Polygamy

POLYGAMY

The offense of willfully and knowingly having more than one wife or husband at the same time. The offense of willfully and knowingly entering into a second marriage while validly married to another individual is bigamy.

The Crime

The law in every state prohibits a man or a woman from being married to more than one living person at a time. The crime of having more than one current spouse is called either bigamy (having two spouses) is a subset of the crime of polygamy (having more than one spouse), and the law makes no practical distinction between the two. Even in states that separately criminalize both polygamy and bigamy, either crime is committed when a married person first enters into an unlawful marriage with a second person. However, additional marriages beyond the second would support prosecution for additional criminal counts and possibly a longer sentence.

Most states base their polygamy laws on the model penal code section 230.1, which provides that a person is guilty of the third-degree felony of polygamy if he or she marries or cohabits with more than one spouse at a time in purported exercise of the right of plural marriage. The crime is punishable either by a fine, imprisonment, or both, according to the law of the individual state and the circumstances of the offense. The crime of polygamy is deemed to continue until all cohabitation with and claim of marriage to more than one spouse terminate. Polygamy laws do not apply to aliens who are temporarily visiting the United States, provided that polygamy is lawful in their country of origin.

The existence of a valid marriage entered into by the defendant prior to the second valid marriage is an essential element of the offense in every jurisdiction. No particular type of ceremony is required for the first or subsequent marriage before someone can be prosecuted for polygamy. Even persons who satisfy the requirement for a common-law marriage can be prosecuted for entering a subsequent marriage that itself is either another common-law marriage or a traditional marriage.

Cohabitation is not typically a requisite element of the offense. Merely entering into a second marriage with knowledge that one is currently married to another living person will support an indictment for polygamy. An indictment for polygamy will not be found unlawful even if the defendant offers proof that his or her first marriage was a voidable marriage, or one that is valid until annulled. If neither party to a voidable marriage successfully voids the marriage by obtaining an annulment, then the remarriage of either constitutes polygamy.

Ordinarily the state in which the polygamous marriage occurred has jurisdiction over prosecution of the crime. Some statutes, however, provide that the accused may be convicted in the state where the polygamous cohabitation takes place, even though the marriage occurred elsewhere. For example, California law provides that "when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge." Cal. Pen. Code § 281.

Defenses

Under certain statutes it is not considered polygamous for an individual to remarry after a certain period of time has elapsed during which the former spouse was absent and thought to be dead. For example, California exempts from its law "any person by reason of any former marriage whose husband or wife by such marriage has been absent for five successive years without being known to such person within that time to be living." Cal. Pen. Code § 282. Remarriage before the expiration of the statutory period, however, constitutes polygamy, even if the missing spouse later turns out to be dead, since the first marriage is still regarded as valid until the statutory period lapses.

In some jurisdictions a sincere and reasonable belief that a valid divorce has been granted is a defense to polygamy. In most jurisdictions, however, it is not a defense. It is sometimes said that polygamy is a strict-liability offense because the prosecution need not prove

a criminal intent to obtain a conviction, and defendants may not rely on erroneous legal advice, ignorance, or mistake law as a defense. However, prosecutors are more likely to pursue indictments against persons who knowingly enter into a polygamous marriage than against persons who enter a second marriage under a good faith belief that their first marriage has been nullified.

As mentioned above, a person who successfully annuls his or her first marriage before entering a second marriage cannot be prosecuted for polygamy. The same rule applies to persons who successfully have their marriage dissolved by divorce or nullified for any other reason before entering the second marriage. However, a divorce or annulment obtained subsequent to a second polygamous marriage is no defense. Nor will a solemnly held religious belief that it is not unlawful to have more than one spouse serve as a defense to an indictment for polygamy. In affirming the criminal conviction of a Mormon for practicing polygamy, the U.S. Supreme Court rejected the argument that a Utah law prohibiting polygamy violated either the Establishment or Free Exercise Clauses of the first amendment to the federal Constitution. (Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L. Ed. 244 (1878).

Origins of Anti-Polygamy Laws

The ban on polygamy originated in English common law. In England polygamy was repudiated because it deviated from Christian norms; marriage, it was believed, properly existed only between one man and one woman. In 1866, for example, in the seminal case of Hyde v. Hyde, 1 L.R.-P. & D., an English court remarked that "the law of [England was] … adapted to the Christian marriage, and it is wholly inapplicable to polygamy." During the nineteenth century, English and U.S. law did not recognize polygamous marriage in any form. Only in the late twentieth century has either nation given limited legal recognition to polygamous partners from other countries.

Anti-polygamy laws in the United States also sprang from religious conflict. In the mid-1800s, widespread public hostility arose toward the practice of polygamy by members of the Church of Jesus Christ of Latter-day Saints, known as Mormons. A small religious sect in the territory of Utah, the Mormons believed that their founder and prophet, Joseph Smith, had a divine revelation in 1843 that called for men to marry more than one woman; in 1852 the church announced that the practice was religiously superior to monogamy. This position angered critics throughout the country, ranging from religious leaders to novelists, editorialists, and particularly politicians. In 1856 the Republican party's first national platform denounced polygamy and slavery as "those twin relics of barbarism."

Legal controversies over the propriety of prohibiting polygamous marriages persisted in the United States for 150 years and were expected to continue as long as sects within the Mormon religion continued to openly support the practice of plural marriage. The Church of Jesus Christ of Latter-day Saints disavowed polygamy in 1890 and excommunicates those members who practice plural marriage.

further readings

Altman, Irwin. 1996. "Polygamous Family Life: the Case of Contemporary Mormon Fundamentalists." Utah Law Review (spring).

Dane, Perry. 1996. "The Public, the Private, and the Sacred: Variations on a Theme of Nomos." Cardozo Studies in Law and Literature 8 (spring-summer).

Forbes, Stephanie. 2003. "Why Just Have One?: An Evaluation of the Anti-polygamy Laws Under the Establishment Clause." Houston Law Review 39 (spring).

cross-references

Aliens; Common Law; Marriage.