I once attended a continuing legal education course entitled “How to Prosecute Polygamists.” I couldn’t help feeling a little anxious sitting in the audience while listening to the presentation about how to put me in jail (especially after they mentioned they were targeting attorneys and other people who’d taken an oath of office) and when a plural wife stood up and announced that she was a polygamists, the animosity in the room grew palpable. I learned dozens of helpful tidbits of information that day but a few things stood out that are worth sharing here (because fans regularly ask these questions).
First, the presenter (David Leavitt as I recall) informed us that when they decided to prosecute Mr. Green, they needed to ensure that they had public support because in the polygamy raids in 1953 ended in a PR disaster. Rather than just prosecuting Mr. Green on bigamy charges, they actively looked for something else to charge him with because they needed the public to feel outrage against him. That is why they went after the welfare fraud charge. The presenter noted thatMr. Green owed something like $90,000 in welfare benefits but he failed to mention why. I spoke with Mr. Green who explained the situation to me after he was released from prison. He had four or five pre-fab homes out in the desert. A twister/tornado tore apart each of the homes, which were attached one to another or close to one another (these were details that didn’t matter much to my memory apparently!). Homeless with five wives and a quiver full of children, he went to the welfare office for assistance. He told them his situation, explained he was a polygamist, asked for help, and promised to repay whatever he received when he had resources. When he was back on top of things and his business was functioning again (he ran it from home at the time as I recall), he was set to go to a court hearing to set up payments. When Mr. Green appeared in front of the judge to arrange payments, he was charged with welfare fraud because (regardless of the situation) if you owe a certain amount of money to the state after receiving assistance, it is considered fraud. So, instead of telling the public that Mr. Green was trying to pay back monies he’d received from public assistance, they charged him with welfare fraud for the sole purpose of inciting public opinion against him. As the presenter noted: $90k may seem like a lot to the public but that is a drop in the bucket to the welfare office. Lesson #1 summed up? Utah wants to prosecute polygamists but the public doesn’t approve unless Utah makes them look bad so if you want to prosecute, look for an angle that makes them look bad.
Second, the state used common law marriage to trigger the bigamy clause. In other words,Mr. Green wasn’t legally married to all of his wives, just one of them. The state proved thatMr. Green had children with and lived with each wife and thereby established a common law marriage concurrent with his legal marriage (there were other evidences as well). They then used those concurrent marriages to satisfy the bigamy statute. So, avoiding getting married at all, divorcing legal wives, and similar efforts simply aren’t foolproof. Lesson #2 summed up? If you’re a polygamist and you have any children with plural wives or if you just live together part of the time, you’re subject to the statute.
Utah has publicly stated numerous times that they are only looking to prosecute polygamists who commit abuses but polygamists don’t trust this rhetoric. Why? For starters, they use the statute to persecute polygamists in a myriad of ways, including visitation rights in divorces and heavy handed treatment by judges (I attended one hearing where the judge ordered a mother to not teach her children her religious beliefs – she understood that she was ordered to teach them about Santa Clause however because the father wanted that tradition to continue; another judge told my client in a divorce case [without any pending charges or investigation whatsoever] that he lost certain rights when he became a felon). Yes, abuses like these can be appealed but it costs thousands of dollars and it is very stressful and it takes months to appeal cases. Some clients simply don’t have the time or resources or the wherewithal to appeal abusive decisions. I’ve also seen attorneys funding wives leaving non-abusive polygamist relationships with housing, transportation, jobs, and legal representation to ensure the polygamist father didn’t get custody of the children and only received supervised visitation rights. I once referred a polygamist friend to an attorney who was a successful divorce lawyer. I later found out he was throwing my friend under the bus and overcharging him in a “hopeless” divorce case. When I found out what was going on, I helped my friend correct the situation and retain custody of his children.
All of these examples ignore the obvious question:
Utah reenacted the bigamy statute after it was overturned as unconstitutional on several grounds – why did it do that? Instead of correcting the unconstitutional provisions (my law partner and I drafted a bill that addressed each of these provisions and toughened laws against cult leaders using religion to commit abuses against women and children), the Utah law stiffened the penalties, made plural wives prosecutable, and its sponsor publicly announced that his purpose was to send a message to polygamists that they were “apostates” who were “hijacking” his religion. The Utah legislature didn’t bat an eye that the bill’s sponsor publicly stated that the Mormon Church was behind the bill or that the purpose of the bill was to further religious persecution.
When people say: Utah has this policy so you have no reason to worry about the state prosecuting you or your wives if you’re not abusive, I ask that obvious question: if that is true, why reenact the statute without addressing the unconstitutional provisions in the first place? If the policy is so clear, why is the statute used in Utah court rooms regularly to harass polygamists? If that is true, why are tens of thousands of Utah polygamists afraid of the law being used against them in many different ways? If that is true, why did Utah investigate Kody Brown when he appeared on TLC? Did anyone report him for abuse? No. Was there any evidence of abuse on the show? No. And finally, if there is a change in the attorney general or local prosecuting attorneys, do these policy declarations hold any weight? Maybe. Maybe not.
That is why polygamists are still scared of the law. If it isn’t going to be used Utah, put it in writing. Enact a law that reflects this policy instead of an unconstitutional law that is much more intimidating and aggressive towards otherwise law abiding men and women who are just trying to live their religion the best they can.
There you have it: how to prosecute polygamists 101.
fn: Any comments about Mr. Green will not be approved below. I am aware that he’s a controversial figure. I’m aware that he is generally regarded as a bad example of polygamy. Those issues are valid concerns but they are not pertinent to the purposes of this post, which is explaining how the state approaches the prosecution of polygamists in Utah and how that affects our family.