Polygamy, in particular polygyny where one man takes several wives, is a common marriage pattern in some parts of the world. However, in the United States polygamy has never been a culturally normative or legally recognized institution. In Canada, polygamy laws are written in a slightly different way than in the USA. However, all provinces adhere to the federal Criminal Code of Canada which makes polygamy an offense and punishable by up to five years in prison.
Polygamy became a significant social and political issue in the United States in 1852, when The Church of Jesus Christ of Latter-day Saints (LDS Church) made it known that a form of the practice, called plural marriage, was part of its doctrine. Opposition to the practice by the United States government resulted in an intense legal conflict, and culminated in LDS Church president Wilford Woodruff announcing the church's official abandonment of the practice on September 25, 1890.[1] However, breakaway Mormon fundamentalist groups living mostly in the western United States, Canada, and Mexico still practice plural marriage. A very small minority of American Muslims also practice polygamy.[2]
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Polygamy is defined as the practice or condition of having more than one spouse at the same time, conventionally referring to a situation where all spouses know about each other, in contrast to bigamy, where two or more spouses are usually unaware of each other.[3]
Bigamy is the act or condition of a person marrying another person while still being lawfully married to a second person and it is illegal in the United States. 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.[4]
According to the Model Penal Code (section 230.1) bigamy is a misdemeanor, but having more than one spouse at the same time is a felony if it is done "in purported exercise of a plural marriage..." According to Joel Feinberg in Moral Limits of the Criminal Law, "Righteously flaunting one's illicit relationships, according to the Code, is apparently a morally aggravating circumstance, more punishable than its clandestine and deceptive counterpart."[5]
The Model Penal Code allows people to use an honest belief that they are only married to one person as a defense against a charge of bigamy. However, many US courts (e.g., Turner v. S., 212 Miss. 590, 55 So.2d 228) treat bigamy as a strict liability crime: in some jurisdictions a person can be convicted of a felony even if reasonably certain there was only one legal spouse. For example, if a person has the mistaken belief that their previous spouse is dead or that their divorce is final, they can still be convicted of bigamy if they marry a new person.[6]
Polygamy in the United States has a long history. Many Native American tribes practiced polygamy (generally polygyny)[7] and European mountain men often took native wives and adopted the practice.[8] Some tribes seem to have continued the practice into the 20th century.[8]
Scots-Irish settlers, and some Welsh emigrants, carried long-standing multiple partner traditions to the Americas from Europe.[8] Utopian and communal groups established during the mid-19th century had varying marriage systems, including group marriage and polygyny. (Loue, pp. 27–30) There is also some evidence in the American South for multiple marriage partners, particularly after the Civil War.[8]
Polygamy has also been practiced, discreetly, by some Muslims living in America.[9]
Christian polygamy is a more modern development of a polygamist culture.[10][11] They assert that the movement has no connection with Joseph Smith.
Because polygamy has been illegal throughout the United States since the mid-19th century, and in many individual states before that, sources on alternative marriage practices are limited. Consequently, it is difficult to get a clear picture of the extent of the practice in the past and at the present time.
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The Mormon practice of plural marriage was officially introduced by Joseph Smith, the founder of the Latter Day Saint movement, on July 12, 1843. As polygamy was illegal in the state of Illinois,[12] it was practiced privately. Though during the 1839–44 Nauvoo era several Mormon leaders including Smith, Brigham Young and Heber C. Kimball took plural wives, Mormon elders who publicly taught that all men were commanded to enter plural marriage were subject to discipline; for example, the February 1, 1844 excommunication of Hyram Brown.[13] In May 1844 Smith declared, "What a thing it is for a man to be accused of committing adultery, and having seven wives, when I can only find one."[14]
After the death of Joseph Smith, the practice of polygamy was carried to the West by The Church of Jesus Christ of Latter-day Saints, then led by Brigham Young. In what is today Utah and some surrounding areas, the principle of plural marriage was openly practiced. In 1852, Young felt the Church in Utah was secure enough to announce the practice of polygamy to the world. However the opposition by the U.S. government threatened the legal standing of the church. President Wilford Woodruff announced the church's official abandonment of the practice on September 25, 1890. Woodruff's declaration was formally accepted in a church general conference on October 6, 1890. The Church's stand on the practice of polygamy was reinforced by a second formal statement in 1904, renouncing the practice in all areas of the world.[15] Although the largest part of the Mormon population accepted the prohibition on plural marriage, various splinter groups left the mainline LDS Church to continue the open practice of plural marriage.
