Author's Note:
California's very short because of how non-mono friendly it is, VERY few laws have any affect on non-monogamists. Go golden state!
- Jason
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Non-Monogamous Families and the Law, Part 4: Summary of California Laws
Adultery:
California has no laws regarding adultery, and as such is very non-monogamous friendly. This absence makes the state very friendly to swingers and open relationship families in particular.
Bigamy:
California does possess bigamy laws; however, they lack the trappings of other states, for example a lack of co-habitation and/or purportation clauses in the bigamy laws (California State Legislature, 2011a). The simplicity of California bigamy laws makes for a relatively safer environment for non-monogamists. Strangely absent are solicitation, conspiracy and attempt laws that affect bigamy. This absence removes yet another level of liability for non-monogamists.
Despite this, in the event that there is a legal multi-partner marriage (and not just the appearance of such), Bigamy is still considered a criminal offence and is subject to up to one year of jail time and a fine between $5,000 and $10,000 (California State Legislature, 2011b; California State Legislature, 2101c). Liability for bigamy extends not only to the bigamous partner, but also to the partner being married in to the family, provided this person knows of the arrangement (California State Legislature, 2011c).
Cross-Relation between the Laws:
Due to the absence of adultery laws, and the simplicity of California’s bigamy laws, California shows itself to be a very non-monogamous friendly state. The only liability that non-monogamists have is under the bigamy laws, and that’s only if there is actually multi-partner marriages within the family unit. Since this is only a concern for polyamorists and polyfidelitists, swingers and open relationships have no liability under California law.
Non-Monogamous Strategies:
Because of the limited liability that exists in California for non-monogamists, there really is only one way to avoid liability entirely for non-monogamists: Make sure you’re only married to one person at a time. As long as no one in the family possesses a legal marriage to more than one person at a time then there is no liability under California law.
References
California State Legislature. (2011a). (California Code 281). Sacramento, CA: California State Legislature.
California State Legislature. (2011b). (California Code 283). Sacramento, CA: California State Legislature.
California State Legislature. (2011c). (California Code 284). Sacramento, CA: California State Legislature.
Sunday, September 25, 2011
Non-Monogamous Families and the Law, Part 3: Summary of Arkansas Laws
Non-Monogamous Families and the Law, Part 3: Summary of Arkansas Laws
Adultery:
Arkansas shows itself to be quite friendly in regards to adultery, in that it doesn’t have any criminal law regarding adultery. The only references made to adultery in Arkansas are in regards to divorce (Arkansas State Law, 2011m; Arkansas State Law, 2011n). There is even some level of internal equity protection in that consensual adultery (called collusion in Arkansas law) cannot be grounds for divorce (Arkansas State Law, 2011o). This frees up a tremendous liability for non-monogamists.
Bigamy:
Arkansas Bigamy law is unfortunately strong against non-monogamous families, compared to its absent adultery laws. Bigamy in Arkansas is based on the appearance of more than one marriage (Arkansas State Law, 2011l). Though this wouldn’t affect swingers and open relationships very much, it is likely to affect polyamorists and polyfidelitists. Bigamy is considered a Class A misdemeanor in Arkansas, a mid-level criminal offence, that is subject to jail time of up to one year and/or a fine of up to $2,500. As written, only the person(s) purporting to have multiple marriages are subject directly under Arkansas bigamy laws (Arkansas State Law, 2011j; Arkansas State Law, 2011k; Arkansas State Law, 2011l).
However, like most states, Arkansas possesses criminal inchoate/supportive laws around attempt, solicitation and conspiracy. This opens up the liability so that many others could potentially be liable both within and associated with the polyamorous or polyfidelitous family. The laws are broad enough (especially the conspiracy laws) that anyone supporting, helping or assisting in the appearance of a multi-partner marriage situation is liable under Arkansas’s inchoate laws. This would be considered a Class B misdemeanor and is subject to jail time of up to 90 days and/or a fine of up to $1,000. As standard for conspiracy laws, not all individuals involved need to know each other to be liable (Arkansas State Law, 2011a; Arkansas State Law, 2011b; Arkansas State Law, 2011c; Arkansas State Law, 2011d; Arkansas State Law, 2011e; Arkansas State Law, 2011f; Arkansas State Law, 2011g; Arkansas State Law, 2011h; Arkansas State Law, 2011i; Arkansas State Law, 2011j; Arkansas State Law, 2011k).
Fortunately Arkansas puts bigamy under the misdemeanor category, so it is not subject to escalation from repeat offences, each successful charge of bigamy (or inchoate bigamy) carries the same liability.
Cross-Relation between the Laws:
The absence of criminal adultery laws in Arkansas frees up most swingers and open relationships from liability, and the laws disallowing divorce on the grounds of consensual adultery also help to maintain a level of internal equity within these relationships. Unfortunately the gains for swingers and open relationships are lost with polyamorists and polyfidelitists due to Arkansas bigamy laws.
