On the heels of the raid on the Fundamentalist LDS Church's YFZ Ranch in Texas, legal scholars are debating Utah's position on polygamy prosecutions.
In a spirited debate at the University of Utah's College of Law on Wednesday night, constitutional scholar Marci Hamilton of New York's Cardozo School of Law challenged chief deputy Utah Attorney General Kirk Torgensen on the state's prosecution of crimes within polygamy while not going after plural marriage itself.
"While it's undeniably true that not every case of polygamy includes sexual or physical abuse of children, the tendency is enough to make the assumption that a polygamous home is not a fit home for a child," Hamilton said, criticizing the Utah Attorney General's Office for creating a "policy of appeasement" in its lack of prosecutions that leads to the assumption that polygamy should be legalized.
Assumptions are dangerous, Torgensen countered.
"I have to provide evidence," he said. "Evidence that is substantial, believable to a court of law. When she says we can assume things, that all people are abusing kids because of a lifestyle they may be living, I don't believe you can do that under the Constitution."
While not directly speaking for his office, Torgensen defended their approach, saying they go after what they have resources, and evidence, to prosecute. Getting witnesses is hard, he said. Hamilton criticized Utah's statute of limitations on sex crimes, saying abuse victims may not come forward for years.
The debate got lively when Hamilton accused the attorney general's office of not trying hard enough to find evidence to prosecute polygamy.
"I know they don't like to hear it, but someone has to say that because it's a fact," she said.
"I'm astounded at the naivete in that statement," Torgensen replied. "I live this. I don't write about it from some office back east. I live it. I've got to sit in cases where I have got to ask, 'Where is the evidence so I can prove it in court?' Now you can say this is easy ... "
"I didn't say it was easy, I just said you weren't trying hard enough."
When Torgensen offered to deputize her to prosecute cases, some in the audience shouted "No! No! No!" while others shouted "Yes! Yes!" The chief deputy did warn polygamous communities that the attorney general's office would prosecute underage marriage cases.
They played to a full house of law students, activists on both sides of the issue, members of Utah's various polygamous churches, lawyers who have represented FLDS members and those who have prosecuted them.
Opinions on the debate were as divided as the issue itself.
"I think they need to decide if they'll uphold all of the laws or some of the laws," Flora Jessop, an ex-FLDS member and anti-polygamy activist, said of the Utah Attorney General's Office as she left the debate.
Heidi Mattingly, a member of the Davis County Cooperative Society, was critical of Hamilton."I think she doesn't know her law," she said.
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