Justice and Due Process

Consensual Polygamy Decriminalized in Utah

Seven years ago, we published an interview with Joe Darger, a Utah man with three wives, as a way to raise awareness about a law that classified him and his wives as felons. In an op-ed at the time, we argued that “Utah needs to abandon its anachronistic legal crusade against peaceful individuals who practice what many of our ancestors proudly did.”

Later that year, a federal judge invalidated the law, and in 2016 a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ordered the case to be dismissed for lack of standing because the prosecutor had a policy of not pursuing a polygamy case in the absence of separate crime.

This prompted the Legislature to “recriminalize” polygamy in the following session. This doubling down of felonizing people for their free speech perpetuated real harm in plural family communities; their parents and grandparents lived through raids in which men were incarcerated, children were taken and placed with foster families, etc. Being branded as criminals creates a social stigma that makes employment difficult and also enables abusers like Warren Jeffs to prey on victims who are scared to report anything to the government, for fear of enforcement of the felony punishment on their family members.

In light of these and many other concerns, Senator Deidre Henderson agreed to work with us on new legislation to decriminalize consensual polygamy. Her interest in the bill was outlined in an op-ed she wrote, in which she argued:

Utah should have a legal climate where plural families feel more comfortable sending their children to school, taking them to the doctor or approaching law enforcement. Simply telling them about a prosecutor’s current policy [of non-prosecution] is insufficient, as that can change any time. Elected officials need to send the message clearly by changing the law to give them certainty and confidence. We need to build trust so we can work together to address abuse, and that comes through an open hand, rather than a closed fist.

The resulting bill, Senate Bill 102, was supported by various groups, including the Statewide Association of Prosecutors—elected county attorneys who would be responsible for prosecuting this felony crime. Their spokesman indicated that the felony on consensual polygamy “suppress[es] and oppress[es] people in polygamous communities.” 

SB102 passed the entire Senate unanimously, with a majority of senators co-sponsoring the bill. It passed the House 70-3. The legal change means that consensual polygamy will be an infraction, on par with a speed ticket, and still unlikely to ever be prosecuted. Now, however, tens of thousands of individuals can come out of the shadows without fear of being incarcerated or having their children be taken from them; victims can report abuse to law enforcement without worry of the impact that reporting will have on them or their loved ones.

The climate created by criminalization and oppressive treatment from the state are not likely to be reversed quickly, but this change to the law is a significant step to begin addressing the issue.