Hey folks, yeah, loooooong time since I've used this blog. I've been more recently active on my other one though (here). Digging back into my non-monogamy scholarship was put on hold for grad school, and I've been slow to get back into it since graduating. I did have an interesting thought pop into my mind that I'm strongly compelled to write about however, so, something to help me ease back into these thoughts (-:
So, a little background first, I recommend viewing this video. As a numbers person I can appreciate the economics of her argument. There's some areas I would contest, but generally I agree with what's said.
Secondly, I'll be drawing specifically from polyamory (also referred to as poly), in the most general sense, as the root of the form of non-monogamy I'll be working with. The end result won't be polyamory proper, but pretty darn close to it, and lines up with many of the rights that poly people have been wanting. I'll be specifically focusing on polyamorous or polyfidelitous families where the members live under the same roof, though the argument works better for polyamorous families over polyfidelitous families, which I'll explain later.
Ok, now that that's out of the way, let me make my claim: Polyamory can resolve many of the problems that Straughan identifies. I emphasize 'can' in this, because there's ways it could fall apart, but I think polyamory has a better shot than the existing system, or rolling back to old-school gender roles. I'll get more on that later though.
Now to my arguments. Straughan states that part of the issue is the inefficient use of resources from split families. The efficiency of poly families is much higher than in monogamous ones. More people under the same house, less consumption-per-person needed because of the shared resources. Yes Straughan does examine the overall social benefits of split families, however I would posit that the increased per-person resource consumption ultimately overwhelms the broader social (and usually short-term) benefits of split families.
Straughan also states that part of the problem is in how the state's involvement not only dis-incentives men's labor, but increases the overall resource needs. This is still a potential risk among a poly family, however any member who wants to leave a poly family stands to loose a LOT more than someone who wants to leave a monogamous one. Because the consumption-per-person gets lower (at a reduced level the more people you add, granted) with more people involved, the potential loss of going from multi-partner to solo is, frankly, catastrophic.
Now this doesn't weed out people who are exploitative, or otherwise messed up, from 'gaming' the system, but there is a nice safety net for that too. One of the chief values among poly folks is open dialog and communication. Given that communities of poly people have rather complex networks of involvements, it becomes easy to identify people who game the system and exclude them. One person screws one poly family over, word spreads fast, and that person is quickly excluded from other families. This is one of the benefits of polyamory over polyfidelity, as polyfidelity's exclusive nature weakens the connection to the community network.
Let's talk children too: Again, per-person consumption is lower, so raising children is easier, and unlike in Mormon polygamous families, the adult:child ratio tends to be a lot more even in poly families, which gives even more resources available to children because of a higher ratio of producers (adults) to non-producers (children). Also, with the additional family members around, there's more sources of information, experience, and knowledge for those children to draw on.
Now, here's the big one: One huge advantage that a poly family has over a monogamous one is stability. This seems counter-intuitive, as the system supports shifts in family structure and social connections, however the family unit has redundancy. Since it's not dependent on the continued presence of only two people, the family unit itself can more readily shift and adjust to the incorporation or departure of any individual member. When you've got five people in a family, loosing one is not a big deal. When you've got two, loosing one is *big deal*.
Now, one thing I should make clear: Very little of what I've said mandates polyamory as 'the' structure for these benefits. Similar results can be achieved with various forms of communal living, and/or extended family households. Polymaory does, however, have the advantage of forming stronger intimate connections, thus encouraging the above behaviors more than other structures.
And sure, there are some good counter-arguments out there, most of which are to do with how non-monogamy interfaces with the current legal structure, and some of the cultural norms. I talk about the legal stuff rather extensively in previous posts. The cultural norms bit? That's trickier, and I'm open to thoughts there.
Anyway, my 2c. Feedback welcome (-:
- Jason
Tuesday, September 30, 2014
Friday, January 4, 2013
Legal Reboot 5: Arkansas
Hey everyone, yes really late in getting this out. Amazing how grad school can get in the way of stuff like this. Thankfully I've got a little time until things start up again so I'm hoping to get a few of these out before then. We'll see though.
- Jason
---------------------------
Non-Monogamy and
the Law
Review of
Arkansas
|
Simple Bigamy
|
No Adultery
|
No Fornication
|
|
State
Category: Friendly
|
||
Bigamy Issue and
Rule:
This is an assessment of the legal
liability that non-monogamous families encounter through Arkansas’ bigamy law.
The primary rule governing bigamy in Arkansas is code 5-26-2011, with codes
5-4-2012 and 5-4-4015 governing
punishment.
