Debaters argue over Utah's approach to addressing polygamy

The Salt Lake Tribune - October 23, 2008

by Brooke Adams

Is Utah selling out children or protecting the constitutional rights of its citizens?
Those were the clashing views of two speakers debating the state's approach to dealing with polygamy Wednesday at the University of Utah's College of Law.
Marci A. Hamilton, of the Benjamin N. Cardozo School of Law in New York, charged Utah officials with "whitewashing" problems within polygamous communities. Kirk Torgensen of the Utah Attorney General's Office offered a defense, saying the state has successfully prosecuted individual cases without "throwing a net at a whole bunch of people because they happen to hold certain beliefs."
The two squared off at the 25th annual Jefferson B. Fordham Debate at the University of Utah's College of Law, which posed the question of whether the state should prosecute polygamous parents and remove children from their homes.
Hamilton's answer: An emphatic yes, something she praised Texas officials for doing when they raided a ranch occupied by the members of the Fundamentalist Church of Jesus Christ of Latter Day Saints.
"Religion is no excuse for illegal behavior," Hamilton said. "It's true for polygamists, it's true for priests who abuse children, it's true for churches that cover up child abuse, it's true for churches who permit children to die for medically treatable illness."
A 1955 Utah Supreme Court ruling found that a polygamous home is not a fit home for children, a finding that remains good law, Hamilton said.
Hamilton said Utah and Arizona officials had adopted a "policy of appeasement" exemplified by their efforts to work with polygamous communities, which, she said, are inherently abusive to children. Child abuse is easily hidden, she said, but polygamous behavior is not.
"It is easy to figure out who is engaging in polygamy," Hamilton said. "You just have to figure out who is going into which house. . . . If you know that even a small percentage of individuals in these circumstances are prone to abuse children, why wouldn't you enforce the criminal law?"
Hamilton said Utah has the worst record in the nation for tackling problems like clergy abuse, citing a recent ruling that tossed out a case brought by two Utah men who alleged they were abused by a Catholic priest as an example.
Unless proponents of polygamy can use the democratic process to change laws outlawing the lifestyle, then "what they are doing is criminal, not just illegal, but criminal," Hamilton said.
"When you have an Attorney General's Office willing to say they just can't find the evidence, what that means is they are not trying hard enough," she said.
She suggested Utah could alter its track record by dropping the statute of limitations for bringing forth child abuse allegations - the one statement that drew support from Torgensen.
Torgensen, who said he was expressing his own opinions and not necessarily those of the Attorney General's Office, said Hamilton did not understand the difficulties in getting evidence of crimes within polygamous communities and her sweeping assumptions would never uphold in court.
"People cohabitate with each other in many instances, in many circumstances, all the time," he said. "Who goes into what house doesn't prove anything. The difference here is that you make it sound very easy and in my experience that is not true."
The state does not have the resources to go after all adults who engage in consensual polygamy, Torgensen said, and other crimes - from identity theft to mortgage fraud - may be more important to pursue because of their broader impact on residents.
"You can not paint with too broad of a brush these kind of issues because when you do you have major flaws," he said. "There are issues with not dealing with facts and dealing with assumptions that get us into trouble."
Referring to what has happened since 9/11, Torgensen said he worried about what happens to constitutional rights when people are lumped together and "because of what they look like, where they go to church, where they were born, where they come from, they must therefore be someone we have to go after.
"It is not only dangerous, it is unconstitutional to do so," he said. "I don't know how to do my job except one man at a time, one piece of evidence at a time, with evidence that we can take into a court of law."
Texas' broad action would likely not "fly" in Utah, he said.
That said, the state has never shied away from pursuing child abuse when it has evidence. "I don't care if this evidence of child abuse is in Hildale, or Colorado City or Magna or Kearns," he said. "It's [just as] irrelevant what the religion is."
The debate drew many who have been at the forefront of recent events involving polygamy. Among them: FLDS spokesman Willie Jessop; child advocate and ex-FLDS member Flora Jessop; defense attorney Walter Bugden, who represented sect leader Warren S. Jeffs; Heidi Mattingly Foster, a plural wife whose children were the subject of two-year custody case; and John Llewellyn, a former polygamist who has written several books critical of the lifestyle.

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