Arkansas bigamy laws specifically focus on the appearance of multiple marriages, which can be dangerous for polyamorists and polyfidelitists depending on how they present their family. With Arkansas criminal inchoate laws as well, not just the members of the family are liable as well, but anyone associated who also purports that there is a multi-partner marriage, which expands beyond any outside partners that a polyamorous family would have.
This would be especially dangerous to polyamorous and polyfidelitous families of religious background that allows multi-partner marriage (some wiccan and pagan traditions, for example) because a ceremonial marriage could be argued to qualify as purporting to a multi-partner marriage, and fall under Arkansas bigamy laws.
Non-Monogamous Strategies:
Swingers and open relationships have it very easy in Arkansas, as long as they don’t appear to have a multi-partner marriage going, they have no criminal liability. Unfortunately polyamorists and polyfidelitists suffer from the constant need to check the public presentation of their family. Things like ceremonial marriages, referring to each other as married, co-habitation, and anything that appears to be a marriage-like arrangement puts both the family and anyone associated with creating that public perception under criminal liability. Because of the lack of adultery laws, this impact can potentially affect both polyamorous and polyfidelitous families equally.
References
Arkansas State Legislature. (2011a). Liability for conduct of another generally. (Arkansas Code 5-2-402). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011b). Accomplices. (Arkansas Code 5-2-403). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011c). Conduct constituting attempt. (Arkansas Code 5-3-201). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011d). Complicity. (Arkansas Code 5-3-202). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011e). Classification. (Arkansas Code 5-3-203). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011f). Conduct constituting solicitation - Classification. (Arkansas Code 5-3-301). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011g). Conduct constituting conspiracy. (Arkansas Code 5-3-401). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011h). Scope of conspiratorial relationship. (Arkansas Code 5-3-402). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011i). Classification. (Arkansas Code 5-3-404). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011j). Fines – Limitations on Amount. (Arkansas Code 5-4-201). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011k). Sentence. (Arkansas Code 5-4-401). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011l). Bigamy. (Arkansas Code 5-26-201). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011m). Divorce or separation. (Arkansas Code 9-11-808). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011n). Grounds for divorce. (Arkansas Code 9-12-301). Little Rock, AK: Arkansas State Legislature.
Arkansas State Legislature. (2011o). Effect of collusion, consent, or equal guilt of parties. (Arkansas Code 9-12-308). Little Rock, AK: Arkansas State Legislature.
Saturday, September 24, 2011
Non-Monogamous Families and the Law, Part 2: Summary of Arizona Laws
Author's Note:
Yes, I skipped Alaska, their website is a nightmare and I can't seem to find an easy way to look through their laws. If anyone's familiar with the Alaska State Legislature website, or where I can find a copy of their laws, please tell me.
- Jason
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Adultery:
Arizona’s adultery laws are fairly strong, affecting both participating parties (Arizona State Law, 2011j). This gives increased liability to all non-monogamists; for swingers, open relationships and polyamorous families this is reflected in the increased liability that outside partners possess under Arizona law.
One fortunate protection that non-monogamists do have from adultery in Arizona is that adultery charges can only be brought up by an offended partner (Arizona State Law, 2011j). Though this doesn’t eliminate adultery as a liability for non-monogamous families, it does make it so that an outside agency (neighbor, schoolteacher, minister, etc.) can’t initiate any legal proceedings based solely on the non-monogamous lifestyle. There is still liability from within a non-monogamous family however, in that a begrudged partner can use the adultery laws as legal leverage within the family.
Adultery is considered to be a class 3 misdemeanor, a low-level criminal offence, and is punishable with up to thirty days of jail time and/or a fine of up to $500 (Arizona State Law, 2011c; Arizona State Law, 2011e; Arizona State Law, 2011j). As a criminal offence, adultery is subject to any other liability associated with criminal offences, which is beyond the scope of this paper.
Like other states, Arizona has criminal attempt, solicitation and conspiracy laws, as well as the addition of laws covering criminal facilitation. Under solicitation and conspiracy, many different kinds of non-monogamous families, and their partners, could possess liability under these laws. Solicitation would cover direct requests between two parties, such as an outside partner asking for sex with someone with a legal marriage within the family (Arizona State Law, 2011g). Conspiracy is the more dangerous of the two, as conspiracy can cover many, if not all, of the individuals in the family and their outside partners. Activities such as scheduling time and planning trips among multiple partners, if there is sexual activity involved, falls under criminal conspiracy (Arizona State Law, 2011h). As a standard caveat not all individuals within the arrangement need to know of each other to be liable.
Additionally Arizona’s criminal facilitation law serves as a catch-all for who may not be covered under solicitation and/or conspiracy. Facilitation makes liable anyone who assists someone else in committing a criminal offence (Arizona State Law, 2011i), so this could actually extend to people outside of one’s relationship network, such as having a friend drive one to visit an outside partner. Solicitation, conspiracy and facilitation would all be considered a class 3 misdemeanor for adultery, so everyone involved suffers the same level of liability as the individuals directly liable under adultery (Arizona State Law, 2011g; Arizona State Law, 2011h; Arizona State Law, 2011i).