Analysis:
Arkansas bigamy law does not contain
a purportation or cohabitation clause, and as such is only applicable to actual
bigamous marriages, not the appearance of such. In proving the existence of a
marriage, official documentation is not required. Testimony of witnesses to the
marriage are allowed3,
4.
Punishment for bigamy is as a class
A misdemeanor1, and is liable for
up to one year imprisonment5, and a fine up to
$2,5002.
Arkansas Summary:
As Alabama has no adultery or
fornication law, and since bigamy has no purportation or cohabitation clause,
the only concern for non-monogamous families is in the form of an actual bigamous
marriage. As such all forms of non-monogamy are free from liability under these
laws provided there isn’t a bigamous marriage.
Ranking
Rational:
The absence of adultery and
fornication laws makes those two easy to rank. For Bigamy, though official
documentation of marriage isn’t necessary to establish a marriage, a marriage must
have been taken place. Because of this bigamy still gets the ‘simple’ ranking.
Sunday, November 11, 2012
Legal Reboot 4: Arizona
Non-Monogamy and
the Law
Review of Arizona
|
Simple Bigamy
|
No Adultery
|
No Fornication
|
|
State
Category: Friendly
|
||
Bigamy:
Issue
and Rule:
This is an assessment of the legal
liability that non-monogamous families encounter through Arizona’s bigamy law. The
primary rule governing bigamy in Arizona is statute 13-3606 3 governing the
individual with multiple marriages, and 13-36078 governing the
individual whom marries someone who’s already married. Punishments are governed
by rules 13-7026 (imprisonment) and
13-8014 (fines).
Analysis:
Arizona’s bigamy law is very
explicit about only impacting those who have an actual marriage, there is no
purportation or cohabitation clause in Arizona’s bigamy law3,
8. Arizona case law also provides
some clarity to what they define as a marriage, indicating that a signed
document is required for a marriage to be official, though submitting that
document to the state isn’t a requirement10.
Though the state cannot act directly
on non-monogamous families, due to these provisions, if the individual has a
state position with authority regarding the law that agency can dismiss said
individual for non-monogamous behavior2.
In the event that a bigamous
marriage actually exists and is prosecuted on, punishment can range from ½ a
year to a year and a half of imprisonment6, as well as a fine
of up to $150,0004.
Assessment:
Because of the strict interpretation
of a marriage, liability for non-monogamous families under bigamy is minimal,
with only an actual second marriage creating liability. Provided that a second
actual marriage can be avoided, direct impact is nonexistent. Unfortunately
this doesn’t extend to jobs which require a non-monogamist to uphold the law,
as the appearance of non-monogamy can endanger one’s job.
Adultery:
Issue
and Rule:
This is an assessment of the legal
liability that non-monogamous families encounter through Arizona’s adultery
law. The primary rule governing adultery in Arizona is statute 13-14081, with 13-7079 (imprisonment) and
13-8025 (fines) governing
punishment.
Analysis:
Adultery in Arizona is hampered by
the state being unable to directly prosecute; an adultery case can only be
brought at the behest of the offended spouse1. Beyond this, only
the act of having sex with someone who’s not one’s spouse is required to meet
liability under adultery1, it is not
required to have a regular recurring sexual relationship.
Despite the social stigma around
adultery, it cannot, in its own right, be used as evidence of unfit parenthood
in child custody cases. It must be demonstrated that the adultery actually had
a harmful impact on the children7.
Assessment:
Though adultery could impact all
non-monogamous families, because the state can’t directly prosecute severely
limits the potential impact of Arizona’s adultery law. This is especially true
given how adultery in itself isn’t sufficient evidence of misconduct. Unfortunately
the presence of the law in this format shifts the focus away from the state and
on to the members of the non-monogamous family by giving a spouse authority to
initiate a prosecution through the state. This can strain these families, even
without the direct threat from the state as an outside entity.
Arizona Summary:
The specificity of Arizona’s bigamy
law, and offended spouse requirement of its adultery law create a fairly low direct
liability environment for non-monogamists of all varieties. Unfortunately,
because of how these laws feed into other situations, such as some state jobs
and the pressures that the spouse requirement create, there are strong
secondary impacts from Arizona’s laws that can create undue stressors on a
non-monogamous family.
