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Guest opinion: Has the Utah Legislature done its homework on polygamy?

The Capitol in Salt Lake City is pictured on Thursday, Feb. 13, 2020. The Legislature is considering a bill that would lower the felony penalty for bigamy.
Spenser Heaps, Deseret News

The Utah State Senate has voted to decriminalize polygamy between consenting adults, making bigamy and polygamy an infraction rather than a felony. Fines and community service would be the extent of legal enforcement, akin to a traffic ticket. Of course, Utah has for the past several decades largely declined to arrest anyone for polygamy, unless additional charges such as underage marriage or welfare fraud could be brought. Maybe decriminalization is “better than doing nothing,” to use the words of state Sen. Daniel Thatcher?

I suggest that position is untenable. Where polygyny is involved — and the vast majority of polygamy cases are in fact cases of polygyny (the union of one man to multiple wives) — the harm has been found to be inherent in the practice. In 2011, the Supreme Court of British Columbia was asked to rule on the constitutionality of Canada’s ban on polygamy. One of the star witnesses was Professor Rose McDermott of Brown University, who has penned an entire volume called “The Evils of Polygyny” summarizing her extensive research.

McDermott finds a statistically significant relationship between the legality and prevalence of polygyny within a country, on the one hand, and what they call “an entire downstream suite of negative consequences for men, women, children and the nation-state,” on the other. Their data analysis points to a significant relationship between polygyny and poor outcomes, including higher levels of sex trafficking and higher levels of domestic violence.

In addition, the literature finds consistent underinvestment overall in the children of polygynous unions, including lower rates of primary and secondary education for both male and female children, higher rates of child labor, higher rates of child malnourishment, higher rates of genetic abnormalities and lower age of marriage for girls. There are also predictable consequences of polygamy’s “cruel arithmetic” for teenage boys, who may be exiled in significant numbers from polygamous communities so that male leaders may have multiple wives.

Other experts have pointed to serious psychological harms for women and children in polygynous marriages, including anxiety and depression. This anxiety and depression may not only be felt by women (and their children) already in polygynous relationships, but also by women (and their children) currently in monogamous relationships, who must worry about whether their husband and father will take additional wives.

McDermott concludes: “Policymakers would have to change multiple laws across multiple domains to exert as much of an effect on these negative outcomes toward women and children as could be accomplished by the abolition of polygyny. ... By prohibiting polygyny, we reduce social inequities, violence toward women and children, (as well as) increase political rights and civil liberties for all.”

All of this research weighed heavily in the subsequent ruling upholding Canada’s ban on the practice. The full judgment of the British Columbia court can be found online and should be read by any Utah state legislator before voting on this important issue.

Furthermore, it is important to consider the conclusions reached by nations with significant numbers of emigres from polygynous cultures. Instead of decriminalization, virtually all European nations, as well as Canada, have refused to recognize such marriages due to the harm involved. By refusing recognition, these nations also prohibit the practice of a man periodically returning to his country of origin in order to take additional wives and bring them back to the destination country.

The law is not a hindrance, at least not in this case. Instead, the law is a powerful teacher and a bright beacon of hope. This is most eloquently stated by Ora Barlow, a polygamy escapee, who was treated as a piece of property all her life until the law told her that those who did this to her were wrong and had committed a serious crime.

“As a child growing up there,” Barlow said, “I can tell you the only friend I felt like I had was the law, because when the law did take effect and the leaders were put in prison, I actually felt free.”

Girls of 16 (the legal age of marriage in Utah with parental consent) raised from birth to become polygamous wives or face hellfire will have fewer defenses than ever before. Regardless of whether Utah has chosen to vigorously or laxly enforce the law, all Utahns know the law is there and that it divides right from wrong, justice from injustice.

Polygamous systems are rightly compared to organized crime and slavery. Indeed, it is a most pernicious form of trafficking, as the British Columbia case clearly shows. What if we judged (correctly) that laws against sex trafficking were just not making much of a dent against that practice, and thus decriminalizing it would be “better than doing nothing”? After all, the law sends sex traffickers and their victims “into the shadows,” as one state senator has said of polygamists under current laws. The law also sends prostitutes and their pimps “into the shadows.” Drug dealers, too, are there, as those engaged in the black market for human organs. Should we consider decriminalization for these consensual lifestyle choices, as well? Every society faces cases where law enforcement is difficult and may even have unintended consequences. Sometimes a society should live with that tension for the greater good of the largest number of people.

But there are tweaks to the law that could and should be considered. Consider the Nordic model of addressing prostitution, where only pimps and johns are arrested, and prostitutes are rightly considered victims in need of support and assistance from the state. Nothing is stopping the Utah Legislature from carving out a similar category of victim who would be exempt from legal punishment for bigamy.

It should raise a huge red flag for the Legislature that even the very open-minded and progressive Canadians and Europeans reject the path of polygamy decriminalization. The House has yet to vote on the matter. Perhaps it’s time for additional homework on the subject before voting: We suggest bringing out Professor McDermott to testify at the next set of hearings.

Valerie M. Hudson is a University Distinguished Professor at The Bush School of Government and Public Service at Texas A&M University. Her views are her own.