| Weekend
Edition
April 19 / 20, 2008
Polygamy
& State Regulation of Sexual Life
The
New Texas Two-Step
By
DAVID ROSEN
A
war against Texas polygamists is underway. As of mid-April, an estimated
534 people (401 girls and boys as well as 133 women) have been removed
from a compound of the Fundamentalist Church of Jesus Christ of
Latter Day Saints (FLDS) located near Eldorado, TX. This ongoing
saga has captured national, even international, media attention.
State
moral enforcement authorities, including the local police, Texas
Rangers, Family & Protective Services officials and the FBI,
flocked to this polygamist outpost with a well-intentioned desire
to protect underage girls from sexual exploitation by male elders.
Unfortunately, these upstanding citizens, in their zealous pursuit
of immoral if not illegal sexual goings-on, might have overplayed
their hand and caused more harm then good.
This
is the second major confrontation between legal authorities and
FLDS members. In the fall of 2006, Warren Jeffs, the sect’s
leader, was arrested near Las Vegas on charges of unlawful flight
to avoid prosecution. He was wanted in Utah and Arizona for illegal
sexual conduct with a minor, conspiracy to commit sexual conduct
with a minor and rape as an accomplice. Following a highly publicized
trial, Jeffs was convicted last November, given two consecutive
sentences of five years to life and is now in prison in Utah.
Shortly
after the Texas incident in early April, a spokesman for the Mormon
church, Michael Otterson, came out to assure America that the true
Church of Jesus Christ of Latter-Day Saints had nothing to do with
the Texas polygamy sect. Americans needed this reassurance because
many recall that it was only about a century ago that the original
true Mormon church both preached and practiced polygamy.
The
action against Jeffs and his followers at the Texas compound raises
serious questions as to the limits of state power to determine people’s
sexual practice and forms of association. Incest and sexual abuse
are at the heart of the controversy, as is alternative forms of
marriage, especially as practiced by a minority group stigmatized
as a religious cult. As a global, 21st century America is fashioned,
we will be challenged to determine a humane sexual culture that
is both socially acceptable and personally agreeable.
Incest
and polygamy, two of the most threatening sexual practices, set
the parameters of sexual experience for the 21st century as they
did for many, many centuries earlier. These practices raise some
of the deepest values of American and Western democracy: private
consent and personal association. In the violation of consent and
the restriction of association, the limits of personal freedom in
a democracy are set.
*
* *
The
police first raided the FLDS retreat in west Texas on April 3rd
in follow-up to a reported call by a troubled 16-years-old girl
to a local domestic violence helpline.
Tammy Harris, the executive director of the shelter that took the
girl's call, said that the shelter informed the state’s child
protective services and local police only after the girl claimed
she had given birth at 15-years of age. During the call, the girl
allegedly claimed to be the seventh wife of a 50-year-old man named
"Dale." "This is a very overwhelming situation,"
said Harris, who declined to give details of the girl’s calls.
"It is something that is new to most of us."
To
date, the caller has not been identified. State officials believe
she is among the young women already removed from the religious
colony; apparently a number of 16-year-olds have the same name,
Sarah. However, she has not come forward to either admit having
placed the call or having been the victim of statutory rape and
giving birth to a child at 15-years.
Texas
authorities have an arrest warrant out for Dale Evans Barlow, 50,
the girl’s apparent husband and the child’s alleged
father. He is reported to be a registered sex offender who, last
year, pleaded no contest to conspiracy to have sex with a female
minor in Mohave County, AZ. Most peculiar, as reported by the “New
York Times,” he insists that, due to his offender status,
he has neither left Arizona nor traveled to Texas.
The
FLDS compound is known as the “Yearn for Zion” (or YFZ)
ranch. It is 1,700-acre spread reportedly purchased clandestinely
for $700,000 by a Nevada businessman as a corporate hunting retreat.
The previous owners insist that they wouldn’t have sold the
property to the FLDS if they knew that it would the home to a polygamist
community.
In
their repeated raids of the YFZ retreat, the police seized anything
that wasn’t nailed down. Computer equipment, family photo
albums, letters, school and medical records were removed. As reported
by an ever-salacious media, the police also reported finding a limestone
shrine or temple in which a bed was placed that they believe was
used for ritual sex between male sect members and their apparently
underage brides to consecrate a FLDS-sanctioned wedding. According
to an MSNBC story, a local informant reported that the temple "contains
an area where there is a bed where males over the age of 17 engage
in sexual activity with female children under the age of 17."
In
addition to the apparent sexual abuse of the 16-year-old that sparked
the raid, police and local media report alleged marriages of girls
as young as 12- or 13-years to older men. They also report numerous
births among teens and that one 16-year-old girl has four children.
