Law School to Host Prosecuting Polygamy Debate

by Marty Stolz

Polygamy poses perplexing legal issues.

As practiced in clandestine, insular communities in Utah and neighboring states, polygamous groups have been found to abuse children, by taking child brides and expelling teenage “lost boys” to reduce the competition for wives by older men.

Polygamy has also been prominent in Utah news for years.

After a stint on the FBI’s America’s Ten Most Wanted fugitives, Warren Jeffs, the spiritual leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints, in 2007 was convicted in Utah on two felony charges of rape of a child as an accomplice. He faces related state charges in Arizona and Texas and in Federal District Court in Utah.

Perhaps the most sensational case, though, was the raid in April of the Yearning for Zion Ranch in Eldorado, Texas, where state authorities placed more than 450 children of polygamous families in foster care, before the Texas Supreme Courts overruled that massive removal. Today, almost all of the children have been returned to their parents, but the state has charged nine men with crimes, such as sexual assault, bigamy, and failure to report child abuse.

The University of Utah S.J. Quinney College of Law is hosting a free public debate, open to the public, on whether state officials should prosecute polygamy and remove children from polygamous homes. The debate begins at 6 p.m. on Wednesday, October 22, 2008 at the Sutherland Moot Courtroom.

The 25th Annual Jefferson B. Fordham Debate has this proposition: “The state should prosecute polygamous parents and remove their children from the home.”The debate promises to present a lively exchange between two leaders in their fields who hold divergent views: Kirk Torgensen, the Chief Deputy Attorney General for the state of Utah, who has assisted in the two highest-profile prosecutions of Utah polygamists, and Marci Hamilton, a constitutional law and First Amendment scholar at the Cardozo School of Law, who has argued that polygamy practices place women and children in inherent risk and states have a duty to prosecute the crimes of polygamy and abuse to protect the victims. Prof. Hamilton wrote several columns in favor of the Texas raid on and is author of God vs. the Gavel: Religion and the Rule of Law and Justice Denied: What America Must Do to Protect Its Children, which address the dangers authoritarian religions pose to children. Moderating the debate will be College of Law Professor Linda Smith, who leads the school’s clinical program and has recently completed a book chapter on legal issues arising from the raid at the Texas polygamist ranch for a book about the historical, cultural and legal questions raised by the raid.

“The Legislature of Utah has made it clear that polygamy is illegal,” Hamilton says. “Polygamy, as it is practiced in Western states, is unfortunately bad for women and bad for children, and the fact that it is religion doesn’t make it a legal practice.”

Torgensen agrees that the adherent’s faith is irrelevant. “This has nothing to do with religion,” he says. “But I find it problematic going after communities where the offenses range from adultery to fornication and all the way to polygamy. My bottom line is that charging all polygamous people is not practical or a good use of limited law enforcement resources.”

Smith, the moderator, was a critic of the Texas raid. She has argued that removal of young children and toddlers exposed them to greater harm than keeping them with their mothers.

But Hamilton cheers the Texas officials. The Eldorado compound had a high concentration of children and small numbers of men, nine of whom have been charged with sex-related crimes. Without the raid, those men could still prey on children, Hamilton says, and in any other setting, the removal of that many predators would be viewed as a triumph of law enforcement.

“In addition, a significant number of parents did not move back to the compound,” she adds, “and any child that is in a better position than before [the raid] is a good thing.”

Polygamy in Utah dates to its settlement by Latter-day Saints in 1847. And while the mainstream Church of Jesus Christ of Latter-day Saints, headquartered in Salt Lake City, officially disavowed polygamy in 1890, dissenting Mormon groups continued the practice. One such splinter group is the Fundamentalist Church of Jesus Christ of Latter Day Saints, led by Warren Jeffs. The number of Utah polygamists is unknown but suspected to be in the tens of thousands.

“Whatever the underlying crimes, whether those produce child abuse or tax evasion, those ought to be vigorously prosecuted,” Torgensen says. “But what happens between two consenting adults is different. Once someone is truly an adult, you have to, at that point, make adult decisions.”

Hamilton questions the meaning of consent in a polygamous community with a “committee form of marriage.” Such practices leave children vulnerable to neglect or abuse.

She blames officials, who for decades condoned polygamy in Utah and Arizona, for instilling dysfunctional and illegal thinking. “It’s really backwards because the very presence of polygamists is the argument for allowing it to go on,” she says. “That’s not the law, and that’s not the way we do things in the United States.”