Arizona’s criminal attempt laws are fairly standard, in that it would make individuals in a non-monogamous family, and their partners, liable for even attempting to have a sexual relationship outside of any marriage(s) that exists in the family. The difference here is that attempt would have a reduced liability, as it is considered a petty offence for attempted adultery (Arizona State Law, 2011f). Petty offences do not have jail time, but can have up to a $300 fine liability (Arizona State Law, 2011c; Arizona State Law, 2011e).
Arizona law also possesses escalating punishment for repeat offences on misdemeanors. The escalation is limited to one level, so if there are repeated adultery charges brought up, then it could be treated as a class 2 misdemeanor, subject to up to four months of jail and/or a fine of up to $750 (Arizona State Law, 2011c; Arizona State Law, 2011e).
It is important to remember that an adultery charge cannot be brought up by an individual outside of an affected marriage. This seriously limits the direct liability under these laws, as only problems within the relationship can trigger adultery charges. Adultery is still considered criminal behavior and can be used in support of other legal cases however, such as child custody cases. The extra protection that Arizona law provides non-monogamous families still requires that the family have a clean record in other ways, and that the internal family relationship needs to be smooth, otherwise there is a great deal of liability to be had among all individuals involved, and possibly beyond.
Bigamy:
Arizona law is very straightforward in regards to bigamy: Anyone who marries a second spouse while the first is alive is guilty of bigamy, with the only exception being the 5-year abandonment rule (Arizona State Law, 2011k). There is no cohabitation clause in Arizona’s bigamy laws, thus freeing polyamorists and polyfidelitists from the largest potential liability, however the existence of the bigamy law does, as expected, block the expected workaround for the adultery laws.
Bigamy in Arizona is considered a class 5 felony, a mid-level criminal offence. Liability includes prison time between 273 days (3/4ths a year) and 2 years, and a fine up to $150,000. Arizona also has escalating punishments for repeat felony offences, as follows for bigamy: First repeat, 1.5 to 3 years of jail time. Second repeat, 4 to 6 years of jail time. Third repeat, 4 to 7.5 years of jail time (Arizona State Law, 2011a; Arizona State Law, 2011b; Arizona State Law, 2011l).
Cross-Relation between the Laws:
As expected, the combination of adultery and bigamy laws puts some measure of liability on all forms of non-monogamous family, by making multi-person marriages illegal (bigamy laws) and criminalizing sexual contact outside of that two-person union (adultery laws). The challenge comes in with the broad base of liability that the adultery laws can cause to a non-monogamous network. Because of the multitude of criminal support laws (attempt, solicitation, conspiracy, facilitation) there is a great deal of liability to spread around.
Because of the broad-base of people, polyamorists have the most liability under Arizona laws. Since polyamorists can have the most complex networks of individuals, and because there are many variations of criminal support laws, there is a great deal of liability to go around within a polyamorous network. Of course all other forms of non-monogamous relationship also have degrees of liability, however swingers, open relationships and polyfidelity are much less likely to have the complex networks that polyamory does.
Fortunately there are only a few people who can bring an adultery charge on any of these liable individuals: those in legal marriages in the family. This reduces the odds of adultery, or supportive adultery, being brought against any of the liable individuals, however Arizona law still considers it criminal behavior even if it isn’t charged on, so it can be used in other charges or situations, such as a child custody case.
Due to how simple and straight-forward Arizona’s bigamy laws are, the bigamy laws themselves are unlikely to have an effect, unless there is actual bigamous marriage(s) within the family.
Non-Monogamous Strategies:
Arizona’s simple bigamy laws, combined with the requirement that any charges of adultery must come from the affected party only, shift the primary focus of concern for non-monogamists away from the outside world and onto those within the relationship. A disgruntled spouse, or partner who has a spouse, possesses a great deal of inequitable power in the relationship, as any such participants in a non-monogamous arrangement could bring charges amongst almost the entire network. Though this is a problem with non-monogamy in other states, Arizona’s laws focus more attention onto this fact because outside adultery charges cannot be brought against the family, or associated partners. Non-monogamists would be well-advised to pick partners carefully, as anyone who’s involved in a legal marriage and a non-monogamous relationship has a great deal of power with everyone involved in the relationship in some way.
Additionally, because adultery is considered a criminal offence, regardless of whether or not it’s prosecutable, it can still be used to support other charges from outside agents, such as a disgruntled landlord or family member. IT’s important for non-monogamists to either keep their behavior extremely discrete and/or to make sure that they are not doing anything else that would draw a legal gaze on the family.
References
Arizona State Legislature. (2011a). First time felony offenders; sentencing; definition. (Arizona Code 13-702). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011b). Repetitive offenders; sentencing. (Arizona Code 13-703). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011c). Misdemeanors; sentencing. (Arizona Code 13-707). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011d). Fines for felonies. (Arizona Code 13-801). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011e). Fines for misdemeanors. (Arizona Code 13-802). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011f). Attempt; classification. (Arizona Code 13-1001). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011g). Solicitation; classification. (Arizona Code 13-1002). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011h). Conspiracy; classification. (Arizona Code 13-1003). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011i). Facilitation; classification. (Arizona Code 13-1004). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011j). Adultery; classification; punishment; limitation on prosecution. (Arizona Code 13-1408). Phoenix, AZ: Arizona State Legislature.
