The Right to Remain Silent About Your Right to Remain Silent

How Criminals Enjoy More Protections than Parents

Jamie Paul here. This week’s article is a guest post by Timothy Wood, but I have a new piece out in Queer Majority: “‘OK Groomer’ and the Dangers of Crying Wolf”, about the crazy discourse surrounding the so-called “Don’t Say Gay” law in Florida.

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I was a social worker as a young buck out of college. What a wild ride. Doing social work, you see it all — the awful, moving, terrible, wonderful, hopeful, generous, evil, amazing sides of humanity. It’s all the adjectives, and often many at the same time. You learn an enormous amount, mostly in the rough-and-tumble street smarts department. There is no module in school about this sort of thing. Your textbooks don’t read: “Chapter four: This is how you rewire a broken groundwater pump for a family living 30 miles outside the municipal water district.”

But some of what you learn also falls into the “Irritatingly pedantic but very important devil-in-the-details” category. Foremost among them is that you, as a parent, have less rights than someone accused of murder. To be precise, you have exactly one fewer right, because while you technically enjoy all the same legal remedies and constitutional protections, the murderer will literally get away with murder if they aren’t afforded the right to be informed of their rights. Ignorantia juris non excusat, except when ignorance of the law actually is a defense. But not for you, because you’re not a murderer; you’re just a parent.

I get a report on a particular form. This is protective services, and we check up on kids and dependent adults (usually the elderly). I cannot disclose this specific piece of paper to the person involved, because it has identifying information, but I can verbally convey the contents of the accusations of abuse or neglect. We’re trained to be as vague as possible when we address the allegations. The less you know about what I know, the more likely you are to volunteer new information. Of course, you have a right to get a copy of this document, with all the information redacted that might identify the person who made the report. But it doesn’t matter, because you don’t know that, and I don’t have to tell you.

I’m going to knock on your door, introduce myself, and ask to sit down and talk. You have no obligation to let me in without a warrant, but I’m under no obligation to tell you that. From the moment I enter, this constitutes a visual search of your home. There’s all sorts of little ways I can get you to show me more. Kiddo wants a drink. I’ll walk with you to get it, so that I can evaluate whether you have food in your fridge. If I stick around long enough, baby will need a diaper change. I’ll follow along with some small talk, but what I’m really doing is sneaking a peak to make sure there are no signs of sexual trauma. Yes, it’s a thing. Yes, even with babies. I have stories, and none of them are the kind that help you sleep at night.

Whatever I observe and whatever you tell me is admissible in court. I am an agent of the state. Moreover, they’ll criminally charge me if I see evidence of abuse or neglect and fail to take action.

Before I leave, I’ll probably whip out the prevention plan, all neatly printed on carbon copy paper. It’s where we make a written agreement about how we keep kiddo or baby safe while we work things out, with an unspoken understanding that everything here comes with the implied threat of taking your kids. You don’t have to agree to it, but once you do, that too is admissible in court. If you refuse to negotiate, also court. If you break the agreement you weren’t legally obligated to make, believe it or not, straight to court.

Your case plan comes later, which is what keeps us away from court in the long term. It likely includes drug tests that you have to pay for, parenting classes that you have to pay for, and appointments with a therapist or counselor that you have to pay for. These all normally take place during regular business hours, meaning you’ll probably have to take off work. That is, if you do work — and if you don’t, then you likely can’t afford them in the first place.

You see, we’re in this legal twilight zone. You have the right to have an attorney present if you answer any questions, but I haven’t actually filed any paperwork in court, and so one will very much not be provided for you. You may in some cases have the right to subsidies to help pay for all of this, but none of it was ordered by a judge. You “agreed” to it all voluntarily. I need not tell you of any of the legal rights that may advantage you in this situation, and, in fact, I’m fairly well-trained to not to. 

As we recently learned in the Ohio Supreme Court, I am not law enforcement, and I have no obligation to inform you of just about anything. This includes if I interview you while you’re in jail. This is unaffected by the fact that I’m quite likely to turn around and tell everything you said to the police.

