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Religion is no defense for polygamy, experts say

By Harriet Ryan
Court TV
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(COURT TV) -- When he appeared before a Utah judge via a video link from the county jail this week, the polygamist "Prophet" Warren Jeffs took the first step toward what could be among the most closely followed trials in state history.

What the sect leader's defense strategy will be, however, fascinates legal experts, as well as those who study Jeffs' Fundamentalist Church of Jesus Christ of Latter-Day Saints.

Although polygamists in the past have attempted religious liberty defenses, albeit unsuccessfully, a ruling this spring by the state's highest court precludes Jeffs from trying the same.

More traditional approaches, ranging from an insanity plea to attacks on the credibility of the star witness, seem unlikely, given the polygamous teachings of the FLDS and Jeffs' role as the church's all-powerful spiritual leader.

"He has to consider whether his first priority is trying to defeat the charges and avoid conviction at whatever cost, or whether his priority is to maintain his standing in his religious community, recognizing that it may entail some criminal responsibility," said Ken Driggs, a public defender in Atlanta who has written widely about the intersection between fundamentalist polygamous groups and the law.

Jeffs, 50, is charged with two counts of rape as an accomplice. A former church member says he "spiritually married" her to an older man when she was a minor and then ordered her to submit to sex with the man or face eternal damnation. (Watch Jeffs' first Utah court appearance -- 5:41 Video)

If convicted, Jeffs faces five years to life in prison.

The tenets of the FLDS, which broke with the mainstream Mormon church in 1890 over the issue of polygamy, hold that plural marriage is necessary to achieve the highest level of salvation. Members believe that Jeffs receives divine word concerning who is to wed, and he carries out God's will by arranging and performing all marriages.

Religious liberty defense ruled out

A handful of polygamists charged in Utah in connection with underage marriages in recent years have tried religious liberty defenses, arguing that, since their faith requires plural marriage, state and federal religious-freedom laws protect them from criminal charges.

In May, the Utah Supreme Court reviewed the appeal of an FLDS man who was convicted of bigamy and statutory rape for marrying a 16-year-old girl. The court ruled that "the protections enshrined in the federal constitution, as well as our state constitution, guaranteeing the free exercise of religion and conscience ... do not shield polygamous practices from state prosecution."

The justices wrote that government could ban behavior that some considered religious practice, including polygamy and sex with minors, as long as the law applied to the conduct of all citizens and not just believers. Polygamy is expressly outlawed by the Utah constitution.

The court also found that the trial judge was correct to bar expert testimony about the religious beliefs of the FLDS, writing that it was useless in determining guilt "and would more likely have distracted and confused the jury."

Erik Luna, a professor who teaches criminal law at the University of Utah, said the court decision made a religious defense a practical impossibility for Jeffs.

"[His lawyers] can raise any claim in the sense that they can file paperwork on it and they may raise it for PR purposes, but I suspect the trial judge will deny it and disallow any witnesses to support it," he said.

'Go back and repent'

Without a religious defense, Jeffs may try to dispute the account of the alleged victim, referred to in court papers as "Jane Doe," but that route is rife with threats to his role as church leader, according to experts.

(Authorities will say only that "Jane Doe" was between 14 and 18 at the time of her marriage.

Her account of interactions with Jeffs is the basis for the accomplice charge, but much of it is also consistent with FLDS teachings about marriage, the power of the Prophet and the necessity of obeying Jeffs.

Under Utah law, rape is defined generally as sex without consent, but included in that definition is sex between a minor aged 14 to 18 and someone more than three years older, who "entices or coerces" the younger person. Also, a third person who "solicits, requests, commands, encourages or intentionally aids" the commission of a crime is as criminally liable as the perpetrator.

In court papers, prosecutors have highlighted statements Jeffs allegedly made to the teen bride before and after the ceremony as evidence he encouraged sex between her and the older man.

According to an affidavit outlining the teenager's account, she told Jeffs she felt she was too young to marry.

"Jeffs told Jane it was her spiritual duty to submit to the marriage and that the marriage arrangement was 'from God,'" an investigator wrote in the affidavit.

Within a month of the ceremony, Jane's husband  identified as John  had sex with her "against [her] will and without her consent."

Jane went to Jeffs, asking to be freed from the marriage because "she hated having 'husband-wife' relations with John" and "was uncomfortable with John touching [her] private parts."

According to the affidavit, Jeffs told her, "Go back and repent. You go give yourself mind, body and soul to your husband like you are supposed to do."

Husband as 'priesthood'

On at least two more occasions, however, Jane complained to Jeffs. Both times, he instructed her to stay in the marriage and obey her husband.

"No matter what happens you cannot fight with the priesthood because if you do you'll lose your salvation," Jeffs told her, according to the affidavit.

Experts say that, because of the church teachings, it would be unthinkable for Jeffs to deny arranging and performing the marriage of two FLDS followers or counseling the teenager to submit to God's will.

He could say "he didn't commit the specific facts alleged, that he didn't arrange this marriage between this old man and this child, but then he's undermining his own legitimacy in the community," Luna said.

Randall Spencer is a Provo attorney who represented a man convicted of rape as an accomplice for marrying his 13-year-old daughter to a 48-year-old man,.

Spencer said Jeffs' defense could argue that he did not know the alleged victim's husband had raped her or would do so again when he told her to submit to him. Jane's husband has not been charged and it is unknown whether he will testify.

Spencer noted that, in the court affidavit, the woman said her husband had already raped her once before she first complained to Jeffs.

"To be convicted as an accomplice, the prosecution has to show that Mr. Jeffs acted with the exact same mental state as the person who allegedly committed the rape," Spencer said. "That can be difficult to prove."


vert.jeffs.mug,gi.jpg

A mug shot, relased by authorities at the jail in Purgatory, Utah, shows Jeffs in green stripes.

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