Arizona State Legislature. (2011k). Bigamy; classification; exception. (Arizona Code 13-3606). Phoenix, AZ: Arizona State Legislature.
Friday, September 23, 2011
Non-Monogamous Families and the Law, Part 1: Summary of Alabama Laws
Author's note:
This will be the inaugural post of my 52-part series on non-monogamy in relation to United States laws on adultery and bigamy. I am using my BA senior project work on the same topic (here) for the foundational work on which this assessment is made, specifically using the 4-category description of non-monogamous families (swingers, open relationships, polyamorous, polyfidelitous).
Each post will give a detailed overview of the adultery and bigamy laws in one of the states of the United States. These will largely be in draft form at this point, and I will be cleaning up each individual post as I go along, so please bear with me. I will be using each state's laws, directly, as my main references, with other references as applicable.
I will be doing this largely alphabetically, but may drift from that occasionally. The final post will be an overall summation of the results of the entire study. I am hoping to have two of these done per week at a minimum (with most of the work done on the weekends), with a completion date sometime in the Spring of 2012.
Ladies and gentlemen, kick back and enjoy the ride (-:
- Jason
P.S. if anyone knows the PROPER citation format for state laws, please do share, I'm just kinda winging it here.
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Non-Monogamous Families and the Law, Part 1: Summary of Alabama Laws
Adultery
Alabama law states that Adultery is engaging in “sexual intercourse with another person who is not his spouse” (Alabama State Legislature, 2011k) with the additional caveat that the offender must also live “in cohabitation with that other person when he or that other person is married.” (Alabama State Legislature, 2011k) This can be interpreted in two ways, as an ‘and’ or as an ‘or.’ As an ‘and’ Alabama’s adultery law will only affect non-monogamous families consisting of three or more people co-habiting, assuming there is at least one legal marriage involved in the family. As an ‘or’ this law is very broad and covers both the typical form of adultery (the first indicated) and any cohabitation with an outside partner, which affects 2-partner married non-monogamous families and any cohabiting partners. This also affects multi-partner non-monogamous families that contain at least one legal marriage.
There is an odd exception to Alabama’s adultery laws that disallows divorce on the grounds of adultery if the adultery was consensual, or as specifically worded, that the offence was consented to by the offended party (Alabama State Legislature, 2011l). This provides some level of legal protection for disputing non-monogamous families in that one spouse in a legal marriage isn’t allowed to use the violation of the adultery laws as grounds for a divorce, other grounds must be used.
Alabama considers adultery to be a “Class B misdemeanor,” (Alabama State Legislature, 2011k) which is a lesser form of criminal offence. Alabama does have criminal solicitation and conspiracy laws (Alabama State Legislature, 2011a; Alabama State Legislature, 2011c) that can make all parties liable to Alabama’s criminal laws that are involved in, or with, a non-monogamous family. Alabama’s criminal solicitation law specifically indicates that anyone who “solicits, requests, commands or importunes” (Alabama State Legislature, 2011a) another to commit a criminal act is liable under criminal solicitation. Under criminal conspiracy laws, all parties involved in/with a non-monogamous family could be liable. Additionally criminal conspiracy will cover all parties regardless if they are all known by each other (Alabama State Legislature, 2011c), which could affect larger non-monogamous networks and non-monogamous families that contain ‘don’t ask don’t tell’ agreements.
As an additional concern, Alabama law is written in such a way that it doesn’t matter whether or not the non-monogamous relationship is within the state, or national/international (Alabama State Legislature, 2011d). For example, Bob and Susan are living in Alabama in an open relationship; Susan visits Jeff who lives out of state. Susan and Jeff have a sexual relationship, and that’s explicitly a part of the trip. Bob knows and is supportive of this. Despite that the actual sexual act would be out of Alabama, Bob and Susan are liable under criminal conspiracy because they were in Alabama when the plans were made. Due to the communication-heavy nature of most non-monogamous lifestyles it is almost certain that at least one other person involved in/with a non-monogamous family would be liable under criminal solicitation, and highly likely that several people in/with a non-monogamous family are liable under criminal conspiracy. Alabama law would consider both of these offences to be a Class C misdemeanor (Alabama State Legislature, 2011a; Alabama State Legislature, 2011c).
There is also a criminal attempt law in Alabama that could affect a non-monogamous family even if there was no actual sexual contact involved outside of a legal marriage (Alabama State Legislature, 2011b). For example, say that a man in a newly opened relationship goes on a date with another partner. If there is an attempt at sex, but not a follow-through, that act is criminally liable for both him and his other partner. Alabama law would also classify this as a Class C misdemeanor (Alabama State Legislature, 2011b).
