Polygamy is about to be decriminalised in Utah. Is it good news for women?
Growing up in a polygamist community, Shirlee Draper heard stories about her father’s childhood – how he was pulled out from under his bed in a government raid and taken from his parents.
“I grew up with intense fear of outsiders,” Draper said. “We called people who drove into town that were not part of our community ‘kidnappers’. We knew that was a fate we could suffer as our parents had suffered.”
Draper was a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS) – a polygamist sect led by Warren Jeffs, who is now in prison for two felony counts of child sexual assault. But it wasn’t until Draper decided to leave that she realized how she had been trapped.
“I saw firsthand how the leaders were able to gain control because of the fear of law enforcement,” she said. In Utah, polygamy is a felony, and it took Draper six years to move out. “I had no way to get help. Everywhere I went, I was visually identifiable as a felon, and I was greeted with hostility.”
Later, when her mother tried to leave the community and apply for a driver’s license, Draper said she was still wearing her FLDS clothing – a collared, ankle-length dress with puffed sleeves. “A clerk – an employee of the state of Utah – denied her a driver’s license and told her to her face, ‘we don’t want you here’,” Draper said. “As a result, my mom went back to Colorado City, and she died because she could not access the medical care that she needed.”
Draper is now the director of operations for Cherish Families, an organization serving people affected by polygamy. “What we’ve done is we’ve legislated prejudicial treatment to a secondclass citizenry,” she said. “Let’s not create populations and communities that are vulnerable to that kind of exploitation and abuse. We’ve done it to people of color, we’ve done it to sex workers, we do it to undocumented immigrants. We decide they’re not worthy of living in society, and so we ostracize them, which practically guarantees that they will be exploited, that they will be harmed.”
Draper supports a law that would effectively decriminalize polygamy for consenting adults in Utah. State lawmakers have approved a bill that would reduce the penalties for plural marriage from a felony to an infraction. It still needs the governor’s signature to become law. The bill’s sponsor, senator Deidre Henderson, said the fear of government prosecution has created an environment that enables abuse.
“Today’s prohibition on polygamy has created a shadow society in which the vulnerable make easy prey,” Henderson said. “Because of the very real fear of imprisonment, losing employment, not being treated fairly, and having their children taken into state custody, we now have an environment where crime often goes unreported, victims are silenced, and perpetrators are empowered,” she said.
Under the bill, polygamy is still considered a felony if the person also commits other felony offenses including criminal homicide, kidnapping, trafficking, smuggling, sexual offenses or child abuse. “This bill strikes a balance between giving certainty to otherwise law-abiding polygamists that they don’t have to fear prosecution, imprisonment, or having their children removed simply because they live a polygamous lifestyle, while also holding those who commit serious crimes accountable for their actions,” Henderson said.
Utah has had some of the most severe laws on polygamy in the nation. It also has the greatest number of people living in plural marriages – estimated to be in the thousands, though it’s impossible to get precise numbers because many live in hiding.
Utah’s laws governing polygamy can be traced back to its unique history. Members of the Church of Jesus Christ of Latter-day Saints (commonly known as Mormons) once practiced polygamy as part of their religion, and fled to the Utah territory when they encountered persecution. But in order to become a state, the federal government required Utah to write into its constitution that “polygamous or plural marriages are forever prohibited”.
Since the state made polygamy a felony in 1935, polygamous families have scattered and formed communities in hiding, some as part of religious groups, and some independent.
Brenda Nicholson is a former member of the same FLDS sect as Shirlee Draper, but she opposes the move to decriminalize polygamy. She believes it’s not fear of prosecution that isolates people, it’s the control tactics of polygamous leaders themselves.
“They tell you don’t trust anything that doesn’t come from the church,” Nicholson said. “Men had authority from God. They supposedly talked with and for God, and so whatever the men said, that was it.” She said people who reported crimes to outside authorities could be expelled, punished, or separated from family members.
Nicholson was afraid of losing her children, not because of the government, but because of these male leaders. “They had gone through a process of deciding who was worthy and who was not worthy. Three of my children had been judged worthy, and I and my husband and our other children were not worthy. So they were going to take half my children and give them to a more worthy family,” Nicholson said. “There was no way I was going to let anybody take my children, and so we left.”
Nicholson believes more government intervention is needed, not less. “I don’t believe that Utah really has the intention of truly prosecuting the crimes that are going on. They’ve had evidence, they don’t seem to care.” Nicholson said. “To be told what happened to you wasn’t a crime is really hurtful. I know there are all these laws around it that apply – human trafficking is illegal, statutory rape, forced marriage, child labor, physical abuse, sexual abuse, fraud, all of those things are illegal – they are very much integrated into religious polygamy. People will say we just need to prosecute these other crimes, and I agree, but the problem is they won’t, and they aren’t.”
Utah hasn’t prosecuted anyone for polygamy in almost two decades, instead focusing on crimes such as child sexual assault, domestic abuse, tax and welfare fraud. The state attorney general’s office has a written policy of not prosecuting polygamists unless another crime has occurred. County attorneys have adopted similar policies. Some have said the law is unenforceable and possibly unconstitutional.
Joe Darger, an independent polygamist, says court rulings on gay marriage and private homosexual activity have bolstered the case for decriminalization.
“So long as you’re not hurting somebody, how do you outlaw behavior between consenting adults? The difference is, polygamists aren’t trying to