Trial to test Utah's 104-year-old ban on polygamy

High-profile case part of a statewide crackdown on practice

Associated Press/November 26, 2000

Nephi, Utah - They live in a remote desert outpost near the Nevada border, in a collection of 30 mobile homes christened "The Farm." And every night before bed, Tom Green picks up a Harry Potter book and reads to the youngest of his 28 children while his five wives tend to other household tasks.

"We're a family like any other," the 52-year-old Mr. Green insists, "only a little larger."

He is the modern-day poster child for polygamy, an outspoken advocate who's taken his zeal for multiple marriage on national television shows ranging from Jerry Springer and Judge Judy to Dateline NBC.

In January, he goes on trial for bigamy in a rare test of Utah's 104-year-old ban on plural marriage.

Only a handful of polygamists have ever been charged with bigamy, and prosecutors believe the last trial was in the 1950s. Yet the Green case is only the latest in a series of actions taken to combat a practice long ignored in Utah, where even the governor descends from polygamist ancestors.

Some accuse previously indifferent leaders of trying to clean house before the Olympics come to Salt Lake City in 2002 - bringing a glaring media spotlight with them. Others credit a group of former polygamous wives with heightening awareness of the practice and pressuring lawmakers and prosecutors to take action.

When Mr. Green was charged last spring, a group called Tapestry Against Polygamy proclaimed that "the Berlin Wall of polygamy is tumbling down." Whether it collapses remains to be seen, but there have been some substantial cracks.

In his office in the central Utah town of Nephi, Juab County Attorney David Leavitt pulls out a 26-page diagram of Mr. Green's marriages and divorces. He's had 10 wives in all since 1970, although the count now stands at five:

Linda, 28, whom prosecutors consider his legal, common-law wife; Shirley, 30; LeeAnn, 25; Cari, 24; and Hannah, 23. Prosecutors allege the five were between 13 and 16 years old when Mr. Green married them. Shirley and LeeAnn are sisters, and Linda's cousins. Cari and Hannah also are sisters.

Mr. Green has 21 children with them, and seven others with two former wives. His 29th child, whom LeeAnn is carrying, is due in June. His oldest children are in their 20s.

He is charged with four counts of bigamy plus one count of criminal nonsupport, for $50,000 in welfare the state paid his family, and one count of child rape, for allegedly having sex with Linda when she was 13.

If convicted on all counts, he could face anywhere from five years to life in prison.

The Green family contends that they're being prosecuted not for their lifestyle, which they believe to be ordered by God, but because they embarrassed the state by going public. Mr. Leavitt, they note, is the brother of Utah Gov. Mike Leavitt.

"I think they're trying to shut us up," says Linda. "Everyone who's in this relationship is here because they want to be. We just want the right to live together as a family unit and not be bothered."

Mr. Leavitt, however, says he was reluctant to pursue the case initially. He grew up going to school with the children of polygamists, and his great-grandfather embraced the practice, which was once endorsed by Mormon church leaders.

"I just thought: 'Let 'em do what they want. They're practicing their religion.' But I've seen a different side to them now," says Mr. Leavitt, who began investigating Mr. Green after one of his televised interviews.

"Tom Green at first blush appeared to be someone that no one should bother," Mr. Leavitt says. "But this is a man who has taken 13- and 14-year-old children, deprived them of any education, married them, impregnated them, required the state to pay the bill and has raped a 13-year-old girl.

"If we can't prosecute for conduct like Tom Green's, we have no business prosecuting crime."

Prosecution of polygamists has been rare since the practice first arrived in Utah in the 1840s, when members of the Church of Jesus Christ of Latter-day Saints settled here.

Well-known practitioners LDS founder Joseph Smith was a polygamist, as was church president Brigham Young. Mormon leaders encouraged polygamy, believing the practice was required by God because some Old Testament prophets took multiple wives.

Outside the church, however, the practice was condemned. In 1854, the Republican Party termed polygamy and slavery the "twin relics of barbarism." And in 1862, Congress outlawed plural marriage. Mormons continued the practice, insisting polygamy was a constitutionally protected religious freedom.

Brigham Young's private secretary even agreed to go on trial to test that theory, but the U.S. Supreme Court in 1879 upheld the anti-polygamy law.

