Sunday, September 16, 2012

Legal Reboot 1: Alabama

Author's Note:

Welcome to the first proper reboot of Non-Monogamy and the Law! This is due thanks to the big help of the Modern Poly folks ( for pouring through case law and helping me find the relevant stuff! Thanks to them I feel a lot more comfortable with what I'm writing than I did with what I had before. There's still grey areas, but a lot less of them (-:

So, before I get into the actual review, a few clarifying points:

I'm still using the same definitions for Swingers, Open Relationships, Polyamory and Polyfidelity as I've been using. No changes there. If you're not familiar with them, I recommend reviewing my post on my assessment models, found here, with the details behind the family structures written about here.

I have made a few tweaks to the state categories, they are now as follows:


This is a labeling change so it makes a tad more sense to what I'm trying to point to with these categories. I may re-do them again in the future, but the basic idea is the same. Details about the old system are here, with the following changes:
(Category) Unfriendly is now Closed, Aggressive is now Unfriendly, Dyadic is now Aggressive
(Bigamy) Dyadic is now Aggressive.

Regarding inchoate offences. The laws on the various states are all over the place on this one, however the aggregate impact in almost all states is basically the same: the whole family shares (to at least some degree) the liability of the person being charged. I may write on these issues specifically at some point, but that's a project for another day. For the purpose of these reviews assume that the family shares liability.

In talking about liability, also find that I'm writing a lot less about punishment here. I'll list the basics, but if there's aggregating conditions I won't really go into those. Most of them are special condition so I won't go into them.

On updates: Yes I said I'd have something for you last weekend. I got the bigamy review done last weekend but didn't have time for the adultery and summary review. It looks like that'll have to be the rhythm I do this in, 1-3 weeks to complete a review (depending on the complexity of the case law).

Lastly, I'm using EndNote for citation now, expect it to be a bit sloppier, but it makes tracking this stuff and writing a lot easier. I'll work with the program to see if I can get it a bit clearer, but for the time being you'll see issues with statutes that have the same year.

Without further adieu, I present:

Non-Monogamy and the Law
Review of Alabama

Aggressive Bigamy
Adultery Present
No Fornication
State Category: Resistant

Issue and Rule:
This is an assessment of the legal liability that non-monogamous families encounter through Alabama’s bigamy law. The primary rule governing bigamy in Alabama is code 13A-13-1 (1977), with codes 13A-5-6 (1977) and 13A-5-11 (1977) governing punishment.

            Alabama’s bigamy does contain a purportation clause, though there are criteria for purportation to be applicable. This is done through Alabama recognizing marriage through common law under the following criteria: 1) both parties to the marriage identify each other as married, 2) both parties of the marriage intend for their marriage to be long-lasting, and 3) there is an indeterminate amount of cohabitation between both parties (1875). As long as these conditions are met, no official records are required to show a marriage exists (1857).

Additionally, it is allowable to infer from facts that there was a ceremonial marriage if there was otherwise no direct evidence as such (1927). This can also work the other way, allowing for divorce to be inferred from facts, however this is strongly discouraged (1927). Normally the burden of proof for divorce falls upon the defendant(s), and the state is not required to submit proof that there was no divorce (1927).

As is standard-fare of bigamy laws, marriages made out-of-state are treated with equal caliber as those from in-state, though for out-of-state marriages the rules in the certifying jurisdiction are used to establish marriage legitimacy (1941). Additionally, if a marriage is invalid at the time it is initially entered into, it becomes valid if the conditions prohibiting it are removed and the parties are still cohabiting and purporting marriage (1953).

Alabama does have an out-of-state statute of limitation on prosecuting Bigamy of three years from the time the relationship began. The family does need to be residing out of state for this to be applicable (1997).

Punishment for bigamy is as a class C felony (1977) and is liable for between 1 and 10 years of imprisonment (1977) and a fine up to $15,000 (1977).

As Alabama’s bigamy law effects only the actuality or appearance of marriage, liability is generally not extended to swingers and open relationships. Potential liability can exist for polyamorous and polyfidelitous families regardless of possessing a legal marriage, depending on how the family members refer to each other. Neutral terms such as ‘partner’ are unlikely to provoke liability, whereas ‘spouse’ and ‘husband & wife’ are much more likely to provoke liability. Additionally, because cohabitation is a condition for purportation, non-cohabiting may diminish or eliminate liability.

Issue and Rule:
This is an assessment of the legal liability that non-monogamous families encounter through Alabama’s adultery law. The primary rule governing adultery is Alabama code 13A-13-2 (1977), with codes 13A-5-7 (1977) and 13A-5-12 (1977) governing punishment.

            Prior to embarking on this analysis, it should be noted that case law regarding adultery is almost exclusively limited to civil issues around divorce, and as such the court is not jurisdictionally bound to the decisions of these cases in the event of a criminal proceeding. Because of the deficiency of criminal case law around adultery, however, it is likely that the civil case law would prove extremely persuasive should a criminal issue arise. As such, unless otherwise noted, civil adultery case law will be treated as if it had criminal jurisdictional applicability.

