[News] St. George, UT - With the opening arguments in the trial of Warren Jeffs slated for this afternoon (the final jury--eight members and four alternates--were being selected this morning), it's a good time to take a closer look at the actual charges that Jeffs faces.
As has been reported over and over again, Jeffs is not on trial for polygamy (Judge James Shumate reemphasized yesterday that, "Polygamy has nothing to do with the case"), but that he is charged with two counts of Rape as an Accomplice. But what has received little attention is what those charges actually mean.
"It's a kind of a case of creative charging, because in reality there are no charges that are a perfect fit for the crime Warren Jeffs allegedly committed," says Daniel Medwed a professor at Utah's S.J. Quinny School of Law, where he specializes in criminal procedure.
Rape as an accomplice, as defined in the original indictment against Jeffs, is a combination of that Utah's Rape of Minor statute, and the state's Criminal Responsibility statute. "And, by facilitating these underage 'celestial marriages,' that is, in essence, what Jeffs [allegedly] did. But," Medwed adds, "The charges are not a good fit in that Rape as an Accomplice is usually prosecuted when it is rape in the forcible sense, as opposed to the statutory sense." Meaning that it is usually the explicit assistance of sexual battery, as opposed to assisting in the enticement of sex with a minor, which the Rape of Minor statute hinges on.
There is precedent though for Utah using these charges to prosecute quasi-religious 'spiritual marriages.' In 1997, John Perry Chaney was convicted of rape as an accomplice for marring his then-14 year-old daughter to a 48 year-old man. The prosecutor in that case, Craig Barlow of the Utah Attorney General's office, is now assisting the prosecution in the Jeffs case.
But because of the unique context in which the Rape as an Accomplice charge has been applied in both the Chaney and Jeffs cases, it has led some, including Jeffs's lawyers, to cry religious persecution.
"I think there is a strong argument to be made that this is somewhat of malicious prosecution," says Medwed. "It's not totally clear if these celestial marriages were a license for sex, and while it doesn't seem very consensual, we also aren't going after the high school senior who introduces a classmate to a freshman girl."
The Washington County Attorney's office declined to respond specifically to Professor Medwed's comments, but spokesman Brian Filter did say that a number of this issues had already been addressed in pretrial hearings (including a motion by the defense challenging the validity of the Rape of a Minor statute, on the grounds that it was too vague, which was dismissed by Judge Shumate). "We're going to present argument in the proper forum," says Filter, "In court."
"All it takes is one juror who cringes at the perceived notion of religious persecution, and that's a mistrial that could result in an acquittal," says Medwed. "Don't underestimate how hard this case could be for the prosecution."
Which leads back to a rumor that has been flying around Utah's legal community for several months now, that the state's case could be shaky. The rumor stems from U.S. Attorney Brett Tolman's decision, apparently at the state's request, to indict Jeffs on federal unlawful flight charges, a rarity when the defendant is facing much more saver charges (unlawful flight carries a maximum five-year sentence). Nothing has come along to substantiate this rumor, but it continues to persist.
"This is a risky case for both sides. If the prosecution loses, it could reinvigorate the FLDS, not to mention embarrass those involved. For the defense, the stakes in a rape trial couldn't be higher," says Medwed. "I really wouldn't be surprised if we saw some sort of last minute plea deal, possibly on lesser financial charges." (Louis Godfrey)