Framing the Jeffs case

Erik Luna, a law professor at the U, posted a short analysis of the legal issues in the upcoming Warren Jeffs case, The Polygamy Case That Isn't (hat tip: Positive Liberty). He suggests the case will turn on the straightforward facts of whether the FLDS teenager who married an FLDS man with Jeffs' strong encouragement did, in fact, refuse or attempt to refuse the sexual advances of her FLDS husband but was improperly persuaded or pressured to submit by Jeffs (who was thus aiding and abetting a rape).

Despite declaring that the case is not about polygamy, Luna can't resist talking about it anyway in the final section. He is surprisingly ambivalent ("Is it really anyone else's business when consenting adults want to form a domestic union?"), even suggesting that Article III in the Utah Constitution (forever prohibiting plural marriages) may be open to a constitutional challenge. Bottom line: we're all going to hear an awful lot about polygamy before this case is over.

Comments

[Guy Murray]

Dave,

Interesting article. He raises some good points about the Constitutional issues--though some think that debate is already settled. Frankly I think the early Utah cases were wrongly decided.

The problem today is that so much of the practice is rife with welfare fraud, underage marriage and child abuse. It's hard to justify a free exercise argument in those cases.

I'm curious to see how well the state's case holds up when it comes time for Jane Doe to actually face the jury. In the Barlow case (another criminal prosecution) the star witness has now refused to testify, and had even been jailed for contempt. I think she has been released--but the judge has given the prosecution only so much time to get her to play ball, or risk dismissal.

The other thing I've wondered but haven't really nailed down quite yet, is what about the actual husband of this Jane Doe? Was he arrested--if not why, and what was the disposition in his case, if any?

Thanks for the post.

[David J]

They'll never indict a guy like Jeffs for polygamy. A couple of crafty appeals later, and the Supreme Court would rule that it is not unconstitutional to practice it. Nobody wants that, so they always nail these guys with other charges like abetting a rape or child abuse or whatever. At least that's what I've concluded.

[Alma]

David J, the reason they don't generally indict "a guy like Jeffs for polygamy" is because he can't be convicted of polygamy. That would require the state to demonstrate that he entered into more than one legal marriage. Since his "plural wives" aren’t legal wives, he's only guilty of shacking up. The state had to go through some extensive manuvering to convict Tom Green and they needed his statements on videotape to accomplish that. That’s why prosecutions against polygamists historically have not been about polygamy. It was “unlawful cohabitation” for 19th century Mormons and “sending obscene material through the mail” and “crossing state lines for immoral purposes” for fundamentalists like Rulon Jeffs (dismissed at arraignment) Joseph Musser, Rulon Allred and others.