There also does seem to be an
inherent conflict between Arizona case law on bigamy, allowing for a state
agency to dismiss certain employees based not on them actually violating their
bigamy law, but the appearance of such, and Arizona’s adultery law which
dismisses adultery as harmful without having evidence as such. The core
question at stake here is can these behaviors be used to qualify other, potentially
discriminatory, actions? Arizona seems to say that in the case of long-standing
non-monogamous sexual relationships as a lifestyle, yes, and in the case of
more casual sexual relationships, no. This is an exaggeration, but is also a
logical extension of potential arguments based on what law does exist in
Arizona on these issues.
Ranking
Rationale:
Arizona’s bigamy law is very
straightforward. In only being applicable to certified marriages that have been
signed to places it comfortably within the simple category. Adultery is more
nuanced however, since the law does exist, but is hampered by the offending
spouse requirement. Because Arizona’s adultery law impacts the internal
relationship dynamic more than the state’s ability to externally implement it,
Arizona is considered to have no adultery law.
Wednesday, October 31, 2012
Monday, October 15, 2012
Legal Reboot 3: District of Columbia
Author's Note:
Yes, this was a short one, yes I should have done it last week. Life, as they say...
Regardless, it was really nice to read through DC's laws on this. Refreshing change from Alabama and Colorado!
- Jason
------------------
Non-Monogamy and the Law
Review of District of Columbia
Simple Bigamy
|
No Adultery
|
No Fornication
|
State
Category: Friendly
|
||
Bigamy:
Issue and Rule:
This is an assessment of the legal liability that non-monogamous families encounter through District of Columbia’s (DC) bigamy law. The primary rule governing bigamy in DC is statute 22-501[1], which also covers punishment.
Analysis:
Bigamy is rather narrowly defined in DC, with only marriage, or domestic partnership (an interesting inclusion), applying to the bigamy law, without any explicit cohabitation clause[1]. Based on both case law around the definition of a marriage[3] and statute on the definition of a domestic partnership[2], the question around the validity of these is judged more on their officiality, and not on the individuals acting in a marriage-like way.
Additionally, in bigamy cases, fifth amendment protections apply, and cannot be used as evidence of guilt[3].
The punishment for bigamy is imprisonment for 2 to 7 years[1].
Assessment:
As DC’s bigamy law is very specific that only an officially certified marriage can apply, this leaves room for much more flexibility in how a non-monogamous family structures and interacts. Liability is exceptionally limited, and only applicable in the existence of more than one state-certified marriage.
District of Columbia Summary:
Thanks to DC’s specificity on what defines a marriage, and it being quite narrow, and with the absence of adultery or fornication laws, DC presents almost no liability for non-monogamous families of any configuration. The only concern is in not having two state-certified marriages, which can carry a very hefty penalty. This also applies to domestic partnerships, which is an unusually modern inclusion into the law, but is narrowly defined enough that the law applies in the same way as it would to marriage.
Ranking Rationale:
The simple absence of adultery and fornication laws make ranking in those regards very simple. For bigamy, due to the narrow and specific nature of how marriage and domestic partnerships are looked at, and the lack of a purportation/cohabitation clause, DC fits into the simple bigamy category.
1 'Bigamy', in 22-501 (USA - District of Columbia: 2012).
2 'Definitions', in 32-701 (USA - District of Columbia: 2012).
3 'Mayo V. Ford', (Municipal Court of Appeals for the District of Columbia, 1962), p. 38.
Sunday, September 30, 2012
Legal Reboot 2: Colorado
Author's Note:
Yes, out of alphabetical sequence, doing them as I get them (-:
Getting more familiar with EndNote, I like this citation format a lot better! (MHRA)
Colorado's case law on adultery and bigamy is scary short, especially considering the lack of actually listing a punishment for it's adultery law!
Regardless, here it is!
- Jason
-----------------
Non-Monogamy and the Law
Review of Colorado
Aggressive Bigamy
|
Adultery
Present
|
No Fornication
|
State
Category: Resistant
|
||
Bigamy:
Issue and Rule:
This is an assessment of the legal liability that non-monogamous families encounter through Colorado’s bigamy law. The primary rules governing bigamy in Colorado are statutes 18-6-201[2], 18-6-202[6] and 18-6-203[4]. Punishment is governed by statute 18-1.3-401[5].
Analysis:
Colorado bigamy contains a cohabitation clause[2], creating liability if a married individual is cohabiting with another. Because of this, bigamy can bypass common law marriage’s requirement that the couple actually put themselves out as married[3] and can charge on cohabitation directly. There are limits on such a charge, as the couple must act as if they were married[4, 7], but this is vague and undefined within the law, though regular visitations to one’s partner can qualify, but the exact threshold is undefined[7]. This is also applicable regardless of how long the individuals have been cohabiting together[7].