Some sects that practice or at least sanction polygamy are the Fundamentalist Church of Jesus Christ of Latter Day Saints, the Latter-day Church of Christ and the Apostolic United Brethren. Polygamy among these groups persists today in Utah, Arizona, Colorado, Canada, and other neighboring states, and the spin-off colonies, as well as up to 15,000 isolated individuals with no organized church affiliation.[16] Polygamist churches of Latter Day Saint origin are often referred to as "Mormon fundamentalist" even though, because they are practicing polygamy, they are not a part of the LDS Church and therefore are not accurately considered "Mormon". They often use an ambiguous September 27, 1886 revelation to John Taylor as the basis for their authority to continue the practice of plural marriage.[17]
The Salt Lake Tribune estimates there are as many as 37,000 fundamentalists, with less than half of them living in polygamous households.[18] Most of the polygamy is believed to be restricted to about a dozen extended groups of polygamous fundamentalists.[19][20][21][22] The LDS Church asserts that it is improper to call any of these splinter polygamous groups "Mormon."[23][24]
Members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) practice polygamy in arranged marriages that often, but not always, involved placing young girls with older men. FLDS members live in the twin communities of Hildale, Utah, and Colorado City, Arizona, about 350 miles southeast of Salt Lake City, with other communities in Canada, Texas and other areas of the North American west. The head of this church is currently Warren Jeffs.[25]
Overall in Utah today, those living in polygamist families number about 40,000 people, or about 2 percent of the population.[26] Polygamists are difficult to prosecute because many only seek marriage licenses for their first marriage, while the other marriages are secretly conducted in private ceremonies. Thereafter, secondary wives attempt to be seen in public as single women with children.[26]
Some polygamous families use a system of multiple divorce and legal marriage as a loophole in order to avoid committing a criminal act. In such cases the husband marries the first wife, she takes his last name, he divorces her and then marries the next wife, who takes his name. This is repeated until he has married and divorced all his wives, except possibly the last one. This way the wives feel justified in calling themselves Mrs. [husband's last name] and, while legally they're divorced from the husband, they still act as if married to him and expect those around them to acknowledge and respect this.
Since only one wife is officially married to the husband at any one time, no law is being broken and so this type of polygamous family unit can be overt about their relationship.
The conviction of Thomas Arthur Green in 2001 may have made the legal status of such relationships more precarious in Utah, although Green's bigamy convictions were made possible only by his own public statements.
Those who live in their own communities tend to find their additional spouses from within their own communities or networks of like communities. This can involve daughters of polygamous families entering into arranged marriages with older men who already have a number of wives. This is commonly called daughter swapping. Marriage age can be young and sometimes below the legal minimum. Young men are often forced to leave the communities so that the women they would otherwise marry will be left to provide wives for older polygamous males. It is also not uncommon for fairly close relatives to marry, leading to inbreeding, though part of this comes from the difficulty of keeping track of the complex net of familial relations.
Those who are geographically separated from other polygamists in their culture use other means to find additional spouses.
These fundamentalist sects tend to aggregate in communities where they all commonly share their own specific religion and thus basis for polygamy. These small groups ranging from a few hundred to about 10,000 are reported to be located in various communities of the Western United States, Canada, and Mexico[27] including:
The practice of informal polygamy among fundamentalist groups presents interesting legal issues. It has been considered difficult to prosecute polygamists for bigamy, in large part because they are rarely formally married under state laws. Without evidence that suspected offenders have multiple formal or common-law marriages, these groups are merely subject to the laws against adultery or unlawful cohabitation — laws which are not commonly enforced because they also criminalize other behavior that is otherwise socially sanctioned. However, some "Fundamentalist" polygamists marry women prior to the age of consent, or commit fraud to obtain welfare and other public assistance.
In 1953, the state of Arizona investigated and raided a group of 385 people in the polygamist-practicing colony of Hildale and Colorado City, straddling the Utah-Arizona border. All the men were arrested and the children were placed with foster families. A judge eventually ruled this action illegal, and everyone returned to their community, which now numbers about 10,000.[28]
In 2001, in the state of Utah in the United States, Juab County Attorney David O. Leavitt successfully prosecuted Thomas Green who was convicted of criminal non-support and four counts of bigamy for having five serially monogamous marriages, while living with previous legally divorced wives. His cohabitation was considered evidence of a common-law marriage to the wives he had divorced while still living with them. That premise was subsequently affirmed by the Utah Supreme Court in State v. Green, as applicable only in the State of Utah. Green was also convicted of child rape and criminal non-support.[29]
In 2005, the state attorneys-general of Utah and Arizona issued a primer on helping victims of domestic violence and child abuse in polygamous communities.[30] Enforcement of crimes such as child abuse, domestic violence, and fraud were emphasized over the enforcement of anti-polygamy and bigamy laws. The priorities of local prosecutors are not covered by this statement.
In 2008, starting on April 4, Texas State officials took 436 women and children into temporary legal custody after Rozita Swinton, a 33 year old woman living in Colorado Springs, Colorado, called both Texas Social Services and a local shelter claiming to be a 16-year-old girl. She made a series of phone calls to authorities in late March, claiming she had been beaten and forced to become a "spiritual" wife to an adult man. Acting on her calls, authorities raided the ranch in Eldorado, about 40 miles south of San Angelo. The YFZ Ranch is owned by the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), a Mormon offshoot that practices polygamy. Two men were arrested for obstructing the raid but were later released. All of the families/children taken were released and many lawsuits are still pending against the state.[31][32][33]
In Canada, polygamy is a criminal offense[34] but prosecutions are rare. As of January 2009, no person has been prosecuted for polygamy in Canada in over sixty years.[35] However, Edith Barlow, a mother of five in the polygamous community of Bountiful, B.C., was denied permanent residence and was asked to leave the country after ten years in Canada.[36]
A 2005 report by the Alberta Civil Liberties Research Centre recommended that Canada decriminalize polygamy, stating: "Criminalization is not the most effective way of dealing with gender inequality in polygamous and plural union relationships. Furthermore, it may violate the constitutional rights of the parties involved."[37] In 2007, the Attorney General of British Columbia expressed concerns over whether this prohibition is constitutional, and an independent prosecutor in British Columbia recommended that Canadian courts be asked to rule on the constitutionality of laws against polygamy.[38] The Supreme Court of British Columbia upheld Canada's polygamy laws in a 2011 reference case.[39][40]
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