So far, only two men have been arrested for relatively minor offenses
related to the police raids. Leroy Johnson Steed is charged with
tampering with physical evidence, a third-degree felony. Levi Barlow
Jeffs is charged with interfering with a law enforcement official
while conducting a search.
The
investigation continues and more details, salacious or other, are
likely to be made public. In addition, other raids in other states
are likely. Besides Eldorado, TX, Jeffs’ followers have settlements
in four other locations: the Hildale, UT-Colorado City, CO area;
Mancos, CO; Pringle, SD; and Creston Valley, British Columbia (near
the Idaho border). The FLDS has between 6,000 and 12,000 members.
*
* *
Arizona’s
attorney general, Terry Goddard, a Democrat, is one of the few state
officials in the southwest who seems to appreciate the possible
unanticipated consequences of the massive intervention at Eldorado.
“We’re in uncharted territory,” Goddard said.
“The last time something of this scale happened was Short
Creek, and connections with the communities broke off for almost
50 years after that. I personally think we will have to redouble
our efforts now.”
Today,
few remember the 1953 assault on Short Creek. In its day, it was
like the FBI’s 1999 assault on the Branch Davidian compound
near Waco, TX, where more than 80 people were killed. For some,
it has the resonance of the 1992 U.S. marshals’ killing of
Randy Weaver in Ruby Ridge, ID.
In
the summer of ’53, more than one hundred Arizona state police
and National Guard soldiers raided the twin communities of Hildale,
UT, and Short Creek, AZ (now Colorado City), over alleged polygamy
practices. The settlement consisted of approximately 400 Mormon
fundamentalists.
When
the authorities arrived, the believers were found singing hymns
in the schoolhouse while the children played outside. Everyone was
taken into custody, with the exception of six people found not to
be fundamentalists. In the end, more than thirty men were charged
and 236 children were taken into custody. An estimated 150 children
were not returned to their parents for more then two years; some
children were never returned.
Mormons,
both original and today’s fundamentalists, might well be America’s
most persecuted religious movement. Formed out the religious zeal
of the second Great Awakening, they combined a belief in divinely-inspired
vigor with communitarian values and, among select males, polygamous
sexual association.
As
was evident while Mitt Romney was a presidential candidate, Mormans
run from their past. It is hotly debated as to whether the sect’s
founder, Joseph Smith, had one “true” wife, Emma, or
thirty-three or forty-eight additional wives. And Brigham Young,
who took over church leadership after Smith was assassinated, is
reported to have had fifty-five wives and fathered fifty-six children.
The
issue of Mormon polygamy became a national issue in 1862 when President
Lincoln signed the Morrill Anti-Bigamy Law that made bigamy a federal
offense with punishment of up to five years in jail and a $500 fine.
The
Mormons formally challenged Morrill in 1874 when George Reynolds,
Young's secretary, volunteered to be charged. They insisted that
the federal government had no jurisdiction to regulate marriage
and the law violated the church’s First Amendment rights.
To no one’s surprise, Reynolds was convicted, received a two
year jail sentence and fined $500.
In
1879, Reynold’s case came before the U.S. Supreme Court which
upheld his conviction and found Morrill constitutional. This decision
formally established the government’s right to regulate marriage
and, thus, to prohibit polygamy.
In
the late-19th century, pressure over Utah statehood intensified.
In 1887, the federal government passed the Edmunds-Tucker act that
authorized the dis-incorporation of the church and confiscation
of its assets over continuing polygamy practices. The church challenged
the law but, in 1890, the Supreme Court ruled the act constitutional
and also ruled (in a separate case) that the government could deny
Mormons who practiced polygamy the right to vote or hold elected
office.
In
the midst of these developments (and reflecting the mysterious ways
that the gods work), Wilford Woodruff, the church’s president,
received a revelation from none other than Jesus Christ to protect
the church's practice of polygamy. However, under mounting pressure,
Woodruff had yet another revelation, this one known as the "Great
Accommodation" of 1890, which authorized him to suspend plural
marriage. With the outlawing of polygamy, the U.S. government accepted
the Utah constitution (which also granting women the right to vote)
and admitted it into the Union in January 1896.
*
* *
The
Texas government’s raid of the FLDS compound and the seizure
of 400-plus children raises profound issues as to the limits of
state authority and personal freedom. It is the largest child-welfare
case in U.S. history and will reverberate for many years.
Does
the state have the authority, let alone the duty, to protect children
from sexual abuse, even if it is only an unconfirmed allegation
of abuse? Texas officials, along with most child-welfare advocates,
insist that the state has both a moral and a legal obligation to
intervene.
However,
was the raid nothing more than a preemptive strike against a suspect
religious group, like the former Texas governor’s invasion
of Iraq over an alleged potential threat? Did they use the call
as a pretext to undertake the raid? This remains an open question
as neither the alleged victim nor her accused abuser have been identified.
