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Bills would close incest law loophole

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Bills would close incest law loophole

Paton & Lujan seek to change 'quirk in law'

A loophole in Arizona’s law against incest handcuffs officials wanting to crack down on polygamists who marry relatives under age 18, according to two state lawmakers.

Sen. Jonathan Paton, R-Tucson, and Rep. David Lujan, D-Phoenix, thwarted last session when they co-sponsored legislation on the issue, have introduced separate bills to make the incest law apply when victims are minors. The law currently defines incest as between adults.

Paton’s bill, SB 1061, which received a unanimous endorsement Monday from the Senate Judiciary Committee, would make incest with a minor a Class 2 or Class 3 felony, carrying sentences ranging from two and a half years to 10 years, depending on whether the child is 15 or older or younger than 15.

Paton said the “quirk in the law” became glaringly apparent in the prosecution of polygamist leader Warren Jeffs in Mohave County. In 2008, a Superior Court judge dismissed four counts against Jeffs involving marriages allegedly arranged between two underage girls and their adult half-cousins, citing the wording of the incest law.

Jeffs still faces four other counts alleging that he acted as an accomplice in sexual misconduct with a minor.

Assistant Attorney General Tim Linnins, who specializes in cases out of Colorado City, told the committee that based on the way the law is written a polygamist is better off marrying a relative under 18.

In a telephone interview, Mohave County Attorney Matt Smith said the change would make it easier to combat polygamy involving relatives.

“If you have a 40-year-old and a 12-year-old, it’s not incest, as absurd as that might seem,” he said.

Authorities can charge those accused of incest with a minor with sexual conduct with a minor, a Class 6 felony carrying a sentence of up to 18 months.

Lujan, who is running for state attorney general and works as a staff attorney for a child welfare group, seeks the same change in HB 2206, which has yet to be scheduled for committee.

The same legislation made it out of a House committee last year but failed to advance as the budget crisis gripped the Legislature.

Meanwhile, Lujan is trying again for a law that would bar judges from granting child custody or unsupervised visitation to parents involved in child bigamy, which includes married adults taking minors as spouses and adults causing minors to marry adults who already have spouses.

He said HB 2207, which would apply unless a judge states in writing why custody or unsupervised visitation poses no threat to a child, would eliminate one of the biggest obstacles for women seeking to leave polygamist communities.

“When women seek to get out of polygamous relationships, the first thing they do when they leave is file for custody to get their kids out of that type of relationship,” Lujan said. “I have seen, time and time again … the courts will give joint or sole custody to the polygamous fathers.”

His bill on the subject was held in committee last session.

Lujan said he supports Attorney General Terry Goddard’s approach to dealing with polygamy.

“I think the proper approach is not to go after polygamous marriages themselves but to go after the abuses that are occurring, like child bigamy and welfare fraud,” he said.

Quick facts

Here are key facts about bills dealing with issues related to polygamy.


  • Bills: SB 1061 and HB 2206
  • Sponsors: Sen. Jonathan Paton, R-Tucson, and Rep. David Lujan, D-Phoenix
  • Key Provisions: Each bill would make incest between an adult and a child a felony. The severity of penalties would increase for younger victims
  • Reason: Arizona’s law on incest doesn’t apply to those younger than 18. That language caused a state judge to drop several charges alleging that polygamist leader Warren Jeffs was an accomplice to incest with a minor
  • Status: Paton’s bill won a unanimous endorsement Monday, Jan. 25, from the Senate Judiciary Committee; Lujan’s bill has yet to be scheduled for committee

Child bigamy

  • Bill: HB 2007
  • Sponsor: Rep. David Lujan. D-Phoenix
  • Key Provision: Judges would be barred from granting full or joint custody or unsupervised visits to those who have engaged in child bigamy, a felony that includes instances in which a married person marries a minor, unless a judge specifies in writing that there is no threat
  • Reason: Lujan says women are less likely to leave polygamist marriages when they’ve heard about other women who have lost custody of their children
  • Status: The bill has yet to be scheduled for committee

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