Violation or Salvation?
Warren Jeffs at a preliminary hearing in November with defense lawyers Tara Isaacson, Walter Bugden and Richard Wright. His accusers say the case against Warren Steed Jeffs is about child sexual abuse and nothing more.
Jeffs’ defenders say the polygamist leader is a simple preacher, singled out for prosecution because of his beliefs. Either way, Jeffs stood as the supreme authority figure over a 14-year-old-girl who accuses him of forcing her to wed her 19-year-old first cousin.
Jeffs united the two in April 2001 during a clandestine religious ceremony without benefit of a state marriage license. Now 20, the accuser told a Utah judge in November that Jeffs controlled her existence–mind, body and soul.
“I just constantly wanted to die because I was so scared,” she told Washington County District Judge James L. Shumate at a hearing to determine whether Jeffs should stand trial on sexual abuse charges.
“It was the darkest time of my entire life. It was one of the most painful things I’ve ever been through.”
Prosecutors have charged Jeffs, 51, as an accomplice to child rape. They say that he promised the girl salvation if she sexually submitted to her husband, and that he threatened her with damnation if she didn’t. In mid December, Jeffs was bound over for trial.
Jeffs heads the Fundamentalist Church of Jesus Christ of Latter Day Saints, one of numerous sects that broke from the mainstream Mormon church after it banned polygamy in 1890. With an estimated 10,000 members in Utah, Arizona, Colorado, Texas and British Columbia, FLDS is the largest and perhaps best known group that still embraces the custom of men taking multiple wives. In all, authorities estimate that as many as 30,000 people continue to practice polygamy in the western United States and Canada.
‘It was our Mission’
Under the FLDS brand of polygamy, god pairs men with young women–and often underage girls–through a revelation to Jeffs, who holds the title of prophet. Age is no consideration when God speaks through the prophet. It was the only way of life Jeffs’ accuser knew growing up.
“It was the highest honor we could ever imagine,” she told the judge as the lanky, wide eyed defendant stared at her across the packed courtroom. “It was what we lived for. … It was our mission.”
Jeffs awaits his fate in isolation at the that’s right–Purgatory Correctional Facility–outside St. George in southwestern Utah.
Prosecutors in Mohave County, Ariz., also have charged Jeffs and eight male disciples with similar sex crimes against children. Civil suits in the same vein and more are under way in Utah. The criminal charges earned Jeffs a spot on the FBI Ten Most Wanted list before his capture in August outside Las Vegas after two years on the lam.
The cases against Jeffs don’t stop at sexual abuse, as a far wider story of his unquestioned authority over his flock unfolds in courtrooms from Salt Lake City to northern Arizona. (See “Bearing Witness,” page 29.)
Prosecutors and lawyers for civil plaintiffs say their cases against Jeffs have nothing to do with polygamy or his beliefs. Instead, they say, the cases concern Jeffs’ actions.
Indeed, one civil complaint alleging that Jeffs and two of his brothers repeatedly molested a nephew reduces them to “dangerous child molesters, serial predatory pedophiles and/or child rapists that posed a constant, serious and ongoing threat to children.” Jeffs’ lawyer in the criminal matter agrees that polygamy won’t be an issue in the courtroom. In the prosecution of another FLDS member, the Utah Supreme Court held in May that evidence intended to depict polygamy as a healthy lifestyle was irrelevant to a charge of child sexual abuse.
But defense lawyer Walter F. Bugden Jr. of Salt Lake City says Jeffs’ polygamous beliefs nevertheless motivated prosecutors.
“The prosecution of Warren Jeffs is nothing but religious persecution,” Bugden declared to reporters after the November hearing in St. George. Even though the mainstream Mormon church banned polygamy more than 100 years ago and civil authorities later outlawed it as a condition for statehood, continued publicity about ongoing plural marriage practices remains a source of embarrassment for Utah officials. But Bugden says his client simply conducted a wedding service–outside the court’s jurisdiction in Nevada–and later counseled the couple when the union appeared headed for the rocks.
“Officiating at a wedding ceremony does not make Mr. Jeffs an accomplice to rape,” Bugden said.
