Polygamy Offensive Not Likely, Green case called an exception

Salt Lake Tribune/May 20, 2001
By Michael Vigh, Stephen Hunt and Kevin Cantera

The prosecution of avowed polygamist Tom Green -- convicted of bigamy Friday for his simultaneous marriages to five women -- leaves the question: What fate awaits the estimated 30,000 other Utahns in plural marriages?

The answer depends on whom you ask.

Prosecutors say they are willing to charge people with bigamy only if they have an exceptionally strong case, but they acknowledge proving plural marriage is a daunting proposition. Many even wondered why Juab County Attorney David Leavitt bothered to try Green on four counts of bigamy when, by all accounts, his five current wives and their 25 children seem content.

Tapestry Against Polygamy, a group of former polygamous wives, disagrees. Doug White, the group's attorney, says Green's conviction has opened the door for bigamy prosecutions against polygamists throughout Utah.

"We are declaring victory. This time it's not going away," White said. "This sends a huge message to the polygamist communities. We know from [former polygamous] women who talk to us that these guys are running scared."

Former polygamist Charley Batchelor of Sandy, who still considers himself a religious fundamentalist, says members of closed polygamous societies are "scrambling to figure out what to think" about Green's conviction. "They have the same reticence they've had all along. They don't want to lift up their heads and get them sliced off."

He argues that the bigamy statute is applied unfairly because married men who engage in "recreational sex" with multiple women are not prosecuted, but men who live with other women in "religious marriages" face criminal charges.

When Green was charged in April 2000, Tapestry of Polygamy proclaimed that the "Berlin Wall of polygamy is tumbling down." But whether that wall will crumble further remains to be seen.

Utah Attorney General Mark Shurtleff said he has no desire to go after consenting adults engaged in polygamous relationships. Instead, he and other prosecutors say they are more willing to prosecute other crimes that occur in secret societies.

"We want to be more aggres- sive about fighting crimes against children," Shurtleff said.

He advocates dropping the penalty for bigamy involving adults from a third-degree felony to a class A misdemeanor to encourage people to come forward with information about serious crimes.

The exception would be people who are in bigamous relationships with minors, said Shurtleff, who plans to meet with county prosecutors to develop a strategy for fighting abuses within polygamous societies.

Green still faces possible trial on a first-degree felony count of child rape for allegedly impregnating his first wife, Linda Kunz Green, in 1986 when she was 13. No date has been set in the case as Green's attorney attempts to show that the statute of limitation, or 10-year legal deadline, has expired.

Salt Lake County District Attorney David Yocom says Green's bigamy trial will have little effect on how he does business. He called the Green case "an aberration, a unique set of circumstances."

"I don't think Green's prosecution, because it is such a unique circumstance, changes our attitude" toward prosecuting polygamists, Yocom said. "Law enforcement is not going to go out and build cases against them."

But what if polygamists flaunt their lifestyles as Green did on national and international TV?

"I don't know how to predict what I would do," Yocom said. "I probably wouldn't be as sensitive as David Leavitt. He reacted because it's a small community and [Green] was bringing bad publicity. We [in Salt Lake County] are a bigger community and not as sensitive."

A sizable percentage of Utah's polygamists reside in urban Salt Lake County, where they typically keep a low profile.

Leavitt says he initiated the case against Green because of the wealth of evidence against the polygamist, including numerous clips of Green parading his lifestyle to the news media. For example, he has freely allowed Salt Lake Tribune reporters and photographers to cover his family.

Leavitt's legal strategy involved using Utah's "common-law" marriage statute to find Green legally married to Kunz. After a judge ruled that such a union existed, prosecutors simply had to prove that Green cohabited with four other wives to convince a jury he was a bigamist.

"We have demonstrated that polygamy can be prosecuted," said Leavitt, who added that investigating bigamy uncovers the "number of other crimes such as child rape and welfare fraud going on within [polygamist] communities."

Green remains free until his sentencing, scheduled for June 27 in front of 4th District Judge Guy Burningham.

Two years ago, Yocom's office successfully prosecuted polygamist David Ortell Kingston on two charges of incest -- a felony -- for having sex with a niece in a closed polygamist society.

Kingston, a key member of Salt Lake County's largest polygamist clan, was ordered to serve two consecutive terms of up to 5 years in prison and fined $10,000.

And Kingston's brother, John Daniel Kingston, was sentenced to 7 months in jail for beating his daughter with a horsewhip after she fled the arranged marriage to her uncle. But Yocom did not pursue charges of bigamy.

David Zolman, a former lawmaker from Taylorsville who often defended polygamists on Capitol Hill, says violent crimes such as the Kingstons' should be prosecuted but that consenting adults, such as Green and his five wives, ought to be left alone.

He says plural marriage in Utah is here to stay and that Green's trial has galvanized polygamists statewide. Indeed, Green on Friday reacted to his being found guilty on all counts by accusing Utah officials of forgetting their Mormon roots.

Members of The Church of Jesus Christ of Latter-day Saints brought the practice of polygamy to Utah in the 1840s when they settled the state.

Church leaders taught that the practice was ordained by God, but they disavowed plural marriage some 50 years later under pressure from the federal government. LDS doctrine teaches that polygamy will be part of life after death.

"Government looks like the big bully in the neighborhood picking on the weakest cipher," said Zolman, who blames his narrow re-election loss last November to his support for polygamists.

"Tom Green is not a predator, he's not a felon," Zolman said. "Government does not need to be chasing him; he's already isolated himself enough."

In Arizona -- home to the border-town polygamous enclave in Colorado City, joined at the hip with Hildale, Utah -- Mohave County Attorney William J. Ekstrom Jr., said he watched the Green trial with interest but agreed the guilty verdict will do little to change the way things are handled in his county.

"We don't view polygamy as a prosecutable crime," Ekstrom said. "There is no driving desire to prosecute people for these types of things. We see it as consensual relations between adults."

Ekstrom noted that even though Green had been "out in the media making some rather loud noises about his personal lifestyle," talk-show appearances would not spark a criminal prosecution in Arizona.

"It wouldn't make a difference if they were on 'Oprah' or not," he said. "We try to look at it objectively." He said he does prosecute crimes against children, whether or not they occur in closed societies.

Like Utah, Arizona has a constitutional ban against polygamy, but no corresponding criminal statute. Said Ekstrom: "We reserve bigamy for fraudulent [marriage] situations."