Monday, September 24, 2007

Is the Warren Jeffs Case Religious Prosecution?

I haven't followed the case very closely, but it seems a distinctly strange one. Jeffs is charged with being an accessory to rape. The person who, on the prosecution's theory, committed the rape isn't being charged with anything. Jeffs' crime, so far as I can tell, is using his authority as a religious leader to persuade a girl into a marriage that she now says she didn't want. That might be a good reason not to accept his religion, but treating it as a felony strikes me as a considerable stretch.

What happens if we we apply the same legal theory to a more respectable religion, say the mainline LDS? Mormons are expected to pay a substantial part of their income as tithes. One can easily imagine an ex-Mormon who grew up in a small town where everyone was a member of the church testifying that he paid his tithes because of religious and social pressure, even though he never wanted to. If true, does that make the local bishop an accessory to robbery or extortion?

Suppose Jeffs is convicted. Isn't the clear implication that preaching certain religious doctrines, such as the authority of fathers over daughters and husbands over wives, is now illegal, at least if people believe the preaching and act on it?

Am I missing something?

25 Comments:

At 7:41 AM, September 24, 2007, Blogger jimbino said...

The woman was of legal age and capable of consenting to sex. The rule of the prosecution would be seen as laughable if she were a woman of 60 following the exhortations of a James Jones, a Rev Moon or an Elijah Muhammed.

Citizens have a right to sex, even those of young age or impaired judgment. If a woman had to be deemed free and mature and reasonable in her choice of mate by a judge and jury, sex would be seriously encumbered and a lot of marriages would never take place.

Even mentally disturbed and handicapped people have a right to food, shelter and sex, but our puritanical society would rather a woman die than be defiled. We're only one step removed from the fundamentalist Muslims in our treatment of women.

 
At 7:49 AM, September 24, 2007, Anonymous Anonymous said...

@jimbino
"Citizens have a right to sex"

You wish.

 
At 8:32 AM, September 24, 2007, Anonymous Mana said...

These are highly pertinent questions. I think the issue here is that the young woman claims she said no to the marriage and she was forced into it. However what we hear most prominently in the media is related to the "evil" of polygamy when the true charges are of rape/accessory to rape. Thus in all fairness this case should be treated as abuse and rape, regardless of the religious context. However if Jeff's authority can be proven to have functioned as a measure of coercion then religious arguments are valid.

So I would say yes, if coercion can be proven then that would make it rape, or in the tithing case that would make it extortion, regardless of religious arguments. But, can impressing church authority be considered coercion? Where does religious authority end and abuse being?

 
At 9:10 AM, September 24, 2007, Anonymous Anonymous said...

The question someone should be asking is why the charge was not polygamy. It is illegal after all. Perhaps it is because there would be a fairly real chance that the Federal Appeals Court would overturn those statutes. Whether the Supreme Court would uphold that ruling is doubtful, but could certainly muddy the gay marriage issue.

 
At 10:50 AM, September 24, 2007, Blogger Allen said...

I agree with the concern with others not being prosecuted. But the lack of prosecution for the root crime, for forcing a 14 year old GIRL into marriage, isn't somehow magically made ok. It's good to question the motivations of the state and the government. But let's not confuse those issues with those surround the meglomaniac that Warren Jeffs is and the illegal things he's willing to do under the guise of "religion".

BTW - I happened to drive through Hindale + Colorado City @ 2 weeks ago on my way from Zion to the north rim of the Grand Canyon. It's an odd, odd, odd town.

 
At 3:40 PM, September 24, 2007, Blogger Mike Huben said...

What you're missing, David, is the fact that it's rare for a 14 year old child who is financially, emotionally, and culturally dependent to be independent enough to make her own decision in the face of pressure from parents, community, and religious leaders.

If libertarians had any real concern for liberty, it would be obvious that this girl was frightened into her decision by coercive threats of hellfire, expulsion, shunning, and who knows what else. Very simply, you're indulging in "NAMBLA" logic - an extreme absolutist position which demands that for logical consistencies sake that certain gross crimes be allowed, in order that no one might feel restrained. (Stirling Newberry)

Very simply, assumptions of independent decision making don't apply to children. Which is why there are laws protecting the financial earnings of children from their parents and others. Which is why we have ideas such as age of majority. There's no shortage of scientific demonstrations that children are not simply little adults. And that's why even if we legalized drugs, we'd have to somehow prohibit giving addictive narcotic candy to 6 year olds.

