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By Kent Larsen
SCRATCHPAD: Pros & Cons of Prosecuting Polygamy
PROVO, UTAH -- The conviction of Utah polygamist Tom Green leaves
prosecutors both in Utah and elsewhere with the basic question:
"Should other polygamists be prosecuted?" In spite of the feelings of
those opposed to the practice, those that believe in a hands-off
policy, and even those that support the practice, the answer to this
question is not obvious. The Scratchpad, a new Mormon News feature,
looks at the pros and cons to the question.
The Cons
The issue of whether or not to prosecute wouldn't even exist had
prosecution continued over the past 50 years. Serious, continuing
prosecution of polygamy stopped with the disastrous Short Creek raid
of 1953. During the raid Arizona police descended on the border
community of Short Creek, arresting hundreds of polygamists, breaking
up their families. Some children ended up in foster homes,
overburdening Arizona's foster care system for several years.
The men were taken to the Mohave county seat, 425 miles from their
homes, for prosecution, and "the raid became an embarrassing war that
dragged on for years before the families of Short Creek reunited,"
writes historian Will Bagley. News reports of the raid led the public
to see Arizona Governor Howard Pyle as "a cheap politician grabbing
for headlines at the expense of innocent families." Voters removed
Pyle from office at the first possible opportunity, ending his
political career. "Any prosecutor who dreams of riding the polygamy
tiger to greater political glory ought to ponder the wreckage of
Pyle's political career," writes Bagley.
As a crime, polygamy has always given prosecutors difficulty, one of
the basic reasons why they are reluctant to pursue these cases.
Today, Polygamy is sometimes classified with other "victimless"
crimes between consenting adults, such as Adultery, that the
government doesn't prosecute or that prosecutors feel are impossible
to prosecute. "We don't view polygamy as a prosecutable crime," says
Mohave County (Arizona) Attorney William J. Ekstrom Jr. "There is no
driving desire to prosecute people for these types of things. We see
it as consensual relations between adults." In such cases, potential
witnesses are usually uncooperative, records of the marriages that
might be used as evidence don't exist, and juries sometimes don't see
that anyone has been harmed by the crime.
Laws against polygamy can also be a stumbling block for prosecutors.
In Utah, for example, polygamy is prosecuted under a bigamy statute,
"Although Utah's Constitution outlaws polygamy, there are no statutes
that prohibit it," says an article in the Los Angeles Times. "Bigamy,
however, is illegal. That nuance has prevented charges against
polygamists in the past, prosecutors say." But the crime of bigamy is
usually associated with deception: one spouse doesn't know that the
other is already married to someone else. Because of that, Mohave
county's Ekstrom says, "We reserve bigamy for fraudulent situations."
Polygamy prosecution could also be hampered politically because it
might lead to legal challenges. Green has already said that he will
challenge the law on religious freedom grounds, "It's an honor to go
to prison for my beliefs, but I hope I don't go to prison," he says.
BYU law professor Lynn Wardle claims that the American Civil
Liberties Union could get involved, arguing that polygamy should be
legalized as a personal lifestyle, rather than Green's religious
freedom claim.
Green has also claimed that he has been unfairly singled out because
it isn't being used to prosecute married men who engage in
"recreational sex" with multiple women. The statute is also being
used to prosecute men, and not women, which could be a problem when
the marriages are consensual and both parties are of legal age.
Another difficult problem of polygamy prosecution is the direct
question that the Short Creek raid raised: What will happen after the
prosecution? If husbands are jailed for the practice, will government
support for their families increase? Will their children need to be
put in foster homes?
Other observers think that prosecution won't stop polygamists from
more marriages, simply because it is a deeply-held religious belief.
Historian Bagley observes that "only the confiscation of church
property and a revelation -- not relentless prosecution -- made most
Mormons give up polygamy" after the 1890 manifesto. Utah county
attorney Kay Bryson says she thinks it will likely continue,
"Polygamy and polygamists have survived in Utah for 150 years." More
prosecution, says polygamists, will only force the practice further
underground.
But for LDS Church members and leaders, an additional factor makes
additional prosecution uncomfortable, "It makes us look bad," says
Moira Galenza, an LDS Church member in Edmonton, Alberta, Canada. "It
makes everybody believe it happens." An editorial in the Salt Lake
Tribune agrees, saying Tom Green's prosecution has "forged an
embarrassing link in the minds of many outsiders between polygamy and
the state's predominant religion -- a link that leaders of The Church
of Jesus Christ of Latter-day Saints have gone to great pains over
the years to disavow."
The Pros
But in spite of these arguments against prosecution, many people
still believe that polygamy should be prosecuted, if nothing else,
simply because it is against the law. "Polygamy is against the law,"
Utah Governor Mike Leavitt said in a press conference Thursday, "It
has been for a hundred years plus in this state, and it ought to be.
