He has a blog, Gruntled Center, which has been up for a while now and it's probably the only non-blawg that I try to make a point of checking in on fairly regularly. Its topics range from sociology, to religion, to politics, and even law. Most of the time I'm not really qualified to comment upon the subjects he raises – not that this always stops me (I am a blogger after all). However, last week (and in September also) Dr. Weston commented upon the trial and conviction of Warren Jeffs for rape. He implies that the conviction is on less than solid grounds and opines that it is "iffy" and "stretches the rape law beyond the plausible." This falls well within the area of my supposed expertise, so I thought I'd try to explain exactly why Jeffs is guilty.
One caveat: I am not an expert on Utah law so I will mostly rely on Virginia law and general legal knowledge to explain why Jeffs is guilty.
Warren Jeffs is the leader of a religious group. As such, he ordered a 14 year old girl to marry a 19 year old boy. He was charged with rape as an accomplice, convicted, and sentenced to 10 years to life (two consecutive 5 to life sentences).
"What's wrong with this trial is the charge. Jeffs is charged with being an accomplice to rape for ordering an underage girl to marry, and presumably have sex with, a man who was a legal adult. The charge stretches rape law beyond the plausible. The prosecutors might lose, and Jeffs would slip away. Worse, they might win. If counseling people to marry, or return to a marriage, which presumably would include sex, could be legally construed as assisting rape, then anyone offering marital advice could be liable for prosecution."
Explaining the Conviction:
First of all, let's distinguish this case from marriage counseling. There are two factors which clearly distinguish the case at hand. First, there was no counseling here – it was an order. Second, and more important, is that the girl appears to be under the age at which she can consent to sex; this age varies from State to State, but 14 is almost always under the line (in Virginia sex with a 14 year old is actually “carnal knowledge” - sentence: 2-10 years).
Virginia law varies from the common law norm in that a person who caused a rape is a principal in the first degree (actual actor). However, since Jeffs was charged with rape as an accomplice, it appears that Utah has maintained the common law doctrine that only the person who accomplished the intercourse is a principal in the first degree.
In Virginia accomplices are divided into two groups: principals in the second degree and accessories before the fact.
Principle in the Second Degree
A principal in the second degree is one who, with the requisite mental state, is actually or constructively present at the commission of the crime assisting the perpetrator in its commission.Accessory Before the Fact
An accessory before the fact is a person who, sharing the criminal purpose of the perpetrator, encourages or assists in the commission of the crime, but is absent from its commission.Definitions from Criminal Offenses and Defenses in Virginia
I'm going to assume that Jeffs wasn't present when the sex took place. This makes it unlikely that he is a principal in the second degree. While being guilty as a principal in the second degree doesn't require actual presence, its constructive presence seems to require a contemporaneous act like being a lookout or getaway driver. Overall, it's an ill fit.
On the other hand, accessory before the fact fits like a glove. Assuming a traditional understanding of marriage, consummation is a part of marriage. The 14 year old girl is unable to consent to sex. The criminal purpose of her husband is to consummate the marriage. By ordering the marriage, Jeffs is purposefully assisting in the commission of the crime even though he will not be present when it occurs.
That's pretty solid ground for a conviction. Under Virginia law the punishment for being either type of accomplice is the same punishment as being the actual actor because of the causal relationship. I don't know if the same is true under Utah law.
Now, before some of you legal eagles out there start pointing out the potential flaws in this fairly basic examination of the law in this type of matter, let me fall on my own sword first. I see three possible major flaws in the analysis above. The first is that Utah's law may set the statutory rape age below 14. The second is that Utah's law may have a marriage exception. For example, under Virginia law if the man marries the 14 year old, she lives with him, and he supports her the case is stayed until she is 16 and then dismissed. The third is that Utah might have an unusually long 5 year proximity rule (most States do not make it illegal for those within 3 years to have sex).
If any of those flaws are true the case becomes far more reliant on facts rather than legal analysis. A conviction would require a demonstration that Jeffs' power was such that there was no possibility that the order to marry – and, by implication, consummate – could be disobeyed. If he had his religious group as tightly under control as Dr. Weston describes this might not be all that difficult a case to make. It would still be a solid accessory before the fact case and it might even rise to the level of a case of principal in the second degree under a theory that when the involuntary sex occurred Jeffs was at that time maintaining an atmosphere in the group which watched out for and condoned the man undertaking the actual act.
Certainly, this is an unusual case and an analysis actually using Utah's statutes and case law would bring variations upon the framework I've set out above (every State seems to deal with accessories a little differently). Nevertheless, there's a solid case here.