Forced Catheterization of Child Leaves Pain, Legal Questions
PIERRE, S.D. - The forced catheterization of a 3-year-old boy in Pierre has left the child in pain and his family with many unanswered legal questions.
Weeks after sending a letter to the Department of Social Services, the ACLU of South Dakota still has not received justification for the agency's use of the invasive measure without a warrant. The catheterization gave the boy a staph infection.
ACLU Legal Director Courtney Bowie compared the method to cavity searches, which only are performed without a warrant in jails or prisons. She said the Fourth Amendment, securing people against warrantless searches, has little meaning if it doesn't protect against instances such as this.
"The exception would undo the rule if they can conduct body-cavity searches or catheterizations on suspicion of a misdemeanor without a warrant saying they can do that," she said.
DSS and police told the boy's mother they had to get urine samples from him and his sister after the mother's boyfriend was busted for drug possession. According to the ACLU, the woman was told she would lose her children if she didn't comply. South Dakota Attorney General Marty Jackley has said catheterization sometimes is appropriate, although he was not necessarily referring to this situation.
Catheterization isn't a common practice in South Dakota, and Bowie said the few cases of which she's aware are limited to Pierre and police have had warrants to get urine samples. However, Bowie said even warrants must clearly lay out the methods that are going to be used for searches, so a judge can determine whether it's absolutely necessary.
"I think they think, 'We have a warrant for urine, so we can catheterize people,' and our position is, 'You need to run that by a judge,' " Bowie said. "It just seems to me like it's a means or a practice of humiliating people."
Bowie said the ACLU is considering litigation and cited far less traumatic and invasive methods for getting a sample from a child, such as drawing blood.
The ACLU's letter is online at aclusd.org.