The Crime

The law in every state prohibits a man or a woman from being married to more than one living person at a time. The crime of having more than one current spouse is called either bigamy (having two spouses) is a subset of the crime of polygamy (having more than one spouse), and the law makes no practical distinction between the two. Even in states that separately criminalize both polygamy and bigamy, either crime is committed when a married person first enters into an unlawful marriage with a second person. However, additional marriages beyond the second would support prosecution for additional criminal counts and possibly a longer sentence.

Most states base their polygamy laws on the Model Penal Code section 230.1, which provides that a person is guilty of the third-degree felony of polygamy if he or she marries or cohabits with more than one spouse at a time in purported exercise of the right of plural marriage. The crime is punishable either by a fine, imprisonment, or both, according to the law of the individual state and the circumstances of the offense. The crime of polygamy is deemed to continue until all Cohabitation with and claim of marriage to more than one spouse terminate. Polygamy laws do not apply to Aliens who are temporarily visiting the United States, provided that polygamy is lawful in their country of origin.

The existence of a valid marriage entered into by the defendant prior to the second valid marriage is an essential element of the offense in every jurisdiction. No particular type of ceremony is required for the first or subsequent marriage before someone can be prosecuted for polygamy. Even persons who satisfy the requirement for a Common-Law Marriage can be prosecuted for entering a subsequent marriage that itself is either another common-law marriage or a traditional marriage.

Cohabitation is not typically a requisite element of the offense. Merely entering into a second marriage with knowledge that one is currently married to another living person will support an indictment for polygamy. An indictment for polygamy will not be found unlawful even if the defendant offers proof that his or her first marriage was a voidable marriage, or one that is valid until annulled. If neither party to a Voidable marriage successfully voids the marriage by obtaining an Annulment, then the remarriage of either constitutes polygamy.

Ordinarily the state in which the polygamous marriage occurred has jurisdiction over prosecution of the crime. Some statutes, however, provide that the accused may be convicted in the state where the polygamous cohabitation takes place, even though the marriage occurred elsewhere. For example, California law provides that "when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge." Cal. Pen. Code § 281.

Defenses

Under certain statutes it is not considered polygamous for an individual to remarry after a certain period of time has elapsed during which the former spouse was absent and thought to be dead. For example, California exempts from its law "any person by reason of any former marriage whose husband or wife by such marriage has been absent for five successive years without being known to such person within that time to be living." Cal. Pen. Code § 282. Remarriage before the expiration of the statutory period, however, constitutes polygamy, even if the missing spouse later turns out to be dead, since the first marriage is still regarded as valid until the statutory period lapses.

In some jurisdictions a sincere and reasonable belief that a valid Divorce has been granted is a defense to polygamy. In most jurisdictions, however, it is not a defense. It is sometimes said that polygamy is a strict-liability offense because the prosecution need not prove

a criminal intent to obtain a conviction, and defendants may not rely on erroneous legal advice, ignorance, or mistake law as a defense. However, prosecutors are more likely to pursue indictments against persons who knowingly enter into a polygamous marriage than against persons who enter a second marriage under a Good Faith belief that their first marriage has been nullified.

As mentioned above, a person who successfully annuls his or her first marriage before entering a second marriage cannot be prosecuted for polygamy. The same rule applies to persons who successfully have their marriage dissolved by divorce or nullified for any other reason before entering the second marriage. However, a divorce or annulment obtained subsequent to a second polygamous marriage is no defense. Nor will a solemnly held religious belief that it is not unlawful to have more than one spouse serve as a defense to an indictment for polygamy. In affirming the criminal conviction of a Mormon for practicing polygamy, the U.S. Supreme Court rejected the argument that a Utah law prohibiting polygamy violated either the Establishment or Free Exercise Clauses of the First Amendment to the federal Constitution. (Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L. Ed. 244 (1878).