In Which I Blather About the Warren Jeffs Case

In case you haven't been watching the news much lately, a man is on trial in Utah right now, charged with the rape of a 14-year-old girl. Specifically, he is being charged as an accomplice to rape, which is kind of an interesting tactic on the part of the prosecution.



The man on trial, Warren Jeffs, is the "spiritual" leader of a bunch of sick assholes who call themselves the Fundamentalist Church of Jesus Christ of Latter Day Saints. (I should note here that "bunch of sick assholes" is NOT a legal term, and that the Fundamentalist Church of Jesus Christ of Latter Day Saints is NOT associated with what is commonly known as the Mormon Church, or the LDS Church, who I suspect find the activities of Warren Jeffs to be even more despicable than I find them, seeing as he's basically slandering the name of their church in order to justify his actions. I should also note that I am using the term "spiritual" leader in an ironic way.)



In order to understand what Mr. Jeffs is being charged with, you have to understand the law regarding "accessories" or "accomplices" - generally speaking (and please note that I do not have a license to practice law in the State of Utah, so, I am speaking in general terms) - one who is an accomplice to a crime is considered to be equally culpable as the person who committed the crime. I.e., if two folks plan a bank robbery, but only one of them walks into the bank with the note and the gun, they are BOTH still equally guilty of robbing the bank. This area of the law can get kind of murky when something unexpected occurs - let's say the guy who went into the bank with the gun shoots and kills someone during the robbery. Can the guy who helped him plan the robbery be charged with homicide? And the answer is "probably".



At any rate, the theory the prosecution is working under is that Mr. Jeffs facilitated the rape of a 14-year-old girl, and is therefore guilty of rape as an accessory to rape.



And while a lot of people in the legal community are up-in-arms about this, I personally think it's kind of brilliant.



The main argument that is being raised as an objection to this prosecution is that the rapist himself, - i.e. the guy who is attached to the penis that actually penetrated the girl - hasn't been charged with rape.



And I can truthfully tell you two things: 1. I aced Criminal Law in law school (in fact I "took the book" so to speak) but 2. as I have previously mentioned on this blog, my criminal defense practice is limited to housing court.



So, honestly, I do not know whether it is NECESSARY, strictly speaking, to charge the primary actor with a crime in order to go after his or her accomplice. I'm going to make an educated guess that it is NOT. (Any criminal defense attorneys out there, feel free to correct me if I'm wrong about this - or, really, any part of my analysis.) But, I'm going to make an equally educated guess that it is probably pretty rare to charge an accomplice when the primary actor hasn't been charged, and that it is likely almost unheard of in a rape case.



So, what we have here is a case where the guy who did not actually COMMIT the rape is being charged with rape as an accomplice, and the guy who did commit the rape is not being charged with rape (and, I believe, testifying for the prosecution, but, I could be wrong about that.)



What Mr. Jeffs is actually being accused of doing, specifically, is forcing a 14-year-old girl to enter into a marriage with her 19-year-old first cousin (all together now, can I hear an "EEEEEWWWWWW, YUCK" as you all picture a first cousin of the opposite gender and contemplate that for a second?), which resulted in the 19-year-old cousin insisting that the 14-year-old girl "be a wife" to him. (Let's all say EEEEEEEWWWWWW, YUCK again, shall we?)



There are so many things wrong with this scenario that I'm not even sure where to start, but, let me just throw this out, for sh*ts and giggles:



In most jurisdictions, FIRST COUSINS ARE NOT ALLOWED TO GET MARRIED.



(Again, I don't happen to know the law in the state of Utah, and, in fact, I would really be curious to know what the Utah code says on that point.)



And also, in most jurisdictions, FOURTEEN-YEAR-OLDS are not allowed to get married.



(See reference above regarding Utah).



Furthermore, just as a matter of curiosity, I highly doubt that these two crazy kids went to the county courthouse in whatever county this alleged "marriage" ceremony took place in to obtain a marriage license, and what do you want to bet that the marriage was not performed by a person who was licensed to perform marriages in the State of Utah? (Again, I don't KNOW this to be a fact, I'm just speculating that this so-called-marriage was NOT a legal marriage in any sense of the phrase "legal marriage".)



Moving on in my (admittedly haphazard and possibly ill-informed) legal analysis - in most jurisdictions, when someone has sex with a 14-year-old girl (with the possible exception of another person under the age of 17), regardless of whether or not the girl wanted to have sex, the act is RAPE. This is called statutory rape, which is very interesting from a legal standpoint, because it is one of the few crimes that does not require INTENT*.



Most crimes require that one intends to commit them. For example, if I go to the farmer's market to buy a packet of oregano, and I buy a baggie of green herbs, and I truly believe it is oregano, even if the bag is filled with marijuana, I'm NOT GUILTY of purchasing an illegal substance, because I BELIEVE I bought oregano. In order to be guilty of buying marijuana, I have to intend to buy marijuana. (Now, I am sure that most defense attorneys will tell you that they all have clients sitting in prison who have been burned on this point - but, I'm telling you what the theory says.)



But the thing with statutory rape is, it's still rape, EVEN IF the person who has sex with the 14- year-old DOESN'T KNOW she's 14. You can be guilty of statutory rape EVEN IF you don't INTEND to have sex with a 14-year-old. (You have to intend to have the sex, but, even if the girl shows up with a believable US Passport and Driver's License that SAY she's 18, if she's really 14, having sex with her is statutory rape.) You don't have to intend to have sex with an underage girl to be guilty, and the underage girl doesn't have to be unwilling. Willing or unwilling, intent or no intent - it's statutory rape.

But, oh! oh! oh! you might say. The boy was MARRIED to the girl. It's different. And she never TOLD anyone she was being raped, so THERE. (I think I've already established that the fact that she never told anyone she was being raped is irrelevant - even if she was a willing participant who was making daily runs to Miss Kitty's House of Trashy Lingerie for more intriguing bedtime costumes, if she was 14 and he was 19, it's Statutory Rape.)

Now, in some jurisdictions, marriage is very likely a defense to a charge of statutory rape. Let's say you have a 16-year-old who marries a 20-year-old. (I believe this would require the parental consent of the 16-year-old's parents, in most states at any rate). Under most circumstances, it would be statutory rape for a 20-year-old to knock proverbial boots with a 16-year-old, but, if they are MARRIED, well, now you have a different ball of wax. We expect married people to knock boots. (In fact, in my state, married people who have NEVER knocked boots together can get an annulment on that fact alone, which would imply that non-boot-knocking-married-people are not actually married at all.) Therefore, marriage would trump the statutory rape statute. However, this presumes a valid, legal, binding marriage.

And as I have state above, I highly doubt that the marriage in question was legally binding. And even it was, it surely should have either been void or voidable. (First cousins, under-age bride who was coerced into consenting through fear for her immortal soul, probably not performed by a licensed officiant, etc.)

So, if the marriage wasn't valid, it wouldn't be a valid defense to statutory rape. And if so, then anyone who facilitated the sex between the 19-year-old and the 14-year-old would be an accessory to that crime.

Therefore, if it is TRUE that Warren Jeffs arranged the (morally repugnant) marriage of a 14-year-old girl to her 19-year-old first cousin, and if that marriage was not legally binding, or even if it was, if it was VOID or VOIDABLE, then DAMN STRAIGHT I think he's guilty of rape as an accessory.

And I'm anxious to see if the jury agrees with me.

LM

*Curiously, bigamy is one of the few other crimes that do not require intent. Which means, I guess, if you accidentally marry two people, without meaning to do so, you're still guilty.