As for your tithing example, it's merely an argument of the beard. We'd expect there to be no bright line, as you point out when convenient in your own arguments. There's no bright line between agreement and fraud either.

 
At 8:17 PM, September 24, 2007, Blogger Lenin3 said...

@Huben,

You know Mike if I didn't know that you were a total loser, I would mistake you for a stalker.

Get a life dude.

 
At 7:27 AM, September 25, 2007, Blogger Gil said...

Don't blame Mike.

I'm sure he's forced into his stupid positions by social pressures that are way beyond his control.

If we libertarians cared about anything, we'd realize that he isn't responsible for anything he writes!

Only the state can make reasoned decisions about what's best for us. Individuals must give up their illusory responsibility to the omniscient angels in government.

It's so obvious!

 
At 10:02 AM, September 25, 2007, Blogger Sub Specie AEternitatis said...

Actually, Mike has one good point. Children are so far from having the full capacity of adults that any legal system remotely accommodated to human nature must to some extent treat them differently than adults. That is an excellent argument for why the age of consent to sex and marriage should probably be higher than 14.

However, that appears not to be the issue here. The state of Utah in its wisdom chose to deem 14 year olds to be capable of giving consent. That was probably a bad judgment. But it cannot now turn around and prosecute those who relied on this law.

Perhaps that is why they use a much more nefarious theory of the case: If a woman, of presumably any age, marries or has sex due to otherwise-legal social, political, or religious pressure, then the source of that pressure is an accessory to rape.

If you believe that this is a sound theory, would you also apply it in the far more common case that the pressure does not come from a religious leader, but from peers or popular culture? In other words, is Britney Spears the accessory to untold thousands of rapes?

While some social conservatives and feminists may find an affirmative answer to that question congenial, one suspects most of the supports of the present prosecution do not.

 
At 1:21 PM, September 25, 2007, Blogger Mike Huben said...

For those of you too lazy to do a 15 second google search such as 'prosecution "warren jeffs"':

The Polygamy Case That Isn't -- and It's a Good Thing, Too: Why the Warren Jeffs Prosecution Is Really About Child Rape

This FindLaw commentary points out that Utah law has special protections for children from child predators which make this case

"Jane's conduct might be deemed consensual had she been an adult. But Utah law provides special protection for juveniles against sexual coercion. Given the respective ages of the victim and principal, Jeffs could be liable if he "entice[d] or coerce[d]" Jane to submit to the older man, even without any use or threat of force."

This explains why sub's argument is erroneous. Not "any age", but "juveniles".

Some of you might also have the mistaken notion that marriage means it's not rape. Rape is a crime even in marriage in many jurisdictions.

Lenin3 and gil, let me know when you develop enough neurons to rub together that you can say something relevant, rather than indulge in fantasies.

 
At 1:28 PM, September 25, 2007, Blogger Mike Huben said...

A few minutes ago:

Warren S. Jeffs has been found guilty of two counts of being an accomplice to rape.

 
At 1:53 PM, September 25, 2007, Blogger Sub Specie AEternitatis said...

While Mike is correct that the relevant Utah statutory provision Utah Code Section 76-5-406(11) is limited to females between 14 and 18, he does not answer the argument.

If otherwise-legal "enticement" to sexual behavior is a felony, why should Warren Jeffs (unpleasant character though he appears to be in many ways) go to jail, while older friends mocking a girl for being a virgin or, for that matter, pop singers glamorizing teenage sex should go free?

And please don't answer that the First Amendment requires it. That amendment assuredly protects fundamentalist preaching as well as MTV.

 
At 2:58 PM, September 25, 2007, Blogger Jim Lippard said...

sub specie aeternitatis: You cite the statute, then quote a term, "enticement," that does not appear within it.

Your final point (and David Friedman's) misses the fact that some speech involves performative actions, and what is legally restrictable are the performative actions, not the speech itself. (Conspiracy to commit a crime can itself be a crime, for example.) In this case, intentionally assisting with the coercion of a minor into a sexual act. (I do agree that the Utah case is made somewhat muddy by the fact that the age of consent is 14.)

