How Ariel Castro May Have Violated the Constitution

Ever since the story of how Ariel Castro (allegedly) held Amanda Berry, Gina DeJesus and Michelle Knight for over a decade came to light, I found there was something creepily familiar about it.  I kept thinking, “I heard of something like this before, but I can’t remember where.”  It wasn’t until I was watching yesterday (Thursday’s) O’Reilly Factor that I made the connection.

You see there is a term for what he had with these three girls.  I had learned of it over a decade ago when I was studying Chinese History, although the subject is in fact contemporary.  As in, it is happening right now.

That term?  Slave marriage.

You see, you might have heard that for some time China has been experiencing a shortage of women.  This shortage of women is traceable to their “one child” policy whereby families were only allowed to have one baby.  So if that baby was a female, they would carry out abortion or infanticide, depending on when the non-maleness of the child was discovered.  Occasionally they would find enough decency to leave the girl at an orphanage.  In Chinese orphanages, there are only two kind of babies: girls and handicapped boys.  Being a girl was considered as bad as being handicapped in their minds.

So the result was a gender imbalance in the population.  Some feminists hoped that this would make women a valuable commodity and there is some evidence that in some cases that is how it has worked out.  But the fundamental flaw in Chinese culture is that their culture has absolutely no respect for the value of human life, and so a disbalance like this results also in horror.  One of those horrors is slave marriage.

Slave marriage is where a woman is literally abducted and then sold to some man who is desperate for a wife.  She is kept in captivity for years and raped continuously, as well as being forced to do house work and the like.  I have read that in one county, for instance, more than 50% of the marriages were actually slave marriages and the individual stories would turn your stomach.  I read of a retarded girl being traded for a goat and another woman being traded for a television.  And I read the story of a woman kept in captivity in a rural house one day seeing a policeman come by.  Thinking she was saved, she ran to the cop only to discovery that the “cop” was actually a cousin of her “husband” impersonating a police officer, to test if she would run.  The husband came out from hiding and both men brutally beat and raped her to teach her never to try to escape again.  When that woman was finally rescued she had trouble even believing she was actually safe; she kept waiting for the police to turn out to be allies of her husband again.

And while I read those stories more than a decade ago (so, sorry no links to support what I said in the last paragraph because I have not kept the research), this is still going on.  There are right now thousands, if not millions, of women in China suffering in slave marriages.  This is rightfully considered a crime against humanity on holocaust level or American-slavery, and I am barely hearing a peep about it. From a (more) recent Christian Science Monitor story:

The price for a North Korean woman named Kim Eun-sun, her mother, and her sister to escape to China was 2,000 Chinese yuan, slightly more than $300.

Like thousands of North Korean women before them, they crossed the Tumen River into China and met a woman who said she would help them escape – only to discover that they’d been sold to a Chinese farmer who wanted a wife.

“A lot of women come to China not knowing what they are getting into,” says Ms. Kim, who escaped the farmer with her family but was caught by Chinese police and then sent back to North Korea. “Women are secretly sold in China.”

Read the whole thing.

So as I was listening to the O’Reilly Factor, they told a version of this story from the Castro house of horrors:

Berry told police that Castro forgot to lock what she called the 'big inside door' at the property in Seymour Avenue.

She said he had left the house to walk to a nearby McDonalds to buy food for the four captives.

Berry said that a storm door on the house was still locked and she was afraid to break it open as she 'thought Castro was testing her' said the report.

There had been previous reports that Castro played cruel games with the girls by pretending to go out, but instead lie in wait to see if they would try to leave.

If they did, he would catch them and allegedly beat them.

That story of the how Castro would set up tests and traps, made me recall that woman in China who ran to the arms of whom she thought was a police officer.  It was a moment when things in my mind clicked into place and I realized that this was in essence what it was: slave marriages.  He may or may not have thought of them as his "wives," but in every material way it was the same.  And it made me think, if these were in essence a slave marriages there might even be a Constitutional Amendment violated by his conduct.

Now that is where many readers might pause and reasonably ask, “wait a minute, Aaron.  Don’t you need governmental action to violate the Constitution? Where is the government action, here?”  Well, as far as I can tell, there is no government action.   But there is one constitutional amendment that is violated whether the government does it or a private citizen does it: the Thirteenth Amendment.

The first section reads:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Since its inception, the Thirteenth Amendment has been read (correctly in my opinion), as applying to individuals and not just state actors.  After all, “paradigmatic” American slavery is a situation where a person says to another, “work for me, or I will kill you, beat you, etc.” And while of course there were laws in the South that allowed people to do this and these laws officially told slaves they had to obey their masters, making it illegal to run away, and so on, it wasn’t mainly the law keeping slaves in chains.  I doubt if even one slave obeyed their master because some words in a book told them to.  No, what kept the slaves in chains was largely private violence tolerated by the law.

Of course by itself all the Thirteenth Amendment does is declare it to be illegal to hold a person in a state of slavery.  It can’t make holding a person in slavery a crime, and so on.  No, that work is done by federal laws enforcing the Thirteenth Amendment, as authorized by its second section.

For instance, there is the most obvious statute, 15 U.S.C. §1589, which prohibits “forced labor:”

(a) Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means—

(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;

(2) by means of serious harm or threats of serious harm to that person or another person;

(3) by means of the abuse or threatened abuse of law or legal process; or

(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint,

shall be punished as provided under subsection (d).

[...]

(d) Whoever violates this section shall be fined under this title, imprisoned not more than 20 years, or both. If death results from a violation of this section, or if the violation includes kidnaping, an attempt to kidnap, aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title, imprisoned for any term of years or life, or both.

