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.
Source: NPR
http://attorneygeneral.utah.gov/cmsdocuments/The_Primer.pdf
Jacob
You are correct. They are not “regular Mormons” as I misstated. The Mormon church has banned polygamy and those remnants of Mormonism that still adhere to the practice (not all do)are called fundamentalist Mormons. Some are in Canada, some in Mexico, and some in the U.S.
Most are apparently not prosecuted because they are few, not all are in plural marriages, and they don’t abuse their members. One group, the AUB, cooperated with th Utah AG and a primer was devised on how to handle interactions with law officials, health and human service organizations, etc.
http://attorneygeneral.utah.gov/cmsdocuments/The_Primer.pdf
From Wicki:
[ At times, sources have claimed there are as many as 60,000 Mormon fundamentalists in the United States,[2][3] with fewer than half of them living in polygamous households.[4] However, others have suggested that there may be as few as 20,000 Mormon fundamentalists[5][6] with only 8,000 to 15,000 practicing polygamy.[7] The largest Mormon fundamentalist groups are the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS Church) and the Apostolic United Brethren (AUB).]
Buckeye,
The Mormon Church asked all its members to stop practicing in 1898 (if I remember right). In fact, it excommunicated members who wouldn’t comply. If there are those with Mormon roots in Mexico or Canada who are not FLDS and practice polygamy, they are certainly not Mormon.
Elaine M.
Yes, though polygamy is against the law in both Canada and Mexico, it was seldom prosecuted until the FLDS group’s practices drove it into the spotlight.
Mormon groups fled to both Canada and Mexico after polygamy was banned in the US.
Canada is after Mr. Jeffs, also, and probably Mexico, too. Apparently, for a predominately Catholic country, Mexico has been tolerant of regular Mormons but the FLDS is another entity altogether.
Quel est le sens de méprise ?
What does ‘misprision’ mean?
———————–
Elaine thanks for that video…I remember when the raid happened and the outcry it inspired.
the wheels of justice…
Buckeye–
As I recall, Jon Krakauer wrote in “Under the Banner of Heaven” that the FLDS also has compounds in Canada and Mexico.
A Y
Yeah, ain’t it the truth. Maybe it was more about wood than you think.
But there’s estimated to be about 15,000 – 20,000 still practicing somewhere in the US, so there’s hope for you yet. I wouldn’t try to horn in on Pastor Jeffs’ group, though.
Sorry about the puns.
[youtube=http://www.youtube.com/watch?v=Mz3NtdIWSr8&hl=en_US&fs=1]
Buckeye–
Thanks for the information about the state of Texas waiting to indict Jeffs.
*****
“In Jeffs’ case, not only were the girls’ rights abused, the sons’ rights were as well. They were often cast out, too young, to fend for themselves just as animal herds eliminate the young bachelors until they eventually challenge the leader except these were sometimes just children.”
I’ve read about what happened to the young boys who were cast out. What the FLDS does to its young is a form of child abuse.
Buckete,
Two things that people miss or ignore is the following: When Utah joined the union they gave up two rights. 1) The Women gave up the right to vote. And 2) they were forced to abandon Polygamy as a way of life.
Most women that I have known forced me to do the same. Something about wood, I think it was call mahogany or monogamy. I did end up ducking one time in time to miss a flying coffee cup. I am sure the saucer made the news that day. If the saucer was hurled as hard as the cup that is. It left a hole in the wall.
Elaine M
That’s what Texas is waiting to indict him with, alledgedly marrying girls as young as 17 and 15. And Utah and the Feds aren’t done with him yet.
http://news.findlaw.com/ap/other/1110/07-28-2010/20100728010509_8.html
Another problem with polygamy is that where it is practiced, the minors are usually raised to ignore individual rights and submit to the group’s “good” (usually, but not always, a religious doctrine).
Monogamy apparently is less practiced than polygamy.
[According to the Ethnographic Atlas Codebook, of 1231 societies noted, 186 were monogamous. 453 had occasional polygyny, 588 had more frequent polygyny, and 4 had polyandry.]
http://en.wikipedia.org/wiki/Polygamy#Patterns_of_occurrence_worldwide
In Jeffs’ case, not only were the girls’ rights abused, the sons’ rights were as well. They were often cast out, too young, to fend for themselves just as animal herds eliminate the young bachelors until they eventually challenge the leader except these were sometimes just children.
Wootsy,
I have said this before and will say it again, there is no minimum age to marry in Arkansas. All’s you need is parental consent. Period that is it. Now that does bring up another question, if you are only 12 and have a child can you give consent. Ah, yes you can. It is presumed in the law if you are married you have the presumption to contract.
We could go into the Statute of Ann and the Statute of Frauds, but we will save that for later……
Woosty–
It’s amazing and appalling that this kind of thing goes on in this country.
Here’s a short video of Carolyn Jessop speaking about FLDS, her escape, and working to get custody of her own children. It isn’t about child brides–but it speaks to the issue of women in the FLDS having little or no control over their own lives.
[youtube=http://www.youtube.com/watch?v=pRn0WZtt848&hl=en_US&fs=1]
Mike A.,
Unfortunately in the Eastern District of MI they call it the “Un-indicted Co-Conspirator” However, I agree with you in the decision of the court, nor does the decision surprise me….
“I agree with what you wrote above–to a degree. Some FLDS polygamists marry child brides–who have little or no say about their marriages. These girls are, in effect, forced into marriage at an early age. Once these child brides grow older it may seem they are consenting adults–but are they really?”
Is that not a separate crime in this Country?
When are child brides ‘legal’ here?
Quel est le sens de méprise ?
I have to agree with the court’s analysis. One cannot be convicted for being an accomplice to a crime that has not been proven to have occurred. The Court’s apology to the victim was an understandable, albeit useless, gesture. It is the prosecutor who should be offering the apology.
Jeffs is a truly despicable individual. Jon Krakauer wrote an interesting book on the subject of the founding of the Mormon church and on FLDS–the fundametalist Mormons–titled “Under the Banner of Heaven.” Some of the things I read about members of the FLDS gave me the chills.
**********
Professor Turley–
“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.”
I agree with what you wrote above–to a degree. Some FLDS polygamists marry child brides–who have little or no say about their marriages. These girls are, in effect, forced into marriage at an early age. Once these child brides grow older it may seem they are consenting adults–but are they really?
“While the Court apologized to the victim, the Court held:”
And that means what to her?
Maybe Jeffs was accused of the wrong crime but isn’t it clear that the young girl was hurt, that Jeffs knew in advance that she would be hurt, that Jeff’s intention was to promote statutory rape, and that at some level Jeffs was getting money for legitimizing statutory rape? Maybe they should call it misprision of statutory rape. (Misprision of felony)