8 Nov 2010

Mormon fundamentalists not prosecuted for polygamy because of procedural problems and lack of resources

NOTE FROM PERRY BULWER - September 27, 2009
It is important to recognize that the failure to prosecute polygamists in both the U.S. and Canada is not because there is no evidence of abuse in polygamist communities, but because of procedural technicalities and lack of resources. The case against the Bountiful leaders was recently thrown out [see two previous articles on this blog] for procedural reasons, as was the child-custody case in Texas, not because those cases lacked merit. And Utah Attorney General Mark Shurtleff makes it quite clear in the article below that the state simply does not have the resources to prosecute all polygamists, even though they are breaking the law. So, merely because Mormon fundamentalists are so numerous, the law is not holding them accountable for denying the human rights of their children.


The Salt Lake Tribune - September 26, 2009

Texas attorneys: Law eventually prevailed in FLDS case

Justice » State didn't follow procedures in taking away children.

by Brooke Adams

Two Texas attorneys who led the legal fight that returned FLDS children to their parents last year said that, after early missteps, the state's justice system worked in an outcome that could apply to any parent.

"What we think is important about this case and this decision is it doesn't just pertain to FLDS, it doesn't just pertain to the polygamous culture, it pertains to every parent," said Amanda Chisholm, an attorney with Texas Rio Grande Legal Aid. "It requires the state to actually treat you as you, look at what you are doing, look at what you are going to do based on the evidence. I think those are important constitutional rights that apply across the board to every parent, regardless of religion or family makeup."

Chisholm and attorney Julie Balovich, who also works for the nonprofit legal firm, spoke at a legal conference Friday at Snowbird.

The two attorneys won a Texas Third Court of Appeals ruling -- upheld by the state's Supreme Court -- that a trial judge lacked evidence to keep 430 FLDS children in state custody.

The children were removed in April 2008 from the Yearning For Zion Ranch in Eldorado, Texas. The ranch is home to members of the Fundamentalist Church of Jesus Christ of Latter Day Saints. They spent two months in foster care before going home again.

The attorneys said the Texas Department of Family and Protective Services and 51st District Judge Barbara Walther failed to follow procedures for removing children from their parents, beginning with the group case filing and continuing through en masse hearings.

But in the end, Texas' justice system worked, Balovich said -- not only for parents, but in making the state follow the law, too.

"The law was ultimately upheld and there were Texas laws that applied, and the point is they weren't followed but ultimately two courts recognized that," Balovich said.

Others who spoke at the conference included Chief Deputy Utah Attorney General Kirk Torgensen; defense attorney Grant W.P. Morrison; civil liberties attorney Brian Barnard; historian Ken Driggs; Allie, a plural wife; and Utah Attorney General Mark Shurtleff. The conference, "Family or Felony: Polygamy and the Law," was sponsored by Principle Voices, a nonprofit advocacy group that represents Fundamentalist Mormon communities.

It was the Tom Green case in 2001 that brought the issue of underage marriages to Shurtleff's attention -- along with the fact no one was investigating or prosecuting the cases. "It shocked me," Shurtleff said. "Why was nobody prosecuting, are you kidding me?"

That led to his tailored approach, focused on children and serious crimes: "Child-bride marriages, assault, sexual assault, spousal abuse, child abuse, incest and perhaps welfare type crimes, white collar crimes, tax evasions and tax fraud."

That approach has been criticized by some who believe the state also should prosecute adults in polygamous relationships.

"If I start with one case, a test case or whatever, don't I have to keep going?" Shurtleff asked. "Do we have the resources in the state of Utah to keep going? We don't. It's not a decision whether I agree or disagree with law, whether I turn a blind eye to a crime, it's do we have the resources to prosecute a thousand cases or more of adult, consensual bigamy. And then take the children of those marriages to the tune of thousands."

Shurtleff also offered his opinion of a Canadian judge's decision this week to quash polygamy cases against polygamists James Oler and Winston Blackmore.

"It was a bad decision," Shurtleff said, and the public outcry over it has focused on evidence that Blackmore married one or more underage girls years ago.

He urged the Fundamentalist Mormons in the audience to speak out about underage marriages, too, which would help change public perception that the practice is accepted in polygamous communities.

He also encouraged them to work "within the law to change the law" regarding bigamy, which the Fundamentalist Mormon community would like reduced from a felony to a misdemeanor in cases involving consenting adults.

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