Pity the poor children of Michigan, Ohio, Kentucky and Tennessee, for they have come within the crosshairs of the US Court of Appeals for the Sixth Circuit. On August 4, 2014, that court decided United States v. Toviave, an extraordinary and unnecessary soul-murder of the innocents.
The facts giving rise to the case are that Toviave used physical violence (beating with broomsticks and the like) on the children in his custody to compel them to do household chores and homework. Michigan authorities considered the violence so extreme as to be child abuse and eventually removed the children from the house. Prosecutors went after Toviave for violating 18 U.S.C. § 1589, a forced labor statute. He was ultimately convicted under that provision in federal district court.
The court of appeals reversed, holding that the guardian had not contravened the forced labor statute by using physical child abuse to coerce performance of these tasks. Reductio ad absurdum, the holding means that for those within the geographic boundaries of the court, § 1589 protects adults from physical violence used to force their labor and, at the same time, denies protection to juveniles from such violence when used by a parent or guardian for the same purpose. This principle controls regardless of the severity or grotesquery of the physical violence inflicted on minors. This principle controls regardless of whether the child suffers injury or death due to the violence. This principle, at its most benign, dehumanizes children with the message that they are not worthy of protection from violence.
In order to fully understand the opinion of the court, it is important to be clear on what § 1589 says and does not say. The provision states, in pertinent part, that whoever knowingly obtains the labor of another person by means of force is criminally liable. The court asserted as a reason for reversal the following interpretation of § 1589: "forcing children to do household chores cannot be forced labor without reading the statute as making most responsible American parents and guardians into federal criminals." However, the statute is silent on types of labor and ages of victims. This should signify, of course, that the statute criminalizes forced labor even if the labor consists of housework and even if the laborer is a child.
Incidentally, the court's rationale quoted above contains a disturbing underlying assumption, i.e., that the great majority of responsible American parents and guardians employ physical child abuse to make children do their chores. Toviave turns out to be unexpectedly evenhanded when it comes to disparagement, managing to both diminish children and malign their parents and guardians.
The court's second reason for its holding is the conceit that if child abuse were to qualify as a means of forcing labor that violates § 1589, then "the forced labor statute would federalize the traditionally state-regulated area of child abuse." What the court seems to be saying is that there is a conflict between Michigan statutes criminalizing physical child abuse and the federal forced labor statute which also criminalizes physical child abuse (as per appellee's legal theory) insofar as said abuse is used to force a child's labor. The court apparently perceived the conflict to lie in the federal statute's trenching upon the state statutes by usurping some physical child abuse for federal prosecution. The court opined that in this situation state law must prevail. That conclusion is far-fetched in the Toviave context. The Preemption Doctrine dictates that where such a conflict exists, it is federal law which prevails if the conflict concerns a subject area, like forced labor, constituting a dominant interest of the national government.
To add insult to sophistry, the court also misuses and misrepresents US Supreme Court precedent. The Toviave opinion cites United States v. Kozminski for the proposition that the Thirteenth Amendment was not intended to govern the right of parents and guardians to the custody of their minor children or wards. This is true. It is true too that Toviave did lose custody. But the Thirteenth Amendment was not dealt with by Toviave as a claim or defense, rendering the Amendment irrelevant to the merits of the Toviave litigation. Just to set the record straight, the guardian lost custody at the hands of state authorities; nor does the federal forced labor statute under which he was convicted authorize loss of custody as a remedy.
The court's chutzpah in relying on Kozminski unfortunately does not end there. Kozminski is a statutory involuntary servitude case. The Kozminskis used physical abuse, among other coercive techniques, to keep two adult, mentally-retarded males at work on the perpetrators' farm. The Supreme Court affirmed the Kozminskis' conviction pursuant to 18 U.S.C. § 1584 and a federal conspiracy statute. The former enactment makes it a crime to hold a person in or sell a person into involuntary servitude. The Justices construed "involuntary servitude" in § 1584 as a crime entailing the element of coercion, including physical coercion. Ergo, the forced labor statute and the involuntary servitude statute parallel each other in this regard. Moreover, on the facts, Toviave and Kozminski both involved defendants' infliction of physical coercion to compel the victims' work. The opposite results in Toviave and Kozminski thus cannot easily be reconciled, and the cases cannot be distinguished in any legally significant way.
One wonders what the Toviave judges thought they were doing. Their errors in the case are embarrassingly basic and numerous; but if they are not bona fide mistakes, then what on earth was the court's agenda? What could have possibly motivated the court to go so far to cheapen children's lives, cast ugly aspersions on American parenting and, in the final analysis, betray the integrity of the judiciary?
Susan H. Bitensky is the Alan S. Zekelman Professor of International Human Rights Law and Director of the Lori E. Talsky Center for Human Rights of Women and Children, at Michigan State University College of Law. Her scholarship focuses on children's rights under international human rights law and American constitutional law.
This article was prepared for publication by Maria Coladonato, a Section Editor for JURIST's Commentary service. Please direct any questions or comments to her at