Washington County prosecutors declined comment. But Utah Attorney General Mark L. Shurtleff, whose office is assisting in the case, says the state has so many polygamists that it simply can’t afford to prosecute them for practicing plural marriage alone without evidence of other, more serious crimes. Though bigamy, as polygamy is charged, can bring up to five years in prison, the sex charges against Jeffs carry maximum life terms.
“For the most part, people like Warren Jeffs were left alone,” says Shurtleff, who began taking a hard look at child abuse and other crimes in polygamous communities after he took office in 2001. “I think people were comfortable to leave them alone and look the other way. But when I found out what was going on, I said we just can’t look the other way.”
Still, Shurtleff and other authorities say that taken as a whole, the FLDS belief system and lifestyle–including polygamy and the overall treatment of women –enable what amounts to institutionalized child rape and other forms of abuse.
The Entire Show
In Jeffs’ tale, all roads lead to a place the locals call Short Creek. Pronounced “short crick” in the regional dialect, it’s a dusty desert community of 6,000 that straddles the Utah Arizona state line. Women lead almost cloistered lives in Short Creek, where ankle length, pioneer style dresses are standard apparel. They’re expected to obey their husbands–“stay sweet” in church parlance–and bear lots of children.
Jeffs, who reportedly has as many as 70 wives, presided over the faithful from inside a walled compound. Authorities say he didn’t just run the show in Short Creek, incorporated as Hildale on the Utah side of the line and as Colorado City on the Arizona side. Prosecutors in both states and dozens of civil plaintiffs say he was the show, commanding every aspect of life in Short Creek.
Jeffs assumed the role of prophet after the 2002 death of his father, Rulon Jeffs, who had headed FLDS since 1986. Authorities, however, say they believe Warren Jeffs actually began running things in the late 1990s after a series of strokes left his father disabled. By the time the elder Jeffs died, authorities say, Warren Jeffs controlled the police, the schools and most of the jobs in town. And they say he wielded ultimate power over family life as well. He could destroy families by exiling from the community men and boys who he determined violated FLDS doctrines. And he could build families by “assigning” women and girls to marry men often many years their senior.
Short Creek’s remote location and the group’s deep mistrust of outsiders geographically and socially isolate the FLDS enclave from the rest of Utah, Arizona and the world. Largely fueling that suspicion was a 1953 raid on the town by Arizona authorities in which 36 men were arrested on polygamy charges and nearly 350 women and children were removed to state custody. The lingering bitter aftertaste still leaves even FLDS dissidents reluctant to report abuse to child welfare authorities or law enforcement.
“They wanted to destroy our culture,” says Ross Chatwin, whom Jeffs excommunicated in 2004 after he refused the prophet’s order to leave his wife Lori and their six children. Seated next to her husband in the Short Creek home where they still live, Lori Chatwin crosses her index fingers as a warning to the state.
“Family services?” she says. “That’s like, back off. My dad was 3 years old when they hauled him away. My mom was born in bondage, in the captivity of the state.”
Polygamy lies at the core of FLDS doctrine. A man must have at least three wives to reach the highest level of heaven. Women can only ascend to heaven if husbands take them there. Thus, polygamy wields the formidable weapon of salvation over the heads of sometimes reluctant young brides.
For polygamy to work as intended, church leaders must keep the male population in check to reduce the competition for suitable brides. Jeffs accomplished that in two ways, according to court documents and lawyers in the civil cases.
First, he would order parents to take their sons, some as young as 13, to distant cities and abandon them on the streets as punishment for such infractions as wearing short sleeves or ogling girls. Shurtleff, the attorney general, estimates that over the years Jeffs expelled as many as 400 “lost boys” in that fashion.
Second, Jeffs would banish men from the community, including some rival church leaders, often based on claims that they had mistreated their wives. He then would “reassign” the women to other men whom he deemed appropriate. At his disposal, Jeffs had an FLDS trust that owns most of the property in Short Creek. He used it to expel dozens of men by calling them tenants at will and claiming the power to evict them.
The Utah attorney general’s office went to court and in 2005 succeeded in replacing Jeffs and members of his inner circle with new trustees, giving residents a chance to own their own homes.
Utah and Arizona also have moved to revoke certifications of the community’s police officers, whom authorities describe essentially as henchmen who carried out Jeffs’ orders. And the Utah Supreme Court in 2006 booted a polygamous local magistrate off the bench in Hildale, saying his illegal relationships with three women brought his office into disrepute.
