A loophole in Arizona’s law against incest handcuffs officials wanting to crack down on polygamists who marry relatives under age 18, according to two state lawmakers.
Republican Sen. Jonathan Paton and Democratic Rep. David Lujan, thwarted last session when they co-sponsored legislation on the issue, have introduced separate bills to make the incest law apply when victims are minors. The law currently defines incest as between adults.
Paton’s bill, S1061, which received a unanimous endorsement Jan. 25 from the Senate Judiciary Committee, would make incest with a minor a Class 2 or Class 3 felony, carrying sentences ranging from two and a half years to 10 years, depending on whether the child is 15 or older or younger than 15.
Paton said the “quirk in the law” became glaringly apparent in the prosecution of polygamist leader Warren Jeffs in Mohave County. In 2008, a Superior Court judge dismissed four counts against Jeffs involving marriages allegedly arranged between two underage girls and their adult half-cousins, citing the wording of the incest law.
Jeffs still faces four other counts alleging that he acted as an accomplice in sexual misconduct with a minor.
Assistant Attorney General Tim Linnins, who specializes in cases out of Colorado City, told the committee that based on the way the law is written a polygamist is better off marrying a relative under 18.
In a telephone interview, Mohave County Attorney Matt Smith said the change would make it easier to combat polygamy involving relatives.
“If you have a 40-year-old and a 12-year-old, it’s not incest, as absurd as that might seem,” he said.
Authorities can charge those accused of incest with a minor with sexual conduct with a minor, a Class 6 felony carrying a sentence of up to 18 months.
Lujan, who is running for state attorney general and works as a staff attorney for a child welfare group, seeks the same change in H2206, which has yet to be scheduled for committee.
The same legislation made it out of a House committee last year but failed to advance as the budget crisis gripped the Legislature.
Meanwhile, Lujan is trying again for a law that would bar judges from granting child custody or unsupervised visitation to parents involved in child bigamy, which includes married adults taking minors as spouses and adults causing minors to marry adults who already have spouses.
He said H2207, which would apply unless a judge states in writing why custody or unsupervised visitation poses no threat to a child, would eliminate one of the biggest obstacles for women seeking to leave polygamist communities.
“When women seek to get out of polygamous relationships, the first thing they do when they leave is file for custody to get their kids out of that type of relationship,” Lujan said. “I have seen, time and time again … the courts will give joint or sole custody to the polygamous fathers.”
His bill on the subject was held in committee last session.
Lujan said he supports Attorney General Terry Goddard’s approach to dealing with polygamy.
“I think the proper approach is not to go after polygamous marriages themselves but to go after the abuses that are occurring, like child bigamy and welfare fraud,” he said.