State
authorities seem to have not anticipated the full consequences of
their actions. An increasing number of the FLDS mothers removed
from the compound have begun to bitterly complain about how they
were treated by state authorities. They insist that they were deceived
to turn over their children, claiming that the authorities initially
assured them that they would interview the kids briefly and return
them. They say the police acted like goons, forcefully separating
them from taking care of the children, even infants.
More
than 350 lawyers from across Texas (and most apparently working
pro bono) have come forward to represent the kids (as guardian ad
litem) and the interest of the families. The presiding judge, District
Judge Barbara Walther, will determine which kids go home and which
cases go to trial, which kids will go to foster homes and group
homes, live with relatives or be returned to their parents at the
Eldorado compound. This process will likely drag out, like Short
Creek a half-century ago, for years.
Also
under consideration is the state’s age of consent law for
young girls, particularly the appropriate age to engage in sex with
an adult; Texas has a “Romeo and Juliet” provision for
teen-age sex. Underage sex, by extension, also involves the appropriate
age at which a girl can decide to have a child.
The
Texas consent law has a good deal of wiggle room as to its meaning
with regard to FLDS marriage practices. The state law reads as follows:
Sec.
21.11. INDECENCY WITH A CHILD.
(a)
A person commits an offense if, with a child younger than 17 years
and not the person's spouse, whether the child is of the same
or
opposite sex …
The
critical words are “not the person’s spouse.”
Making
matters worse, Texas marriage laws are equally slippery. It permits
adolescents 16-years and older to marry with written parental permission
or an order from a state district court authorizing the marriage.
Within such a tightly knit and devoted community (some say brain
washed) as the FLDS, consent by both a teenage girl and her parent
would not be a surprise but could well be suspect.
While
not the formal subject of the raid, polygamy or plural marriage
remains the dark shadow over the Texas proceedings. Can consenting
adults (i.e., individuals over the age of consent) agree to live
in polygamous marriages? And can their marriages be recognized by
the state to secure the attendant legal and financial benefits?
These are the same questions raised by gay and lesbians over same-sex
marriage.
Surprising
to many, there is a small but distinct polygamy-rights movement
in the U.S, a movement separate and distinct from the FLDS. It also
should be noted that, in addition to the FLDS, there are other fundamentalist
Mormons who do not support polygamy. [see principalvoices.org]
Non-FLDS
polygamists seem to fall into two broad categories, religious and
secular. Christian polygamy represents a conservative, evangelical
tendency. It claims to draw inspiration from the Bible and have
followers from different denominations. [see christianpolygamy.info]
More
secular polygamists are represented by the National Polygamy Advocate
(NPA). They look to the Supreme Court’s 2003 “Lawrence”
decision as the basis for plural marriage. As the Court ruled, individuals
have “… the full right to engage in private [sexual]
conduct without government intervention.” Mark Henkel, NPA’s
spokesperson, argues that "'polygamy rights' is the next civil
rights battle."
According
to some estimates, there are 37,000 men, women and children living
in polygamous associations from Canada to Mexico. Some even promote
a "Polygamy Day," August 19th. HBO played upon popular
fascination with more mainstream polygamy in its series, "Big
Love," that chronicled the lives of a polygamist and his three
wives in suburbia.
For
those more secular advocates of polygamy, consent among the participating
adults is the defining principle of association. They oppose adult
sex with children and teens, insisting that adolescent girls (even
if over the age of consent or with parental consent) are not really
capable of making an informed decision given the adult male’s
emotional and (often) material authority and power. [see polygamy.com,
pro-polygamy.com and truthbearer.com]
Their
objection, like many in Texas, is over the inherent deception at
the root of FLDS plural marriage. There is a growing sense that
the adolescent girls, these child brides and mothers, are truly
not capable of making an informed decision as to their marital and
child-bearing status. There is a belief among state officials and
others, but not yet proven, that these girls have been coerced into
marriage.
Many
are concerned that the FLDS, like David Koresh’s Branch Dividians
and Jim Jones’ Peoples Temple, manipulate the girls into a
form of self-inflicted marital slavery. And this marriage is, in
effect, but another form of rape: Not only is the girl physically
assaulted, violated, but becomes complicit in her own oppression.
Unfortunately,
Texas officials overplayed their hand in their sweeping, massive
intervention in the FLDS compound. In an effort to “free”
the young people and mothers from an apparent threat, whether real
or anticipated, they generated an equally compelling fear which
might well turn the girls not only against the state’s best
intentions, but their own true self-interests. Like Short Creek,
the Eldorado raid will leave a bitter taste in many for years to
come, furthering isolating and stigmatizing the very people who
need help the most.
David Rosen can be reached at drosen@ix.netcom.com.
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