And if the reportage so far is correct, we can already make out at least once case of forced labor:

It was also revealed that Michelle Knight was forced to give Amanda Berry and her newborn daughter CPR after Castro allegedly threatened to kill them.

Knight, now 32, says she saved the life of Berry's daughter Jocelyn when she was born in an inflatable pool six years ago at the 'house of horrors'.

Castro allegedly told the girls that if the baby died, he would kill Amanda.

And obviously forcing one person to give another health care is a form of slavery, too:

And for each of the girls if we drill down into the facts a little, we are likely to see forced labor in each case.  For starters, at the risk of getting too graphic, if the girls were forced to do things to him to gratify his sexual desires—that is rather than simply laying there as he did things to them, they were required to actively satisfy him with their own volitional (but coerced) actions—that would seem to be sexual slavery, forced (sexual) labor, in the meaning of §1589.  And less disgustingly, do you think that in the last 10 years he ever forced these girls to cook or clean for him?  Chances are he did, and that would be forced labor, too, obviously.

And notice that this situation would very likely satisfy the conditions allowing for life imprisonment if only because sexual battery was (allegedly) involved.

There is also Enticement Into Slavery under §1583, which deals with the act of kidnapping a person “with the intent that such other person be sold into involuntary servitude, or held as a slave[.]”  That would apply to the initial kidnapping and depending on how the statute of limitations is read, might still apply today.  The punishments are essentially identical.

So up until now the Feds have stayed out of this because the ordinary federal criminal statutes require some kind of interstate element and these girls never crossed state lines (as far as we know so far).  This is because the federal kidnapping statute and similar laws are justified under the Commerce clause, which only gives the Federal Government over interstate commerce.  But if the Feds can be persuaded to see this also as sexual (and ordinary) slavery, then a whole new vista of federal laws might be applied.

The irony is that this presents almost a mirror opposite of the situation presented with the Boston Marathon Bombers.  In that case, one of the benefits of bringing in federal law was making it possible to execute Jahar when the state of Massachusetts had stupidly abolished the death penalty.  Here it is state law, not federal law, that holds out the best hope for execution (assuming Castro is guilty).  Seriously if this man held those girls for over a decade in bondage, I don’t care what the Supreme Court says, he deserves to die even if he didn’t kill any of them.

And Ohio law apparently has a quirk in it that makes it possible to execute him.  As noted in this report:

While in captivity, Ms. Berry gave birth to a daughter who is now 6 years old, said police reports. Ms. Knight said she had at least five miscarriages caused by Castro. The three women were repeatedly beaten and raped, police reported.

“The horrific brutality and torture the victims endured for more than a decade is beyond comprehension,” Cuyahoga County Prosecutor Timothy McGinty said during a news conference.

Ohio state law calls for the death penalty for the "most depraved criminals who commit aggravated murder during the course of a kidnapping," said Mr. McGinty, who will "engage in a formal process to evaluate" seeking the death penalty against the suspect.

"I will seek charges for each and every act of sexual violence, rape, every day of kidnapping ... and each act of aggravated murder he committed by terminating pregnancies ... during this decade-long ordeal," he said.

Indeed, the criminal code in Oho specifically defines murder as causing “the unlawful termination of another's pregnancy.”  Thus unlawful abortion is considered murder—it being unlawful in this case presumably because it is without the mother’s consent.  Further, if the murder is proven to have a “sexual motivation,” then the death penalty is available.  So an unlawful abortion, plus a sexual motivation, makes the death penalty a real possibility.

Unfortunately this might lead to a serious constitutional challenge.  The Supreme Court has made it clear that generally the death penalty is only available for murder and certainly not available for rape alone—even the brutal rape of a child.  I think this is wrong, but that is what they ruled.  Implied into those statements is the fact they obviously mean “the murder of a person.”  I doubt the Supreme Court would allow a person to be executed for the “murder” of a dog, for instance, although many dog owners would surely think that is justified in some cases.  Michael Vick can rest easy.

In Roe v. Wade, the Supreme Court has said that a fetus is not a person within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.  But here we have a different question.  Can the state treat a fetus as a person for the purpose of vindicating a woman’s right to choose? 

So can the state of Ohio declare a fetus to be a person for the purpose of criminalizing unlawful abortion?  Ms. Berry did not consent to the death of her baby.  So this should be a topic on which the pro-choice and the pro-life sides can agree: forced abortion is wrong and indeed a crime for which the death penalty should be available.

But of course that means the state of Ohio would have to recognize that a fetus is a person, which calls into question the entire rightfulness of Roe v. Wade philosophically, if not legally.  So various feminists have claimed that such an approach to the law is unconstitutional.

From what I hear, further, this exact issue has not been litigated.  So it is likely to be an issue on appeal, and I dare say that if the Ohio judiciary writes off on it (assuming he is given the death penalty, but I think that is extremely likely), it is likely to go all the way to the United States Supreme Court.  And I won’t pretend to know for certain what they might do, there, except that they seem to be very resistant to opening up the death penalty to anything they perceive as a “new” category of crime.

So there is a danger that any death sentence given in Ohio might be commuted to life in prison by a Supreme Court declaring that he cannot be executed for this alleged conduct.  And once it is uncertain that he would be executed, it is probably wise to have dual prosecutions if only to make sure that if the state of Ohio fails to hold him until he is dead, that Federal Government might finish the job for them.

So the upshot is that Federal Agents should at least review the case with an eye toward whether these women were held in slavery and if so, they should consider putting in place their own charges, too.  I don’t generally like dual prosecutions with dual sentences for the same crime, but in extreme cases it is justified.  And this is certainly an extreme case.

---------------------------------------

My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

---------------------------------------

Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.