The reason I have a personal bone to pick here is because I remember the day I met a man who wasn’t afraid. He looked down on me as scarcely a nuisance. He worked on a horse farm, and not the turnip-growing kind — more like the zillion-dollar racehorse kind. This is Kentucky. We have horses that are worth more than your house.

When I walked through his front door he had a lion, stuffed and mounted on a wooden pedestal. It was nearly as long as my car. This guy’s lawyer makes in a few days what I make in a month. He isn’t afraid of me. I have no leverage here. The reason I remember this case in particular, and why it stands out, is because folks reported to protective services are much more likely to be poor.

Some of that is chicken-and-egg. If you’re the sort of person who belts whiskey or gets jacked up on drugs and beats your kids, you’re probably not a well-adjusted citizen who pulls in six figures. But also, if you’ve lived your whole life in a bad neighborhood, or you grew up in the mossy hills of Appalachia, poverty can be a damn near endemic part of your culture. It’s a little hard to make moral judgements and pontifications on the virtues of economic self-reliance when you’re in Harlan County, Kentucky, where the median individual income is $17,000 a year, and less than 40 percent of the population is employed in the civilian workforce.

Harlan County, Kentucky.

We memorize neighborhoods. Maybe we give them clever nicknames. Paultown, because the Paul family at some point decided to convert their land into a slum of barely livable mobile homes which serve as a revolving door for transient families dependent on public housing assistance. Over in the nearest place that passes for a city, I drive to a housing project with an intern in my passenger seat. Notice anything about the barbed wire on the chain link fence around it? Those little diagonal bits at the top are facing the wrong way, because the fence isn’t to keep people out; it’s to keep people in when the cops come.

Back in the living room, when we sign our “prevention plan”, I get to watch mom struggle to sign her name in the best cursive she can muster after dropping out of high school in the tenth grade. I make a conscious effort to avoid complex language with another mom, because she spent most of her school years trying to avoid getting the shit kicked out of her by her stepdad. I have to read documents out loud because dad is still in the “sounding things out” phase. Especially in cases of neglect, it’s quite possible that one or both parents suffer some cognitive impairment, like the mother who operated at a 14-year-old level, because she lost most executive functioning after a horrific car accident damaged her brain. These are not typically people who are going to wield Google-fu to figure out what their legal parental rights are.

But for social workers in particular, a group so prone to pompous, long-winded proclamations on ethical practice, if you don’t know your rights, and I do, and I don’t tell you, isn’t part of that my fault? Isn’t part of that at least a teensy bit… unethical?

Per Miranda v. Arizona, if I were law enforcement, I’d be required to inform you of all these rights. You know, the stuff from every police drama: “You have the right to remain silent, anything you say can and will be used against you…” I would be required to, at least in some small measure, work against myself to ensure that constitutional protections under the Fifth and Sixth Amendments are properly upheld. But I’m not, so I don’t. In this way, you are quite literally provided more protection if you’re a multiple homicide suspect than if you’re a parent trying to keep your kids.

If we make it to court, you’re probably poor, and so you’re going to be appointed a public defender, who, with few exceptions, will be among the least respected, lowest paid, least experienced, most hopelessly overworked attorneys in the county. If you’re lucky, they’ll spend a whopping seven to ten minutes with you prior to representing your case before the bench.

Protecting child welfare is extremely important. It can’t be overstated, and it’s not my intention to diminish that fact. I have a whole book’s worth of stories that nobody wants to hear about the little girl who sat in a dirty diaper so long her vagina was filled with pus and we had to take her to the emergency room. But it’s also important to protect parental and constitutional rights. Removing a kid from a troubled home doesn’t magically solve the problem. In some cases it may actually make it worse, and put the child at a higher risk of abuse. If you’ve ever met a kid who “grew up in the system”, it’s never referenced favorably.

At the end of the day, equal protection under the law is one of the foundational principles of a democratic society. We don’t need to agree or even like each other. Under the law we’re the same. Except in some cases, we’re not, because if protective services ever show up to my door, I have a pretty good idea of what my rights are. You probably don’t, and you probably won’t. No one is required to tell you, and somehow, we manage to hold our noses and call this ethical.

See also: “The Things You Bought But Don’t Own”

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