02 July 2013

Decriminalize Bigamy

Colorado should decriminalize bigamy without giving affirmative legal recognition to polygamous marriage.  This is an idea that is in roughly the same intellectually and political territory that same sex marriage was until April 1, 2001 when the Netherlands became the first to recognize it, or June 1, 2003, when Belgium followed suit.  It may take time for people to recognize that this is an administrative sensible and morally just course of action.  But, it is the right thing to do in Colorado.

Colorado's Bigamy Law

Colorado's Revised Statutes provide at § 18-6-201, entitled "Bigamy" that:
(1) Any married person who, while still married, marries or cohabits in this state with another commits bigamy, unless as an affirmative defense it appears that at the time of the cohabitation or subsequent marriage:
(a)The accused reasonably believed the prior spouse to be dead; or
(b) The prior spouse had been continually absent for a period of five years during which time the accused did not know the prior spouse to be alive; or
(c) The accused reasonably believed that he was legally eligible to remarry.  
(2) Bigamy is a class 6 felony.
[In general, a class 6 felony in Colorado is punishable by presumptive twelve to eighteen months in prison (which can be reduced or enhanced to some extent upon a special finding of extraordinary circumstances), followed by one year of mandatory parole, and/or a fine of $1,000 to $100,000.  C.R.S. § 18-1.3-401.  But, the incarceration period is reduced by "good time" (which can cut a sentence roughly in half for well behaved and cooperative non-violent offenders in the discretion of prison officials, although I am not an expert on the subject), C.R.S. § 17-22.5-301 et seq., and time serviced prior to conviction while awaiting trial.  Sentences of probation and/or community corrections and/or other alternative sentencing options are sometimes available.  In practice, a maximum term of incarceration for a class 6 felony involving a well behaved inmate is similar to that for a class 2 misdemeanor, but a felony conviction has many serious collateral consequence and generally will be considered when determining eligibility for enhanced habitual offender sentences for future felony convictions, while a misdemeanor does not.]

Then, it provides in § 18-6-202 entitled "Marrying a bigamist" that:
Any unmarried person who knowingly marries or cohabits with another in this state under circumstances known to him which would render the other person guilty of bigamy under the laws of this state commits marrying a bigamist, which is a class 2 misdemeanor.
[In general, a class 2 misdemeanor in Colorado is punishable by three to twelve months in jail and/or a fine of $250 to $1,000 and court costs. C.R.S. § 18-1.3-501. But, the incarceration period is reduced by "good time" (of up to five days per month in the discretion of jail officials), C.R.S. § 17-26-109, and time served prior to conviction while awaiting trial. Also probation and/or community service and/or other alternative sentencing options are often imposed in lieu of incarceration and/or a fine in less serious cases such as class 2 misdemeanors. A misdemeanor has some collateral consequences after the sentence is served, but not many compared to a felony, and usually a prior misdemeanor conviction will not provide a basis for enhanced habitual criminal sentencing for future offenses.]

And, finally, it provides in § 18-6-203, entitled "Definitions" that:
As used in sections 18-6-201 and 18-6-202, "cohabitation" means to live together under the representation of being married.
There Is No One Kind Of Polygamy To Recognize Legally

I am not proposing in this post that the government grant recognition of legal rights as a result of polygamous marriages.

This is because government recognition of polygamy is a matter far more difficult from a legislative perspective than legalizing same sex marriage.   Same sex marriage proponents sought a legal status identical in rights and privileges to those of heterosexual marriage (and the right and privileges of spouses in heterosexual marriages have been gender neutral for decades as a result of feminist movement driven reforms, some of which go back to the late 19th and early 20th centuries), so the laws to apply to same sex married couple was clear.

In contrast, there is no single set of consensus legal rules that govern polygamous marriage.  There are several version of polygamy practiced today in which one's status as a polygamous spouse gives rise to different rights and obligations. 

Polygamous marriage is an institution which carries different rights and obligations in different cultures on fundamental private law matters such as the necessity of the consent of a current spouse to a second marriage by a husband, who may terminate a polygamous marriage bond and upon what grounds, the rights of a divorcing polygamous spouse, inheritance rights and creditor's rights under the necessities doctrine. 

