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Green may stand trial on child rape

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PROVO — Polygamist Tom Green may stand trial on one first-degree felony count of rape of a child, according to a ruling issued Wednesday.

Fourth District Judge Guy Burningham ruled the statute of limitations has not expired in the 1986 case, when Green fathered a child with 13-year-old Linda Kunz Green, according to the birth certificate of Kunz Green's oldest child, Melvin Green.

According to Utah's laws, a crime must be prosecuted within four years of it being reported to a law enforcement agency.

Burningham ruled there was no evidence that Green's sexual relationship with Kunz Green was reported to law enforcement, despite claims by Green's attorney John Bucher that investigators with Utah's Division of Child and Family Services investigated Green several times for unfounded claims of child abuse.

Bucher argued that DCFS caseworkers should have known Kunz Green's age — and the age of their child — and that they could "do the math" to figure out her age at the time of the birth.

Bucher also pointed out that there may have been a phone call placed to the Uintah County Sheriff's Office, complaining of Green's marriage to 13-year-old Kunz Green, but he was unable to show any hard evidence.

The ruling comes as a victory for Juab County prosecutor David Leavitt, who said the rape case was the heart of their criminal prosecution against Green — not the bigamy and criminal nonsupport conviction that has landed Green in prison on a five-year sentence.

If convicted on the rape charge, Green could face life in prison.

Leavitt said clearing the statute of limitations hurdle was the most difficult. The prosecution is now left with an iron-clad case against Green.

"We have a child that is the result of the rape. We have Tom Green's confession. We have Linda Green's acknowledgment. If we had to, we could even get DNA evidence, but I don't think that's going to be necessary," Leavitt said.

Green's family said they are devastated — particularly Kunz Green, who has found herself stamped as a rape victim in the eyes of the state.

"I am not a victim of anything," she said in a phone conversation Thursday morning from her home in Juab County, where she lives with four other women who Green claims as his "spiritual wives." In all, they have 30 children.

"I married Tom because I was in love with him. It was my choice. I wanted to marry him."

Kunz Green said she has been married to Green for 15 years and has seven children with him.

"The saddest thing about it is that this is not about a rape, a rape didn't occur. This is about getting married and raising a family."

But Leavitt counters that "our society doesn't condone a 37-year-old marrying his 13-year-old step-daughter."

Green was also once married to Kunz Green's mother.

"Linda Green can say all she wants, but this is a practice that society does not or should not condone," he said.

"I'm very unhappy and pessimistic. I'm devastated actually," Bucher said in reaction to the ruling. Bucher plans to appeal the ruling with the Utah Supreme Court — but said he is not very confident that the high court will overturn Burningham's ruling.

Acknowledging that Leavitt has a very strong case against Green, Bucher said Green is determined to take the case to trial.

"Mr. Green is not going to take any of the plea bargains that have been offered to him," Bucher said. He declined to discuss the details of those plea bargains, due to a promise made to Leavitt.

Both sides say the next issue will be establishing where, exactly, the alleged rape occurred. Leavitt said he has strong evidence to show that Green had sex in Utah with Kunz Green when she was underage and that the case should be prosecuted in Utah.

"I will never testify against Tom," Kunz Green said.

She points out that because the court has recognized her as Green's only legal wife, she has a right not to testify against her husband.

"That certainly may be an issue there," Leavitt said.

"This is an act which occurred before marriage . . . the rule of evidence doesn't provide a privilege" of allowing a wife not to testify against her husband.

Leavitt said at this point he hasn't decided if he will call Kunz Green as a victim witness. If he does, Leavitt said he will compel her to testify against Green.

Bucher does not know how the rape charge will affect Green's standing at the prison. After spending almost six months at the Utah State Prison on the bigamy charges, Green was scheduled for his first hearing before the parole board next Tuesday.

E-MAIL: gfattah@desnews.com