Sex Offenses: Consensual

Bigamy was another crime originally punished by ecclesiastical authorities. At the beginning of the seventeenth century, it became a part of the secular law in England, and has been a part of the criminal law of every state. It is generally the crime of having more than one spouse simultaneously. The second or both marriages become void, but in addition, the offense is punishable as a crime, ordinarily as a felony. There are two unusual elements to the crime. First, at common law, a spouse absent on the high seas for seven years could be presumed dead, and a remarriage at that point could not be bigamous even if the first spouse later returned from sea. Some states have a similar statutory provision, usually permitting a presumption of death after a five-year unexplained absence. Second, bigamy at common law was a strict liability crime. This means that a person with a perfectly reasonable belief either that a first spouse was dead or that a divorce from a first spouse was valid, could still be convicted of bigamy if that good-faith belief was in fact in error. However, states in the second half of the twentieth century have generally added a defense of reasonable mistake with respect to those two facts. The Model Penal Code recommends allowing that defense, arguing that there was no apparent reason for the common law strict liability tradition.

To understand bigamy prosecutions better, it may help to understand the reasons a person may commit bigamy. It may be as a matter of right or principle, as where a person's religion or culture practices open bigamy. While bigamy (or any other form of polygamy) is prohibited in most of the Judeo-Christian tradition, in the Islamic faith, which accounts for a substantial portion of the world's population, there is no traditional prohibition on polygamy. Bigamy is part of the criminal law of the United States apparently because it is an offense to Judeo-Christian faiths. The argument that codifying this perspective constitutes impermissible religious bias has been rejected twice by the U.S. Supreme Court (Reynolds v. United States, Cleveland v. United States). The Court considered the issue as early as 1878 in light of a now defunct Mormon practice of polygamy. That Mormon practice has been the cause for the only sustained controversy over polygamy in U.S. history. The federal government effectively conditioned Utah's entry into the union on Mormon retreat from the practice, in light of substantial public fervor against the Mormon marriage practices. The Model Penal Code actually proposes that states consider ordinary bigamy a misdemeanor, but a felony if it is done "in purported exercise of the right of plural marriage," pointedly singling out those few remaining Mormons who believe in polygamy, as well as those from other cultures who accept polygamy. Those from cultures accepting polygamy would receive more severe treatment than one who simply commits a fraud on a spouse who is unaware of a prior marriage. No state actually adopted the misdemeanor/felony distinction proposed in the Model Penal Code, but the proposal indicates one of the factors animating the criminal law in this area. The harm, then, is presumably moral offense to nonparties.

A person might instead practice bigamy because that person wishes to commit a fraud on one or both spouses, by disappearing from a spouse's life with joint assets, and later contracting a new marriage without either spouse knowing of the other's existence. There are even occasional cases of spouses conducting both marriages simultaneously and secretly, each family believing that the bigamist's job requires frequent travel away from home. In these cases there are real financial and emotional victims in the person of the unknowing spouse, and bigamy prosecutions have been used to protect these individuals from confidence men. Or a person may commit bigamy because a first marriage is over and a second is desired, but the first marriage is difficult to dissolve legally for some reason. This final reason accounted for many cases of bigamy before the availability of no-fault divorce. Bigamy, then, was simply serial marriage relationships parallel to divorce and remarriage. Now that divorce can be easily obtained in almost every state, this bigamous practice is less prevalent.