Alabama law allows for a prison sentence in a county jail for a Class B misdemeanor of up to 6 months and/or a fine up to $3,000, and a Class C misdemeanor of up to 3 months and/or a fine up to $500 (Alabama State Legislature, 2011f; Alabama State Legislature, 2011i).
Bigamy:
Alabama defines bigamy as “A person commits bigamy when he intentionally contracts or purports to contract a marriage with another person when he has a living spouse.” (Alabama State Legislature, 2011j) Unline the adultery laws, Alabama bigamy laws do not contain a cohabitation clause. Alabama bigamy laws do include a section on the appearance of a second marriage, however . This could impact non-monogamous families if there is a legal marriage existing in the family, and there is the appearance of a marriage between non-married members of the family (Alabama State Legislature, 2011j). This requires non-monogamous family members to be very careful in distinguishing who they are and aren’t legally married to, as an incorrect impression could make some of the family members liable under Alabama bigamy laws. For example, a polyamorous triad where two members are legally married, but all three have had a ceremonial marriage and present themselves as all being married would be liable under Alabama bigamy laws.
Alabama classifies bigamy as a Class C felony (Alabama State Legislature, 2011j), which is a mid-level criminal offence and punishable with a minimum jail time of 1 year and 1 day and a maximum of 10 years, and a fine up to $15,000 (Alabama State Legislature, 2011e; Alabama State Legislature, 2011h). Bigamy is subject to the same criminal solicitation, conspiracy and attempt laws that adultery is (Alabama State Legislature, 2011a; Alabama State Legislature, 2011b; Alabama State Legislature, 2011c), with the offence considered a Class A misdemeanor and subject to jail time of up to 1 year and/or a fine of up to $6,000 (Alabama State Legislature, 2011f; Alabama State Legislature, 2011i).
Alabama also has additional penalties for “repeat offenders,” which is when an offender repeats the same offence after a prior conviction, which can increase the penalties in the following ways: First repeat is considered a Class B felony punishable with 2 to 10 years of jail time and a fine up to $30,000. Second repeat is considered a Class A felony and is punishable with 10 to 99 years of jail time and a fine of up to $60,000. Third repeat is punishable with 15 to 99 years of jail time (Alabama State Legislature, 2011g). These would only apply in circumstances like the one previously mentioned where the family continues to maintain the appearance of a marriage.
Cross-Relation between the Laws:
Due to the confusing text of the adultery laws, this response will be based on the ‘or’ interpretation of the law, opening up possible liability to all participants in the relationship, whether in the family or just interacting with it.
The combination of bigamy and adultery laws create the expected catch-all for non-monogamous families, providing all four identified forms of non-monogamy (swingers, open relationships, polyamorists and polyfidelitists) some level of criminal liability due to their lifestyle. Swingers and open relationships are only liable under the adultery laws, however open relationships have an added level of liability that swingers would not possess. Because swingers are largely normative relationships outside of the non-monogamous swinging element there is little possibility for outside partners to be co-habiting with the partner they are in relationship with, thus exempting them from liability under adultery laws. Due to the more flexible nature of open relationships there is the possibility of the primary relationship co-habiting with one or some of the outside partners. In this event those outside partners would share in the liability under the adultery laws. Because of the existing bigamy laws, it is impossible to incorporate more than two people into a marriage, or to maintain more than one marriage which would provide a way around the adultery laws.
As expected, polyamorous and polyfidelitous families get the lion’s share of liability from this arrangement, with a few saving graces and pitfalls specific to Alabama. Due to Alabama’s bigamy laws not including a cohabitation clause, the bigamy laws just prevent one from possessing more than one legal marriage. However, because Alabama law does include the appearance of a marriage under bigamy, this does require polyamorous and polyfidelitous families to be very careful how they publicly present themselves. Like in the example cited previously, depending on how a polyamorous or polyfidelitous family presents themselves, all members of the family could potentially be liable under bigamy. Because bigamy is considered a felony in Alabama, there is a mandatory amount of prison time, as well as escalating punishment for repeat offences.
Because polyamorous and polyfidelitous families are very likely to have cohabiting arrangements they are both fully liable under the adultery laws, and because of the cohabitation clause in the adultery laws, anyone who is involved with and cohabits with one of the members in the legal marriage is liable as well.
An additional concern for all four forms of non-monogamous relationship is the criminal solicitation, conspiracy and attempt laws. Because of this it is possible for anyone who is involved with a non-monogamous family to be liable under these laws, regardless of their residence as long as the solicitation, conspiracy and/or attempt took place in Alabama.
As with all criminal laws, violation of them opens up the individual to all other liabilities related to criminal law, which is beyond the scope of this paper.
Non-Monogamous Strategies:
There is no possibility for a non-monogamous family to be exempt from liability under Alabama law. There are a few things that can be done to minimize the liability however. For polyamorous and polyfidelitous families, care must be heeded when presenting the relationship publicly. Public impression must be that the legal marriage arrangements are not bigamous, thus excluding liability under the harsher bigamy laws. Partners of those in polyamorous and open relationships should be wary of cohabiting, as if there is a legal marriage involved they are liable under the adultery laws. The lowest amount of liability exists with swingers and open relationships, provided that all activity related to the non-monogamous lifestyle is done out of state (including planning and coordination).