Polygamous marriage also pose difficult public law questions like the appropriate way to handle polygamous marriages for purposes of laws relating to income taxation and social welfare benefits that have more than one plausible answer, with the best answer depending to some extent on the nature of the particular form of polygamous marriage practiced by particular taxpayers or welfare benefit applicants.

A Colorado General Assembly and Governor, none of whom are openly polygamous, are in a position to set fair rules that choose one form of polygamy over another.  Some day, it may make sense for Colorado law to allow for contractually delineated polygamous marriage agreements that have legal force and effect subject to certain public policy limitations that cannot be waived (like a ban on a marriage without the consent of the person who is being married or a ban on child marriages), but that is for another day and is less important given what is possible to reach agreement upon under existing law (as we discovered planning for same sex couples before civil unions and same sex marriage laws were adopted).

Decriminalizing Bigamy Is Simple And Acknowledges Reality

Existing law does not prohibit multiple unmarried people (or a married couple and additional unmarried people or married couples) from cohabiting with each other, routinely having non-monogamous sex, and having children with each other without all claiming to be married to each other, while otherwise obeying the law.  These households may, for example, lawfully enter into custody arrangement concerning their children (since child custody laws are almost completely separate from laws related to marriage under existing law), provide for each other in their Wills, and make arrangements to voluntarily share income and expenses of their household.

Even though polygamous marriage in name is not permitted under Colorado law, polygamous families in substance are legal.

Thus, Colorado Revised Statutes, §§ 18-6-201, 18-6-202, and 18-6-203, in their current form, bans not a polygamous style set of relationships, but the speech act of "representing" that the people in that relationship are married. This speech, which is often motivated by conscience and religious conviction, is not something for which we should spend money incarcerating people.  The law may even be unconstitutional as a violation of freedom of speech and religious expression in its current form, even if it would have been lawful for Colorado to ban the substance of the relationship rather than merely banning what it is called.

In light of these realities, I propose repealing all three of these statutory sections of Colorado law, without changing in any way the legal definition of marriage in Colorado (and propose that other states do likewise).

While the Constitution of the State of Colorado states that marriage is between one man and one woman, it does not prescribe a particular penalty that Colorado must impose for claiming that a man and more than one woman are married, or that a woman and more than one man are married, or that more than one man and more than one woman are married, when that relationship is not given any legal effect.

It is well within the discretion of the Colorado General Assembly and the Governor (or the people, proposing a statutory change through the initiative process) to decide that the threat of incarceration through the criminal justice system is not a good way to enforce non-recognition of polygamous marriages.   In reality, criminal prosecutions for bigamy and marrying a bigamist are vanishing rare because District Attorneys in Colorado and elsewhere, when confronted with such cases usually reach the same conclusion.  I am not sure that such a law has the political support it needs to pass right now, but that day may come at some point.

The Right Thing To Do

The law as it is written also has the potential to impose great hardship, for example, on a man lawfully married to more than one wife in his home country before coming to the United States, either a tourist or an immigrant, who lives in the United States with one or more of his spouses.  Unless he divorces the other without any good cause under the laws under which he married to do so, he is subject to arrest and conviction for a felony at any time.  Indeed, numerous Muslim visitors from countries that recognize polygamous marriage such as Saudi Arabia and Morocco to Colorado's internationally renowned ski resorts, or on business trips accompanied by a spouse to visit corporate headquarters that are based in Colorado, are in this situation every year.

This simple change in the law that would slightly reduce government spending in the long run, require no on going government bureaucracy to administer, and have virtually no impact one way or the other on the criminal justice system because prosecutions under these laws are so rare, would help to respect freedom of religion, freedom of speech, and comity in our state's international relations.

An Economic Boon For Colorado

Indeed, the symbolic act of showing tolerance by decriminalizing bigamy, even without any affirmative legal recognition of polygamous marriages, might very well spur economic development in the State of Colorado as polygamous families choose to spend tourist dollars in Colorado, move to Colorado to establish businesses, and bring the skills that allowed them to immigrate to the U.S. to Colorado, where they do not have to fear criminal prosecution, in preference to other states.

This legal change would also probably encourage immigration from the kind of fundamentalist Mormons featured in the television show "Sister Wives", whose religion encourages polygny, but not the child abuse that is a part of the fundamentalist polygamous sect led by Warren Jeffs.  History has shown that religiously motivated migrants tend to bring economic prosperity to their new homes.

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