Jeffs didn't just preach a religious doctrine that marriage and sex with young children is OK, he participated in making such a marriage, and the ensuing sex, actually occur.

There were a lot of criminal acts occurring in Colorado City, including the illegal transfer of state funds for the public school system into private and religious hands. Arizona hesitated for a long time to take any action for fear of being seen as persecuting a religion, but this was really a religion operating as a criminal enterprise.

 
At 4:18 PM, September 25, 2007, Blogger Sub Specie AEternitatis said...

This sort of back-and-forth on comments tends to grow tiresome to readers (and, eventually, the participants). So, I will make one last attempt to get somebody to answer the question I asked in both of my previous posts. Should nobody do so, I'll rest my case and allow others to have the last word.

Let's stipulate that Mr. Jeffs arranged and performed the wedding and that the Jane Doe only agreed to the wedding, and the sexual intercourse, because Mr. Jeffs preached that failure to do so violated the tenets of their faith and risked social opprobrium during life and eternal damnation thereafter.

You liken this to conspiracy. But criminal conspiracy requires an underlying crime. If my wife (notice the singular!) and I conspire to have a picnic this weekend and take tangible steps in preparation, we are guilty of no crime, because having picnics is not against the law.

So what is the underlying crime here?

It is not forcible rape, because the Jane Doe consented. The prosecution conceded as much by charging on the basis of its convoluted statutory theory. If there had been a good-faith straightforward claim of forcible rape, there would be no controversy and that is surely what they would have charged.

It is not statutory rape, because the Jane Doe was above the age of consent set by the state of Utah. That we might agree that this age is too low is neither here nor there in a criminal prosecution brought by that same state.

That leaves only the argument that Utah Code Section 76-5-406(11) invalidates consent of any female 14 to 18, when an "actor ... entices or coerces the victim."

Practically any ordinary understanding of the term "coerces" is covered by sub-sections (2) and (4) and explicitly excluded from sub-section (11). It is unclear if there is any meaningful form of coercion which is left within (11).

But section (11) goes much further than that. It nullifies consent if somebody, not necessarily the alleged rapist, "entices" the Jane Doe to engage in sexual conduct.

This is absurdly overbroad.

In so far as it covers the conduct of Mr. Jeffs, it also covers a vast amount of common, if not admirable, and certainly constitutionally protected conduct. Examples would include taunting a 17-year old freshman college student for being a virgin, a would-be boyfriend's present of a box of chocolate, producing and airing music videos glamorizing teenage sex, etc.

Is there anybody who will defend such this law on any basis other than that they dislike the person convicted under it here?

 
At 9:03 PM, September 25, 2007, Anonymous Anonymous said...

I dont know if its a religious persecution but its a clear kangaroo court. Guess what, US law does not recognize polygamist leaders and other secret masters as legal guardians. The girl had a mother, that mother is a US citizen and bears full responsibility for what is happening to her child. If that mother is unable to care for her child, there are government agencies that must get involved. Warren Jeffs has no legal power over that girl and claiming that because he is a polygamist sect leader nobody in that sect is responsible for their actions anymore is just pathetic.

 
At 11:10 PM, September 25, 2007, Anonymous js290 said...

Where does religious authority end and abuse being?

...this was really a religion operating as a criminal enterprise.

LOL...

...but its a clear kangaroo court.

Gots to keep the populace distracted from the war and economy somehow. I think people are losing interest in the Michael Vick story, and the OJ saga seems to be just a flash in the pan.

 
At 2:55 AM, September 26, 2007, Blogger Mike Huben said...

Sub, as I wrote above, there is no bright line between consent and refusal, and you are engaging in NAMBLA logic if you think Jeffs was innocent. The jury has decided that there was no legitimate consent. In different caes, they might find differently.

I notice also that you also avoid the conclusion that if there is non-consensual sex, it is rape under the law. Even if the relevant law is "overly broad", that doesn't mean that the particular violation wouldn't be wrong under a much narrower law.

 
At 3:26 AM, September 26, 2007, Anonymous Anonymous said...

It's like Huben never actually read what David's post was actually about.

 
At 3:41 PM, September 26, 2007, Blogger Jim Lippard said...