Despite that Alabama’s adultery statute includes a cohabitation clause, this is not interpreted as actual cohabitation with one’s paramour, but instead as having regular encounters with one’s paramour (1991).

Adultery may also be proven under circumstantial evidence, though this must go beyond just suspicion (1991) and/or testimony of the offended party (2006). Though this is perhaps the weakest point of case law, as this civil law criteria may not translate to criminal law, which requires evidence to be ‘beyond reasonable doubt’ instead of being the most likely possibility.

In non-adultery cases, however, Fifth Amendment protection can be legitimately used by both the person accused and their paramours (1982) to not testify on the relationship. Also, using Fifth Amendment protection in this fashion cannot be seen as evidence supporting or rejecting adultery (1992). Again, this is only applicable in cases where adultery is not the matter being tried on, such as a divorce case.

Additionally, Alabama statute 30-2-3 (1852) provides conditions where divorce is applicable to adultery, albeit this only removes adultery as a reason for divorce if there is a successful reconciliation between the adulterer and the offended spouse (1989). It is additionally unclear how applicable this would be for criminal cases (compared to civil case law), as this is a civil statute, unlike adultery which is a criminal statute.

Punishment for adultery is as a class B misdemeanor (1977) and is liable for up to 6 months imprisonment (1977) and a fine up to $3,000 (1977).

            Because Alabama’s adultery cohabitation goes beyond just cohabitation, it is effectively like other adultery laws, and as such all forms of non-monogamy that contain a marriage in them are covered by this law. As evidence for adultery can be circumstantial, liability decreases as exposure decreases.

Due to the allowance of circumstantial evidence, liability may be higher for swingers than for other family forms. Due to the stronger emotional connection with paramours in non-swinger families there is more likely a stronger understanding and mutual co-dependence of liability amongst partners, which decreases the likelihood of a paramour being used as a witness to adultery.

Alabama Summary:
            Due to the co-relational impacts that bigamy and adultery laws create, non-dyadic families suffer under both laws, as bigamy invalidates multi-partner marriage, and adultery makes one liable for partners beyond the state-legitimized marriage. Because of the additional scope of purportation in defining marriage for bigamy, this requires that non-dyadic families show caution around public exposure, as activities like ceremonies and referring to partners if they were married may legitimize a common law marriage. Due to the lack of fornication laws, if a non-dyadic family is careful about presentation & cohabitation, and does not contain a legal marriage, it is possible to have no liability in Alabama while still maintaining the family structure.

Unfortunately the expanded definition of marriage from bigamy may apply to dyadic families as well. If a couple is not legally married (to avoid liability), but cohabits and refers to each other as married, then they would likely be liable under adultery laws. Like with non-dyadic families, careful discretion on outward presentation can minimize liability. This interpretation is contingent on case law from bigamy cases being effectively used persuasively on adultery cases, which, considering the lack of cases applicable to non-monogamous families, is likely to apply.

Ranking Rationale:
            Though Alabama’s bigamy law doesn’t have a proper purportation clause, it is de facto considered to have one because of the expanded definition of marriage. As such Alabama is considered to have an aggressive bigamy law.

Despite the expanded definition of marriage, dyadic families are better able to dodge being identified as married than non-dyadic, so the impact of adultery does not mimic that of a proper fornication law, hence adultery is listed as present, and fornication as not present.

(1852). Divorce to be refused where collusion between parties, condonation, etc. 30-2-3. U.S.A.

(1857). Langtry v. State, Supreme Court of Alabama. 30: 536.

(1875). Williams v. State, Supreme Court of Alabama. 54: 131.

(1927). Fuquay v. State, Supreme Court of Alabama. 217: 4.

(1941). Brand et al. v. State, Court of Appeals of Alabama. 30: 322.

(1953). Hampton v. State, Court of Appeals of Alabama. 37: 427.

(1977). Adultery. 13A-13-2. U.S.A., Alabama Legislative Information System Online (ALISON).

(1977). Bigamy. 13A-13-1. U.S.A., Alabama Legislative Information System Online (ALISON).

(1977). Fines for felonies. 13A-5-11. U.S.A. - Alabama.

(1977). Fines for misdemeanors and violations. 13A-5-12. U.S.A.

(1977). Sentences of imprisonment for felonies. 12A-5-6. U.S.A. - Alabama.

(1977). Sentences of imprisonment for misdemeanors and violations. 13-A-5-7. U.S.A.

(1982). Elizabeth O'Neil Hinds v. Joseph Miller Hinds, Jr., Court of Civil Appeals of Alabama. 415: 1122.

(1989). Joseph Burfoot Rush v. Barbara Kent Rush, Court of Civil Appeals of Alabama. 551: 1075.

(1991). Charles Corley Rowe v. Betty H. Rowe, Court of Civil Appeals of Alabama. 575: 584.

(1992). Donald Glenn Langley v. Mitzi G. Langley, Court of Civil Appeals of Alabama. 617: 678.

(1997). State v. Thomas Glenn Fulghum, Court of Criminal Appeals of Alabama. 699: 980.

(2006). Thomas E. Webb v. Carolyn P. Webb, Court of Civil Appeals of Alabama. 950: 322.

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