With federal pressure mounting, the church disavowed polygamy in 1890. Six years later, as a condition of statehood, the practice was prohibited in the Utah Constitution. But prominent Mormon leaders split from the church and went underground, continuing the practice in secret.

Today, an estimated 30,000 Westerners live a polygamous lifestyle. Some practice in groups with a designated leader, such as the 6,000 followers of polygamist Rulon Jeffs who live on the Utah-Arizona state line. Others, like Mr. Green, aren't affiliated with an organized group.

Political suicide

For the most part, they've been left to live as they please. There were a few crackdowns on polygamous enclaves in the 1940s, but those ceased following a 1953 raid that sparked public outrage when newsreel images showed children being pulled from their mothers' arms.

The prosecution of polygamists has been viewed as political suicide ever since.

"For a long time people just wanted to look the other way, including prosecutors," says Lynn Wardle, a family law professor at Brigham Young University. That attitude began changing in 1998 with the widely publicized case of David Ortell Kingston, who was sentenced to as many as 10 years in prison for incest and unlawful sexual conduct with his 16-year-old niece, purportedly his 15th wife.

Mr. Kingston's brother, John Daniel Kingston, was sentenced to 28 weeks for beating his daughter because she fled the marriage. Then last year, two central Utah men were charged with bigamy after their ex-wives went to authorities. Both men agreed to pleas that allowed them to avoid jail.

Around the same time that the Kingston case became public, six women who had left polygamous families started the group Tapestry Against Polygamy to help other women and children escape the lifestyle.

Tapestry director Vicky Prunty estimates the group has helped more than 300 women and children, as well as some men who lost their children to polygamous families. The group also lobbies lawmakers for tougher laws and urges prosecutors to be more vigilant in investigating polygamists.

Last year, Tapestry members descended on the state Capitol with young girls in bridal gowns as legislators debated raising the state's minimum marriage age from 14 to 16. The measure passed. The group also lobbied for money to help the state investigate crimes in polygamous families, such as tax evasion, welfare fraud and abuse.

After several failed attempts, the Legislature this year approved $75,000 - and the attorney general's office hired an investigator - to probe crimes in "closed societies."

"It's just so much in their face, they can't get rid of it anymore and they're going to have to do something about it - whether they like it or not," says Ms. Prunty.

Still, she acknowledges change is slow. Prosecutors and police have expressed little interest in pursuing polygamists strictly on the crime of bigamy. The statute, they claim, is too vague and hard to prove.

Instead, cases have focused on secondary crimes. "More people are interested in just dealing with the abuses, putting a Band-Aid on the problem," says Ms. Prunty.

"But we need to get to the root of it: the domination of women and children." A victory for prosecutors in the Green trial could provide ammunition against county attorneys who've argued that bigamy is simply too tough to prosecute.

"The reality is it's not vague," says Mr. Leavitt. "It can be proven." Overturned ruling? But the case also could give the Supreme Court a chance to reconsider its 1879 ruling that polygamy is not a protected religious freedom. The court determined that while religious beliefs could not be restricted, behavior could. It has since wavered on that finding.

In 1972, for example, the court found that requiring Amish children to go to school violated their freedom of religion. A dissenting justice said the ruling "promises that in time" the polygamy decision would be overruled. Others, including the Utah chapter of the American Civil Liberties Union, argue the polygamy ban violates citizens' right to privacy and legislates the actions of consenting adults. They liken the ban to sodomy laws, which have been found unconstitutional in states such as Georgia and Texas.

"What's the difference between polygamy and gay and lesbian rights to love each other as human beings?" says Edwin Firmage, a constitutional law professor at the University of Utah. Ms. Prunty insists the two are unrelated.

"This isn't about consensual sex between adults. This is about children who have no choice," she says. "Someday people will wake up to this issue and realize it's abuse in the guise of religion. When they see the abuses, they will be that much more apt to prosecute."

Mr. Leavitt agrees, saying the public simply has not understood the depth of the problem.

"This is not a case of people ducking a tough political issue. It's simply an institutional lack of understanding of the crime," he says. "This is a state that developed with polygamy at its base, so it comes with a sympathy to polygamy - a desire to want to live and let live. "Once you uncover the layers and see what it is, there is an outcry to stop it."