In situations where prosecutors find that they have a case . . . such
as this one, they need to make those decisions. Those are local
prosecution decisions." His brother, Juab county prosecutor David
Leavitt, who prosecuted the Green case, said the same thing, "WhenI
am aware of a violation of the law, it is my duty to prosecute."
BYU law professor David Thomas says that prosecution will deter
polygamy, "If his practice is determined to be illegal, that
generally has a deterrent effect on others and makes prosecution for
the future easier as well." Douglas White, attorney for Tapestry
Against Polygamy, says that Utah polygamists will take notice because
of Green's conviction, "The Green decision will have major, major
chilling effect in the polygamous communities. These guys know the
risk is too great."
Further prosecution will also satisfy the demands of groups like
Tapestry Against Polygamy, which has become very vocal in recent
years, "The precedent has been set, and I'm here to tell you, this
thing is not going to go away," says Tapestry Against Polygamy's
White. "This decision is going to last 100 years in Utah, that's how
important it is. There are a lot of prosecutors in the state --
particularly in the southern part, where polygamy abounds -- who have
watched this. Now, they've been shown how it's done."
And showing how its done has been important. Prosecutor Leavitt
didn't rely on records of marriage licenses to prove the crime,
instead proving common-law marriages between Green and his wives.
That strategy gets around some of the difficulties in the way the
statutes are drafted. "The prosecutor in this case did the right
thing," said his brother, Governor Leavitt, "and clearly created a
pathway that if there are similar circumstances, other prosecutors
can and should act similarly." Paul Murphy, spokesman for Utah
Attorney General Mark Shurtleff, described Leavitt's prosecution as
"terrific." "He essentially went through the statute of what
constitutes a common-law marriage, point by point. As far as I'm
concerned, he had Tom Green admit each one applied to him.
Further prosecution could also get Utah prosecutors out from under
Green's uncomfortable claim -- that he was singled out because he
spoke up in favor of polygamy -- a fact that hasn't escaped other
polygamists, "We want to live in secrecy and be left alone, with the
exception of Tom Green. Tom's worst enemy was Tom himself," says
Raymond Carlson, a self-proclaimed fundamentalist Mormon and a friend
of Green's.
If they proceed, prosecutors have some hope that their efforts would
reduce other crimes as well. "What bothers me is that you had an
adult who was committing bigamy with 13- and 14-year-old girls. That
troubles me. And I think that troubles the people of this state,"
said Governor Leavitt at his news conference Thursday. The Salt Lake
Tribune's recent editorial on the case argued that "removing
polygamous patriarchs would at least ensure that they didn't father
any more children for the taxpayers to support." Prosecutor Leavitt
even says that his prosecution shows that investigating polygamy
uncovers the "number of other crimes such as child rape and welfare
fraud going on within [polygamous communities."
And even some LDS Church members see a silver lining to polygamy
prosecution, which seems to confuse the public about the Church's
beliefs about polygamy. "What it does is become a conversation piece
in the workplace. It allows things to be cleared up," says Scott
Forsyth, an institute teacher in Edmonton. "I guess there's some good
out of it."
Sources:
Governor: Green Case a Road Map
Salt Lake Tribune 25May01 N5
By Greg Burton: Salt Lake Tribune
Why Tom Green?
Salt Lake Tribune 23May01 ON5
Green ruling raises legal questions surrounding polygamy
U-WIRE (Daily Universe) 22May01 N5
By Melissa Beutler: The Daily Universe
Mormons worry
Edmonton AB Canada Sun 21May01 N5
By Dan Palmer: Edmonton Sun
Polygamy Trial Gives World Titillating Look at Utah
Salt Lake Tribune 21May01 N5
By Michael Vigh and Kevin Cantera: Salt Lake Tribune
Polygamy Offensive Not Likely, Green case called an exception
Salt Lake Tribune 20May01 N5
By Michael Vigh, Stephen Hunt and Kevin Cantera: Salt Lake Tribune
Polygamy Verdict Set Precedent
Los Angeles Times 20May01 N5
By Julie Cart: Times Staff Writer
Law: Utah is likely to go after others. Backers say the practice may go even further underground.
Short Creek Raid Backfired On Governor
Salt Lake Tribune 20May01 N6
By Will Bagley
Green Bitter Over Verdict; Leavitt Did His 'Duty'
Salt Lake Tribune 20May01 N5
By Kevin Cantera: Salt Lake Tribune
Attorneys, students break down Green trial
Provo UT Daily Herald 20May01 N5
Leavitt estimates trial tab at $24,000
Provo UT Daily Herald 19May01 N5
By Pat Christian: The Daily Herald
See also:
More about Martha Sonntag Bradley's "Kidnapped from That Land: The Government Raids on the Short Creek Polygamists" at Amazon.com
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