Sep 2, 2019

Polygamy would be on par with a traffic ticket under pitch to Utah legislators

Nate Carlisle
Salt Lake Tribune
September 2, 2019

Utah’s long dance with plural marriage is poised for another tango as a state senator seeks support to greatly reduce the penalties for polygamy while making it easier to pursue the worst polygamists.

Sen. Deidre Henderson, R-Spanish Fork, plans to file a bill in the 2020 legislative session, which begins in January.

She declined to discuss specifics, saying the text is still being negotiated. But she said the measure would encourage people in plural families to report frauds and abuse without fear of being prosecuted for polygamy itself.

“The general intent behind it,” Henderson said, “is to make sure we are not continuing to create a situation where the victims and witnesses of crimes are afraid to report it because of the lifestyle that they’ve lived.”

The Utah Legislature last amended the state’s bigamy statute in 2017, clarifying that polygamy is a felony punishable by up to five years in prison. Lawmakers also added new penalties of up to 15 years in prison if the polygamist is also found to have committed such crimes as a physical abuse, human smuggling or fraud.

No one has been prosecuted under the revised statute.

Some of the same people who pushed for a stricter law in 2017 oppose the latest reform effort.

Brenda Nicholson, who grew up in the Fundamentalist Church of Jesus Christ of Latter-Day Saints and left it in 2012, said people in polygamous sects stay silent not because of the laws but because they don’t want to make their community look bad.

“When I was in the church,” Nicholson said, “I never once heard someone say, ‘Oh, I wish I could report that my husband is raping our daughters, but I just don’t feel safe to because they’re going to prosecute us for polygamy and we’ll go to jail.’

“Legalizing [polygamy],” she added, “will not bring it out of the shadows.”

Connor Boyack, president of the libertarian-leaning Libertas Institute, opposed that 2017 bill and has been lobbying legislators and policymakers for another change. He said the pending proposal would be to reduce polygamy itself to a low-level misdemeanor or less — perhaps making it on par with a traffic ticket.

But the law also would shift so prosecutors don’t need to prove both polygamy and a secondary crime. Under one idea, Boyack said, prosecutors might need to show only that polygamy was a factor in the fraud or abuse.

Boyack calls such a plan a “win-win,” believing it will ensure consenting, otherwise law-abiding adults are not prosecuted but help law enforcement pursue bad actors in polygamy.

“The spirit of this [planned] bill,” he said, “is very much addressing actual problems.”

Boyack said there also have been discussions of amending the law so that only the Utah attorney general’s office could prosecute a case in which polygamy is the only offense to help ensure municipal or county prosecutors don’t decide to file charges for political reasons. Boyack said he’s also heard talk that if a new polygamy law is passed, the Legislature would fund an education program to teach polygamists about the changes and how it’s safe to report larger crimes.

Utah’s politicians and residents have debated how to address polygamy since its days as a territory. The Church of Jesus Christ of Latter-day Saints officially abandoned plural marriage in 1890 as a condition of Utah winning statehood. Today, the state’s predominant faith excommunicates members found practicing it, but so-called fundamentalists who assert they are following the church’s original teachings continue marrying multiple women to men.

Prosecutors in Utah have a policy of not going after someone for polygamy unless the offender is suspected of other crimes such as fraud or abuse. Neither Henderson nor Boyack expects that policy to change if the offense is lessened. Polygamists have long argued keeping polygamy a crime stigmatizes them and discourages people in plural families from reporting other offenses.

In 2013, a federal judge struck down the section of Utah’s bigamy law addressing polygamy. Judge Clark Waddoups ruled in favor of the Brown family from the television show “Sister Wives,” writing that the law was unconstitutional because it violated the family’s right to privacy and religious freedom.

The 10th U.S. Circuit Court of Appeals later overruled Waddoups, saying the Browns didn’t have standing to sue because they hadn’t been prosecuted under the polygamy statute. Even so, the case motivated the Utah Legislature to change the law in 2017.

Then-Rep. Mike Noel sponsored the bill and was its biggest supporter. Then-Sen. Kevin Van Tassell, whose daughter married a man in a polygamous sect, helped secure passage in the Utah Senate. Both have since left the Legislature.

There are questions about whether Utah’s current bigamy law is any more constitutional than Waddoups thought the old one was. Polygamists have pointed to one of their own, former FLDS bishop Lyle Jeffs, as evidence the current law is impotent.

Jeffs pleaded guilty in federal court in 2017 to defrauding a federal food program and failing to appear in court. He is serving a 57-month prison sentence, yet no state prosecutor filed charges under the enhanced bigamy law.

“I get frustrated when I see a Lyle Jeffs get off with a slap on the wrist,” said Joe Darger, who lives with his three wives in Herriman.

Darger has been speaking to legislators and arguing that men like Jeffs won’t be prosecuted if people fear they or their mothers will be arrested for polygamy.

“I’ve never been one who wants to just whitewash that there aren’t problems out in some of the [polygamous] communities,” Darger said.

Making all polygamy a felony, Henderson said, creates more harm than good.

“I am not suggesting that we legalize polygamy,” the state senator said, “but I am suggesting we take a look at our current law and take a look at the total effect of it.”

Douglas White, a Bountiful attorney who has represented people who have left the polygamous Davis County Cooperative Society, also known as the Kingston Group, said Darger and Boyack are rehashing old arguments. The real reason people in plural families don’t want to report crimes, he said, is that they participate in frauds and abuses, too.

“Every lawmaker I’ve talked to in the last three or four months,” White said, “they have absolutely no appetite for” debating polygamy.

White, who is a former deputy Toole County attorney, believes Utah prosecutors should dump their policy of not prosecuting polygamy without related crimes.

“I’m not saying target polygamists,” White said. “I’m saying prosecute polygamy just like any other crime where you see it. Don’t avoid it.”

Nicholson maintains polygamy causes harm and doesn’t want it erased from the criminal code, but she also warns against prosecuting people solely for polygamy.

“If you only prosecute people for polygamy,” she said, “that would only entrench them in this attitude that they are being persecuted for polygamy.”

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