The Utah Supreme Court has unanimously overturned the conviction of polygamist leader Warren Jeffs. The Court ruled that the trial court erred in its instructions to the jury and specifically the instruction regarding lack of consent. Jeffs was sentenced to two consecutive terms of five years to life (a rather bizarre range for a determinate sentence).
Jeffs was convicted as an accomplice to the rape of Elissa Wall, 14, committed by one of his followers, Allen Steed. The “marriage” was part of the Fundamentalist Church of Jesus Christ of Latter Day Saints.
While the Court apologized to the victim, the Court held:
However, we must ensure that the laws are applied evenly and appropriately, in this case as in every case, in order to protect the constitutional principles on which our legal system is based. We must guarantee justice, not just for this defendant, but for all who may be accused of a crime and subjected to the State’s power to deprive them of life, liberty, or property hereafter.
Here is the instruction:
An act of sexual intercourse is without consent of a person under any, all, or a
combination of the following circumstances:
1. The person expresses lack of consent through words or conduct; or
2. The person was 14 years of age or older, but younger than 18 years of age, and the actor was more than three years older than the person and enticed the person to submit or participate; or
3. The person was younger than 18 years of age and at the time of the offense the actor occupied a position of special trust in relation to the person.
The Court found that the instruction was based on an incorrect interpretation of the statutory law:
Our conclusion that the term “actor” refers to the individual engaging in the act of intercourse is consistent with the principle that, in order for accomplice liability to arise, there must be an underlying offense. Only after there is a determination that an offense has been committed can the law impose liability on another party who “solicit[ed], request[ed], command[ed], encourag[ed], or intentionally aid[ed]” in the commission of that offense. Id. § 76-2-202. To determine whether a rape has occurred, section 76-5-406 is applied and a determination is made of whether there was sexual intercourse without consent. The question of accomplice liability cannot enter the equation until after a determination has been made that a crime has been committed. As a result, the use of the term “actor” under the consent statute can refer only to the person engaging in the act of intercourse.
The decision is likely to return national attention to the continued prosecution of polygamists. In this case there should be no debate. This was rape — plain and simple. However, the Utah Supreme Court was taking a courageous stance on principle despite the unpopularity of the defendant.
For the record, I have argued for many years that criminal prosecution on polygamists is unconstitutional when it involves two consenting adults (here and here). Those writings distinguish such cases from child rape, as in this case.