own, but over the years since I began working on child abduction prevention
legislation, several dozen Oregon
parents whose children have disappeared with the ex (and the ex’s associates)
have contacted me.
In the details of their respective family situations, they
each had their own stories. Some were still married to the other parent; some
had never been married; some were in the process of divorce; some long
divorced. Their legal status was of every sort, and the number and ages of the
victim children as varied as can be.
But in the issue of access to justice, all of the stories
were the same, the same as mine, we parents of children abducted by known
perpetrators.
These grieving parents had all reported the crime to law
enforcement, but the police were not looking for their children. They were all
in some sort of limbo—at best—with the Family Law system. Some had lawyers at
different points in their story, some did not. They all reported problems in
finding a lawyer willing to listen, much less help, and all while time slipped
away forever.
A father whose non-custodial ex-wife had disappeared with
the children in February was told by a police detective the following September
that the department couldn’t act because the Custodial Interference statute had
no definition of “protracted.” They couldn’t be sure it had reached that point.
The children were eventually recovered from Arizona.
These parents had found me through my writing posted on the
web. They had gone online desperate for help, for ideas. They had learned about
Aaron’s Law and had read it through, but were unable to find a lawyer in Oregon who was familiar
with ORS 30.868.
This is why they were contacting me, after all of this had
happened. And there was yet a missing child and time was of the essence, and
they were clinging to threads of hope.
“Your children will
find you some day (Don’t worry be happy)”
In my experience, supported in conversations with these
other parents of children abducted by known perpetrators, significant barriers
to recovery and in access to justice lie in people’s minds, both in those who
people The System and those in the general public, all stemming from the same
lack of awareness.
Moving a child during the course of a custody battle is one
thing; causing the child to vanish is
another. Taking, keeping or enticing a disappeared child that a person is
not related to ought to be a behavior that the System especially discourages,
and sharply. A person aiding and abetting the taking of that disappeared child
across state lines ought to be held accountable.
But there is a tendency for people to marginalize the crime,
if not exactly trivialize it. Be patient.
It will be OK. People with passive personalities will counsel more patience
and an optimistic attitude. Your children
will find you some day. Writing off your child’s entire childhood…learn to accept it…your teenager’s
entire adolescence…Keep your chin up,
someday your grandchild will want to know something about you…People wonder
when you will move on.
Caseworkers have big caseloads; department budgets are
constrained; No one knows what “protracted” means; most Oregonians cannot
afford an attorney….
We ought to know,
however, what chain of events takes place when a child disappears, either from Oregon or into Oregon. Please move HB 2014 forward.
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