Despite the traditional restriction on one’s spouse testifying against their partner without consent, in Colorado, bigamy is considered an exception to this rule[8], and a married partner may testify against their spouse in such cases.
Punishment for bigamy is as a class 6 felony[2] and is punishable by a fine from $1,000 to $100,000[5].
Assessment:
Colorado’s bigamy law is unusually broad in its application of cohabitation, including marriage-like cohabiting that can occur outside of one’s residence. Because of this, bigamy in Colorado can apply to swingers and open relationships, and will be assessed as such. The cohabitation clause makes things very tricky for non-dyadic families as well (polyamorous and polyfidelitous), as even having separate residences wouldn't be enough to protect against the cohabitation clause.
Adultery:
Issue and Rule:
This is an assessment of the legal liability that non-monogamous families encounter through Colorado’s adultery law. The primary rule governing adultery in Colorado is statute 18-6-501[1].
Analysis:
It should be first noted that adultery has no listed punishment for it in Colorado law, despite existing under the criminal code[1]. It is uncertain what exact liabilities are encountered by non-monogamists from this law. It is clear that adultery is broader than the cohabitation clause for bigamy, requiring only that the couple have any sexual intercourse contact[1] compared to acting as if they were married[7].
Assessment:
Because of the lack of punishment listed for adultery, this makes it challenging to determine liability. Is punishment determined by the jury, the judge? Is there no punishment? Because of how broad adultery is defined, all non-monogamists would be liable under this law, however it is unclear what the exact nature of that liability is.
Colorado Summary:
Prior to starting the summary, it should be noted that there is a large deficiency of case law supporting Colorado’s adultery and bigamy laws. In reading what case law there is, much opinion was drawn, persuasively, from courts outside of Colorado, and from cases which aren't directly applicable (though still closely related) to their respective laws. This, combined with the lack of punishment information for adultery, makes a complete assessment effectively impossible.
Despite this, some things can be said concretely: Because of the broad definition of cohabitation, most non-monogamous families will be impacted by Colorado’s bigamy law. This may affect swingers to a lesser degree, as the lack of emotional non-monogamy would likely mean that swingers wouldn't be engaging in ‘marriage-like’ activities with their external partners. If the swinger couple regularly sees the same people, however, this may put them at risk for liability under bigamy.
For non-swinger families, the liability is particularly strong, especially in the case of polyamorous and polyfidelitous families as the multi-partner cohabiting will almost certainly qualify as marriage-like behavior.
Non-married families have an easier time, however caution must be used as common law marriage is applicable if the family is putting themselves out in any way as being married. If an unmarried family is recognized to have a common law marriage, all of the above liabilities apply to them.
Ranking Rationale:
Despite Colorado’s adultery law having no indicated punishment, it is listed as being fully present due to the broad definition of cohabitation for bigamy. Because of this expanded definition, bigamy is listed as being aggressive.
As there is no fornication law, and unmarried families would need to actually put themselves out as married, fornication is not considered to be present.
1 'Adultery', in 18-6-501 (USA - Colorado: 2012).
2 'Bigamy', in 18-6-201 (USA - Colorado: 2012).
3 'Davis V. The People', (Supreme Court of Colorado, 1928), p. 295.
4 'Definitions', in 18-6-203 (USA - Colorado: 2012).
5 'Felonies Classified - Presumptive Penalties', in 18-1.3-401 (USA - Colodaro: 2012).
6 'Marrying a Bigamist', in 18-6-202 (USA - Colorado: 2012).
7 'The People V. Bright', (Supreme Court of Colorado, 1925), p. 563.
8 'Schell V. The People', (Supreme Court of Colorado, 1918), p. 116.
Sunday, September 16, 2012
Legal Reboot 1: Alabama
Author's Note:
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:
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).
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).
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.
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.
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.
(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.
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 (http://modernpoly.com/) 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:
Category
|
Fornication
|
Adultery
|
Bigamy
|
Friendly
|
None
|
None
|
Simple
|
Closed
|
None
|
Present
|
Simple
|
Unfriendly
|
Present
|
Present
|
Simple
|
Aggressive
|
None
|
None
|
Aggressive
|
Resistant
|
None
|
Present
|
Aggressive
|
Hostile
|
Present
|
Present
|
Aggressive
|
(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).
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
|
||
Bigamy:
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.
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.
Analysis:
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).
Assessment:
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.
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.
Adultery:
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.
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.
Analysis:
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).
Assessment:
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.
References
(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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