Allen Steed has now been charged with rape of Elissa Wall, for having non-consensual sex with her several weeks into the marriage. I would have thought they'd prosecute him first.

 
At 10:45 PM, September 27, 2007, Blogger montestruc said...

Re: Polygamy question raised by Anomomous

The charge was not polygamy as polygamy was not directly involved at that time. This was the young man's first marriage and he did not attempt to marry another while she was still with him.

David, they have now brought charges of rape against the young man.

I think this was a religious persecution anyway, The marriage would have been legal in Utah anyway as I understand it, and I have never heard of a parent or minister of another religion being brought to trial on rape as an accomplice for pressuring a young woman to marry where the marriage would be legal.

 
At 11:00 PM, September 27, 2007, Blogger montestruc said...

Mr. Huber,

I think that they did not prove lack of consent to the sex, as in no witnesses, no physical evidence, it is all he said she said, and all her complaints were long after the fact and while under the influence of persons and groups hostile to the FLDS, that is all that this case was about, right? And Jeffs was not physically there for the rape.

In fact they cannot prove rape beyond reasonable doubt in this case, because all they have is the woman's testimony which is IMHO tainted by the association with others hostile to the FLDS group before she complained.

Sex per say within the marriage would not be rape, else marriage at that age would not be legal.

That is my objection, if that is "NAMBLA" logic, make the most of it.

My take is that this is religious persecution.

 
At 2:27 PM, September 28, 2007, Blogger Mike Huben said...

montestruc, you seem to be avoiding the fact that marriage is not a defense against certain kinds of rape.

Argue as you like, you did not attend the trial and see or hear the evidence the jury did: you are less informed than they are. The defense could have brought up any argument you're making, and the jury could have considered it.

In order for your accusation of religious persecution to make sense, the jury also would have had to be willing to persecute, yet the defense did not ask for new jurors on that basis nor did it convince the jurors that religious persecution was at issue.

The issue was rape of a 14 year old. Even if there was religious persecution as an additional motive, the rape was sufficient justification.

You remind me of mobster Joe Columbo, who claimed that prosecution of the mafia was simply bigoted persecution of Italian-Americans. Yes, that's NAMBLA logic like yours.

 
At 10:20 PM, September 28, 2007, Anonymous Anonymous said...

> Argue as you like, you did not attend the trial and see or hear the evidence the jury did: you are less informed than they are.

That argument had been refuted for OJ. And of course nobody informs the jury, the sides in the trial persuade it.

 
At 5:59 PM, September 29, 2007, Blogger montestruc said...

Mike Huben Wrote:

"montestruc, you seem to be avoiding the fact that marriage is not a defense against certain kinds of rape."

No I am not at all. That is a complete load.

I am saying that:

1) You cannot use statutory rape as if the state consents to the marriage they have legalized it. Any argument to the contrary is absurd, as all the state has to do is raise the legal age of consent for marriage to end it.

2) You have to prove the rape beyond reasonable doubt, which given the facts of the case (the long gap between alleged act and report, and the massive hostility of groups supporting the alleged victim to the FLDS), is basically impossible.

3) You have to prove Jeffs knew the rape was going to happen and was an active participant.

IMHO it is impossible to prove beyond reasonable doubt the rape happened at all given the tainting of the alleged victim's testimony.

Proving Jeffs was criminally liable when you cannot prove the rape happened at all, when you know he was not physically present, is absurd.


Now as to your assertions to the effect that I have not heard the evidence the jury did. This is true, it is also true that I may have heard evidence the jury has not as you damn well know.

Also the defense can only bring up arguments the judge allows them to, as you damn well know.

Furthermore in point of fact the jury selection process now used is now massively biased in favor of the state where the state can exclude persons for disagreement with the law. Especially as jurors are told that they must follow the law even if they do not agree with it, or think the prosecution is abusive.

http://www.fija.org/


The whole NAMBLA reference is a straw man argument of someone who is intellectually lazy or incompetent.

 
At 4:17 PM, October 06, 2007, Anonymous Anonymous said...

While we're at it, we can prosecute priests who tell people it's "Doin' God's will" to fight in Iraq.

But this case is mostly about child rights and lack thereof.

 

Post a Comment

Links to this post:

Create a Link

<< Home