References
Alabama State Legislature. (2011a). Criminal solicitation. (Alabama Code 13A-4-1). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011b). Attempt. (Alabama Code 13A-4-2). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011c). Criminal conspiracy generally. (Alabama Code 13A-4-3). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011d). Conspiracy formed in this state to commit crime elsewhere indictable here. (Alabama Code 13A-4-4). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011e). Sentences of imprisonment for felonies. (Alabama Code 13A-5-6). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011f). Sentences of imprisonment for misdemeanors and violations. (Alabama Code 13A-5-7). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011g). Habitual felony offenders – Additional penalities. (Alabama Code 13A-5-9). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011h). Fines for felonies. (Alabama Code 13A-5-11). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011i). Fines for misdemeanors and violations. (Alabama Code 13A-5-12). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011j). Bigamy. (Alabama Code 13A-13-1). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011k). Adultery. (Alabama Code 13A-13-2). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011l). Divorce to be refused where collusion between parties, condonation, etc. (Alabama Code 30-2-3). Montgomery, AL: Alabama State Legislature.
This will be the inaugural post of my 52-part series on non-monogamy in relation to United States laws on adultery and bigamy. I am using my BA senior project work on the same topic (here) for the foundational work on which this assessment is made, specifically using the 4-category description of non-monogamous families (swingers, open relationships, polyamorous, polyfidelitous).
Each post will give a detailed overview of the adultery and bigamy laws in one of the states of the United States. These will largely be in draft form at this point, and I will be cleaning up each individual post as I go along, so please bear with me. I will be using each state's laws, directly, as my main references, with other references as applicable.
I will be doing this largely alphabetically, but may drift from that occasionally. The final post will be an overall summation of the results of the entire study. I am hoping to have two of these done per week at a minimum (with most of the work done on the weekends), with a completion date sometime in the Spring of 2012.
Ladies and gentlemen, kick back and enjoy the ride (-:
- Jason
P.S. if anyone knows the PROPER citation format for state laws, please do share, I'm just kinda winging it here.
-------------------------------------------------------
Non-Monogamous Families and the Law, Part 1: Summary of Alabama Laws
Adultery
Alabama law states that Adultery is engaging in “sexual intercourse with another person who is not his spouse” (Alabama State Legislature, 2011k) with the additional caveat that the offender must also live “in cohabitation with that other person when he or that other person is married.” (Alabama State Legislature, 2011k) This can be interpreted in two ways, as an ‘and’ or as an ‘or.’ As an ‘and’ Alabama’s adultery law will only affect non-monogamous families consisting of three or more people co-habiting, assuming there is at least one legal marriage involved in the family. As an ‘or’ this law is very broad and covers both the typical form of adultery (the first indicated) and any cohabitation with an outside partner, which affects 2-partner married non-monogamous families and any cohabiting partners. This also affects multi-partner non-monogamous families that contain at least one legal marriage.
There is an odd exception to Alabama’s adultery laws that disallows divorce on the grounds of adultery if the adultery was consensual, or as specifically worded, that the offence was consented to by the offended party (Alabama State Legislature, 2011l). This provides some level of legal protection for disputing non-monogamous families in that one spouse in a legal marriage isn’t allowed to use the violation of the adultery laws as grounds for a divorce, other grounds must be used.
Alabama considers adultery to be a “Class B misdemeanor,” (Alabama State Legislature, 2011k) which is a lesser form of criminal offence. Alabama does have criminal solicitation and conspiracy laws (Alabama State Legislature, 2011a; Alabama State Legislature, 2011c) that can make all parties liable to Alabama’s criminal laws that are involved in, or with, a non-monogamous family. Alabama’s criminal solicitation law specifically indicates that anyone who “solicits, requests, commands or importunes” (Alabama State Legislature, 2011a) another to commit a criminal act is liable under criminal solicitation. Under criminal conspiracy laws, all parties involved in/with a non-monogamous family could be liable. Additionally criminal conspiracy will cover all parties regardless if they are all known by each other (Alabama State Legislature, 2011c), which could affect larger non-monogamous networks and non-monogamous families that contain ‘don’t ask don’t tell’ agreements.
As an additional concern, Alabama law is written in such a way that it doesn’t matter whether or not the non-monogamous relationship is within the state, or national/international (Alabama State Legislature, 2011d). For example, Bob and Susan are living in Alabama in an open relationship; Susan visits Jeff who lives out of state. Susan and Jeff have a sexual relationship, and that’s explicitly a part of the trip. Bob knows and is supportive of this. Despite that the actual sexual act would be out of Alabama, Bob and Susan are liable under criminal conspiracy because they were in Alabama when the plans were made. Due to the communication-heavy nature of most non-monogamous lifestyles it is almost certain that at least one other person involved in/with a non-monogamous family would be liable under criminal solicitation, and highly likely that several people in/with a non-monogamous family are liable under criminal conspiracy. Alabama law would consider both of these offences to be a Class C misdemeanor (Alabama State Legislature, 2011a; Alabama State Legislature, 2011c).