Jeffs defaulted on the trust case and on cases brought on behalf of the lost boys and the nephew who accused him of molestation. A civil case filed for the 14 year old Utah bride is on hold pending resolution of the criminal charges.
Jeffs and the church just refused to defend themselves, says Salt Lake lawyer Rodney R. Parker, who has represented the church and its members for 15 years. “They felt they weren’t able to get a fair shake in the courts.”
By defaulting in the trust case, Jeffs abandoned assets valued at $110 million. But he hasn’t rolled over in the criminal case. For example, he’s gone to federal court in Las Vegas to try to recover laptop computers, computer memory storage devices, and lists of individuals giving him money or providing him with safe houses. The FBI seized the items after Jeffs was arrested. He argues that they contain privileged communications between church members and their pastor.
However, Jeffs still will have to face his accuser in a Utah courtroom.
The girl learned that she was to marry after Jeffs evicted her father and moved the rest of her family into her uncle’s home, which had 30 bedrooms to accommodate various wives and children. Years later she told the court that she wasn’t ready to marry anyone, let alone her cousin.
She at first thought there was some mistake when her–uncle and father-in -aw-to-be–broke the news in early April 2001 that Jeffs had found a place for her. A few days later, she learned that the prospective groom was her cousin when he entered the room at a family gathering.
“He walked directly over and sat right next to me,” she recalled from the witness stand. “It clicked in my mind.”
She remembered her cousin as someone who bullied her as a young child and teased her about her weight.
“I was horrified,” she said. “When I finally realized who they wanted me to marry, I got up and immediately walked out of the room.” Despite protests to her uncle and to Jeffs, within a week, the girl said, she found herself in an auto caravan with other child brides headed to a motel in remote Caliente, Nev., where Jeffs would conduct a series of ceremonies. In order to avoid arousing suspicion from police on the highway, the participants would only change into wedding garb once they reached their destination. Nor would Jeffs allow photographs as the girls came before him.
“They didn’t take pictures there because they didn’t want the prophet to be placed in jeopardy,” she testified. She remembers reluctantly taking the groom’s hand, but stalling when Jeffs asked her to recite her vows.
“I still couldn’t say anything, and the silence became unbearable,” she testified, remembering the 6-foot-5 Jeffs towering over her. “He was drilling a hole in me with his eyes.”
Eventually, she sputtered out a quick “I do” and gave the groom a peck on the cheek. Then she ran out and locked herself in a motel bathroom. “I felt completely defeated and trapped.”
FLDS doctrine requires women to submit unconditionally to men, though it speaks of sex euphemistically as “husband wife relations” and with phrases such as the familiar biblical command to “be fruitful and multiply.” Prosecutors say Jeffs became an accomplice to rape when he refused a series of requests from the girl to release her from the marriage.
“I needed to go home and give myself–mind, body and soul to [my husband],” the accuser testified, describing Jeffs’ reaction to one of her pleas. “I felt devastated. I felt like no one would listen to me. I felt like a very wicked person. I felt hollow and numb, and I just didn’t know what to do.”
She finally left her husband in late 2004, after she turned 18.
Defense lawyers question how prosecutors can charge their client as an accomplice when the groom himself has not been charged with rape. Prosecutors, though, cite a 1999 Utah Court of Appeals decision upholding the accomplice conviction of a defendant who married off his 13 year old daughter to a 48 year old man, even though the man was a fugitive at the time of trial. State v. Chaney, 989 P.2d 1091.
One observer familiar with the case doesn’t give Jeffs’ argument much of a shot.
“This is just standard accomplice law,” says University of Utah criminal law professor Erik Luna. “Does the head of a Mafia family have to be present at a hit? Of course not.”
Like organized crime cases, getting witnesses to take the stand against Jeffs hasn’t been easy. Five people with FLDS ties went to jail for contempt last summer in Arizona after they refused to testify to a federal grand jury investigating the church.
One of Jeffs’ brothers, Seth, pleaded guilty to harboring a fugitive after he was arrested in Colorado in late 2005 with $142,000 in cash, another $7,000 in prepaid phone and debit cards, and letters addressed to Jeffs. Seth Jeffs told FBI agents at the time that no FLDS member ever would help authorities find his brother.
