Prosecutor: Polygamy charges could be a can of worms

2010-09-29T00:25:00Z 2012-06-01T06:53:07Z Prosecutor: Polygamy charges could be a can of wormsJanice Peterson - Daily Herald Daily Herald
September 29, 2010 12:25 am  • 

Police are investigating a Lehi family who appear on "Sister Wives" for charges of bigamy, but officials are unsure whether charges will be filed.

Lehi police announced Monday that they are investigating charges of bigamy against Kody, Meri, Janelle, Christine and Robyn Brown, who are the subjects of the TLC show "Sister Wives," a reality show about a polygamous family that premiered on Sunday.

Lehi police Lt. Darren Paul said the investigation into the family began several weeks ago, before the show aired. He said police have received several calls recently inquiring whether police would be investigating the allegations.

Paul said police investigate any allegations they receive, and this case will be investigated the same way any other allegations would. Ultimately, it will be up to prosecutors to decide whether to file charges. He did not give a timetable as to when the investigation would be completed.

"I don't know where this is going to end," he said.

Utah County prosecutor Tim Taylor said his office has not received anything from the Lehi police department yet. He said he has not had any communication with the department regarding the investigation, so he does not know whether charges will be filed in the case.

"Does this open up a can of worms that we want to open up right now?" he said.

Taylor said the decision on whether to file charges will have a lot more to it than whether the elements of the crime have been met. Bigamy is a third-degree felony, and according to Utah code, "a person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

Taylor said the elements of the broad statute are pretty easy to prove, but prosecutors will have to consider other aspects in the case, such as what would happen in the courts and whether a conviction could withstand a constitutional challenge.

It is not the job of the county attorney's officer to say whether a law is wrong or right, Taylor said, but to prosecute crimes. Still, prosecutors need to consider whether the case will be successful.

Taylor said even deciding whether to prosecute this case would be new ground for his office. Polygamists have been prosecuted for marrying an underage wife, including Tom Green, who was convicted in June 2002 and sentenced to up to life in prison for having sex with his first wife, Linda Kunz, in 1985 when she was 13.

Taylor said his office is prosecuting a bigamy case right now, but the case involves a person who lied on an application for a marriage license and said he was divorced, when he was not. Taylor said he does not know of any polygamy case involving consenting adults that has been referred for charges.

"One of the reasons we don't prosecute is because we don't receive any requests to prosecute it," he said.

Taylor said polygamy is a gray area, as are other laws currently on Utah's books. It is currently a class B misdemeanor to commit adultery or for unmarried adults to have sexual relations.

"I wouldn't prosecute an adultery case," Taylor said.

An adultery conviction could have trouble withstanding a constitutional fight, Taylor said, which must also be considered when prosecuting bigamy. He said statutes that are overly broad or constitutionally vague may have difficulty if taken to the Supreme Court.

However, Taylor said he did not know whether it is a prosecutor's call whether to file charges on a case that meets the elements of a crime. It may just be the prosecutor's job to prosecute the crime, he said. He noted that his office has made judgement calls on whether to prosecute other crimes, such as issuing a bad check. If the office prosecuted all bad check cases -- which are third-degree felonies if the value is more than $1,000 -- they would be prosecuting the cases all day long, he said. He asked whether the office should be a debt-collection service for all businesses and said the office instead has established criteria for filing such cases.

Taylor said he does not know whether the office will establish criteria on when to file a bigamy case, but he said it is worth legal analysis.

"This could be the next same-sex marriage," he said. "I don't know."

Scott Troxel, spokesman for the Utah Attorney General's Office, said the attorney general is not involved with the investigation in any way. He said the office would not be involved in Utah County's decision whether to prosecute the case. However, he said the attorney general's office has focused on cases involving abuse against women or children.

"It's been our policy, and the attorney general has reiterated his policy, not to pursue investigations of consenting adults practicing bigamy in Utah," he said.

Troxel said there are thousands of people practicing polygamy throughout Utah and nearby. He said the resources are not available to prosecute every person who practices polygamy, so the focus is on situations of abuse. Troxel noted there are also laws against fornication and other consensual sexual activities that are not prosecuted.

"That's kind of the slippery slope we're looking at," he said.

The decision on what laws to have on the books belongs with the Legislature, Troxel said, and law enforcement and prosecutors will enforce the laws.

The Learning Channel, which airs "Sister Wives," declined to comment, but provided a statement from the Brown family, saying: "We are disappointed in the announcement of an investigation, but when we decided to do this show, we knew there would be risks. But for the sake of our family, and most importantly, our kids, we felt it was a risk worth taking."

Taylor said he did not see the season premier of "Sister Wives" on Sunday, but others in the office have. He said prosecutors will be watching the shows, and they could be an important element if the case is prosecuted.

"That's one of the ways they got Tom Green," he said. "That was exhibit No. 1."

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