There is also a criminal attempt law in Alabama that could affect a non-monogamous family even if there was no actual sexual contact involved outside of a legal marriage (Alabama State Legislature, 2011b). For example, say that a man in a newly opened relationship goes on a date with another partner. If there is an attempt at sex, but not a follow-through, that act is criminally liable for both him and his other partner. Alabama law would also classify this as a Class C misdemeanor (Alabama State Legislature, 2011b).
Alabama law allows for a prison sentence in a county jail for a Class B misdemeanor of up to 6 months and/or a fine up to $3,000, and a Class C misdemeanor of up to 3 months and/or a fine up to $500 (Alabama State Legislature, 2011f; Alabama State Legislature, 2011i).
Bigamy:
Alabama defines bigamy as “A person commits bigamy when he intentionally contracts or purports to contract a marriage with another person when he has a living spouse.” (Alabama State Legislature, 2011j) Unline the adultery laws, Alabama bigamy laws do not contain a cohabitation clause. Alabama bigamy laws do include a section on the appearance of a second marriage, however . This could impact non-monogamous families if there is a legal marriage existing in the family, and there is the appearance of a marriage between non-married members of the family (Alabama State Legislature, 2011j). This requires non-monogamous family members to be very careful in distinguishing who they are and aren’t legally married to, as an incorrect impression could make some of the family members liable under Alabama bigamy laws. For example, a polyamorous triad where two members are legally married, but all three have had a ceremonial marriage and present themselves as all being married would be liable under Alabama bigamy laws.
Alabama classifies bigamy as a Class C felony (Alabama State Legislature, 2011j), which is a mid-level criminal offence and punishable with a minimum jail time of 1 year and 1 day and a maximum of 10 years, and a fine up to $15,000 (Alabama State Legislature, 2011e; Alabama State Legislature, 2011h). Bigamy is subject to the same criminal solicitation, conspiracy and attempt laws that adultery is (Alabama State Legislature, 2011a; Alabama State Legislature, 2011b; Alabama State Legislature, 2011c), with the offence considered a Class A misdemeanor and subject to jail time of up to 1 year and/or a fine of up to $6,000 (Alabama State Legislature, 2011f; Alabama State Legislature, 2011i).
Alabama also has additional penalties for “repeat offenders,” which is when an offender repeats the same offence after a prior conviction, which can increase the penalties in the following ways: First repeat is considered a Class B felony punishable with 2 to 10 years of jail time and a fine up to $30,000. Second repeat is considered a Class A felony and is punishable with 10 to 99 years of jail time and a fine of up to $60,000. Third repeat is punishable with 15 to 99 years of jail time (Alabama State Legislature, 2011g). These would only apply in circumstances like the one previously mentioned where the family continues to maintain the appearance of a marriage.
Cross-Relation between the Laws:
Due to the confusing text of the adultery laws, this response will be based on the ‘or’ interpretation of the law, opening up possible liability to all participants in the relationship, whether in the family or just interacting with it.
The combination of bigamy and adultery laws create the expected catch-all for non-monogamous families, providing all four identified forms of non-monogamy (swingers, open relationships, polyamorists and polyfidelitists) some level of criminal liability due to their lifestyle. Swingers and open relationships are only liable under the adultery laws, however open relationships have an added level of liability that swingers would not possess. Because swingers are largely normative relationships outside of the non-monogamous swinging element there is little possibility for outside partners to be co-habiting with the partner they are in relationship with, thus exempting them from liability under adultery laws. Due to the more flexible nature of open relationships there is the possibility of the primary relationship co-habiting with one or some of the outside partners. In this event those outside partners would share in the liability under the adultery laws. Because of the existing bigamy laws, it is impossible to incorporate more than two people into a marriage, or to maintain more than one marriage which would provide a way around the adultery laws.
As expected, polyamorous and polyfidelitous families get the lion’s share of liability from this arrangement, with a few saving graces and pitfalls specific to Alabama. Due to Alabama’s bigamy laws not including a cohabitation clause, the bigamy laws just prevent one from possessing more than one legal marriage. However, because Alabama law does include the appearance of a marriage under bigamy, this does require polyamorous and polyfidelitous families to be very careful how they publicly present themselves. Like in the example cited previously, depending on how a polyamorous or polyfidelitous family presents themselves, all members of the family could potentially be liable under bigamy. Because bigamy is considered a felony in Alabama, there is a mandatory amount of prison time, as well as escalating punishment for repeat offences.
Because polyamorous and polyfidelitous families are very likely to have cohabiting arrangements they are both fully liable under the adultery laws, and because of the cohabitation clause in the adultery laws, anyone who is involved with and cohabits with one of the members in the legal marriage is liable as well.