So Utah prosecutors got a break when the girl came forward in early 2006 through her civil lawyers.
Jeffs could dispute the girl’s account. But he may do so at his own peril, because her story is consistent with FLDS teachings. So while denial of at least some elements could carry weight with jurors, Jeffs also risks losing credibility with his followers, who instead may view it as a denial of a central tenet of his–and their–faith.
“It’s a narrow path for him to walk,” Luna says.
Though polygamy will likely stay out of the courtroom, defense lawyers do expect to use other aspects of religious freedom that revolve around the choice of words used by Jeffs and his accuser. The accuser testified in November that Jeffs never expressly told her to have sex or engage in intercourse. By the same token, she also testified that she never complained to Jeffs in so many words that she had been raped.
“The government’s theory is that the promise of salvation is tantamount to a threat,” defense lawyer Bugden says. “The problem is that the kind of remarks Mr. Jeffs makes are the same that any fundamentalist minister would make when counseling a young couple with marital difficulties–be fruitful and multiply, replenish the earth and that sort of thing. That sort of speech is protected by the First Amendment as religious freedom. For the state to twist this into a threat runs afoul of the First Amendment.”
Thus jurors may have to decide whether to accept FLDS euphemisms about sex as equivalent to the real thing. “Religion is not really the centerpiece of the defense,” Bugden says. “It’s a factual defense.”
Seeking Receptive Jurors
But first, Jeffs needs jurors who are willing to listen. That could be difficult, if not impossible, says FLDS lawyer Parker. He unsuccessfully defended church member Rodney Hans Holm, who was charged with bigamy and unlawful sexual conduct with a 16 year old, in 2003 in the same courthouse where Jeffs is expected to stand trial. (See “Wedded to the Law,” page 31.)
Parker says he encountered deep hostility toward his client from a jury pool that consisted mostly of older, mainstream Mormons, many of whom had retired and moved to St. George from Salt Lake City. Though the mainstream church and Utah’s political establishment view polygamy as a black eye on the state, Parker says he mistakenly figured attitudes in St. George would be softer because prospective jurors had encountered FLDS members in their daily lives.
“At one point, the judge commented that he was surprised at the level of prejudice that we encountered,” Parker recalls. “I thought the prosecution’s case was weak, but the jurors didn’t seem to have much trouble with it,” Parker says. The eight jurors returned their verdict in about an hour. So what does that mean for Jeffs?
“I think they’re going to have a helluva time getting a fair jury down there,” Parker says.
While Warren Jeffs probably won’t be able to defend himself in Utah with evidence justifying polygamy, jurors across the state line in Arizona have received extensive lessons on plural marriage in trials of FLDS members from Colorado City. Like other prosecutors, Mohave County Attorney Matthew J. Smith–whose office is prosecuting eight of Jeffs’ followers on charges of having sex with their teenage brides–has problems getting the girls to testify against their husbands. Of four cases he has tried in the last year, including one before the bench, Smith has coaxed only one victim onto the stand. And the judge locked her up for contempt after she refused to testify once she got there.
“The people who live there don’t consider themselves victims,” Smith explains. Because the defendants have fathered children by the victims, Smith still can prove the charges by using birth records. But jurors can be skeptical if no victim shows up in court. Smith needed a way to explain the absence.
So when defense lawyers moved to present testimony that polygamy and FLDS aren’t the bogeymen the state depicts, Smith turned the tables on them. “Initially I was going to oppose it, but then I thought, ‘I don’t have a victim here.’ ”
In the three jury trials he’s conducted, he’s put on disaffected FLDS members who describe the church’s treatment of women. “They’re supposed to have children and keep their mouths shut,” Smith says. The score so far: Arizona 2 convictions, FLDS 1 acquittal. One case was dismissed for lack of venue.
Needless to say, the tactic doesn’t sit well with defense lawyer Bruce S. Griffen of Flagstaff, who represents all eight men. He says Smith unfairly trashes FLDS, adding that two of the women who refused to testify have written letters on their husbands’ behalf. “The reality is … they’re happily married and they don’t want to testify against the person they go home with each night,” Griffen says. “They don’t consider themselves to be victims of anybody other than the state of Arizona.”
