SAN ANGELO, Texas How the Texas appeals court ruling will affect placement of the FLDS children remains to be seen. But a prosecutor says the ruling won't affect her criminal investigations.
"I still anticipate there will be some criminal charges," said Allison Palmer, first assistant 51st District attorney. "Any crime that's demonstrated from the evidence, we'll be looking at prosecuting."
The San Angelo, Texas, prosecutor said her office and the Texas Attorney General's Office continue to sort through the evidence that was taken last month from the Fundamentalist LDS Church's YFZ Ranch. They are mostly looking for evidence of crimes against children, but Palmer said bigamy prosecutions are also on the table.
"It is a statute. It is against the law," she told the Deseret News Thursday. "If we uncover evidence of bigamy, we will prosecute it."
Prosecutors in Utah have not wanted to wade into full-scale polygamy prosecutions here, partly because of First Amendment issues surrounding the religious practice of plural marriage. Utah has only charged bigamy as an enhancement when pursuing other crimes within polygamy, such as child abuse, underage marriages and welfare fraud. The Utah attorney general has also said that to go after bigamy alone could cripple the state's child-welfare system with thousands of parents in prison and thousands more children in foster care.
In a presentation she makes to churches, FLDS critic Mary Mackert claims some members of the polygamous sect avoid taking wedding photos of the couple together in order to avoid providing evidence that could be used against them. Marriage licenses are seldom sought since the unions are considered to be "spiritual marriages" and are performed by church leaders.
But that type of evidence may not be necessary to prove bigamy. In Texas, a person purporting to be married who lives with another person "under the appearance of being married" would violate the state's bigamy statute, Palmer said.
"I anticipate that if we do proceed (with) bigamy prosecutions, we will have to look at each case specifically," she said.
Salt Lake attorney Rod Parker, acting as a spokesman for the FLDS Church, said there will be a legal battle if Texas prosecutors pursue such charges.
"If they bring a prosecution like that, they will find that the statutes they will rely on are unconstitutional," Parker said. "If gay sex in a motel room is protected by the Constitution in Texas, then polygamous marriage among consenting adults must be protected."
The attorney was referring to the controversial Lawrence v. Texas case, which decriminalized gay sex among consenting adults.
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Parker made similar arguments when appealing the case of FLDS member Rodney Holm, who was convicted in Utah of bigamy and unlawful sexual conduct with a 16- or 17-year-old. Religious freedom arguments were included in the appeal, but the Utah Supreme Court rejected his argument largely because the victim in the case, who was Holm's third wife, was a minor.
"I don't have much question that at some point the U.S. Supreme Court will find that polygamy among consenting adults is constitutionally protected," Parker said.
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