An additional concern for all four forms of non-monogamous relationship is the criminal solicitation, conspiracy and attempt laws. Because of this it is possible for anyone who is involved with a non-monogamous family to be liable under these laws, regardless of their residence as long as the solicitation, conspiracy and/or attempt took place in Alabama.
As with all criminal laws, violation of them opens up the individual to all other liabilities related to criminal law, which is beyond the scope of this paper.
Non-Monogamous Strategies:
There is no possibility for a non-monogamous family to be exempt from liability under Alabama law. There are a few things that can be done to minimize the liability however. For polyamorous and polyfidelitous families, care must be heeded when presenting the relationship publicly. Public impression must be that the legal marriage arrangements are not bigamous, thus excluding liability under the harsher bigamy laws. Partners of those in polyamorous and open relationships should be wary of cohabiting, as if there is a legal marriage involved they are liable under the adultery laws. The lowest amount of liability exists with swingers and open relationships, provided that all activity related to the non-monogamous lifestyle is done out of state (including planning and coordination).
References
Alabama State Legislature. (2011a). Criminal solicitation. (Alabama Code 13A-4-1). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011b). Attempt. (Alabama Code 13A-4-2). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011c). Criminal conspiracy generally. (Alabama Code 13A-4-3). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011d). Conspiracy formed in this state to commit crime elsewhere indictable here. (Alabama Code 13A-4-4). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011e). Sentences of imprisonment for felonies. (Alabama Code 13A-5-6). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011f). Sentences of imprisonment for misdemeanors and violations. (Alabama Code 13A-5-7). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011g). Habitual felony offenders – Additional penalities. (Alabama Code 13A-5-9). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011h). Fines for felonies. (Alabama Code 13A-5-11). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011i). Fines for misdemeanors and violations. (Alabama Code 13A-5-12). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011j). Bigamy. (Alabama Code 13A-13-1). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011k). Adultery. (Alabama Code 13A-13-2). Montgomery, AL: Alabama State Legislature.
Alabama State Legislature. (2011l). Divorce to be refused where collusion between parties, condonation, etc. (Alabama Code 30-2-3). Montgomery, AL: Alabama State Legislature.
Sunday, September 18, 2011
Polyamory as a Social Paradigm
Exerpt from an academic correspondence:
I've been playing around with a concept of polyamory in regards to social paradigms.
I got triggered on this path after reading the latest Poly in the News (http://polyinthemedia.blogspot.com/2011/09/some-next-generation-voices.html), specifically the third excerpt, from Bitsy at Boston U:
"One of the things polyamory teaches you is to be comfortable with emotional pain, knowing you'll move through it, knowing you have a larger goal. Moving through emotional pain allows you to grow into a better person, to be more in touch with yourself, and better able to deal with life's curveballs. You learn to communicate clearly, directly, and proactively, a skill that's applicable not just to your personal life but to academic and professional pursuits."
This got me thinking about how polyamory and the dominant 'independent person' paradigm interact, and I realized that they don't do so very nicely. Everything I've read, and seen, about successful approaches to polyamory indicate that there is something of a self-yeilding that must occur for each individual for the betterment, growth and health of the relationship.This seems to be in complete contradiction to the self-efficacy that dominates modern society, where it's through one's individual capacity that we are able to grow and better ourselves, not through our yeilding to something larger than ourselves.
Actually now that I postulate this, polyamory (in this context) has some parallels with religion too.
So this got me thinking more, could polyamory be a symptom/cause of a paradigm shift away from self-efficacy as king, to community as king? Perhaps this is one of the core problems in many poly relationships I've seen today, as it addresses a common fear I hear through many people, the fear of loss of self, as if self-efficacy is tied inextricably to self-identity. Seriously though, the most common non-monogamous relationships are those that mirror a traditional monogamous one as much as possible (swinging, primary/secondary, etc). Is this connected with people clinging to a paradigm of self-efficacy as the dominant factor in their identity?
Consider too, how unhealthy it is to live with self-efficacy as such a core tenant of self-identity. If people value themselves only on how capable they think they are, unless capability is measured by how one is able to help others, it becomes easy to disconnect the individual's identity from others, and through that to create a form of external negligence, where he individual can dismiss and ignore the effects that their behaviors and actions have on others. In economic terms, this is called externalities. If my sense of self is tied to how capable I feel I am, then what does it matter how my actions affect you if they improve me? Very competitive, very masculine, very meritocratic.
Looking on the other side, a model that's more poly-friendly, where the self is defined in context of the community ('I'm a cog in the wheel'), then self-identity becomes inextricably tied to the effect that one has on others. If I define myself by how I affect you, then by helping you I improve my self-image. Now it's not to say that society doesn't have a form of this already, but it's a communalism that's ensnared within self-efficacy. I'll help you only so long as I benefit from it. I'm thinking the real deal is much more akin to what Bitsy's talking about, where it's more of a surrender of self to something greater, a 'larger goal.' I can see this reflected in one of the reasons that I often hear for why people are poly: 'I want that sense of community.' Ironically those are also some of the most self-efficacy focused individuals too, but that may be my own biases speaking there.
- Jason
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