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Friday, June 17, 2005 - 12:00 AM
The Daily Herald
Should polygamy be legalized?
Polygamists are back on law enforcement's radar.
Utah Attorney General Mark Shurtleff has obtained a court order putting the assets of the Fundamentalist Church of Latter Day Saints in the control of an outside auditor. Shurtleff said he needed to do that to prevent church president Warren Jeffs from liquidating the assets, which include most of the property in Hilldale, Utah, and Colorado City, Ariz.
On the Arizona side of the border, Jeffs has been indicted for marrying a 16-year-old girl to a man who already has a wife.
The incidents again raise the question of how Utah should deal with polygamists.
On one hand, polygamy has been illegal in Utah since statehood. The federal government denied Utah admission to the union until polygamy was forever banned by the state constitution. Statehood came six years after the LDS Church officially discontinued the practice.
But neither state law nor religious directives stopped polygamy. Former Mormons who insisted on continuing the practice formed their own sects, such as the United Apostolic Brethren and the FLDS, to carry on the doctrine.
There were some efforts in the past to crack down on polygamy, but they were usually hampered by laws that poorly defined cohabitation, and by public backlash when polygamist families were broken up, as happened when Arizona authorities raided Short Creek in the 1950s.
When a Provo jury found polygamist Tom Green guilty of four counts of bigamy in 2001, it marked the first time in a half-century that a polygamist was successfully prosecuted for having more than one wife. Then-Juab County Attorney David Leavitt achieved this through some really tortured reasoning: He declared one of Green's five wives to be a common-law wife; thus when he married another woman and then divorced her to marry a third, he periodically found himself in two simultaneous state-sactioned relationships. And that's illegal under the state's bigamy statute.
Tapestry Against Polygamy, a group aimed at breaking up polygamist enclaves, predicted that Green would be the first of many trials now that a new legal strategy had been conceived.
Green argued that his prosecution was nothing more than a show trial on the eve of the 2002 Winter Olympics, that he was singled out so the state could show the world that Utah does not tolerate polygamy. Green's many appearances on the talk-show circuit with his wives made him a particularly large target for a zealous prosecutor looking for a scapegoat.
But Green had a point. Not many miles from the collection of trailer homes Green and his family occupied near Trout Creek were compounds belonging to the United Apostolic Brethren. And there have been polygamists living in Sanpete County and, of course, in Hilldale. So why him? After all, Green's wives are his strongest supporters, and none of them wish to escape the clutches of polygamy. They are happy with their lives. Even the girl (now a woman) with whom Green was said to have had illicit sex when he married her -- his wife Linda -- remains, decades later, a loyal defender of her husband. No harm, no foul. It would be different if she were complaining.
Since Green's conviction, only one other polygamist has been found guilty. Hilldale police officer Rodney Holm was convicted in 2003 of bigamy and having sex with a 16- or 17-year-old.
The lack of vigor with which Utah has gone after its polygamists is striking -- barely a trickle. One has to wonder why we keep this law on the books if it is only going to be enforced in high-profile cases, even as polygamists in general openly flout it. If the state is not going to prosecute consistently, it should scrap the law.
Cohabitation, after all, is so commonplace in modern society that it has acutally achieved legal sanction. It's not against the law for consenting adults to sleep around, so what difference does it make if consenting cohabitors decide to live together in a single family unit?
Child abuse needs to be considered separately. It, obviously, should be prosecuted regardless who commits it. But it's also good to remember that this crime is not limited to polygamists, nor does it represent the norm within all polygamist groups.
Repealing Utah's anti-polygamy laws would not be easy. It would require a constitutional amendment and a public vote, which wouldn't have a snowball's chance in St. George. But some say a repeal would serve justice while keeping the legal system current with behavior that is both widely accepted and legally protected in society. Nor is it fair that a few like Green and Holm are prosecuted while other polygamists, in full view of state authorities, get a free pass. Justice should be both blind and consistent.
Legalizing polygamy may aid in the prosecution of real crimes that are occurring in polygamist communities -- domestic violence, child abuse, statutory rape and welfare fraud. Our current polygamy laws, supposedly put in place to protect women from sexual enslavement, have created a cloak of secrecy over polygamist groups that fosters abuses and keeps them from public view. A battered wife in a polygamist relationship not as likely to go to the authorities as a monogamist because she will have to admit to breaking Utah law.
Likewise, people in a polygamist enclave like Hilldale may not be willing to report fraud or other crimes because they view police and prosecutors as enemies who are intent on destroying their religion rather than as protectors. Legalizing polygamy would open the door to more normal relations between the state and polygamist groups.
Utah has declared it will not recognize marriages beyond those consisting of one man and one woman. That should pose no problem whatever to a doctrine that simply admits the current state of the law -- that cohabitation by consenting adults is protected.
Polygamy has always been a sensitive subject for Utah. But the best way to get over it may be to declare once and for all that's it's simply not a crime.