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.

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