Ultimately, the bigamy bill by Rep. Mike Noel, R-Kanab, was amended in debate to keep the current, and long-time, polygamy penalty of a 3rd-degree felony. (The bill’s intent was to conform Utah law to a recent federal court ruling.)
But Rep. Earl Tanner, R-West Jordan, spoke eloquently about reducing the crime of polygamy with willing adult participants to just an infraction – the lowest classification of criminal action in state code, punishable only by a modest fine.
An infraction is something like jaywalking or speeding.
The Utah Constitution – adopted after Congress allowed Utah into the Union in 1896 only after the Mormon Church officially repudiated polygamy – says the practice of polygamy shall “forever” be prohibited.
And dropping the criminal penalty from a 3rd-degree felony to an infraction would technically keep that requirement.
Tanner said his great-grandfather was a polygamist. And many leading Utah/Mormon families today have a polygamist (perhaps many) in their family tree.
Tanner said his great-grandfather was not a child rapist, didn’t marry underage women, didn’t abuse his wives or children, didn’t cheat the state nor commit other crimes.
In fact, said Tanner, he was a lawyer, well respected all around even with his five wives. One of his great-grandfather’s wives actually served in the Utah House, her name listed in the records as Mrs. H.S. Tanner, a representative from 1927 to 1931 – many years after polygamy was officially outlawed in the state.
Tanner said making polygamists felons hasn’t stopped the practice. In fact, he and other lawmakers said the practice has seen a reemergence in recent times, with more than an estimated 30,000 polygamists living in Utah now.
Instead of forcing polygamists into the shadows, with the threat of an overzealous prosecutor throwing them in jail as felons, the official “crime” of polygamy should be significantly reduced, with the hope that polygamist families will come out into the open, let their children attend public schools, associate with others and become more socialized.
“We have really good proof” that 100 years of making polygamy a felony has not worked, said Tanner. “It’s time to try something different.”
But Noel and others said polygamy should remain a felony, if not only to be used as a tool by prosecutors to force plea deals on other criminal acts often now seen in some polygamist communities – like welfare cheating, or child abuse.
Rep. Raymond Ward, R-Bountiful, said the threat of a felony charge makes polygamists clam up, they won’t talk to social workers, teachers and law enforcement officers who may see problems in their families and try to help.
Rep. Dan McCay, R-Riverton, said these are the kind of debates he loves, the reason he wanted to be in the Utah House.
“Our government and (LDS) religious leaders were driven from us, into hiding. I argue this policy (of making polygamy a felony) needs substantive review.”
Many Utah polygamists “drive up walls” to protect themselves and their extended families from arrest, and so they won’t report all kinds of crimes taking place in their close-knit groups.
Others argued young men in polygamist families are forced out, with no ability to cope in general society. Youths are forced to work without wages, and the polygamist bosses can underbid projects, making unfair competition with non-polygamist competitors.
The list of societal ills caused by polygamy – and the secrecy around it – goes on and on, said McCay.
In reality, said Rep. Jake Anderegg, R-Lehi, the Utah Legislature is reticent to make felonies out of cockfighting or other activities because lawmakers don’t want to overcharge such crimes. Yet they won’t act on polygamy.
He suggested some of the emails lawmakers have been getting demanding polygamy remain a felony came because of LDS Church reactions to the topic.
But now the question must be asked, he said, why is polygamy treated so harshly – “when people have basic rights of privacy.”
Some want to keep polygamy a felony just so police and prosecutors can get warrants more easily, Anderegg said.
But polygamy in Utah – so hated by the LDS Church and its leaders – is no longer being treated appropriately, said Anderegg. “We just can’t get off it.”
In the end, Tanner’s infraction amendment failed. HB281 was amended back to making polygamy a 3rd-degree felony, as it was before.