Wedded to the Law
It was a sad day for U.S. Supreme Court Justice Antonin Scalia when his colleagues in 2003 held unconstitutional a Texas law banning homosexual sodomy between consenting adults.
The decision, Scalia wrote in dissent, also could mean the demise of “state laws against bigamy, same sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.” Lawrence v. Texas, 539 U.S. 558.
“Every single one of these laws is called into question by today’s decision,” Scalia griped.
Now polygamists hope Scalia’s prediction will come to pass as the justices decide whether to accept the case of an FLDS member convicted of bigamy for marrying two women and a 16 year old girl. In a move that may signal more than a passing interest from the justices, the court has asked the state to respond to the man’s request to hear the case. Holm v. Utah, No. 06 535.
Utah Attorney General Mark L. Shurtleff says his office ordinarily isn’t asked to respond to Supreme Court cert petitions, so the justices’ request in Holm suggests to him that they mean business.
“Ever since Scalia’s dissent, we knew that question would have to be answered someday,” Shurtleff says.
The case also may present one of the last chances for polygamists to take a crack at the Supreme Court. “Circumstances sort of create opportunities,” says Salt Lake City lawyer Rodney R. Parker, who represents former police officer Rodney Hans Holm of Hildale, Utah.
In May, the Utah Supreme Court affirmed Holm’s 2003 convictions for bigamy and unlawful sexual conduct with a child. State v. Holm, 137 P.3d 726.
Rather than attacking polygamy head on with bigamy charges, prosecutors have begun to concentrate on more serious crimes that occur in those communities. Because Holm’s is one of the few cases where prosecutors also have charged bigamy, Parker says time may be running short to challenge laws outlawing plural marriage.
“It gives us a mechanism to do this,” Parker says.
Holm is appealing only his bigamy conviction, not his convictions on three counts of sexual abuse, which aren’t elements of the single bigamy count he faced. Each conviction got him a five year prison sentence and a $3,000 fine, both of which were suspended in exchange for a year in work release, three years’ probation and 200 hours of community service.
In 1878, the U.S. Supreme Court upheld a federal law criminalizing polygamy in the case of a member of what later would become the mainstream Mormon church, whose founders settled the Utah territory. Reynolds v. United States, 98 U.S. 145.
In his state appeal, Holm relied heavily on Lawrence, in which five justices held that the Texas sodomy statute violated due process. A divided Utah Supreme Court read Lawrence narrowly to exclude practices that injure people meaning sex with an underage girl in Holm’s case or that attack legally recognized institutions such as marriage.
In dicta, however, concurring Justice Ronald E. Nehring lamented what Utah lawyers on both sides of the issue see as the underlying current that drove the decision.
“No matter how widely known the natural wonders of Utah may become, no matter the extent that our citizens earn acclaim for their achievements, in the public mind Utah will forever be shackled to the practice of polygamy,” Nehring wrote. “I also suspect that I have not been alone in speculating what the consequences might be were the highest court in the state of Utah the first in the nation to proclaim that polygamy enjoys constitutional protection.”
Though Holm argues due process in his U.S. Supreme Court petition, he also focuses on equal protection, which concurring Justice Sandra Day O’Connor used to add a sixth vote against the Texas law. O’Connor complained the law unfairly punished deviate homosexual acts, while ignoring the same conduct between heterosexual partners. Dissenting Utah Chief Justice Christine M. Durham, using a due process analysis, elaborated, saying the Holm majority’s reasoning could apply to all sorts of living arrangements and conduct outside legally recognized marriage.
“Indeed, the act of living alone and unmarried could as easily be viewed as threatening social norms,” Durham wrote. Recognition of polygamous marriages, however, also can create untold practical problems, maintains attorney general Shurtleff. While Holm had three wives, some polygamists marry dozens of women and father scores of children. That could cause massive headaches in trying to divvy up child support payments in divorce or in allocating property in probate.
“You’re going to have to rewrite a whole lot of laws if you legalize marriages like this,” Shurtleff says. “So this goes way beyond Lawrence.”
John Gibeaut is a senior writer for the ABA Journal.
John Gibeaut is a senior writer for the ABA Journal.